Welcome to the Internet version of the Adjudicator's Field Manual (iAFM). This manual is a comprehensive “how to” manual detailing policies and procedures for all aspects of the Adjudications Program. The iAFM is intended to be used in conjunction with other reference material, such as the Immigration and Nationality Act and Title 8 of the Code of Federal Regulations. These other volumes contain unique information and the iAFM is not intended to duplicate or replace them.

The iAFM, as well as the other volumes mentioned above, are included in the USCIS website and i-Link. They are electronically connected through so that you can conveniently flip from one to the other (referred to as “hypertext” links) without having to close one book and open the next. Searching for particular topics among several books is also convenient using i-Link.

The iAFM will provide ready access to procedural and policy materials relating to every aspect of the Adjudications Program. In addition, the iAFM will incorporate all currently valid policy wires and memoranda. The iAFM is an ever-evolving document which will be updated on a regular basis, incorporating new policies or procedures which may have been implemented by USCIS.

The introductory portion of the iAFM (chapters 1 through 9) provides an overview of the Manual and deals with issues of general interest. Part I of the iAFM (chapters 10 through 19) is reserved for generic adjudications issues and deals with the techniques and procedures needed by an effective adjudicator. Parts II through VII of the iAFM (chapters 20 through 79) are reserved for guidance on the adjudication of various applications and petitions filed for immigration and naturalization benefits and deal with specific applications, discussing general matters, basic requirements, issues and actions relating to those applications. Part VIII of the iAFM (chapters 80 and above) is reserved for issues relating to statistical reports and administration of the Adjudications program. Where appropriate, a chapter also discusses any relevant special considerations and unique situations. Hyperlinked appendices to chapters provide supplementary detailed information such as standard operating procedures.

USCIS organization has undergone internal restructuring in several phases and continues to evolve. As a result, some of the terminology by which various components are known has changed. The current organization outlined in 8 CFR100 bears little resemblance to the actual structure now in place. There are differing views on which organizational structure can most effectively achieve the dual and sometimes conflicting goals of proper enforcement of the Act and administration of the benefits provided by the Act. Because of this fluid organizational structure there are a variety of names for organizational components. For the sake of clarity within this manual, the following definitions apply:

• The term “Adjudications” refers to the activity responsible for the administration of all applications and petitions.

In the field, “Adjudications” is the program which is responsible for the administration of naturalization and citizenship as well as all other immigration benefit applications and generally encompasses the information functions (administered by immigration information officers, formerly titled Contact Representatives). At the Headquarters level, “Adjudications” refers to the organization within the Office of Programs (currently operating as a component of the Office of Policy and Planning) which is responsible for policy development (but not execution) involving applications for benefits under the Act, except those relating to naturalization and citizenship. Headquarters Office of Program and Regulatory Development is also responsible for policy matters relating to the immigration information officer function. The functions of the Headquarters component are described below, in section 3.5(a).

• The term “Immigration Services” is, at the field office level, used interchangeably with “Adjudications” and

in some offices “Benefits.” At the Headquarters level, however, the “Immigration Services Division” is an entirely separate component from Adjudications, reporting to the Office of Field Operations. The functions of the Headquarters component are described below, in chapter 3.5(b).

• The term “Examinations” refers to the activities of the Office of Examinations. However, that office currently

exists only on paper (see 8 CFR100). Formerly, the Office of Examinations was responsible, at INS Headquarters, for supervision of the Inspections Program, the Adjudications Program, the Office of Administrative Appeals, the Office of Service Center Operations and the Office of Records. The remaining components of the Office of Examinations have been split as described above. In field offices the term ““““““Examinations” may be used interchangeably with Adjudications or it may be used to refer collectively to Adjudications and Inspections.

(a) Vision Statement.

USCIS' customers will receive timely and accurate information and benefit application adjudications through our commitment to excellence, courtesy, process improvement, and employee development.

(b) Mission Statement.

To provide accurate and timely information and adjudication of immigration benefit applications to our customers in a professional and courteous manner.

To accomplish this mission, the Immigration Services Division will:

• Develop and provide information to our customers in the most efficient and effective manner, through phone

centers, Internet, and community outreach programs.

• Analyze and oversee production management at the application support centers, service centers, and field offices

to ensure the effectiveness and efficiency of operation.

• Oversee implementation of re-engineered processes and procedures, and contract activities and management.

• Supervise the development, deployment, and maintenance of USCIS' immigration services casework systems.

• Ensure that employees have the necessary tools to attain excellence in immigration services.

• Develop a systematic approach to standard operating procedures that includes development, ownership, and

mandatory system updates.

• Articulate performance and conduct expectations for all levels of the organization.

• Demonstrate integrity through a commitment to excellence in all work products.

• Ensure accountability exists at all levels of the organization.

The chain of command for Adjudications personnel in field offices runs through the supervisory chain within the district, through the regional director to the executive associate commissioner for field operations in Headquarters. Within Headquarters, the Immigration Services Division, under the deputy executive associate commissioner for immigration services, is responsible for managing all immigration benefits-related activities. A detailed description of the Immigration Services Division is included in chapter 3.6(b).

(a) Office of Program and Regulations Development (formerly the Office of Adjudications). (Revised

03-13-2005)

The Office of Program and Regulations Development (OPRD):

• Maintains the integrity and quality of the immigration process by providing policy direction to assure that the

right applicant receives the right benefit in the right amount of time.

• Provides program guidance and policy development that supports national security and professional and

customer-oriented adjudication of immigration benefits.

• Prepares regulations and policy directives to ensure that USCIS employees have the necessary adjudication tools

to ensure the right applicant receives the right benefit.

• Presents applicants with clear, accurate and understandable application information.

• Enhances standardized, timely and accurate adjudications through clear policy directives, specialized training

and development of easily understood forms.

• Defines, plans and manages program and policy development to improve processing and strengthen the integrity

of the adjudicative process.

• Confers with internal and external stakeholders for feedback to promote process improvements

(b) Immigration Services Division.

Organizationally, the Immigration Services Division (ISD) is a component of the Office of Field Operations. ISD is responsible for planning, developing, coordinating, and assessing immigration services operational activities USCIS – wide. ISD consists of the following branches:

• Information and Customer Service Branch

• Business Process and Re-engineering Branch

• Service Center Operations Branch

• Field Services Operations Branch

• Backlog Reduction Branch

• Benefits Systems Branch, and

• Administrative Services Staff.

(1) Information and Customer Service Branch.

The Information and Customer Service Branch coordinates and manages the operations of the USCIS Telephone Centers, and plans, develops, and coordinates information and customer service functions throughout ISD. The branch also serves as the customer service advocate within the Immigration Services Division. The branch consists of the Telephone Centers Unit and the Field Customer Service Operations Unit.

(A) Telephone Centers Unit.

The Telephone Centers Unit establishes and implements standard operating procedures for managing the day-to- day operations of the Telephone Centers. It plans, monitors, and manages long-term telephone-related customer service delivery for immigration services. It coordinates USCIS' and other Federal agencies' efforts to set priorities for customer service projects and programs. The unit proposes administrative policy and procedures for and monitors efficiency and compliance of USCIS telephone information and customer service functions. It regularly monitors and evaluates resources to ensure maximum effectiveness and economy of operations. The unit furnishes guidance and instructions and resolves unusually complex, novel and high visibility issues involving the telephone centers.

(B) Field Customer Service Operations Unit.

The Field Customer Service Operations Unit provides outreach services, through communication and training, to the field to assure the quality and accuracy of information provided to customers. It provides guidance to the correspondence unit on public contact, and plans and reviews the information and customer service provided to the public. It develops brochures, pamphlets, and forms for distribution to the public regarding customer services. To improve public relations and outreach efforts the unit conducts customer surveys, then analyzes the results to enhance communication with employees and the public, and to avoid potential customer service problems. The unit provides ombudsman services to improve the quality of customer service.

(2) Business Process and Re-engineering Branch.

The Business Process and Reengineering Branch (BPR) is responsible for USCIS -wide improvement and growth of services-related business practices and processes. The branch handles regulatory issues for the Immigration Services Division, as well as long and short-term national operational business process and reengineering initiatives. To accomplish this it conducts program studies and projects. It also formulates implementation policy and long range plans to reduce operating costs and assure effectiveness. The branch restructures and reorients immediate and long-range goals to meet changes in legislation.

BPR, which is responsible for developing and reengineering the Naturalization Quality Procedures, also conducts studies regarding naturalization processes and policy. Its members serve as interagency liaison for immigration services policy and initiatives.

(3) Service Center Operations Branch.

The Service Center Operations Branch coordinates and manages the operations of the USCIS Service Centers, Integrated Card Production System, and Direct Mail Program. The branch manages and coordinates the operations of the four service centers, formulates and develops policies and procedures governing their production and management and monitors the implementation of organizational structures, management methods and contract management of the service centers.

The branch furnishes guidance and instructions involving interpretation of policy, procedures, and laws as well as workload measurements and quality assurance.

The branch formulates and develops policies and procedures governing the execution of the Immigration Card Production Systems (ICPS) and monitors ICPS resources to ensure effectiveness and economy of operations.

In addition, the branch directs the development, implementation, and maintenance of the Direct Mail Program within each of the Service Centers, for effective control and evaluation of operations.

To enhance automated processing, the branch provides liaison between Office of Information Services systems developers and service centers and recommends changes to policies and procedures involving automated systems.

(4) Field Services Operations Branch.

Through direct communication with the Regions and field, Field Services Operations Branch coordinates, directs, implements, oversees, and evaluates all field office in their administration of immigration laws, regulations, policies, procedures and projects associated with immigration services. The branch consists of the Field Coordination Unit, the Application Support Centers Unit and the Program Analysis Unit.

(A) (Reserved)

(B) Application Support Centers Unit.

The Application Support Centers Unit is responsible for administering and overseeing the application support centers USCIS -wide; managing the fingerprint and background check operation, including facilities acquisition and management; technology systems development and maintenance; and personnel management for contract field support staff. It ensures that contract employees focus on providing courteous service during the collection of fingerprints, signatures and photographs, and measures effectiveness through surveys and management reports. The unit works to develop systems supporting ASC operations, and ensures full compliance with acquisition and other regulatory requirements. To make best use of available resources, the unit develops fingerprint appointment schedules for benefit applicants. The unit plans, implements, and oversees the electronic capture, transmission, storage and retrieval of all sensitive information relating to the fingerprint process. The ASC unit is also responsible for developing, overseeing and managing the Designated Law Enforcement Agency and Mobile Unit Programs to provide fingerprint, photograph, signature and other identification-related services to applicants residing in remote areas of the country.

(C) Program Analysis Unit.

The Program Analysis Unit implements, directs, and oversees the Quality Assurance Program for ISD. It develops, implements, and maintains Standard Operating Procedures and other policy and process guidelines related to the benefits Quality Assurance Program, which is an integral part of quality improvement.

By conducting reviews on a regular basis it ensures consistency USCIS -wide for every adjudication and support process. When the unit identifies areas that are non- compliant it follows-up to correct and improve processing.

The unit helps prepare the field for audits, and works closely with the Office of Internal Audit to review findings and trends to ensure procedures are consistent with legislative policies.

(5) Backlog Reduction Branch.

The Backlog Reduction Branch initiates projects and carries out duties that manage and reduce backlogs in processing applications and petitions for immigration and naturalization benefits.

The unit provides strategic planning, coordination, liaison, oversight, and workload and program analysis to assist the field in reducing processing backlogs. It also develops and monitors resources, operational business processes, and practices that affect productivity. The unit works closely with regional and field staff, USCIS – wide, to accomplish its mission.

(6) Benefits Systems Branch.

The Benefits Systems Branch is responsible for the development, deployment and management of the naturalization and immigration services automation systems. There are three units in the branch: the Systems Development Unit, the Deployment Management Unit, and the Systems Operations Unit.

(A) Systems Development Unit.

The most significant initiative of the Systems Development Unit is replacing or updating existing automated immigration services processing systems. The unit also directs systems-related activities that support changes arising from the ongoing reengineering of the naturalization process. The unit works with contractors to prepare functional requirements for new systems, redesign efforts, and conversions from other systems. As part of this effort, the unit tests systems for effectiveness, quality assurance, and compliance with field requirements.

(B) Deployment Management Unit.

The Deployment Management Unit develops systems deployment plans and resource estimates, communicates implementation and training schedules to the field, and monitors the workload of sites scheduled for deployment. As part of this effort, the unit directs the transfer of cases to newly automated immigration services systems. The unit prioritizes deployment, training, and technical support. After deployment, the unit evaluates the implementation through surveys, and provides analysis of the results.

(C) Systems Operations Unit.

The Systems Operations Unit directs the day-to-day maintenance and operations of all deployed immigration services automated systems. Because issues arise which may affect operating systems, the unit maintains liaison with the other branches of ISD and works closely to assure smooth transition. Examples of these issues are: data conversion and integrity, technological obsolescence, and hardware and software upgrades.

To accomplish these ends, the unit establishes software change control boards as needed for automated systems, and manages their operations; maintains matrix level authority of IRM project leads for the automated systems; analyzes and prioritizes issues for each automated system; and formulates and implements a detailed strategy for dealing with these issues. In addition, the unit reengineers and redesigns future immigration services systems, and monitors the interface of automated systems with other immigration services systems and data conversion.

(7) Administrative Services Staff.

The Administrative Services Staff manages all administrative programs and activities, determines administrative priorities, and represents ISD, Service Centers, Regions, and local offices on immigration services administrative issues. It consists of: Workload/Staffing Analysis and Modeling Unit; Personnel Unit; Budget/Finance Unit; Contracting/Procurement Unit, and Office Management Unit.

(A) Workload/Staffing Analysis and Modeling Unit.

The Workload/Staffing Analysis and Modeling Unit performs monthly review and analysis of immigration services workload and staffing data. Unit members also perform studies of immigration services processes to monitor and improve productivity and to identify opportunities for improving customer service. The unit prepares weekly, monthly, and ad hoc reports in response to Departmental, Congressional, and Administration requests for workload and staffing data.

(B) Personnel Unit.

The Personnel Unit performs a wide range of personnel and administrative services and provides technical assistance to managers and subordinates by monitoring activity and program reviews, and helps analyze information resulting from these reviews. It also furthers the goals of Equal Employment Opportunity by taking positive steps to assure affirmative action objectives.

(C) Budget/Finance Unit.

The Budget/Finance Unit formulates, presents, and executes the budget process for ISD, and provides guidance, assistance, and expert advice on budgeting and financial management issues. It implements financial management methods and systems for maintaining control of federal funds.

(D) Contracting/Procurement Unit.

The Contracting/Procurement Unit is responsible for procurement and contracting. It monitors, analyzes, and evaluates contract and procurement issues to identify problems and to recommend appropriate action.

(E) Office Management Unit.

The Office Management Unit coordinates issues regarding day to day Immigration Services Division needs such as office supplies, computer support, telecommunications, and filing procedures. The unit also insures that security policies are enforced, and serves as liaison to building management for coordination of ISD fire safety and other programs.

(c) Administrative Appeals Office.

The Administrative Appeals Office (AAO) adjudicates appeals under authority delegated to USCIS by the Secretary of the Department of Homeland Security (DHS). See DHS Delegation Number 0150.1 (effective March 1, 2003); see also 8 CFR 2.1 (2003). The AAO exercises appellate jurisdiction over the matters described at 8 CFR 103.1(f)(3)(iii) (as in effect on February 28, 2003), with two exceptions – (1) petitions for approval of schools and the appeals of denials of such petitions have been the responsibility of Immigration and Customs Enforcement since November 1, 2004; and (2) applications for S nonimmigrant status have been the responsibility of the Office of Fraud Detection and National Security of U.S. Citizenship and Immigration Services since October 2004.

The AAO maintains appellate jurisdiction over more than 45 different immigration case types. The AAO's jurisdiction includes the matters described at obsolete 8 CFR 103.1(f)(3)(iii) (as in effect on February 28, 2003), with two changes – (1) petitions for approval of schools and the appeals of denials of such petitions are the responsibility of Immigration and Customs Enforcement; and, (2) T and U nonimmigrant petitions and the related adjustment of status applications may be appealed to the AAO.

DHS intends to publish the AAO's appellate jurisdiction in a future rulemaking. In the interim, the AAO's jurisdiction is listed by both subject matter and form number at http://www.USCIS.gov/AAO. For comparison purposes, the Board of Immigration Appeals' appellate jurisdiction is listed at 8 CFR 1003.1(b).

In deciding an appeal, the AAO may enter an order sustaining the appeal (approving the case), dismissing the appeal (denying the case), summarily dismissing the appeal, rejecting the appeal, remanding the case to the originating officer for further action, or taking any other action consistent with its authority under the Act and regulations as appropriate and necessary for the disposition of the case. On certification, the AAO may affirm the decision of the director, withdraw the decision of the director, or remand the case for further action. If the AAO remands a case for additional action, such as a request for additional evidence and a new decision, the case remains pending until the originating office completes the ordered action. An officer may not disregard an AAO order that is properly entered on appeal or certification.

(d) Regional Adjudications Office.

The Regional Office of Adjudications reports directly to the Regional Director, who reports to the Executive Associate Commissioner for Field Operations. The unit is charged with administration of Headquarters programs for the adjudication of applications for all types of benefits and privileges sought under the provisions of the immigration laws and related statutes. Additionally, the unit is responsible for providing administrative guidance for the naturalization, citizenship, adjustment of status, and other programs for field offices.

ROADN assists Headquarters in the identification, development and prescription of procedures and techniques to meet program goals and objectives. It provides verbal and written guidance to field offices, evaluates field office needs and recommends action items to management. It monitors computerization of program activities and data and identifies corrective operational actions needed to eliminate problems at selective field offices.

ROADN assists the Regional Director in the orderly management of program resources. ROADN staff officers assist in the review of budget proposals, distribution of funds and human resources to ensure the most efficient use of resources. ROADN also assists Headquarters in the audit of field office activities within and outside the region.

The unit also advises the Regional Director, through the assistant regional director for Adjudications of items of interest to assure continuity of regional adjudications activities, and consistency in the application of policy. The unit is often called upon by Headquarters to conduct surveys, provide training, recommend correction

of deficiencies in field office operations and respond to written inquiries, requests, complaints or request for information originating from external customers that are directed to HQ.

(e) Service Centers.

There are four Adjudications service centers. Originally, they were completely regional in character; that is, they each handled the same types of work within their respective geographic regions and each reported through the regional director. Eventually, the centers began reporting directly to Headquarters and the workloads, in part, became specialized. For most applications and petitions except asylum, the geographic jurisdictions of the service centers are as follows:

Vermont Service Center: Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, Vermont, Virgin Islands, Virginia, West Virginia.

Texas Service Center: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, Oklahoma, South Carolina, Tennessee, Texas

Nebraska Service Center: Alaska, Colorado, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming

California Service Center: Arizona, California, Guam, Hawaii, Nevada.

Asylum pre-processing and related employment authorization applications are divided among the four service centers according the asylum office jurisdictional lines: Newark, New York and Arlington asylum office cases are handled through the Vermont Service Center; Chicago and San Francisco asylum office cases are handled through the Lincoln Service Center; Los Angeles asylum office cases are handled through the California Service Center and Miami and Houston asylum offices are handled by the Texas Service Center.

In addition, specific service centers have been designated to handle certain specialty cases:

Nebraska Service Center handles refugee and asylee adjustment cases; refugee relative petition cases; all refugee travel document issuance and reentry permit issuance cases; military service and Filipino War Veteran N-400 cases; employment authorization for A and G dependents; HRIFA adjustment cases and relating employment authorizations and parole requests, and NAFTA and sports-related temporary worker cases;

Texas Service Center handles immigrant investor cases (I-526 and I-829); Cuban adjustment cases; immigrant visas except those entering at Los Angeles and San Francisco; NACARA Section 202 adjustment cases and relating employment authorizations and parole requests;

California Service Center handles immigrant visa cases from Los Angeles and San Francisco; immigrant investor cases (I-526 and I-829); NACARA Section 203 applications (I-881) for aliens living in Alaska, Arizona, California, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Oregon, Ohio, South Dakota, Washington or Wisconsin; replacement alien registration cards (I-551 renewal program); and

Vermont Service Center NACARA Section 203 applications (I-881) for all states except those listed for California Service Center; and replacement alien registration cards (I-551 renewal program).

(f) District and Sub-office Adjudications Sections.

District and sub-office adjudications units have always been the “backbone” of the Adjudications Program. Originally, before the evolution of service centers, these offices performed virtually all adjudications work within their assigned geographic area. Prior to 1983, each district and sub-office also had a separate unit handling naturalization and citizenship matters. With the rapid increase in adjudications and naturalization volumes, the four service centers were opened and rapidly expanded. The service centers were originally an outlet for adjudication of certain types of cases which did not require interviews, investigation or complex research. Eventually, the service center concept was expanded to add a receipting function and the “direct mail” program began. Further evolution of the service centers, taking advantage of contract mail and file operations and large scale automation, has dramatically altered the role of the district and sub-office. Today, the adjudicator in a district or sub-office is primarily responsible for more complex cases and cases requiring a personal interview. Much of the preliminary work on such cases has been handled by a service center, with only the interview or investigation and closing actions handled by district adjudications personnel. Largely, district and sub-office workload falls into three categories: naturalization, adjustment of status and removal of conditional resident status. Other work which is time-sensitive, such as orphan processing and urgent travel document requests, is also handled by district and sub- office staffs. Jurisdictional boundaries for district and sub-offices are set out in 8 CFR 100.4.

(a) General.

This section deals, in general terms, with the functions of and relationships to Adjudications of a certain organizations within USCIS. For information on liaison with other government agencies, see chapter 83; for information about procedures for record checks through the FBI, Department of State and others, see chapter 18.

(b) Investigations Program.

Each district and sub-office has an Investigations Branch which handles a wide range of immigration-related investigative activity. Investigations case work falls primarily into three areas:

• employer sanctions, which is responsible for investigation and prosecution of employer which are in violation of

section 274A of the INA which prohibits the employment of aliens who do not have employment authorization;

• criminal alien investigation and processing; and

• fraud investigation, dealing with aliens who commit fraud to circumvent the immigration laws.

Most enforcement activities leading to arrest and removal proceedings within district offices stem from one of these three activities. Because of extremely limited resources available for benefit fraud investigative activity, district Adjudications officers must work closely with Investigations personnel to minimize the volume of cases which are referred for investigative action. Whenever possible, district Adjudications officers should develop simple fraud cases without major involvement by Investigations officers. Investigations should be alerted when there is possible criminal prosecution of large scale operations: document vendors, marriage fraud rings, fraudulent attorney activities, etc. For detailed information regarding the Investigations Case Management System (ICMS), the management system which determines the priority of casework accepted by the Investigations Program, see the Investigator's Field Manual, Chapter 61.

(c) Detention and Removal Program.

The district Detention and Removal operation is responsible for the management of a docket of cases involving aliens determined to be unlawfully present in the United States. In most districts, unlawfully present aliens are regularly identified during the course of adjudication. Adjudications officers may be required to initiate removal proceedings and place aliens under docket control upon denial of certain immigration benefits. Local procedures,

largely dictated by resource availability, will determine which cases are placed under docket control and which offices are responsible for such actions.

(d) District Counsel.

The district counsel staff is the legal advisor for the district director in addition to serving as the prosecuting attorney in removal proceedings. The district counsel may also represent the interests of the Adjudications Branch when lawsuits are filed involving Adjudications decisions. USCIS attorneys may be required to prepare and file legal briefs in Federal court as well as immigration court. It is critical that close liaison exist between district counsel staffs and adjudications officers in order to guarantee that only strong, legally defensible cases are brought into court and to forestall legal actions against USCIS. In some jurisdictions, the United States Attorney has a special assistant United States Attorney for immigration litigation. The district counsel is the primary liaison with this special assistant.

(e) Intelligence Program.

The ICE Intelligence Program supports Adjudications in several ways such as examining and identifying fraudulent documents used to support applications and petitions, providing exemplars of legitimate and counterfeit documents and identifying and reporting trends in unlawful immigration-related activities. Individual officers contribute to the Intelligence Program through a district intelligence officer (generally one or more collateral positions), submitting information which may have potential intelligence value. Refer to the Inspector's Field Manual, Chapter 32 for a detailed discussion of the Service Intelligence Program, Intelligence gathering, and forensic analysis capabilities and procedures of the Forensic Document Laboratory. Also refer to the Intelligence Bulletin Board on the ICE INTRANET. See also FinCen and INTERPOL, discussed in SAFM Chapter 5.5 and SAFM Chapter 5.6, resp.

(f) El Paso Intelligence Center (EPIC) Operations.

Although not a part of USCIS, EPIC is staffed, in part, by USCIS employees. A discussion of EPIC operations and the reporting of documented false claims is contained in Chapter 32.6 of the Inspector's Field Manual. Among other things, EPIC is a repository and source of information concerning authentic and counterfeit birth records often used to support false claims to United States citizenship.

(g) Office of the Inspector General (OIG).

The Department of Homeland Security's Management Directive MD 0810.1 of August 24, 2004, established DHS policy regarding the Office of the Inspector General (See Appendix 3-1).

(h) Fraud Dection and National Security (FDNS).

Reserved

Over the years, Legacy INS and USCIS have developed a number of working groups to assist in the development and implementation of new initiatives. There are two types of working groups: internal ones involving solely USCIS personnel from Headquarters, regional offices and field offices and those which involve USCIS personnel, personnel from other agencies, and private sector individuals who represent various groups USCIS serves.

The working groups have proven themselves invaluable in keeping the field informed about new technologies being developed and in keeping Headquarters informed about current trends and conditions experienced by adjudicators in field offices. Working groups are formed around a particular issue and are of varying (although limited) duration. An added benefit is that such working groups can provide good exposure to field officers (and other employees) wishing to know more about Headquarters operations in genera l and about the challenges of project development.

Local offices may also organize both internal working groups and working groups which involve outside entities or “stakeholders.” See also “community Liaison” in Chapter 83 of this manual.

(a) District/Center Adjudications Officers –

Adjudications officers, also referred to as examiners, are the primary classification of immigration officers responsible for the approval or denial of immigration benefits. The adjudications officer assigned to a service center works primarily with applications and petitions which require no personal interview and can be completed by a review of the application and its supporting documentation. District adjudications officers are primarily involved with cases where a personal interview of the applicant o r petitioner is essential to a proper decision. Applications for naturalization and adjustment of status, for example, generally require an interview. [See sample position descriptions in Appendix 4-3 through 4-12.]

(b) Immigration Information Officers –

Immigration information officers (IIOs), sometimes referred to as contact representatives, are the front-line employees who answer questions and provide information and forms to applicants for immigration benefits. This information may be provided in person (at information counters), by telephone, or by response to a written inquiry. IIOs may administer oaths, and in some offices they actually adjudicate certain types of cases. IIOs are responsible for screening cases which are presented for filing at information counters, advising applicant regarding the correct application form and supporting documentation

(c) Information Adjudicators –

Some high volume offices employ non-officer corps adjudicators to process simple applications which are filed at information counters or by mail, freeing up the time of district adjudications officers to handle the more complex casework.

(d) Supervisory Adjudications Officers –

Supervisory adjudicators, sometimes referred to as supervisory immigration examiners, are first or second line supervisors in charge of a group of examiners. Larger offices will have several supervisory examiners reporting to a higher level supervisor or the assistant district director for examinations. Supervisory adjudications officers are technical experts on immigration law available to their officers for advice; they arrange and oversee the workloads of officers under their supervision; they perform quality review of the cases adjudicated by their assigned officers. [See sample position description in Appendix 4-13 and 4-14.]

(e) Assistant District Director, Examinations (in some offices the position title may be ADD, Benefits or

ADD, Adjudications) –

The ADD for Examinations is the principal adjudications officer assigned to the district. He or she reports to the district director and advises the district director regarding adjudications and naturalization issues. The ADDE is responsible for overall program quality assurance, budget development and resource allocation, national program priority management and oversight of all other aspects of the Adjudications program.

(f) Applications Clerks

Applications clerks assigned to district offices and service centers are responsible for preparing and screening cases for action by the adjudications officers. These employees are required to develop a significant amount of technical expertise regarding the types of applications and petitions which they process. They identify missing documents, initiate record checks, locate files and handle a myriad of essential support functions to ensure prompt action by the adjudicator. [See sample position descriptions in Appendix 4-1 and 4-2.]

(g) Regional Senior Adjudications Officers –

These staff officers, supervised by the assistant regional director for adjudications, perform administrative and technical support functions necessary to ensure the success of the national adjudications program. They prepare regional budget requests, allocate resources to districts within their regions, provide technical guidance to district adjudications managers, assist in the oversight of district operations and serve as a liaison between Headquarters and district officials.

(h) Headquarters Senior Adjudications Officers –

These staff officers assigned either to the Office of Field Operations or the Office of Programs, develop national program strategies for improving customer service, implement new legislation, advise the Director of USCIS on benefit-related issues, and work with other agencies and Congressional staffs. Senior adjudications officers also handle appellate casework in the Administrative Appeals Office. At the Headquarters level, senior adjudications officer may report to a supervisory officer (branch chief) o r the assistant commissioner for Adjudications.

(a) General.

Adjudications officers, unlike inspectors and officers of some other branches of the former Service, do not work in a uniform. As officers, adjudicators are issued credentials which must be carried and presented as needed. Adjudications officers are expected to adhere to the basic grooming standards for officer corps personnel.

(b) Grooming Standards.

Appearance is a critical part of forming a favorable impression with the public served by adjudications officer. The Officers' Handbook, A Guide for Proper Conduct and Relationships with Aliens and the General Public, M-68, (revised 1981) governs the conduct, appearance, and grooming standards of all USCIS officers. Pages 16 and 17 of the Officers' Handbook cover grooming standards for all USCIS officers.

(c) Badges and Credentials.

Every USCIS officer is issued a shield (badge) and credentials for identification. You are responsible for these items and need to safeguard them against possible theft or loss. See AM 5.2.107 for further information.

I. General Policies and Procedures.

(a) Administrative Appeals Office (AAO) Cases.

(1) General.

An officer must prepare an appellate case record prior to sending a case to the AAO for review. A case may be subject to AAO review based on either an appeal (8 CFR 103.3) or the certification of a decision for review (8 CFR 103.4). Additionally, a petitioner or applicant may file a motion on an earlier AAO decision (8 CFR 103.5). While the AAO holds the appellate record during the motion period, an officer may be required to forward the record to the AAO if the affected party files a late motion.

Certain unfavorable decisions may be appealed to the AAO. The AAO maintains appellate jurisdiction over more than 45 different case types. The regulations cite to an obsolete provision – deleted 8 CFR 103.1(f) (2003) – that described the jurisdiction of the AAO prior to the creation of the DHS. Currently, the benefit types within the AAO's jurisdiction are enumerated at www.USCIS.gov/AAO.

In addition to the appeal process, a director may choose to certify a decision to the AAO for appellate review if the case involves an unusually complex or novel issue of law or fact. A case may be certified to the AAO for review even if there is no appeal available for that case type, such as an application to adjust status (Form I-485) under section 245(a) of the Act.

A case may not be certified to the AAO, however, if the Board of Immigration Appeals (BIA) has appellate jurisdiction. Such cases may be certified to the BIA. The BIA's appellate jurisdiction is listed at 8 CFR 1003.1(b). See also AFM subchapter 10.18, Certification of Decisions. As a statutory exception, DHS maintains sole jurisdiction over Adam Walsh Act risk determinations in family-based immigrant visa petition proceedings. As such, certification of a risk determination under the Adam Walsh Act must be directed to the AAO, not the BIA. Once the AAO has resolved the Adam Walsh Act risk determination, a denied family-based immigrant visa petition can be certified to the BIA, if necessary.

Upon receipt of an appeal in a case over which the AAO has jurisdiction, the officer must review two critical issues.

First, the officer must determine if the appeal was timely filed. See AFM Chapter 10.7, Note 2. If the appeal was not timely filed, and the appeal meets the technical requirements for a motion to reopen (new evidence) or a motion to reconsider (demonstrates an incorrect application of law or policy), the officer first must treat the late appeal as a motion and grant the motion, and then enter a new decision on the merits of the case, whether favorable or adverse. 8 CFR 103.3(a)(2)(v)(B)(2). If the reviewing officer determines that the appeal was untimely filed, but

does not meet the requirements for a motion, the appeal and related record must be forwarded to the AAO for review as a late appeal; the reviewing officer should not issue a decision on the appeal (Form I-290B).

Second, if the appeal was timely filed, the officer must review the complete case to determine whether the arguments or evidence presented on appeal warrant favorable action. If so, the district or center may treat the appeal as a motion to reopen or motion to reconsider and approve the case. If the arguments fail to overcome the basis of the denial, the appeal and related record must be promptly forwarded to the AAO; no new decision is required.

NOTE

The AAO maintains jurisdiction over all appeals, even when it is untimely filed, not filed by the affected party, or filed on a decision that does not carry appeal rights. With only two exceptions, as outlined in the text above, all appeals must be forwarded promptly to the AAO. See 8 CFR 103.3(a)(2)(iv).

The AAO will generally reject a late-filed appeal and not return it for review as a motion to reopen or reconsider. This practice avoids delayed decisions, eliminates unnecessary file movement between the field and AAO, and improves customer service. On rare occasions, however, if the petitioner or applicant directly submits new evidence or argument to the AAO, the AAO may return the untimely filed appeal to allow the officer a full opportunity to review all of the supporting documents.

(2) Processing the Record of Proceeding.

Offices must forward to the AAO either the complete A-file or the complete receipt file, depending on the type of file that represents the Record of Proceeding (ROP). To ensure that the AAO has all necessary evidence for the adjudication of the appeal, certification, or motion, officers should not remove documents from an A-file to create a separate ROP. As a USCIS File Control Office, the AAO may receive and review the complete A-file, as necessary.

Arrange all documents in the ROP chronologically, with the earliest submitted documentation on the bottom and the most recently submitted documentation on the top. The only exception to this chronological order concerns a brief filed in support of a Notice of Appeal (Form I-290B) or a Notice of Certification (Form I-290C). In all cases, the brief should be placed below the Form I-290B or Form I-290C, even if it is filed subsequent to the Notice. Any Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) that is submitted on appeal, in response to certification, or on motion should be placed on top of the Form I-290B.

Note: Unlike an appeal to the BIA, an appeal or motion to the AAO does not require a brief by a USCIS counsel or other official. If the district or center chooses to prepare a brief (e.g., in rebuttal to the appellant's brief), it should be clearly identified as such.

(3) Record of Proceeding for Bond Breach Cases.

Bond breaches require special attention. The A-file or ROP of a bond breach should contain copies (listed from top of A- file or ROP to bottom) of:

• The G-28 notice of appearance if applicable

• The I-290B appeal form with attachments

• The Form I-323 breach notice

• The Form I-166

• The Form I-340 demand notice

• The postal service Form 3811 showing delivery of the Form I-340

75 The questionnaire and worksheet for a surety bond

• The power of attorney for the surety, or the Form I-305 as applicable

• The Form I-352, Immigration Bond

• The appellate decision of the BIA if applicable

• The final order of the immigration judge

• The Form I-862, Notice to Appear

If the applicant or petitioner has filed a motion to reopen or a motion to reconsider (MTR) an earlier decision of the AAO (the “appellate decision”), the A-file or ROP should be returned to the AAO with the addition of the appellate decision, and finally, the MTR and attachments on top.

(b) Board of Immigration Appeals (BIA) Cases.

(1) General.

8 CFR 3.1(b) lists the types of cases which may be appealed or certified to the BIA. When an appeal is filed from a decision in one of these cases, an SDAO (or higher official) must review the case, a USCIS counsel must prepare a written brief on the matter, and a Record of Proceeding must be prepared for transmittal of the case to the BIA (the complete A-File is never sent to the BIA). Unlike appeals to the AAO, the district or service center cannot treat the appeal as a motion, even when it finds the arguments presented in the appeal to be convincing.

(2) Preparation of a Record of Proceeding for Transmittal to the BIA.

Follow these steps in setting up an ROP for transmittal to the BIA:

• If the alien has not already been assigned an A number, create an A-file. A record going to the BIA must have

an “A” file number, even if the denial was originally housed in a CLAIMS receipt file.

• Write the three letter FCO code on the folder's tab followed by the A-file number (odd numbers on the left,

even on the right)

• Place a “Record of Proceeding” stamp on the outside of a standard manila file folder

• In every case involving an alien detained by or for USCIS, ICE or DHS, or when an alien's detention is imminent,

firmly stapled a conspicuously marked flag showing his or her detention status to the outside of the folder

• Place all record documents on the right side of the file using an Acco-type fastener. Set up the file in an orderly

fashion using a logical chronological sequence with the appeal (Form EOIR-29) and brief on top, followed by the decision itself, the petition, supporting documentation and all other relevant record material. However, if any of the material is classified, it must be handled separately (see paragraph 3)

• Staple one copy of the decision of the district or center director (with the stamped or typed notation “BIA copy”

on the bottom of the face page of the order) to the left inside of the record of proceeding folder. In addition, staple two additional copies stamped “Public Copy”, but with no identifying data deleted, to the left inside corner. [See also “Public Copies” discussion in AFM chapter10.13.]

• Do NOT place any non-record material or duplicate material in the ROP. Such material should remain in the

actual A-file jacket.

• In the original A-file, attach a copy of the EOIR-29 on top of the record side indicating the action taken.

• Insure that the case is referred to a supervisor for his/her review and to the appropriate Service counsel for

preparation of a brief, following normal local procedures.

• Date the form and note that it has been forwarded to the BIA, but do not date the form or note that it has been

forwarded until it has been reviewed and briefed by counsel.

• Follow local procedures for housing the A-file pending receipt of the decision by the BIA.

(3) Special Procedures for Classified Information.

When a record is sent to the BIA and the decision was based on classified information, that information must be removed from the file and mailed to the DHS representative at the BIA, with an appropriate cover memorandum, following standard procedures for transmittal of classified information. This material should be forwarded simultaneously with the record of proceedings.

I. General Policies and Procedures.

When an applicant or petitioner pays a filing fee on an application, he or she is seeking a decision from USCIS regarding the applicant or beneficiary's eligibility for the benefit(s) being sought. In general, USCIS does not refund a fee or application regardless of the decision on the application. There are only a few exceptions to this rule, such as when USCIS made an error which resulted in the application being filed inappropriately or when an incorrect fee was collected. For example, if USCIS advises an applicant to file a waiver application for a ground of inadmissibility which is inapplicable to that applicant, the fee should be refunded.

If an applicant or petitioner believes that he or she is entitled to a refund of fee, the applicant or petitioner should call the customer service line or submit a written request for a refund to the office having jurisdiction over their application or petition. USCIS will review the request for a refund and either approve or deny the request based on the information at hand. If the adjudicator finds USCIS made an error, then the officer will complete Form G-266, Request for Refund of Fee. The form is available on the USCIS Intranet. Send the completed form to the Burlington Finance Center (BFC), P.O. Box 5000, Williston, VT 05495-5000 or fax it to (802) 288-1230. Retain a copy for office records, following local procedures. Send only the completed form to BFC, retaining any back- up documents, applications, etc. The BFC will notify you of the disposition of the request. Only a single refund may be requested per form. Complete the form in accordance with the following instructions:

BLOCK NUMBER EXPLANATION OF ENTRY

1 List the office in which the form was prepared

2 Assign a request number for the refund using the FCO-Fiscal Year- Sequential Number format. (For example: LOS-2000-0011 would be the 11 th request submitted by the Los Angeles office during FY 2000.)

3 Enter the requesting office mailing address

4 Enter the area code and telephone number of the person to whom questions regarding the refund may be directed

5 Enter the name and address of the person to whom the refund should be sent. Fee refunds for minors should be sent to a parent or guardian “in behalf of” the child's name. This information must be displayed in the sequence listed below. Use an additional address line, if necessary – Line 1: First name, middle initial, last name of payee – Line 2: In behalf of ______________________________ (if applicable) – Line 3: Street address or P.O. Box – Line 4: City, state and Zip code

6 Record information necessary to file and retrieve the disposition copy after action by the DMC. (receipt file number, etc, according to local procedures). The requesting office remains responsible for maintaining sufficient information and files for a proper audit trail

7 Use this space to identify (name and phone number) a point of contact in the event The DMC has questions concerning processing of the request

8 Enter the application form number (or “fingerprint fee” if appropriate)

9 Enter applicable section of law, if any

10 Enter the exact amount of the fee to be refunded

11 Circle the reason for the refund: “overpayment”, “Service error” or “other”. If “other” is circled, there must be a brief explanation. Forms submitted without explanation will be returned by DMC without action

12 Original signature of signatory authority.a1

13 – 15 Leave blank — for DMC use only

Footnotes a1 If delegated below the office head, the office head must send a memorandum defining the specific delegation. The memorandum must contain the specific authority being delegated (e.g. approval of Fee Refund Requests, Forms G-266), the name, title and signature of each subordinate receiving the delegation and the effective date of the delegation.

I. General Policies and Procedures.

(a) General.

As employees of USCIS, you work with personal information about other people. You could not perform your job (i.e., you could not determine an applicant's eligibility for benefits) without knowing some personal information about those people. The Freedom of Information and Privacy Acts (FOIA/PA) place responsibility on USCIS, and the individual officer, for disclosure of information which the public has a “right to know,” while safeguarding individuals against an invasion of their personal privacy.

(b) The Freedom of Information Act.

(1) General.

The Freedom of Information Act (FOIA) 5 U.S.C 552, provides access to all Federal agency records except those which are protected from release by exemptions (reasons an agency may deny access to a requester). The FOIA can be used by anyone to access government records regardless of citizenship. The FOIA only applies to the Executive Branch of the Federal government. It does not apply to Congress, the courts, local governments or private organizations. Requests for access to USCIS records under the FOIA must be in writing (by letter or by Form G-639 Freedom of Information/ Privacy Act Request) and when received must immediately be forwarded to the FOIA/PA officer for proper handling.

[See Appendices 10-1 and 10-2.] [Appendices 10-1 and 10-2 added as of 02-06-2006, AD06-17.]

(2) Handling FOIA Requests.

The FOIA requires the Government to respond to requests for information that are not exempt within 20 working days after receipt of the request. Your responsibility as an employee is to conduct a thorough search for the records that have been requested and provide them to the FOIA/PA officer of your organization as quickly as possible. If you believe some or all of the information should not be released to the public, inform the FOIA/PA officer and he or she will work with you to determine whether such information can be exempted or not. Be sure to give the FOIA/PA officer a copy of all records that are responsive to the request to preclude being held responsible for “arbitrary and capricious” withholding by a court.

(3) FOIA Exemptions.

In addition to the special circumstances discussed in paragraph (4), there are nine exemptions which may be cited as grounds for withholding records under the FOIA:

• National defense or foreign policy matters required by executive order to be secret. Such records must be properly

classified and may be inspected in camera by a court.

• Matters related solely to internal personnel rules and practices of an agency.

• Matters specifically exempted by some other statute.

• Certain privileged or confidential information such as trade secrets and confidential business information.

• Certain interagency or intra-agency memos or letters such as discussions and recommendations that are pre-

decisional in scope (e.g., attorney-client information, attorney work product, and adjudicator's drafts of decisions).

• Personnel, medical, or other files which, if disclosed, would constitute a clearly unwarranted invasion of personal

privacy.

• Law enforcement investigatory records may be withheld only if disclosure could (a) interfere with enforcement

procedures; (b) prevent a fair trial; (c) constitute an unwarranted invasion of privacy; (d) disclose confidential sources and, in criminal investigations and national security intelligence investigations, disclose confidential information obtained only from a confidential source; (e) disclose techniques and procedures for law enforcement investigations or prosecutions that could risk circumvention of the law; and (f) endanger the life or safety of any person.

• Audits of financial institutions.

• Geological maps and data on wells.

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(4) Special Circumstances.

(A) Sensitive Law Enforcement Matters.

The Freedom of Information Reform Act of 1986 creates a new mechanism for protecting certain especially sensitive law enforcement matters under subsection (c) of the FOIA. These exclusions authorize federal law enforcement agencies to treat especially sensitive records as not subject to the requirements of FOIA. Contact the FOIA/PA section in Headquarters before citing these exclusions.

(B) Third Agency Rule.

Records of other agencies either loaned to USCIS or a part of the USCIS files must be protected from unauthorized disclosure. The contents of an agency's report in possession of USCIS shall not be disclosed to another agency without the prior consent of the originating agency. This principle is generally known as the “third agency rule.” The contents of an agency's document, report or other information in possession of USCIS shall not be disclosed to an individual without the prior consent of the originating agency. When processing a FOIA request involving the release of third agency material, the agency concerned shall be consulted regarding release of the document or information originating with them and the requester should be advised accordingly. When the request

involves third agency material which is classified, that material should be referred to the originating agency for a determination as to all the issues in accordance with the Act. The requester shall be notified of the referral and that he may expect a determination from that agency. See 28 CFR 16.4.

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(5) FOIA Fees.

Because USCIS is permitted to charge FOIA requesters, USCIS personnel should keep track of time spent processing specific FOIA requests.

(c) The Privacy Act.

(1) General.

The Privacy Act of 1974, 5 U.S.C. 552a, establishes safeguards for the protection of records the Government collects and maintains on United States citizens and lawfully admitted permanent residents. [See Appendices 10-3 and 10-4.] [Appendices 10-3 and 10-4 added as of 02-062006, AD06-17.] Specifically, it mandates that the Government:

Inform people at the time it is collecting information about them, why this information is being collected and how it will be used.

Publish a notice in the Federal Register of new or revised systems of records on individuals.

Publish a notice in the Federal Register before conducting computer matching programs.

Assure that the information is accurate relevant, complete and up-to-date before disclosing it to others.

Allow individuals access to records on themselves.

Allow individuals to find out about disclosures of their records to other agencies or persons.

Provide individuals with the opportunity to correct inaccuracies in their records.

(2) Privacy Act Records.

The Privacy Act applies to any item, collection or grouping of information about a United States citizen or lawfully admitted permanent resident that can be retrieved by using the persons name, social security number, alien registration number or other personal identifier. The Privacy Act applies to personal information stored in computers as well as that maintained in paper files The Privacy Act applies to records maintained by the Executive Branch of the Federal Government. It does not apply to records held by Congress, the courts, local government or private organizations. USCIS and each Federal Government agency must publish in the Federal Register a description of it's record systems that are covered by the Privacy Act. A list of major Service records systems is located on the USCIS Internet web site, in the Electronic Reading Room of the FOIA/PA section. The record system with which we are most familiar is the Alien File and Central Index System. Through this record system all A-files can be retrieved by name and by date of birth or A-number. For additional information on Service records systems, refer to the Records Operations Handbook.

(3) Conditions of Disclosure.

The Privacy Act lists twelve conditions under which information from records pertaining to individuals may be disclosed without the prior consent of the individuals to whom the records pertain:

• To other employees of an agency, in the performance of their official duties. The Department of Homeland

Security is the agency in this case, and officials of any component of DHS may be granted access to information from USCIS records without prior consent of the subject if such official has a “need to know” to do his/her job.

• To the public, when disclosure would be required or permitted under the Freedom of Information Act. Information

from a public record, such as the judicial record of naturalization, may be disclosed to anyone. Information available to the public from personnel records includes the name, past and present position, titles, grades, salaries, and duty stations of specific Federal Government employees.

• For routine uses which have been published in the Federal Register in the System Notice for each Privacy Act

record system.

• To the Bureau of Census, for census or survey purposes.

• To a person or another agency for statistical research or reporting purposes, when the individual identifying

information is removed.

• To the National Archives for preservation of records of historical value.

• To other agencies or organizations for law enforcement purposes upon written request from the agency head.

• To others, under emergency circumstances affecting the health or safety of an individual.

• To the Congress or committees to the extent of matter within their official jurisdiction.

• To the Comptroller General in the course of duties of the General Accounting Office.

• By order of a court of competent jurisdiction.

• To consumer reporting agencies in accordance with section 3(d) of the Federal Claims Collection Act of 1986.

(4) Accounting for Disclosures.

The Privacy Act requires an accounting of the disclosure of information from records pertaining to an individual except for disclosures to other components of the Department or disclosures made under the Freedom of Information Act. The accounting record must contain the date, nature and purpose of the disclosure and the name and address of the person or agency to whom disclosure was made. Form G-658, Record of Information Disclosure, Privacy Act, is recommended for the necessary accounting of routine uses or other conditions of disclosure.

Many USCIS forms contain personal data about individuals which may be requested by other agencies for routine uses. When these forms are used to make disclosures of personal information about individuals who are United States citizens or aliens lawfully admitted for permanent residence, an accounting is required for Privacy Act reporting purposes.

(5) Rights and Responsibilities.

As a USCIS employee you “wear two hats” – one as a citizen who is entitled to the full protection and rights established by the Privacy Act, the other as a Federal employee who works with records containing personal information and who shares some responsibility in carrying out the requirements of the law.

Administrative, technical, and physical safeguards are required for records, and employees who handle records must adhere to rules of conduct to protect information from the possibility of unwarranted disclosure or access by unauthorized persons. The importance of this responsibility is evident from the penalties imposed by the Privacy Act on Federal employees who violate certain sections of the law. A fine of up to $5000 can be imposed for willfully maintaining a Privacy Act record system that has not bee n published in the Federal Register or for willfully making an unauthorized disclosure. Information from Privacy Act records cannot be disclosed without the consent of the record subject, except for specific conditions listed in the Act and specific routine uses published by USCIS with each system notice.

(6) Individual Access to and Correction of Records.

Agencies must allow individuals to gain access to records about themselves. They must be permitted to review the records, may be accompanied by representatives, and shall be permitted to obtain a copy of all or any portion of records in a comprehensive form. Individuals must be permitted to request amendment or correction of records pertaining to them, and such requests must be acknowledged within 10 working days of receipt. After acknowledgment, the agency must correct the information in question promptly or inform the individual of his right to request a review of the decision by applying to the Attorney General within 60 days of receipt of the reply. If the individual disagrees with the decision not to amend a record, he or she must be allowed to file a statement of his or her views which must be provided to any source that has received information from the record.

I. General Policies and Procedures.

(a) General.

Under the Freedom of Information Act USCIS is required to maintain a public reading room. The location of the USCIS reading room is in the Headquarters Building, Washington, D.C. In addition to general reference materials about the immigration laws, each office is required to maintain public copies, with identifying details blacked out, of decisions on various types of cases. It is not required that public copies be made of every decision. Public copies of orders need not be prepared and filed in the public reading rooms when it is readily known, without research, that an identical order has been prepared and filed in a similar case. USCIS is also making available on the USCIS Internet web site much of the information which is available in public reading rooms. [See 8 CFR 103.9.]

(b) Deletion of Identifying Data.

Deletions of identifying data shall not be made on “public copies” (copies which must be made available for inspection and copying by the public) of orders in proceedings which are open to the public or in an administrative fine case.

In any other proceeding in which the order must be made available to the public, the names and addresses of the applicant, petitioner, beneficiary, and witnesses shall be deleted from the public copies. The foregoing are not intended to be exclusive. Other data which would make the individual readily identifiable, such as his or her present place of employment, should also be deleted. Deletions shall be accomplished by painting over the data to be deleted with a black felt marker (deletions may also be ma de electronically if the denial is generated by a word processor); care shall be taken to assure that none of the deleted material is visible. Each public copy shall be stamped in the lower left corner, “Identifying data deleted to prevent clearly unwarranted invasion of personal privacy.”

Deletion of identifying data and stamping will be the responsibility of the following:

(1) The district director or service center director, whenever an order rendered by him or her, or by an officer in

charge within the geographical area over which the district director has jurisdiction has become final;

(2) The immigration judge, whenever an order rendered has become final; and

(3) The officer in charge outside the United States, whenever an order rendered has become final.

Under its procedure, the Board of Immigration Appeals performs the required deletions and stamping whenever the Board renders a final order on appeal or certification.

When deletions of names and addresses from the public copies are required under this instruction, the appellate authority will accomplish the deletions and stamp the public copies of the order entered by that authority, as well as the copies of the initial decisions. This will insure that identical deletions are made on all copies.

(c) Preparation of Public Copies of Initial Decisions Which Are Appealed or Certified.

Upon appeal or certification to the AAO, two copies of the initial decision stamped “PUBLIC COPY” in the upper right hand corner shall accompany the record of proceeding (in addition to the signed record copy of that decision) when the case is forwarded to the AAO. Upon appeal or certification to the Board of Immigration Appeals, one copy of the initial decision shall be so stamped and shall accompany the record of proceeding when the case is forwarded to the Board of Immigration Appeals; this copy is in addition to the one described in the procedures for certification.

The appellate authority will transmit to the office of origin a public copy of the appellate decision, to which the appellate authority will attach a public copy of the initial decision.

(d) Coding of Orders.

To facilitate sorting and filing of orders (whether granted or denied) in the reading room or area, each public copy shall be coded by the transmitting office at the upper left of the first page in accordance with the alphabetical letter listed in Appendix 10-1.

(e) Distribution of Public Copies.

When an order has become final, one public copy shall be forwarded expeditiously to Headquarters. Copies from the district directors, officers in charge or immigration judges shall be forwarded through the regional office. Service center copies shall be forwarded directly to Headquarters.

When any order entered by a USCIS office outside the United States has become final, public copies with appropriate deletions and stamps, shall be forwarded expeditiously, through the district office, to Headquarters. Service offices outside the United States shall not retain a public copy of orders, as such offices are not required to make copies available, but shall maintain log copies for internal audit purposes separated by category of case and kept chronologically for two years.

Under its procedures, the Board of Immigration Appeals retains one public copy of each of its final orders which must be made available to the public, and transmits one public copy to the district office of origin.

Whenever a decision is made by an officer (including an immigration judge) on a motion or on a renewed application, a notation reading “Prior decision (date of prior decision)” shall be made on the public copies of the subsequent decision, immediately below the alphabetical letter designation assigned to that category of orders, before those copies are sent to the public reading rooms.

When an order which must be made available for inspection by the public is not on 8 1/2″ x 11″ sheets of paper, the public copies shall be machine-reproduced on sheets of paper that size before they are distributed.

(f) Maintenance of Opinions and Orders in Public Reading Rooms.

Public copies of unpublished decisions shall be filed in chronological sequence by category of case, and shall be maintained in the reading room or area where the public may inspect them in Headquarters. Hardcover, looseleaf, three-ring binders shall be used to house the orders, or they will be made electronically available on-line. If the volume of orders in any category is large enough to so warrant, a separate binder shall be maintained for each such category. On the other hand, if the volume in any successively lettered categories as listed above does not warrant a separate binder, several such categories separated by dividers may be included in a single binder. The spine (back) of each looseleaf binder shall be appropriately labeled.

When a public copy of a decision by an officer (including an immigration judge) is received for filing in a public reading room, and the public copy bears a notation reading “Prior decision (date of decision)”, the prior decision referred to shall be removed from the chronological sequence in which it had been filed, shall be stapled behind the subsequent decision, and both decisions shall then be filed in the appropriate category, chronologically according to the date of the subsequent decision.

Similarly when a district office receives a public copy of a Board of Immigration Appeals decision, that decision shall be examined to see whether it grants or denies an application or petition which the district director had previously denied. If it does, and if the public copy of the district director's decision has been sent previously to the public reading room, before the public copy of the Board's decision is filed in the public reading room, a notation “Prior decision (date of prior decision)” shall be inserted on that copy, immediately below the alphabetical letter designation accorded to the Board's decision, and the prior decision shall be disposed of in the same manner indicated in the preceding paragraph. The same action shall be taken with respect to public copies of Board decisions in fine proceedings.

(g) Assistance to the Public in Locating Orders.

When a member of the public requests access to a copy of an order relating to a specifically named individual, he or she shall be informed of the manner in which public copies of decisions are filed and informed that identifying data is deleted to prevent unwarranted invasion of personal privacy except when the decision is entered in an expulsion, naturalization, or administrative fine proceeding, or any other proceeding that was open to the public. If a member of the public nevertheless states that he or s he desires to see an unpublished decision relating to a specifically named individual in a type of case in which identifying data is deleted from the public copy of the decision, he or she shall be advised to file an application under the Freedom of Information Act as provided in 8 CFR 103.10.

(h) Matters Not Within Purview of 8 CFR 103.9.

The following are not decisions within the meaning of 8 CFR 103.9 and, therefore, are not available to the public:

(1) Notices of approval or denial communicated to an applicant or petitioner by a form on which only a preprinted

or stamped item is checked or inserted (e.g., Forms I-541, I-542, I-171, I-180). However, a form on which the reason for decision has been typed because the preprinted or stamped items do not apply, is not exempt from being made available for public inspection;

(2) Notations by check mark, stamp or other brief endorsement on an application or petition showing approval

or denial;

(3) Memoranda of creation of records of lawful permanent residence (Forms I-181);

(4) Immigration offices' admission stamp on immigrant visas, passports or Forms I-94;

(5) Notices of voidance of nonresident alien border crossing cards bearing a stamped reason for such voidance;

(6) Reports and recommendations on page 4 of Form N-600, on Form N-600A, on Form N-635, and on any other

similar form relating to the disposition of an application for a certificate of citizenship under section 341 of the Act or under any predecessor statute, including those which are supported by a supplementary report;

(7) Reports and recommendations completed on preprinted Form N-580, Application for a Certificate of

Naturalization or Repatriation; Form N-577, Application for a Special Certificate of Naturalization; Form N-565, Application for a New Naturalization or Citizenship Paper; Form N455, Application for Transfer of Petition for Naturalization; Form N-470, Application to Preserve Residence for Naturalization Purposes; and on any preprinted form used for the purpose of cancelling a certificate of citizenship under section 342 of the Act on the sole ground that respondent has confessed alienage;

(8) Memoranda of designated examiners and regional directors pursuant to 8 CFR 335.12; and

(9) Summary decisions of immigration judges, and oral opinions dictated into the record by an immigration judge

and not transcribed.

(i) Cases Involving National Security, Foreign Policy and Confidentially Furnished Information.

Cases involving national security, foreign policy and confidentially furnished information, and for that reason, orders of grant or denial in such cases shall not be made available.

(j) Decisions Involving Waiver of Foreign Residence Requirement for Exchange Aliens.

A copy of each letter notifying an applicant of the approval of his application for a waiver of the foreign residence requirement under section 212(e) of the Act on the basis of exceptional hardship or persecution shall be processed and forwarded to the reading room in the manner set forth above. In addition, there shall be attached a copy of the director's request for the recommendation of the Department of State. Similarly, when a letter denying a waiver is sent to an applicant, the reason for denial shall be given and a copy of the letter shall be routed to the reading room. If a request was made for the State Department's recommendation, a copy o f the request shall be attached to the reading-room copy of the denial letter.

A copy of each letter notifying an alien of the approval or denial of a section 212(e) waiver, based upon the request of an interested government agency or based upon a written statement of the alien's country of nationality or last residence that it has no objection to the waiver, shall be processed and forwarded to the reading room in the manner set forth above.

I. General Policies and Procedures.

(a) General. [Revised 02-08-2008 to remove Note 1 and renumber notes 2-3]

A motion to reopen or a motion to reconsider a decision may be filed provided the request meets the requirements of 8 CFR 103.5. Motions to the BIA must meet the requirements of 8 CFR 3.2. Ordinarily a motion is adjudicated by the same officer who made the original decision. In all cases, the motion must be considered by the same office (district, service center, immigration court, AAO, or BIA) which most recently decided the case. A motion may be filed by the applicant or petitioner or by USCIS.

Note 1

When considering any form of extension or similar benefit, and where the same parties are involved, USCIS will give deference to the previous decision. Deference is required even if there is a precedent or adopted decision. Furthermore, officers may only draw a different conclusion where there is a clear change or distinction in facts. Even in such instances, a supervisor must explicitly concur with the different conclusion.

Note 2

Unless there is a clear finding of fraud or substantial material misrepresentation, or the facts have clearly and distinctly changed, officers should not reopen a previously approved and valid application or petition. Even in these circumstances, a supervisor must explicitly concur with the different conclusion.

(b) Motion Filed by Applicant or Petitioner.

A motion filed by the applicant or petitioner for consideration by USCIS or the BIA is filed in writing with the fee prescribed in 8 CFR103.7. Consideration of a motion is a two-stage process: the first stage is a determination as to whether the case should be reopened or reconsidered, and the second stage (for those motions that are reopened or reconsidered) is the rendering of a new decision. [NOTE: Although 8 CFR 103.5(a)(1)(iii) states that the motion should be filed on Form I-290A, that form has not been in existence as an approved form since 1994 (and prior to that date was only used for a different purpose). Accordingly, the moving party cannot be held to that particular requirement and a motion made in writing cannot be rejected simply because it is not on that particular form.]

A motion to USCIS which does not meet one or more of the requirements for a motion set forth in 8 CFR 103.5 (other than the Form I-290A requirement) must be dismissed for failure to meet those requirements, using a written

order describing the deficiencies. The fee is not refunded in such a situation, unless is it determined that there was some USCIS error involved in the applicant or petitioner submitting the motion.

If the case is accepted for reopening or reconsideration, a new decision must be issued in formal order format. Such decision might be:

• To approve the application or petition, if all reasons for the original denial have been overcome and no new

reasons have arisen;

• To deny the application or petition for the same reasons as in the original decisions, but with an explanation as

to why the arguments submitted in the motion were not persuasive;

• To deny the application or petition for reasons not contained in the original decision, provided the applicant

or petitioner is given an opportunity to review and rebut any new evidence of which he or she was not already aware; or

• A combination of the second and third possibilities (reaffirmation of the original reasons plus the addition of

new reasons).

(c) USCIS Motions.

If you determine that a petition should not have been approved but there are no specifically applicable grounds for revocation in the regulations, or that a petition should not have been denied, the petition may be reopened on USCIS motion and a new decision issued. [See 8 CFR103.5(a)(5).] If the motion is adverse to the petitioner or applicant, a “notice of intent” should be used; if the new decision is favorable, the decision can be issued without any prior notice. A new appeal period commences with the issuance of a new adverse decision. [See also “Petition Revocation” in Chapter 20 of this manual.]

I. General Policies and Procedures.

(a) General.

In general, “certification” is an administrative procedure by which an officer asks an appellate authority or adjudicating official to review a question of law or fact arising in a pending case. The DHS regulations allow for the certification of immigration cases in two scenarios:

(1) Certification at Headquarters Direction.

DHS or USCIS headquarters may require or direct the certification of an individual case, class of cases, or cases with particular fact patterns. A case or class of cases may be certified at the direction of Headquarters with either an initial decision or pre-decision (i.e., before an initial decision is entered), as instructed by the specific directive. Headquarters-directed certifications are not required to involve unusually complex or novel issue of law or fact. Such certifications may be appropriate to ensure agency consistency on sensitive cases, or for other reasons unrelated to case complexity or novelty.

(2) Certification to the AAO.

A decision may be certified to either the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), depending on which appellate body has jurisdiction over the case. See AFM Chapter 10.8, Preparing the Appellate Case Record, for a discussion of appellate jurisdiction. In a case where the regulations do not provide for an appeal, certification may be made to the AAO, but not to the BIA.

Any case that an officer certifies to the AAO must involve an “unusually complex or novel issue of law or fact.” 8 CFR 103.4(a). The AAO may remand a certified decision if the decision does not articulate an unusually complex or novel issue. Such complex or novel issues may include, but are not limited to: issues of first impression; conflicting legal authorities; issues of significant public interest; federal litigation; questions of foreign law; novel policy issues; or highly complicated factual situations.

Officers should discuss within the chain of command whether a decision involves sufficient complexity or novelty to warrant certification and, if so, whether to certify. If a case involves an issue that requires a legal interpretation or policy, the chain of command will determine whether to elevate through the certification mechanism or through direct referral to the USCIS Office of Chief Counsel (OCC) and/or the Office of Policy and Strategy. The AAO relies upon OCC for guidance in matters of legal interpretation and defers to the USCIS Senior Policy Council to prescribe agency policy.

NOTE

Although the AAO carefully considers certifications as candidates for the precedent decision process, the resulting decision is most frequently issued as a non-precedent decision. A non-precedent decision resulting from a certification only resolves the novel or complex issues of law or fact contained in that individual case.

USCIS officers may not rely upon, nor cite to, non-precedent AAO decisions as legal authority in other decisions. A USCIS officer may, however, read a non-precedent decision for instructional value regarding the issue(s) in that same case. See AFM Chapter 14.4, Decisions of Administrative Appellate Bodies.

A case may be certified to the AAO for appellate review “only after an initial decision is made.” 8 CFR 103.4(a)

(4). By regulation, an officer must adjudicate the benefit request that is to be certified and then notify the affected

party in writing of the initial decision. The written decision must be accompanied by a Notice of Certification (Form I-290C), which notifies the affected party of their right to submit a brief. To allow full opportunity for a comprehensive legal brief, the initial decision should carefully articulate the unusually complex or novel issue of law or fact that is to be reviewed. The decision may be in the form of an approval, a denial, or a revocation, if the revocation is based on a properly issued notice of intent to revoke.

On certification, the AAO will review the officer's initial decision and enter a final appellate order that either affirms or overturns the decision, or withdraws the decision and remands the case for further action. The AAO will remand or return any case that is certified without an initial decision.

A certified decision is not considered final until the AAO issues its disposition. Any related cases- such as derivative applications filed for dependent family members- may not be decided until the AAO has made a final decision on the certified case. While a certification is pending, it is not uncommon for a petitioner or applicant to file a new petition or application seeking the same or similar benefit. To avoid inconsistent decisions, if an affected party files a new petition or application seeking the same benefit as a certified case pending before the AAO, the officer should hold the new petition or application in abeyance and consult with the AAO. If an officer discovers that a new petition or application has been adjudicated during the pendency of a certification, the officer should notify the AAO of this action.

(3) Certification after AAO Remand.

The AAO also relies on the certification process for procedural purposes related to remands. On appeal, the AAO occasionally will withdraw an officer's decision and remand the case for further action, with an order that it be certified back to the AAO if the new decision is adverse to the affected party. This order is not meant to compel approval of the remanded case, but is designed to preserve the affected party's ability to seek appellate review without payment of a second appeal fee.

On certification, the AAO may remand a case if the officer failed to enter an initial decision or articulate an unusually novel or complex issue of law or fact. On remand, the adjudicating officer may cure the defect in a new decision and again certify the case for review. If the officer does not certify the new decision, the officer must re-issue any unfavorable decision to afford the applicant or petitioner the full opportunity to file an appeal (if permitted) or motion. Alternatively, if the officer does not certify the new decision but determines that the case is approvable, he or she may approve the case in accordance with standard procedures. See AFM Chapter 10.3, General Adjudication Procedures.

(b) Procedures for Forwarding.

To certify a case to the AAO, the office preparing the initial decision must assemble a complete record of proceeding in the same manner as a record prepared for an appeal or motion, including the “Board” and “Public” copies. The certifying official must prepare a formal written order and a completed Form I-290C. See National SOP, Certifications, for technical processing requirements.

To facilitate tracking of certified decisions and identification of the complexity or novelty that warrants certification, officers must complete and include a ‘Certification Transmittal Memorandum’ (CTM) with the certified decision and Record of Proceeding. See National SOP, Certifications, Appendix. The completed CTM should be included on the non-record side of the administrative record and also e-mailed to USCIS.AAO.Certifications @uscis.dhs.gov. Copies of the CTM may be requested directly from the AAO.

I. General Policies and Procedures.

10.21 APPROVAL OF PENDING IMMIGRANT VISA PETITIONS, T OR U EXTENSION APPLICATIONS, ASYLEE/REFUGEE RELATIVE PETITIONS, OR APPLICATIONS AFTER DEATH OF THE QUALIFYING RELATIVE. [ADDED 12/16/2010; AD10-51, PM-602-0017).

(a) General. For many decades, USCIS policy interpreted the INA to mean that if the approval of an immigrant

visa petition, refugee/asylee relative petition, or application for immigration benefits requires the existence of a family relationship between the alien and another individual, the death of the individual, while the case is pending, generally meant that the alien was no longer eligible for the benefit. By regulation, 8 CFR 205.1(a)(3)(iii), USCIS had discretion to allow the approval of an immediate relative and family-based petition to remain in effect, even if the petitioner died after USCIS approved the petition. INA 204(l) gives USCIS much broader discretion to permit an alien's case to be approved, even if the petitioner or principal beneficiary has died. This chapter provides guidance for exercising that discretion.

(b) Widow(er)s of Citizens. If a U.S. citizen filed a Form I-130 and this Form I-130 was approved before his or

her death, then this Form I-130 is automatically converted to a widow(er)'s Form I-360. See 8 CFR 204.2(i)(1)

(iv). In light of the amendment to INA 201(b)(2)(A)(i) by section 568(c) of Public Law 111-83, this conversion

takes place even if the U.S. citizen and alien were married for less than 2 years when the U.S. citizen died.

There are two significant advantages available if the widow(er) of a U.S. citizen immigrates on the basis of a Form I-130 that has been converted to a Form I-360.

• First, the widow(er)'s child(ren) may accompany or follow to join the widow(er), even if the deceased petitioner

never filed a petition for the child(ren). See INA 204(a)(1)(A)(ii).

• Second, while a widow(er) and his or her child(ren), when immigrating on the basis of a Form I-360, must

show that they are not likely to become public charges, they are not required to submit a Form I-864, Affidavit of Support. See INA 212(a)(4)(C)(i)(I).

Note: As specified in INA 101(b), a child is an unmarried person under 21 years of age (as determined under the Child Status Protection Act, if necessary).

Widow(er)s of U.S. Citizens with K-visas. In the case of a K-1 nonimmigrant who marries the petitioner within 90 days of admission, the K-1 nonimmigrant (and any K-2 child(ren) who may be otherwise eligible) may obtain adjustment of status without the need for Form I-360, just as they would have been eligible for adjustment without Form I-130 if the petitioner had not died. Termination of the marriage does not end the adjustment eligibility.

Matter of Sesay 25 I&N Dec. 431 (BIA 2011). As a widow(er) and child, the K-1 and K-2 would no longer need to submit a Form I-864.

If an alien was admitted as a K-3 or K-4 nonimmigrant, the Form I-130 filed for the K-3 is converted to a Form I-360 upon the U.S. citizen petitioner's death. The K-4 can then “accompany or follow to join” the K-3 based on that Form I-360.

Remarried Widow(er)s of U.S. Citizens. A widow(er)'s eligibility for adjustment as a widow(er) ends if the widow(er) remarries before obtaining lawful permanent resident (LPR) status. The U.S. Court of Appeals for the Eleventh Circuit (11th Circuit court) has held, however, that 8 CFR 204.2(i)((iv) cannot properly be applied to prevent the alien from seeking relief under INA 204(l). Williams v. DHS Secretary, 741 F.3d 1228 (11th Cir. 2014). USCIS has decided to follow Williams even for cases arising outside the 11th Circuit.

For this reason, if the widow(er) of a U.S. citizen no longer qualifies as an immediate relative under the second sentence in INA 201(b)(2)(A)(i), the widow(er) can still seek relief under INA 204(l). For example, the widow(er)'s remarriage would prevent the widow(er) from qualifying under the second sentence of 201(b)(2)(A)(i), but USCIS would still have discretion to approve the Form I-130 (or to reinstate a prior approval) under INA 204(l), notwithstanding the widow(er)'s remarriage.

The two specific advantages to the widow(er) of filing a Form I-360 are not available to him or her if the alien widow(er) no longer qualifies under the second sentence of INA 201(b)(2)(A)(i) and instead seeks relief under INA 204(l). If the U.S. citizen spouse had not filed petitions for the alien spouse's child(ren), the child(ren) cannot “accompany or follow to join” the alien parent. Also, the widow(er) will need to submit a Form I-864 from a substitute sponsor, unless 8 CFR 213a.2 exempts the widow(er) from this requirement. See INA 213A(f)(5)(B); cf. Chapter 10.21(c)(4)(i) of this AFM.

Williams applies only to the widow(er) of a U.S. citizen (and any eligible child(ren). The surviving spouse (widow or widower) of an LPR may seek relief only under INA 204(l) or 8 CFR 205.1(a)(3)(iii)(C).

An Approved Petition Prior to October 28, 2009. A USCIS officer may encounter a case in which a petition or application was approved before October 28, 2009, despite the death of the U.S. citizen spouse who filed the petition. The approval may have occurred because USCIS was unaware of the death. In some circuits, but not all, there were precedents from the relevant courts of appeals supporting approval of an immediate relative spousal Form I-130 after the petitioner's death. In light of those precedents, and given the intent of section 568(c) of Public Law 111-83, USCIS will consider the approved petition and the grant of adjustment proper, and will not seek to rescind a grant of adjustment, if the sole basis for doing so is the death of the U.S. citizen spouse and the resulting invalidity of the Form I-864 filed by the U.S. citizen spouse.

(c) Effect of Section 204(l) of the Act.. Paragraph (a) of this chapter does not apply, and a petition or application

may be approved despite the death of the qualifying relative, if section 204(l) of the Act, as amended by section 568(d) of the FY2010 DHS Appropriations Act, Public Law 111-83, applies to the case. See paragraph (c)(6) of this chapter concerning the authority to deny these cases on discretionary grounds.

Section 568(d)(2) of Public Law 111-83 specifies that new section 204(l) does not “limit or waive” any eligibility requirements or bars to approval of a petition or application other than the lack of a qualifying relative due to the qualifying relative's death. Thus, no other eligibility requirements are changed by the enactment of section 204(l).

(1) When Section 204(l) Applies. Section 204(l) of the Act applies to any immigrant visa petition, refugee/asylee

relative petition, or application adjudicated on or after October 28, 2009, even if the petition or application was

filed before that date. Section 204(l) allows the approval of a pending petition or application, despite the death of the qualifying relative, if the alien seeking the benefit of section 204(l):

• Resided in the United States when the qualifying relative died;

• Continues to reside in the United States on the date of the decision on the pending petition or application; and

• Is at least one of the following:

○ The beneficiary of a pending or approved immediate relative visa petition;

○ The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;

○ Any derivative beneficiary of a pending or approved employment-based visa petition;

○ The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;

○ An alien admitted as a derivative “T” or “U” nonimmigrant; or

○ A derivative asylee under section 208(b)(3) of the Act.

The new section 204(l) does not expressly define the “qualifying relative.” From the list of aliens to whom new section 204(l) applies, USCIS infers that “qualifying relative” means an individual who, immediately before death was:

• The petitioner in an immediate relative or family-based immigrant visa petition under section 201(b)(2)(A)(i)

or 203(a) of the Act;

• The principal beneficiary in a widow(er)'s immediate relative or a family-based visa petition case under section

201(b)(2)(A)(i) or 203(a) of the Act;

• The principal beneficiary in an employment-based visa petition case under section 203(b) of the Act;

• The petitioner in a refugee/asylee relative petition under section 207 or 208 of the Act;

• The principal alien admitted as a T or U nonimmigrant;

• The principal asylee, who was granted asylum under 208 of the Act.

Section 204(l) applies to a petition or application adjudicated on or after October 28, 2009, even if the qualifying relative died before October 28, 2009. If a petition or application was denied on or after October 28, 2009, without considering the effect of section 204(l), and section 204(l) could have permitted approval, USCIS must, on its own motion, reopen the case for a new decision in light of section 204(l). See chapter 10.21(c)(8) of this AFM for guidance on cases denied before October 28, 2009.

Section 101(a)(33) of the Act governs the determination whether an alien “resided” in the United States when the qualifying relative died, and whether the alien continues to reside in the United States. A person's “residence” is

his or her “principal, actual dwelling place in fact, without regard to intent.” If the alien's “residence” was in the United States at the required times, the alien “resided” here. The statute does not bar an alien who was actually abroad when the qualifying alien died from proving that the alien still resides in the United States. Also, section 204(l) of the Act does not require the alien to show that he or she was, or is, residing here lawfully. Execution of a removal order, however, terminates an alien's residence in the United States. Sections 203(d), 207(c)(2)(A), and 208(b)(3)(A) permit the spouse or child of a principal alien to accompany or follow to join a principal alien. If any one beneficiary of a covered petition meets the residence requirements of section 204(l) of the Act, then the petition may be approved, despite the death of the qualifying relative, and all the beneficiaries may immigrate to the same extent that would have been permitted if the qualifying relative had not died. But it is not necessary for each beneficiary to meet the residence requirements in order to have the benefit of section 204(l).

(2) Widow(er)s of Citizens. See (b) of this chapter concerning the effect of INA 204(l) in the case of Form I-130

filed by a now-deceased U.S. citizen on behalf of his or her spouse. Please refer to Chapter 10.21(c)(5) concerning the effect of section 204(l) on the widow(er)'s ability to seek a waiver of inadmissibility after the death of the U.S. citizen spouse.

(3) Action in Pending Petition Cases. Provided the alien was residing in the United States when the qualifying

relative died, and still resides in the United States, an officer now has authority to approve any immigrant visa petition or refugee/asylee relative petition that was pending when the qualifying relative died if the petition is covered by section 204(l) of the Act, provided the petition was approvable when filed and still is approvable, apart from the death of the qualifying relative. Therefore, assuming all other requirements for approval of a petition are met, the death of the qualifying relative no longer requires denial of a petition in a case involving an alien who meets the requirements of new INA section 204(l).

Section 568(d)(2) of Public Law 111-83 specifies that new section 204(l) does not “limit or waive” any eligibility requirements or bars to approval of a petition or application other than the lack of a qualifying relative due to the qualifying relative's death. Thus, no other eligibility requirements are changed by the enactment of section 204(l). For example, a petition to which section 204(l) applies may still be subject to denial under section 204(c) of the Act (relating to prior marriage fraud) or any other statutory bar to approval. Note also that paragraph (c)(6) of this chapter provides guidance concerning the authority to deny a case under section 204(l) as a matter of discretion.

An immigrant visa petitioner may withdraw a pending petition at any time before the admission or adjustment of the principal beneficiary. 8 C.F.R. § 103.2(b)(6). USCIS cannot adjudicate a petition that has been withdrawn. See Matter of Cintron, 16 I&N Dec. 9 (BIA 1976). Pursuant to section 204(l) of the Act, whether an employment- based petitioner is able to withdraw the petition and possibly affect the ability of principal beneficiary's alien widow(e) or children to immigrate on the employment-based visa, depends on when that petitioner is attempting to withdraw the petition. If the principal beneficiary is alive when the employer petitioner requests withdrawal of the petition, then USCIS will honor that request. On the other hand, if the withdrawal is dated after the death of the principal beneficiary, then USCIS will not give effect to the request for withdrawal since the employment-based petitioner no longer has any legal interest in the immigration of the principal beneficiary's widow(er) or children.

The situation of a family-based petitioner is different. A family-based petitioner must generally assume the affidavit of support requirements for the principal beneficiary's spouse and children. Thus, unlike employment- based petitioners, the immigration of the derivatives does have an effect on the family-based petitioner. Under section 204(l) of the Act, the petitioner may certainly continue to seek approval of the petition, after the death of the principal beneficiary, if at least one derivative was residing in the United States when the principal died, and continues to do so. USCIS will presume that the family-based petitioner wants the case to continue to adjudication. But USCIS does not interpret section 204(l) of the Act as requiring the petitioner to do so. The death of the

principal beneficiary does not alter the family-based immigrant visa petitioner's right to withdraw a petition. If the petitioner chooses to withdraw the petition, USCIS will honor that decision, and refrain from adjudicating the petition. See Matter of Cintron.

Section 204(l) of the Act requires that a T or U nonimmigrant surviving relative must have been admitted as a T or U nonimmigrant derivative at the time of death of the qualifying relative T or U nonimmigrant principal. Therefore, USCIS may not approve derivative status for a surviving relative whose qualifying relative died prior to approval of the derivative T application (I-914A) or derivative U petition (I-918A). However, USCIS officers should thoroughly review the case to determine whether the surviving relative may qualify as a principal T or U nonimmigrant. Also, if the surviving relative already had status as a T or U nonimmigrant derivative at the time of death of the qualifying relative, the surviving relative may apply for adjustment of status, as specified in paragraph (c)(4) of this chapter, notwithstanding the death of the principal, once the surviving relative has the requisite continuous physical presence in the U.S. If the principal dies prior to accrual of the requisite physical presence, the surviving relative may file a Form I-539 to apply for an extension of his or her T or U nonimmigrant status, notwithstanding the death of the principal, if necessary, until the surviving relative has accrued sufficient physical presence to apply for adjustment of status.

(4) Action in Pending Adjustment Cases. (i) General. An officer also has authority, now, to approve an adjustment

of status application that was pending when the qualifying relative died, if the related visa petition is approved under section 204(l), or if a pre-death approval is reinstated. In the adjustment of status context, the alien must have been eligible to apply for adjustment of status at the time that application was filed. See Chapter 10.21(c)(5) for the impact of section 204(l) on waiver and other related applications.

Section 568(d)(2) of Public Law 111-83 specifies that new section 204(l) does not “limit or waive” any eligibility requirements or bars to approval of a petition or application other than the lack of a qualifying relative due to the qualifying relative's death. Thus, no other adjustment eligibility requirements are changed by the enactment of section 204(l).

For example, the death of the qualifying relative does not relieve the alien who is seeking adjustment under section 245(a) of the Act of the need to qualify for adjustment of status under section 245(a) of the Act. That is, unless the alien qualifies under section 245(i) of the Act, the alien must still establish a lawful inspection and admission or parole and is otherwise eligible for adjustment. An alien may not apply for adjustment before an immigrant visa is “immediately available.” Section 245(c) of the Act may make the alien ineligible, if section 245(i) or (k) of the Act does not apply to the alien. However, if there was a properly filed adjustment application pending and the beneficiary or the derivative beneficiary was eligible to adjust, approval or reinstatement of approval of a visa petition under section 204(l) will preserve any eligibility for adjustment that existed immediately before the qualifying relative died. For example, if an immediate relative petition is approved or a pre-death approval is reinstated under section 204(l) of the Act, the beneficiary remains eligible for the immediate relative exemptions in section 245(c), assuming the beneficiary is not barred from adjustment under sections 245(d) or 245(f) of the Act.

The death of a principal refugee has not, historically, affected the eligibility of a derivative refugee for adjustment under section 209(a) of the Act. See Memorandum from William R. Yates to Field Offices, “Procedural Guidance on Admission and Adjustment of Status for Refugees” at p. 9 (May 15, 2000). Thus, while section 204(l) may benefit the beneficiary of a Form I-730, if the principal dies before the derivative is admitted, reliance on section 204(l) is not necessary for a derivative who has already been admitted. By contrast, section 204(l) can benefit an alien who seeks adjustment based on a derivative asylum grant, under section 209 of the Act, as a derivative T nonimmigrant under section 245(l) of the Act, or as a derivative U nonimmigrant under section 245(m) of the Act. Any one of these aliens may still be eligible for adjustment, in light of section 204(l) of the Act, despite the death

of a qualifying relative. But the alien must still establish that he or she is eligible for adjustment, apart from the qualifying relative's death, under the governing statute.1

Similarly, the applicant must be admissible, or must obtain any available waiver of inadmissibility. Section 204(l) of the Act, by its terms, does not automatically waive any ground of inadmissibility that may apply to an adjustment applicant. See Public Law 111-83, § 568(d)(2). Thus, an adjustment applicant whose case is governed by section 204(l) of the Act may need to apply for a waiver or other relief from inadmissibility. See paragraph (c)(5) of this chapter concerning the effect of section 204(l) of the Act on applications for waivers or other relief from inadmissibility.

Because section 204(l) of the Act does not waive the standard eligibility requirements for applying for adjustment, an alien who did not already have an adjustment application pending when the qualifying relative died may not be able to seek adjustment in every case in which a pending petition was approved, or an approved petition was reinstated, under section 204(l) of the Act. An alien whose petition has been approved or reinstated under new section 204(l) of the Act, but who is not eligible to adjust status, would not be precluded from applying for an immigrant visa at a consular post abroad.2 The approval of a visa petition under section 204(l) of the Act does not give an alien who is not eligible for adjustment of status, and who is not in some other lawful immigration status, a right to remain in the United States while awaiting the availability of an immigrant visa.

The death of the qualifying relative also does not relieve the alien of the need to have a valid and enforceable Form I-864, Affidavit of Support, if required by sections 212(a)(4)(C) and 213A of the Act and 8 C.F.R. § 213a.2. If the alien is required to have a Form I-864, and the visa petition is approved under section 204(l), a substitute sponsor will need to submit a Form I-864. Pub. L. 111-83, § 568(e), 123 Stat. at 2187. A substitute sponsor is needed even if the deceased petitioner had filed a Form I-864. A Form I-864 is not a “petition” nor is it an application or “related application.” The Form I-864 is a contract between the sponsor and the Government, submitted as evidence in support of a visa or adjustment application. DHS regulations clearly provide, moreover, that a sponsor's obligations under a Form I-864 do not take force until the alien actually immigrates. 8 C.F.R. § 213a.2(e)(1). It is the grant of LPR status that is the Government's “acceptance” of the sponsor's offer to be bound by the Form I-864. The sponsor's obligations terminate with the sponsor's death. 8 C.F.R. § 213a.2(e)(2)(ii).

Also, the affidavit of support has an important role, beyond establishing that the sponsored alien is not inadmissible on public charge grounds. The sponsor's income may be deemed to the sponsored alien in determining the sponsored alien's eligibility for means-tested public benefits. 8 U.S.C. § § 1631 and 1632. The sponsor is also responsible for reimbursing an agency for the costs of any means-tested public benefit provided to the sponsored alien. Section 213A(b) of the Act.

Accepting as still valid a Form I-864 from someone whom USCIS knows to be dead would work against each of these vital aspects of the affidavit of support requirement. Thus, there is no longer a valid and enforceable Form I-864 if the sponsor dies while the petition, visa application, or adjustment application is pending.3

(ii) Adjustment not subject to conditions under section 216 of the Act. An alien who acquires LPR status based

on a marriage entered into less than 24 months before the alien acquires LPR status on a conditional basis under section 216 of the Act. Generally, the alien must then petition, two years later, for removal of the conditions. If the qualifying marriage has already ended by death, however, a conditional for removal of the conditions already exists. For this reason, if a Form I-130 and Form I-485 are approved under section 204(l) of the Act, the alien's LPR status will not be subject to the conditions under section 216 of the Act. The alien, therefore, will not need to file Form I-751.

(iii) Removal of conditions under section 216A of the Act. An alien who acquires LPR status based on a qualifying

investment under section 203(b)(5) of the Act does so on a conditional basis under section 216A of the Act. If the

derivative beneficiary of a Form I-526 obtains approval of the Form I-526 and Form I-485 under section 204(l) of the Act, the alien remains subject to the conditions imposed by section 216A of the Act. Unlike the death of a petitioning spouse under section 216 of the Act, the death of the Form I-526 petitioner does not, by itself, provide a basis for removing the section 216A conditions. Rather, under 8 C.F.R. § 216.6(a)(6), the derivative beneficiaries must still file, two years later, a Form I-829 and show that the requirements for removal of the conditions have been met.

(5) Waivers and Other Related Applications. The text of new section 204(l) provides that the new approval

authority applies not only to the visa petition, but to an adjustment application and “any related applications.” Section 568(d)(2) of the FY2010 DHS Appropriations Act specifies that section 568(d)(1) does not waive grounds of inadmissibility. But the provision does remove “ineligibility based solely on the lack of a qualifying family relationship” as a basis for denying relief. USCIS has determined, therefore, that section 204(l) does give USCIS the discretion to grant a waiver or other form of relief from inadmissibility to an alien described in section 204(l), even if the qualifying relationship that would have supported the waiver has ended through death.

Note that it is not necessary for the waiver or other relief application to have been pending when the qualifying relative died. Section 204(l) of the Act permits the approval of a waiver or other relief application despite the death of a qualifying relative if:

• a petition or application specified in paragraph (c)(1) of this chapter was pending or approved when the qualifying

relative died;

• the alien was residing in the United States when the qualifying relative died; and

• the alien still resides in the United States.

If a pending petition or application to which section 204(l) applies is denied, despite section 204(l) of the Act, then the alien may not obtain approval of a waiver or other relief under section 204(l).

Some waivers require a showing of extreme hardship to a qualifying relative, who must be either a citizen or a permanent resident. Since the legislation intends to have the new section 204(l) of the Act extend not only to the approval of the pending petition, but also to any related applications, the fact that the qualifying relative has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship. Note that 204(l) applies in this context only when, the hardship being claimed by the surviving beneficiary, would have been on account of claimed extreme hardship that would have been suffered by the qualifying relative were he or she still alive. Additionally, it should be noted that the finding of extreme hardship merely permits, and never compels a favorable exercise of discretion. See Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996). That is, as with any other waiver case, a waiver application decided in light of section 204(l) requires the weighing of all favorable factors against any adverse discretionary factors. Extreme hardship is just one positive factor to be weighed. See id. The inadmissibility ground sought to be waived is, itself, an adverse factor. See INS v. Yang, 519 U.S. 26 (1996). For example, inadmissibility based on a conviction for a violent or dangerous crime requires proof of exceptional or extremely unusual hardship, or some other extraordinary circumstance, in order for a waiver application to be approved. 8 C.F.R. § 212.7(d).

The preceding paragraph assumes that the qualifying relative was already a citizen or permanent resident at the time of death. If the qualifying relative was not already a citizen or permanent resident, then the qualifying relative's death does not make the alien eligible for a waiver that would not have been available if the qualifying relative had not died. If the qualifying relative was not a citizen or permanent resident, then the alien may not be able to

obtain a waiver of inadmissibility unless there is yet another individual who has the requisite status and family relationship to meet the requirements of the waiver provision, or the waiver provision does not require a family relationship and/or extreme hardship.

As noted in Chapter 10.21(c)(2), section 204(l) does not apply to Form I-130 that was filed by a now-deceased citizen for his or her spouse, who is now the widow(er) of a citizen. Once the citizen has died, the widow(er) becomes the visa petitioner. USCIS has determined, however, that if the widow(er) was the beneficiary of a pending or approved Form I-130 when the original petitioner died, and the widow(er) meets the residence requirements in section 204(l), then section 204(l) preserves the widow(er)'s ability to have a waiver application approved as if the now deceased citizen had not died. As with any other waiver application that is covered by section 204(l), the fact that the citizen petitioner has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship. But the finding of extreme hardship merely permits, and never compels a favorable exercise of discretion. See Matter of Mendez-Moralez, supra. The widow(er) must still establish that he or she merits a favorable exercise of discretion.

As noted in paragraph (b) of this chapter, a Form I-130 filed by a U.S. citizen for the U.S. citizen's spouse becomes a Form I-360 if the U.S. citizen has died. The widow(er) becomes the visa petitioner, and generally does not need to rely on INA 204(l). USCIS has determined, however, that if the widow(er) was the beneficiary of a pending or approved Form I-130 when the original petitioner died and the widow(er) meets the residence requirements in INA 204(l), then INA 204(l) preserves the widow(er)'s ability to have a waiver application approved as if the now deceased U.S. citizen had not died. If the widow(er) remarries and then requests and obtains relief under section 204(l) and Williams v. DHS Secretary, 741 F.3d 1228 (11th Cir. 2014), the remarried widow(er) may also rely on INA 204(l) in seeking a waiver of inadmissibility. As with any other waiver application that is covered by INA 204(l), the fact that the U.S. citizen petitioner has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship. But the finding of extreme hardship merely permits, and never compels, a favorable exercise of discretion. See Matter of Mendez-Moralez, supra. The widow(er) must still establish that he or she merits a favorable exercise of discretion.

(6) Discretionary Denial under Section 204(l). Section 204(l) gives USCIS discretion to deny a petition or

application that may now be approved despite the qualifying relative's death, if USCIS finds, as a matter of discretion, “that approval would not be in the public interest.” Section 204(l)(1) of the Act, 123 Stat. at 2187. This exercise of discretion, moreover, is “unreviewable.” Id.

USCIS officers will not, routinely, use this discretionary authority to deny a visa petition that may now be approved, despite the death of the qualifying relative. In a visa petition proceeding that is not subject to section 204(c) of the Act or some other approval bar, the overriding issue is simply whether the beneficiary qualifies for the visa classification sought. Inadmissibility, for example, does not warrant denial of a visa petition. See Matter of O-, 8 I&N Dec. 295 (BIA 1959). Section 204(l) now provides that an alien described in section 204(l) can still qualify for the benefit sought, despite the qualifying relative's death. Thus, only truly compelling discretionary factors should be cited as a basis to deny a visa petition under section 204(l), on the ground “that approval would not be in the public interest.” Section 204(l)(1) of the Act, 123 Stat. at 2187. Before denying a visa petition on this basis, the USCIS officer must consult with the appropriate Headquarters Directorate, through appropriate channels.

This consultation requirement also applies to all cases, other than visa petition cases, that may now be approved under section 204(l) despite the qualifying relative's death. The USCIS officer must consult the appropriate Headquarters Directorate before denying a case on the ground “that approval would not be in the public interest.” Section 204(l)(1) of the Act, 123 Stat. at 2187. Consultation is not required if the USCIS officer will deny the case based solely on the traditional discretionary factors that would have applied to the particular type of case, even if the qualifying relative were still alive. For example, unwaived or unwaivable fraud or criminal inadmissibility, or

security grounds, may warrant denial as a matter of discretion under ordinary circumstances, and consultation is not required in such a case. Rather, consultation is required only if the USCIS officer intends to deny the case as a matter of discretion on the “not . . . in the public interest” ground.

(7) Humanitarian Reinstatement. Under DHS regulations at 8 C.F.R. § 205.1(a)(3)(i)(C), approved immediate-

relative and family-based petitions filed under section 204 are automatically revoked upon the death of the petitioner or the beneficiary. Since approval under section 204(l) is a matter of agency discretion, enactment of section 204(l) does not supersede this long-standing regulation. But 8 C.F.R. § 205.1(a)(3)(iii)(C)(2) also gives USCIS discretion to decide not to revoke the approval for “humanitarian reasons.” In light of section 204(l), it would generally be appropriate to reinstate the approval of an immediate-relative or family-based petition if the alien was residing in the United States when the petitioner dies and if the alien continues to reside in the United States. In those circumstances, reinstating the approval of an immediate-relative or family-based petition is appropriate even if the death that resulted in the automatic revocation occurred before October 28, 2009. The fact that USCIS already denied reinstatement before October 28, 2009, does not preclude a new request.

Under DHS regulations at 8 C.F.R. § 205.1(a)(3)(iii)(B), approved employment-based petitions filed under INA section 203(b) are automatically revoked upon the death of the petitioner or the beneficiary. There is no comparable regulatory provision that allows for the reinstatement of the approval of employment-based petitions based upon “humanitarian reasons.” Similarly, the DHS regulation at 8 C.F.R. §205.1(a)(3)(iii)(C)(2) does not provide for reinstatement of approval of an immediate-relative or family-based visa petition if it is the principal beneficiary, rather than the petitioner, who has died. In light of section 204(l), however, USCIS officers may act favorably on requests to reinstate approvals under section 205 of the Act and 8 C.F.R. part 205.

See Chapter 21.2(h)(1)(C) of this AFM for further guidance on reinstating approval of visa petitions. Chapter 21.2(h)(1)(C) specifies the information that the beneficiary should submit with the written request for reinstatement and also specifies that the written request should be submitted to the USCIS service center or field office that approved the petition except that, if the beneficiary has properly filed an application for adjustment of status with USCIS, the request should be submitted to the USCIS office with jurisdiction over the adjustment application.

USCIS may still deny a request to reinstate approval as a matter of discretion. As stated in chapter 10.21(c)(6) of the AFM, however, the USCIS officer must consult the appropriate Headquarters Directorate through appropriate channels, if the USCIS officer intends to deny reinstatement solely based on a finding under section 204(l) that granting it “would not be in the public interest.”

(8) Application of New Section 204(l) to Cases Adjudicated before October 28, 2009.

(i) Denials. New section 204(l) does not, by its terms, require USCIS to reopen or reconsider any decision denying

a petition or application, if the denial had already become final before October 28, 2009. For this reason, enactment of new section 204(l) is not a reason for USCIS to reopen or reconsider, on its own motion, any decision that was made before October 28, 2009. Given the intent of section 204(l), USCIS has decided to allow an alien to file an untimely motion to reopen a petition, adjustment application, or waiver application that was denied before October 28, 2009 if new section 204(l) would now allow approval of a still-pending petition or application. A motion to reopen, rather than a motion to reconsider, would be the proper type of motion, since the alien would need to present new evidence: proof of the relative's death and proof both that the alien was residing in the United States when the relative died and that the alien continues to reside in the United States. The alien must pay the standard filing fee for each motion, unless the alien qualifies for a fee waiver under 8 C.F.R. § 103.7(c)(5). If the alien establishes that he or she was residing in the United States when the qualifying relative died, and that he or

she continues to reside in the United States, it would be appropriate for USCIS to exercise favorably the discretion to reopen the petition and/or application(s), and to make new decisions in light of new section 204(l).

Note that an alien who is present in the United States unlawfully does not accrue unlawful presence while a properly filed adjustment application is pending. AFM chapter 40.9.2(b)(3)(A). If USCIS grants, under section 204(l) of the Act, a motion to reopen a Form I-485 that was denied, the Form I-485 will, once again, be pending, and is deemed to be pending from the original date of filing. Thus, reopening a Form I-485 under section 204(l) of the Act will cure any unlawful presence that may have accrued between the original denial and the new decision. The result is that the alien will not have accrued any unlawful presence from the original filing of the Form I-485 until there is a final decision after the reopening of the Form I-485. If the alien is otherwise inadmissible because of unlawful presence accrued before applying for adjustment, a waiver may be available, as discussed in paragraph

(c)(5) of this chapter.

(ii) Approvals. A USCIS officer may encounter a case in which a petition or application was approved, before

October 28, 2009, despite the death of a qualifying relative. The approval may have occurred because USCIS was unaware of the death, or because the alien persuaded USCIS that the death did not end eligibility. Although some courts of appeals had held that the death of a citizen did not end the eligibility of the citizen's spouse for classification as an immediate relative, there was no nationwide ruling on this issue. Nor was there any binding precedent concerning relatives other than widow(er)s of citizens. The spousal immediate relative cases, however, could be seen as at least persuasive authority that USCIS could approve other types of visa petitions, despite the petitioner's death. Given the intent of section 204(l), USCIS will deem the approval of the petition and the grant of adjustment proper, and will not seek to rescind a grant of adjustment, if the sole basis for doing so is the death of the qualifying relative or the resulting invalidity of the Form I-864 filed by the visa petitioner.

Footnotes 1 In the past, USCIS has been willing to grant asylum as a principal to a derivative asylee who no longer qualified as a derivative.This action would preserve the derivative's ability to adjust even if the derivative was no longer the spouse or child of a principal. Section 204(l) of the Act makes this step unnecessary, if the reason for the loss of derivative status is the death of the principal.

2 The alien must have been continuing to reside in the United States in order for the petition to have been approved.Once it has been approved, however, the alien's departure to obtain a visa would not change the fact that the alien met the residence requirements when the officer adjudicated the petition.

3 A substitute sponsor's Form I-864 is not needed if the alien is not required to have a Form I-864 at all.For example, an alien may already have, or be entitled to be credited with, sufficient quarters of coverage under the Social Security Act to be exempt from the Form I-864 requirement. See 8 C.F.R. § 213a.2(a)(2)(ii)(C). Also, as with any Form I-864, the substitute sponsor may rely on the financial resources of the sponsored alien to meet the Form I-864 requirements. See id. § 213a.1 (including sponsored alien's lawful income in the United States in “household income”) and § 213a.2(a)(iii)(B) (including sponsored alien's assets).

I. General Policies and Procedures.

(a) General.

In many instances the adjudicator may audio or video tape an interview with an applicant or petitioner. The purpose of such a recording is to preserve evidence for possible use in later proceedings without expending significant resources creating a verbatim written record. Such recordings may be used as evidence for denying a benefit. However, if such a decision is subsequently appealed, it may be necessary to transcribe the text of the interview in order to introduce it before the immigration court or Board of Immigration Appeals. The Executive Office for Immigration Review has declined to accept either video or audio taped interviews as evidence unless they are so transcribed. Chapter 15 of this manual contains information on interview techniques, including the use of video and audio recording devices as an integral part of the interview process.

(b) Retention.

Tapes (video or audio) used for routine interviews (e.g. marriage fraud, adjustment of status, or naturalization) may be erased for reuse within ten days unless:

• the application or petition is likely to be denied and the information contained on the tape is considered as

evidence;

• an incident during the interview was recorded on the tape and the tape may be used either for training, or to

support or refute allegations of misconduct by a USCIS employee.

Such tapes should be retained for a period of three years, and may be extended in yearly increments in the event of ongoing litigation.

I. General Policies and Procedures.

(a) Document Translations.

All documents submitted in support of an application or petition must include complete translation into English. In addition, there must be a certification from the translator indicating that the translation is complete and accurate and attesting to his or her competence as a translator. See 8 CFR 103.2(b)(3).

NOTE

Sometimes the keeper of a record will issue an “extract” version of the document. This often happens in countries where the complete document is lengthy and filled with extraneous information. Such official extracts are acceptable, but only if they contain all the information necessary to make a decision on a case. For example, an official extract of a birth certificate which fully identifies the child's parents may be used in support of a visa petition; one which only lists the child's name and date and place of birth may not. Furthermore, only extracts prepared by an authorized official (the “keeper of record”) are acceptable. A summary of a document prepared by a translator is unacceptable.

From time to time, you may have need to translate a document which is relevant to a case but not submitted as part of the supporting documents. In other instances, you may have reason to suspect the accuracy of a translation which has been submitted. Some offices have access to translation services provided by employees or others. In addition, USCIS officers may request translation services for documents in all major languages from the New York District Office. [(b)(2) or (b)(7)(E)]

(b) Interpreters.

If a statement is taken in a foreign language, using an interpreter, and transcribed into English, it may be necessary to produce the interpreter at a subsequent hearing. Thus, when it is known or believed that the statement will be attacked on the ground that it was not correctly interpreted, it is a good practice to have the interpreter available to testify not only as to knowledge of the language but also that the statement was correctly interpreted when it was made. If the interpreter is not a regular USCIS or DHS employee, the statement should show certification that the individual was a qualified interpreter and interpreted to the best of his or her ability. Furthermore, before anyone who is not a regular USCIS or DHS interpreter can be used in such capacity, he or she must first be sworn to give full, accurate and compete translation.

I. General Policies and Procedures.

USCIS officers are authorized to administer oaths, pursuant to section 287(b) of the Act. In addition to certain applications which must be sworn to under oath, officers routinely conduct adjustment of status and naturalization interviews under oath. Sworn statements taken from the petitioner, beneficiary, applicant or other parties may also be required. In addition to oaths administered by officers, USCIS recognizes oaths administered for immigration purposes by authorized military personnel as provided by Article 136 of the Uniform Code of Military Justice. The list of authorized military officers includes: judge advocates, law specialists, adjutants, commanding officers and other designated by regulation.

The application forms for immigration benefits and regulations at 8 CFR 103.2(a)(2) require that each application and petition be signed by the applicant. By signing the form, the applicant or petitioner certifies, under penalty of perjury, that the information contained on the application and in all supporting documents is true and correct.

I. General Policies and Procedures.

Title 8 CFR 103.2(b) provides that USCIS may consider other evidence from its files or from other sources when adjudicating an application or petition. It is important to remember however, that before you base an adverse decision on such information you provide the applicant or petitioner with an opportunity to rebut the information, unless the applicant or petitioner was already aware of such information, or could reasonably be assumed to be aware of such information. See 8 CFR 103.2(b)(16).

I. General Policies and Procedures.

12.1 REPRESENTATION BEFORE USCIS (REVISED 5/23/2012; PM-602-0055.1, AD11-42)

(a) General

An applicant or petitioner may be represented in matters filed with USCIS. [FN1] Whenever an examination is provided for under the regulations, the person involved has the right to be represented by an attorney or representative before USCIS. [FN2]

Title 8 CFR 292.1 lists the categories of individuals who may represent a ““person entitled to representation” before DHS, “subject to the limitations in 8 CFR 103.2(a)(3).” An applicant or petitioner may be represented by an attorney in the United States, an attorney outside the United States (in matters occurring outside the geographical confines of the United States), or an accredited representative of a recognized organization. [FN3] Only these categories of representatives may file a notice of appearance on Form G-28 or G-28I in an application or petition proceeding before USCIS.

Law students and law graduates may engage in practice [FN4] and preparation [FN5] under the requirements described in the regulations [FN6] but may not be the official representative of record on Form G-28. USCIS provides notices in writing to the supervising attorney or accredited representative identified as the representative on the Form G-28. Law students and law graduates may attach a statement with the information required in 8 CFR 292.1(a)(2) to the Form G-28 filed by their supervising attorney or accredited representative, or in person at a USCIS office. A law student or law graduate who has filed the required statement in a case may communicate with USCIS in writing. Substantive filings require the signature of the supervising attorney or accredited representative. See section 12.1(e) for additional information.

Reputable individuals and accredited officials may assist a person entitled to representation before USCIS. Unless otherwise licensed to do so, reputable individuals may not engage in the practice of law, but may apply to appear in- person before a DHS official at an interview or other meeting or appointment at a USCIS office. These individuals may not file a Form G-28. They must provide a written declaration to the USCIS official before whom they seek to appear, and may participate in the interview process only if that official permits their appearance. The original of this written declaration is to be maintained by the USCIS official in charge of the office in which the request was made, with a copy filed in the record of proceeding. An accredited official of the government to which an applicant or petitioner owes allegiance may appear at an interview solely in his or her official capacity and only with the applicant's or petitioner's consent. [FN7] See section 12.1(f) for additional information.

USCIS does not provide notices in writing to reputable individuals or accredited officials. [FN8]

(b) Attorneys in the United States

An “attorney” is any person who is eligible to practice law in and is a member in good standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the United States, or of the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law. [FN9]

• An attorney need not be admitted to practice in the state in which his or her office is located or where the applicant

or petitioner resides, and my have an office outside the United States, as long as he or she is an attorney as defined in the regulations.

• USCIS employees must routinely consult the DHS Disciplinary Counsel website for information on how to

verify the eligibility of an attorney.

• An attorney must submit an “Notice of Entry of Appearance as Attorney or Accredited Representative” (Form

G-28) in each case in which he or she seeks to appear. The form must be properly completed and signed by the petitioner or applicant in order for the appearance to be recognized by USCIS. [FN10]

(c) Attorneys outside the United States

An “attorney outside the United States” is an attorney (other than one who fulfills the requirements of an “attorney” in the United States) “who is licensed to practice law and is in good standing in a court of general jurisdiction of the country in which he or she resides and who is engaged in such practice.” [FN11]

• An attorney outside the United States may only represent applicants or petitioners in matters outside the

geographical confines of the United States at a USCIS overseas office. He or she must receive permission to appear from the USCIS official before whom he or she wishes to appear.

• In order to establish eligibility, such an attorney must establish that he or she resides outside the United States

in the country in which he or she was admitted to the practice of law, and that he or she is engaged in practice in that country.

• An attorney outside the United States must submit a “Notice of Entry of Appearance as Attorney in Matters

Outside the Geographical Confines of the United States” (Form G-28I) in each case in which he or she seeks to appear.

• The form must be properly completed and signed by the petitioner or applicant for the appearance to be

recognized by USCIS. [FN12]

(d) Accredited Representative

An “accredited representative” is a person who represents an organization that has been recognized by the Board of Immigration Appeals (BIA) and has been accredited by the BIA to represent others in immigration proceedings before the immigration courts and the BIA of the Executive Office for Immigration Review and/or DHS. [FN13]

• EOIR maintains a list of Recognized Organizations and accredited representatives who have authority to

represent individuals before EOIR and/or DHS at www.justice.gov/eoir/legalrepresentation.htm. Accredited representatives who are listed as “partially accredited” are authorized to practice only before DHS.

• Accredited representatives must submit a “Notice of Entry of Appearance as Attorney or Accredited

Representative” (Form G-28) in each case in which they seek to appear.

• The form must be properly completed and signed by the petitioner or applicant for the appearance to be

recognized by USCIS. [FN14]

(e) Law Students and Law Graduates not yet admitted to the bar

Law students who are enrolled in an accredited U.S. law school and law graduates of an accredited U.S. law school who are not yet admitted to the bar may engage in practice [FN15] and preparation, [FN16] constituting representation [FN17] under supervision as required in 8 CFR 292.1(a)(2).

• The supervising attorney or accredited representative of a law student or law graduate must submit a “Notice

of Entry of Appearance as Attorney or Accredited Representative” (Form G-28) in application and petition proceedings before USCIS

• A law student enrolled in an accredited U.S. law school must file a statement that he or she is participating

under the direct supervision of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization and is appearing without direct or indirect remuneration from the individual he or she represents. [FN18]

• A law school graduate of an accredited U.S. law school who is not yet admitted to the bar must file a statement

that he or she is appearing under the supervision of an attorney or accredited representative, and is appearing without direct or indirect remuneration from the applicant or petitioner. [FN19]

• The statement from the law student or law graduate may be attached to the Form G-28 filed by the supervising

attorney or accredited representative, or submitted in person at a USCIS office. (See Sample Statement in Appendix 12-1.)

• Law students and law graduates must seek permission from the DHS official before whom they seek to appear

with an applicant or petitioner in person at a USCIS office. [FN20] If the DHS official does not permit a law student or law graduate to appear, the reason for this decision shall be provided to the law student or law graduate in writing.

• The USCIS officer may require that the supervising faculty member, attorney, or accredited representative appear

with the law student or law graduate. [FN21] Law students and law graduates who are accompanied by the supervising attorney or accredited representative shall be permitted to appear at the interview or other examination.

• If the USCIS officer observes an action by a law student or law graduate that provides good cause for the

officer to believe that the representation by the law student or law graduate will impair the efficient conduct of the proceeding, the USCIS officer may alert a USCIS supervisor who may contact the supervising faculty member, attorney, or accredited representative if they are not present.

• All notices and communication to the applicant/petitioner's representative in such cases should be addressed to

the supervising attorney or accredited representative listed on the Form G-28 (not the law student or law graduate). Law students and law graduates who have submitted a statement with the information required in 8 CFR 292.1(a)

(2) may communicate in writing with USCIS with regard to procedural issues, such as rescheduling of interviews

or biometrics appointments. Substantive filings, such as the filing of briefs or submission of evidence, require the signature of the supervising attorney or accredited representative.

(f) Reputable Individuals

A reputable individual is an individual of good moral character who appears on an individual case basis at the request of the person entitled to representation. The reputable individual must have a pre-existing relationship with the applicant or petitioner (e.g., relative, neighbor, clergyman, business associate or personal friend), and must not receive payment directly or indirectly for his or her representation. [FN22] A USCIS official may waive the requirement that a pre-existing relationship exist between the applicant or petitioner and the representative in cases where adequate representation would not otherwise be available. [FN23]

• The reputable individual must submit a declaration that states that he or she is appearing without direct or indirect

remuneration. (See Sample Declaration in Appendix 12-1.)

• The reputable individual must receive permission from the DHS official before whom he or she wishes to appear.

In order to determine whether or not to grant the request of a person seeking to appear as a reputable individual, the DHS official should review the declaration presented and ask the individual questions regarding his or her eligibility and record this information in the record of proceedings. Permission will not be granted to any individual who regularly engages in immigration and naturalization practice or preparation or holds himself or herself out to the public as qualified to do so. [FN24]

• USCIS does not accept Forms G-28 filed by reputable individuals, as they are not included in the limited category

of representatives in 8 CFR 103.2(a)(3). [FN25]

• The reputable individual who is granted permission to appear with an applicant or petitioner may appear only

in-person in that case.

• UUSCIS does not send notices or other written communications to reputable individuals. [FN26]

(g) Accredited Officials

An accredited official of the alien's home government (e.g., a consular officer) may represent an alien if the official is in the United States and appears solely in his official capacity and with the applicant's or petitioner's consent. [FN27]

• In exercising discretion to allow an accredited official to appear before DHS, DHS officials should ensure that

the individual does not regularly engage in immigration practice or preparation or hold himself out to the public as qualified to do so. To properly document this exercise of discretion, DHS officials should request such individuals submit a written statement in support of their appearance, addressing the relevant factors. (See Sample Statement in Appendix 12-1.)

• USCIS does not send notices or other written communications to accredited officials. [FN28]

Footnotes 1 8 CFR 103.2(a)(3) (2011)

2 8 CFR 292.5(b) (2011). Refugee applicants do not have the right to representation, as such applicants are deemed to be applicants for admission. Consistent with the longstanding position of the former Immigration and Naturalization Service and USCIS, refugee applicants do not have the right to represnetation during an interview regarding a request for classification as a refugee, unless the applicant is the focus of a criminal investigation and has been taken into custody as outlined in 8 CFR 292.5(b). Accordingly, this guidance does not apply to the Refugee Affairs Division or the Asylum Division of the Refugee, Asylum, and International Operations Directorate, which are governed by other established procedures, guidance, and lesson plans. This guidance does not apply to site visits conducted by the Fraud Detection and National Security Directorate, which are governed by other established procedures, guidance, and lesson plans.

3 8 CFR 103.2(a)(3) (2011)

4 8 CFR 1.2

5 8 CFR 1.2

6 8 CFR 292.1(a)(2) (2011)

7 8 CFR 292.1(a)(5) (2011)

8 Id.

9 8 CFR 1.2 (2011)

10 8 CFR 292.4(a) (2011); Instructions for Form G-28 (Rev. 04/22/09)N

11 8 CFR 292.1(a)(6) (2011)

12 8 CFR 292.4(a) (2011); Instructions for Form G-28I (04/22/09)

13 8 CFR 292.1(a)(4) & 8 CFR 292.2

14 8 CFR 292.4(a) (2011); Instructions for Form G-28 (Rev. 04/22/09)N

15 8 CFR 1.2 (2011)

16 8 CFR 1.2 (2011)

17 8 CFR 1.2 (2011)

18 8 CFR 292.1(a)(2) (2011)

19 8 CFR 292.1(a)(2) (2011)

20 8 CFR 292.1(a)(2)(iv) (2011)

21 8 CFR 292.1(a)(2) (2011)

22 8 CFR 292.1(a)(3) (2011)

23 8 CFR 292.1(a)(3)(iii) (2011)

24 8 CFR 292.1(a)(3)(iv) (2011)

25 8 CFR 103.2(a)(3); 292.1(a); 292.4(a) (2011); Instructions for Form G-28 (Rev. 04/22/09)N

26 8 CFR 103.2(a)(3) and 292.5(a) (2011)

27 8 CFR 292.1(a)(5) (2011)

28 ***

I. General Policies and Procedures.

(a) Filing a Notice of Entry of Appearance as Attorney or Accredited Representative

• Attorneys, attorneys outside the United States, and accredited representatives must establish their eligibility to

appear on the form designated by DHS in each case. [FN1]

• Attorneys and accredited representatives must submit a Form G-28, Notice of Entry of Appearance as Attorney

or Accredited Representative.

• Attorneys outside the United States must submit a Form G-28I, Notice of Entry of Appearance as Attorney in

Matters Outside the Geographical Confines of the United States.

• The Form G-28 and Form G-28I must be properly completed and signed by the applicant or petitioner in order

for the appearance to be recognized by USCIS. Once the Form G-28 or Form G-28I is accepted, the appearance will be properly recognized until the conclusion of the matter for which it was entered.

• When filing an appeal with the Administrative Appeals Office on Form I-290B, the attorney or accredited

representative must file a new Form G-28.

• Other representatives (law students, law graduates, reputable individuals and accredited officials) may not submit

Form G-28 or Form G-28I.

• See section 12.1(e) for additional information on law students and law graduates.

USCIS officers may verify an attorney's or accredited representative's eligibility and require further proof of authority to act in a representative capacity. Officers should seek more information at the DHS Disciplinary Counsel website and at www.justice.gov/eoir/legalrepresentation.htm. Officers should also reference the list of disciplined practitioners at http:// www.justice.gov/eoir/discipline.htm, which includes attorneys and accredited representatives who are currently disbarred or suspended from practice before DHS and EOIR. USCIS officers should be aware of individuals who have falsely claimed to be attorneys or accredited representatives when they are not and individuals who have been the subject of federal, state, or local court action to stop their unauthorized practice of law or theft of fees for legal services they may not lawfully provide. USCIS officers should not communicate with these individuals, even if they submit a “Notice of Entry of Appearance as Attorney or Representative” (Form G-28) in a case.

(b) Substitution or Withdrawal of Representation.

It is not uncommon for applicants or petitioners to wish to change representatives or elect to forgo representation during the course of a proceeding. Notification to USCIS of the substitution or withdrawal of a representative may occur in a written notice of withdrawal by the representative of record or upon the filing of a properly completed G-28 or G-28I by the new representative. [FN2] Written notifications are to be filed in the record of proceedings. An applicant or petitioner may elect to proceed without his or her representative, but must submit a written statement to the USCIS official that he or she has voluntarily chosen to proceed without representation.

Footnotes 1 8 CFR 292.4(a) (2011)

2 8 CFR 292.4 (2011)

I. General Policies and Procedures.

When an examination is to be conducted in immigration proceedings, the person involved has the right to be represented, at no expense to the government, by an attorney or representative, as defined in 8 CFR 292.1(a). The role of the representative at an interview is to ensure that the rights of the individuals he or she represents are protected.

When conducting an interview of a petitioner and beneficiary simultaneously, attorneys or other representatives of both the petitioner and beneficiary will be permitted to appear. [FN1] In visa petition proceedings, representatives who have obtained the consent of the petitioner should be recognized in interviews with the petitioner. Representatives who have obtained the consent of the beneficiary should be recognized in interviews with the beneficiary. An attorney or representative may not respond to questions the USCIS officer directs to the applicant, petitioner, or witness, except to ask the USCIS officer to clarify the question asked. An attorney or representative may ask the applicant or petitioner additional questions at the conclusion of the interview by the officer.

An attorney or other representative of an applicant or petitioner may not simultaneously serve as his or her client's interpreter during an interview. [FN2] If, after being so advised, the attorney or other representative continues to interpret for the applicant or petitioner or otherwise disrupts the interview, USCIS may terminate the interview and advise the parties that the interview cannot be completed under these circumstances and that USCIS will proceed to make a decision based on the record of proceedings. [FN3]

See Chapter 15 for additional guidance on Interview Techniques.

Footnotes 1 8 CFR 103.2(a)(3) (2011)

2 Exceptions may be made if the interests of the Government will not be prejudiced.

3 This language does not apply to examinations governed by 8 CFR 312.4.

I. General Policies and Procedures.

DHS has rules of professional conduct for practitioners who practice before the Department's immigration agencies. [FN1] Under the rules, practitioners (attorneys, accredited representatives and other categories of representatives permitted to appear by DHS) are subject to discipline for criminal, unethical, or unprofessional conduct. Complaints of professional misconduct by practitioners should be reported to the DHS Disciplinary Counsel. USCIS officers should visit the Disciplinary Counsel website for more information on professional conduct, reporting misconduct, and how to verify the eligibility of an attorney or accredited representative. Attorneys and other representatives have a duty to represent their clients zealously. They must, however, do so within the bounds of the law and in accordance with the Rules of Professional Conduct for Practitioners.

Officers should not engage in personal conversations or arguments with attorneys or other representatives during the course of an interview. If a discussion becomes disruptive, abusive, or otherwise interferes with the orderly process of the interview, the officer should seek assistance from a supervisor. The attorney or representative may object to the appropriateness of a line of questioning and, as a last resort, may request supervisory review without terminating the interview. Where necessary, disagreements between USCIS officers and attorneys or other representatives regarding the appropriate role of the attorney or other representative in USCIS interviews, should be elevated to the Field Office Director. USCIS employees may not file complaints directly to state bar disciplinary authorities. Complaints of unethical and unprofessional conduct by attorneys or other representatives should be reported to DHS Disciplinary Counsel through appropriate supervisory channels.

Footnotes 1 8 CFR 292.3 (2011)

I. General Policies and Procedures.

As an adjudications officer, your decisions about applications must be grounded in the law. Even when the outcome of an issue seems obvious, you must insure that the justification for your decision is based on legal authority (see for example AFM chapter 72.4 “Step-by-step discussion of the decision process”). You must also keep in mind the sources for your authority, which will guide you in applying the eligibility requirements fairly and consistently to each applicant. In addition to the Immigration an d Nationality Act (INA) and other statutes governing immigration law enacted by Congress and signed by the President, your actions as an adjudications officer should be governed by the following:

• Code of Federal Regulations (CFR)

• Other foreign and domestic laws

• Treaties

• Interpretations

• Court decisions

• BIA and AAO decisions

• Operating Instructions

• ICE Intelligence Program and ICE Forensic Document Laboratory publications (see Interview Preparation

Section)

• USCIS policies and procedures, field manuals, policy memoranda, the Administrative Manual, and other official

policy documents

• Department of State Foreign Affairs Manual, particularly Volume 9, Appendices B, C, and E, which catalog

foreign document availability and information about content and format

• Other secondary sources (i.e., legal dictionaries, legal encyclopedias, etc.)

Note

The list of potential reference works above is not exhaustive, nor is it an endorsement of any particular resource.

I. General Policies and Procedures.

Legal research is a search for authorities and standards to apply in resolving legal issues. Successful legal research is a process in which you build upon what you already know. If you approach research in this way, you are bound to be successful. For example, you may have nothing more than a reference to a section of the law. From that information, you can obtain the U.S. Code section number. U.S. Code Annotated will often refer to judicial cases dealing with the particular section of law. (This resource should be available in your office; if not, please check with your local district counsel.) The cases often cite various relevant regulations, law review articles, and other interpretive materials. Thus from a very small amount of information, you will be able to find a wealth of materials.

The following sources will provide you with the information you need when conducting your research.

I. General Policies and Procedures.

The Immigration and Nationality Act, often referred to as “The Act” or “INA,” is the primary source of immigration law. Any lawful action by USCIS or by any of its officers must be traced back to, and authorized by, the provisions of the United States Code. Sections of the INA are often referred to by their section number within the Act. The Act itself is part of the larger U.S. Code (U.S.C.), beginning at 8 U.S.C. 1101 et seq., and particular sections are frequently referred to by their U.S.C. citations, rather than by their INA citations.

The other major source of authority in immigration law is the Code of Federal Regulations (CFR). When Congress enacts a statute pertaining to immigration or naturalization, it generally vests the Director of Homeland Security with authority to implement the statute and promulgate regulations. The statute takes effect on the effective date: either the date it was signed into law or a specific date noted in the law itself. Implementing regulations are later published by USCIS.

Regulations, though not issued by Congress, have the force of law. USCIS's regulations are contained in Title 8 of the Code of Federal Regulations (8 CFR). Other parts of the Code of Federal Regulations may have an affect on immigration issues as well, especially State Department regulations, which can be found at 22 CFR. The Code of Federal Regulations can change nearly every day. To keep track of changes in Federal regulations, review the selected chapters that are published on I-LINK, as well as the hard copy of the Federal Register. Title 8 and portions of several other titles of the Code of Federal Regulations are contained in I-LINK and are updated whenever a new I-LINK disk is distributed. However, you should recognize that there may well be revisions that have become effective since the most recent I-LINK CD was produced.

Changes to the Federal regulations are published daily in the Federal Register. The Federal Register also publishes Executive Orders and Presidential statements. When rules are published in the Federal Register, they almost always contain a preamble, which is a statement by the promulgating agency that explains the rule and the basis for issuing the rule. By reading the preamble, you will often find guidance on how to apply a specific provision of the regulation. Several features in the Federal Register will help you determine whether a specific regulation has been changed. At the front of each issue of the Federal Register appears a table of contents arranged by agency name, which is followed by a “list of CFR parts affected” by that day's issue. You can quickly scan this list to determine whether there are any recent amendments that affect current immigration regulations. At the end of each day's issue, you will also find a cumulative list of parts affected, listing all CFR parts affected for the current month.

You can access the Federal Register on-line at http:// www.archives.gov/federal_register / or in hard copy format in your district office. It is also available on I-LINK and includes the following for certain years:

• Notices

• Proposed regulations

• Interim regulations

• Final regulations

• Executive orders and proclamations

• Corrections

• Extensions

The Federal Register also publishes a monthly pamphlet, LSA: List of CFR Sections Affected. This list is also cumulative, listing (by Federal Register page number) the CFR section affected. By following this process, you will ensure that you are aware of the most current version of the regulations. After the initial publication of the regulations in the Federal Register, they are then compiled annually by subject and issuing agency and published in the more familiar Code of Federal Regulations (CFR). Recent Federal Register notices relating to USCIS programs can also be found in I-LINK.

I. General Policies and Procedures.

While the statutes and regulations are the primary sources of immigration law, the application of the laws and regulations to actual cases (i.e., the interpretation of the laws and regulations) is also important because it gives you guidelines for handling similar cases. The Board of Immigration Appeals (BIA), located in Falls Church, Virginia, is the major administrative appellate body that decides immigration matters. Published BIA decisions designated as precedent by the Board are binding on all USCIS officers and immigration judges unless modified or overruled by the Attorney General or a Federal court.

The majority of appeals reaching the Board involve orders of removal and decisions on applications for relief from removal. Other appellate matters within the Board's jurisdiction include the following: exclusion of aliens applying for admission to the United States; visa petitions to classify the status of alien relatives for the issuance of immigrant status; applications to preserve residence for naturalization purposes (Form N-470); fines imposed upon carriers for the violation of immigration laws; and motions for the reopening and reconsideration of decisions previously rendered. Certain decisions may be certified to the Board by other immigration officials.

BIA decisions can be found at http:// www.usdoj.gov/eoir/efoia/bia/biaindx.html. The BIA bulletin board (◼BIA Interim Decisions) on cc:Mail contains recently published decisions. Your district may also have paper copies of BIA decisions that have not yet been included on I-LINK. Significant BIA decisions are published and indexed on I-LINK to make them readily accessible by USCIS employees. Section 3.1 of 8 CFR, “Executive Office for Immigration Review,” subpart A, “Board of Immigration Appeals,” discusses the organization of the BIA and its authority.

When first published, BIA precedent decisions are designated with an “interim decision” number. Periodically, interim decisions are collected and published chronologically. These are entitled Administrative Decisions Under the Immigration and Nationality Laws of the United States. Once published in this format, precedent decisions may still be referred to by their interim decision number, but are more likely to be referred to by volume and page number. (For example, 19 I&N 234 is found in volume 19, beginning on page 234.) Volume 15 contains a cu mulative index for cases published in volumes 1-15, and volume 20 contains a cumulative index for cases published in volumes 16-20. Volumes 16-22, along with those decisions issued since the publication of volume 22, are available on-line at the EOIR website: http:// www.usdoj.gov/eoir/vll/libindex.html. You can find relevant cases by searching under a subject heading in the index.

Many cases not appealable to the BIA are appealable internally to the USCIS Administrative Appeals Office

(AAO). The AAO may also publish precedent decisions, which are indexed and published in the same volumes

as those of the BIA. The AAO may also submit decisions to the BIA for certification, which may, in turn, be designated by the Board as a precedent decision and published.

The Office of the Chief Administrative Hearing Officer (OCAHO) only hears cases regarding certain fines and penalties. Directives issued by the OCAHO designated with a “P” following their file number and issued in the form of memoranda and cables are binding on USCIS employees, as are other policy issuances such as the materials contained in I-LINK.

I. General Policies and Procedures.

The Federal court system is divided into three levels: district courts, circuit courts of appeal, and the U.S. Supreme Court. USCIS is sometimes involved in litigation in these courts that may affect laws under which USCIS operates. Although not as common, judicial decisions not directly involving USCIS can affect USCIS operations. You need to understand these decisions and the authority of the federal courts in order to know whether they affect various areas of immigration law you will be responsible for implementing.

The decision of a court has precedent value only within the court's territorial jurisdiction. For example, the opinions of the Supreme Court have precedent value nationally because all lower courts must follow its decisions. The decisions of a court of appeals bind the courts within the circuit's jurisdiction. However, decisions of a federal district court are not binding on federal courts in any other district.

District courts are the trial bodies of the federal court system. Some states have only one district court while other states have several district courts. Decisions by judges within the same district can influence rulings in similar cases. However, a district court judge will occasionally certify a case as a class action suit and then enter an injunction that applies to all members of the defined class. If the members of the class are located nation-wide, the injunction applies nationally. Thus injunctions or other orders requiring USCIS to act in a certain way are often issued from the district courts. In addition, decisions in other districts can be persuasive and used by courts in deciding a similar case in their district.

Appeals from a district court are taken to the courts of appeal in 13 circuits. Again, decisions by one of these courts are binding only upon the district and circuit court judges within that circuit. While an interpretation of law is binding only on judges in that circuit, judges can look to other circuits for decisions which are similar to cases being decided within their circuit. It is important for you to be aware of specific interpretations of the law in your district and circuit, as well as those a pplying nationwide.

The Supreme Court of the United States generally hears appeals from the circuit courts of appeal. Decisions of the Supreme Court are binding upon all U.S. courts. Interpreter Releases, described later, usually mentions recent judicial decisions affecting the Service. Internal Service communications and transmittals will also inform you of decisions affecting your duties. Read these carefully when you receive them, and store them for future reference.

I. General Policies and Procedures.

There are a number of other publications available from the government which can be valuable in conducting research. The following list, while far from being all-inclusive, can be a useful starting point:

• General Counsel Opinions – As an adjudications officer, it is your duty to understand and apply the immigration

laws to countless sets of individual facts or cases. These facts sometimes raise legal issues that may be difficult and unfamiliar. The Office of General Counsel (OGC) addresses some of these questions and advises USCIS officers on their proper response to them. Each year, OGC collects and publishes the General Counsel Opinions that its office issues to other components of USCIS and DHS. (I-LINK contains General Counsel Opinions from 1989 -1999.) OGC encourages every officer who has a legal question to consult with local USCIS counsel.

• USCIS Uniform Subject Filing System (USFS) and Subject File Index – All policy memoranda, correspondence

and other similar materials (but not material pertaining solely to an individual alien) prepared by USCIS must be housed chronologically in subject files organized in accordance with the subject file index. The USFS was established as of October 1, 1995, for all covered records created on or after that date.

75 Yearbook of Immigration Statistics – Published annually, each edition of the Yearbook provides immigration data for a particular fiscal year along with related historical information. The major topics covered (which may vary from edition-to-edition) generally include such areas as: immigrants admitted for legal permanent residence; refugees approved and admitted; nonimmigrant admissions; aliens naturalized; and aliens apprehended and removed.

• USCIS Fact Book (M-338) – Published by the USCIS Statistical Division (but necessarily annually) this

pocket-sized booklet provides a summary of recent immigration data along with other useful information such as organizational charts, addresses of DHS offices, a glossary of terms, and a chronology of immigration legislation.

• DOS Foreign Affairs Manual – Published by the Department of State, this mult- volume manual is commonly

known as the FAM and provides extensive guidance to consular officers. Volume 9 of the FAM is of particular value to USCIS officers and key portions of volume 9 ( 9 FAM 40, 41, 42, 45 along with the visa office directory and a compendium of consular forms ) are incorporated into I-LINK.

• DOL Occupational Outlook Handbook and Dictionary of Occupational Titles – These two publications of the

Department of Labor are extremely useful in the adjudication of employment-based petitions. For each occupation listed, they provide information on such matters as the duties, training, and educational requirements involved.

• GPO Style Manual – Published by the Government Printing Office, this volume sets forth government-wide

standards on such matters as capitalization, punctuation, spelling, and much more. It is most valuable for anyone involved in writing memoranda, decisions, letters and other material for the government.

I. General Policies and Procedures.

When reviewing an application, you will often be confronted with factual issues that require further research about the specific applicant (see also discussion on databases in chapter 72.2).

USCIS and DHS maintain numerous databases containing information on aliens' immigration histories. Chapter 31 and chapter 33 of the Inspector's Field Manual describe internal and interagency systems and contain instructions on how to access them. Familiarize yourself with user's manuals for each system available at your location. You will be unable to obtain all the relevant facts without the information in these systems. It is important to fully and creatively develop a case; therefore, attempt to use as many sources as necessary to obtain the most accurate information. “A” numbers, sound-alike searches, names of family members, aliases, misspellings, and cross searching among different databases should all be used to ensure that you obtain all possible information on an individual. As you gain experience, you will become more familiar with the various databases and search systems. It is only by doing thorough research that you will be able to fully develop a case and thus fully perform your duties.

I. General Policies and Procedures.

14.9 INTERNET AND INTRANET RESOURCES. (CHAPTER 14.9, REVISED 07-12-2005).

The Internet and the USCIS intranet both contain useful immigration resources. If you have access to either, refer to Appendix 14-1 for a table of resources that contain relevant information on immigration issues.

Note

The potential Internet and USCIS web resources referred to above are not exhaustive. USCIS does not endorse any particular web resource. Additionally, the potential resources listed in Appendix 14-1 are not exhaustive, nor are they an endorsement of any particular resource.

I. General Policies and Procedures.

(a) General.

In accordance with 8 CFR 103.2(b)(9), an applicant, a petitioner, a sponsor, a beneficiary, or other individual residing in the United States at the time of filing an application or petition may be required to appear for an interview.

This chapter discusses policies and procedures to be followed in conducting interviews that involve immigration benefits. The basic principles for conducting interviews are outlined and defined below. The policies set forth below apply to all officers, and all personnel interviewing applicants for immigration benefits should be familiar with the contents of this chapter. No adjudicator should be assigned to conduct interviews until his/her first line supervisor is satisfied that the officer is fully competent to do so.

The purpose of an interview is to obtain accurate and complete information from the individual and to make a determination regarding the individual's credibility. The fundamental objective is to obtain the facts necessary to make a correct decision. Therefore, the length of the interview may vary for many reasons including, but not limited to the following:

• The amount and complexity of material being covered;

• Any fraud indicators that may be present;

• The number of individuals interviewed in connection with the case;

• The degree to which all required documents have been submitted;

• The need for an interpreter or the need to tailor questioning to an individual's background and experience; and

• The degree and ease with which IT, recording and other equipment is used.

Interviews conducted by adjudication officers are non-adversarial in nature, as opposed to a court proceeding involving two attorneys where each advocates a particular position.

Developing the skills necessary to conduct such an interview takes time and practice, there are a number of reference guides that can be of assistance. Please see Appendix 15-2.

(b) Scheduling Interviews and Evaluating Requests for the Rescheduling of Interviews.

(1) Scheduling Interviews.

Local, regional or national priorities may set standards for the number of interviews scheduled for assigned officers on a daily or weekly basis. These standards relate to average interview times, rather than limiting individual interview times.

If some officers are on unscheduled sick or annual leave, the others in the office must pick up the slack. Likewise, if backlogs grow beyond acceptable limits there may be a need to increase the rate temporarily (usually in conjunction with other steps, such as details and overtime) in order to bring the backlog back under control.

In most instances, a single interview will resolve all issues. A second interview should be scheduled in exceptional circumstances, such as when additional information relevant to the case becomes known to the case officer after the initial interview. For this reason, interviews should not be scheduled until all other information, including background checks and relating files, have been reviewed. Several options are available in organizing the work week to achieve the desired number of interviews per week, depending on the needs and preferences of the office and the officer.

• AWS options – Offices which allow adjudicators to work Alternate Work Schedules need to adjust the daily

interview rate accordingly. Officers working 10 hour days in four day weeks should be scheduled for 25% more interviews per day than officers working 8 hour / 5 day workweeks.

• No-show rates – If the office regularly experiences a high number of applicants failing to appear for their

scheduled interview, the office will need to schedule a higher number of cases in order to reach planned production goals.

• Preferences on write-up time – One officer may be more comfortable (and effective) preparing written decisions

on the day of interview, another may prefer to wait until the end of the week. Generally speaking, the preferences of the adjudicator should be followed, provided the needs of the office are not adversely affected. However, regardless of when the cases are written-up, the interviewer must create an effective record (paper, audio, audio/visual or electronic) of the proceedings at the time of the interview.

• Availability of overtime – Additional time should result in a comparable amount of additional work produced. If

overtime is authorized for the purpose of completing more interviews, the interview schedule must be increased accordingly.

Interviews should be conducted as close to the scheduled time as possible. As a general rule, the public should not be required to wait for more than 30 minutes beyond a scheduled interview time. Schedules should be adjusted if it is determined that waiting times regularly exceed this time frame.

(2) Evaluating Requests for the Rescheduling of Interviews. (See 8 CFR 103.2(b)(9))

Prior to and at the date and time of the interview, an applicant or petitioner may (a) withdraw the application or petition; or (b) request, for good cause, that the interview be rescheduled.

In order to reschedule the interview, the adjudicator, in his or her discretion, must determine that the applicant, petitioner, beneficiary, or other individual is unable to appear at the scheduled date and time because of circumstances beyond the individual's control.

If the adjudicator determines that good cause exists for the applicant or petitioner's request, the adjudicator will reschedule the interview and mail a new interview notice. If the adjudicator determines that no good cause exists, the adjudicator will adjudicate the application or petition as instructed in AFM Chapter 15.1(d)(2).

An attorney or representative authorized to act on behalf of the applicant or petitioner may also submit a good cause request for rescheduling the interview.

If an attorney or other representative is unable to attend an interview for good cause, the local office should make best efforts to accommodate a timely request to reschedule an interview. Such requests are considered to be for good cause when the attorney or other representative has notified the local office that he or she is unable to appear at the scheduled date and time because of circumstances beyond his or her control, including but not limited to, scheduling conflicts resulting from a requirement that the attorney or other representative appear in court, previously planned travel, and any situation where two interviews of clients represented by the same attorney or representative are scheduled at the same time.

When an attorney or other representative is unable to attend the interview for any reason, the individual being interviewed may elect to proceed with the interview without his or her representative. The applicant's or petitioner's decision to proceed without his or her attorney or accredited representative must be voluntary. If the individual wishes to proceed without his or her representative, the USCIS official should obtain a written statement from the individual. Written statements are to be filed in the record of proceedings. When possible, the attorney or accredited representative should communicate his or her consent to proceed without him or her present. The officer should still consider statements and submissions by the individual's attorney or other representative in his or her absence.

(c) Arrest of an Alien During the Interview Process.

(1) General.

As a general rule, any alien who appears for an interview before a USCIS officer in connection with an application or petition seeking benefits under the Act shall not be arrested during the course of the interview, even though the alien may be in the United States illegally.

If the alien is ineligible for the benefit being sought, the interviewing officer should advise the alien that he or she will receive a written decision on the application or petition by mail.

The officer may (at the officer's discretion) also verbally advise the alien of the anticipated nature of the decision, what the alien's available options might be (appeal the decision, renew the application in proceedings before the Immigration Court, etc.), when the officer anticipates the decision will be mailed, etc. The alien will then be allowed to depart from the office.

Note

This general rule applies only to adjudication scenarios. It does not apply to inspection scenarios (at ports of entry or during proceedings involving deferred inspection or completion of parole), or enforcement scenarios.

(2) Exceptions to the General Rule.

In some cases, an illegal alien's actions or situation may be so egregious as to justify making an exception to the general rule that those who appear voluntarily for an interview should not be arrested during the course of that interview. Such actions and situations include, but are not limited to:

• An alien who is the subject of an outstanding warrant of arrest for criminal violations;

• An alien who during the course of the interview assaults another party, e.g., the interviewing officer, a government

clerk, a government attorney, or a co-interviewee (such as a spouse or child);

• An alien, who during the course of the interview, willfully destroys government property or commits any other

crimes of such nature and magnitude;

• The alien is a threat to the safety or well-being of another party;

• An alien who is the subject of a previously-issued warrant of deportation or warrant of removal, UNLESS the

alien is seeking benefits under a provision of a law (e.g., NACARA or HRIFA) which specifically allows an alien under an order of deportation or removal to seek such benefits; or

• Any other similar action or situation, which in the view of district management, warrants placing the alien under

arrest

(3) Procedure.

If an interviewing officer believes that an alien's situation or actions fall within the guidelines set forth in Chapter 15.1(c)(2) above, he or she shall refer the matter (through his or her supervisory chain of command) to the local Investigation Branch in accordance with established local procedures.

The actual decision as to whether to place the alien under arrest shall be made by the appropriate Enforcement Branch personnel in accordance with established procedures.

(d) Failure of an Applicant, a Petitioner, a Sponsor, a Beneficiary, or Other Individual to Appear for a

Scheduled Interview. [Added on 11-23-2005]

If an applicant, a petitioner, a sponsor, a beneficiary, or other individual fails to appear for a scheduled interview, the adjudicator is directed to comply immediately with the following instructions and either reschedule the interview or deny the related application or petition for abandonment.

(1) Evidence of Request for Rescheduling of the Interview or Notification of Change of Address.

(A) Request to Reschedule the Interview.

The adjudicator must verify whether the individual required to appear for an interview has requested rescheduling of the interview. If the adjudicator finds a request to reschedule the interview that was submitted prior to the date and time of the interview, the adjudicator should evaluate the request in accordance with the instructions listed in section Chapter 15.1(b)(2) of this chapter.

(B) Notification of Change of Address.

The adjudicator must confirm whether the individual required to appear for an interview has submitted notification of a change of address. The adjudicator is required to:

(i) Check local pertinent electronic systems, such as CLAIMS, and pertinent physical records, particularly the file

of the application or petition under consideration and any AR-11 (Change of Address) notices, to verify whether any change of address notification was received before or after the interview notice was sent.

(ii) Query the USCIS National Systems AR-11 (Change of Address) database by name and date of birth, A-number,

and/or I-94 admission number, if necessary, to confirm whether any changes of address have occurred after the interview notice was generated and mailed.

(iii) Contact the National Benefits Center (NBC) by e-mail at NBC Failure to Appear Review, if necessary, to

determine if the Service Request Management Tool (SRMT) contains a pending change of address notification.

When contacting the NBC, the adjudicator must use the SRMT Search Request Form, as found in Appendix 15-3. Where possible, each office should submit a consolidated list of queries using one SRMT Search Request Form.

(iv) Reschedule the interview and mail a new interview notice to the new address, if a change of address notification

is confirmed.

(2) Effect of Failure to Appear for an Interview or to Respond to a Request for Appearance. (See 8 CFR

103.2(b)(13))

(A) Adjudication.

Except as provided in subsection (B) below, a related application or petition under consideration is abandoned and the adjudicator will deny the related petition or application accordingly if:

(i) an individual fails to appear for a scheduled interview; and

(ii) USCIS does not receive the individual's request for rescheduling by the date of the interview, USCIS does not

find notification of a change of address, or the applicant or petitioner has not withdrawn the application or petition.

(B) Applicants for Naturalization. (See 8 CFR 335.6)

The regulations at 8 CFR 335.6 govern the denial of applications for naturalization when an individual fails to appear for his or her naturalization examination, as required. 8 CFR 335.6 provides that:

(i) An applicant for naturalization is deemed to have abandoned his or her application if he or she fails to appear

for the examination pursuant to 8 CFR 335.3 and fails to notify USCIS of the reason for non-appearance within 30 days of the scheduled examination.

Such notification must be in writing and contain a request for rescheduling of the examination. In the absence of a timely notification, USCIS may administratively close the application without making a decision on the merits of the application.

(ii) An applicant may reopen an administratively closed application by submitting a written request to USCIS

within one (1) year from the date the application was closed. Such reopening shall be without additional fee. The date of the request for reopening will be the date of filing of the application for purposes of determining eligibility for naturalization.

(iii) If the applicant does not request reopening of an administratively closed application within one year from

the date the application was closed, the USCIS will consider that application abandoned and will dismiss the application without further notice to the applicant.

Note [Note added 04-15-2009]

For specific processing instructions regarding Applications for Naturalization filed by members of the U.S. Armed Forces or veterans under sections 328 or 329 of the INA, please refer to Appendix 15-4, “Processing N-400s Filed under INA 328 and 329 When Applicant Fails to Respond to a Request for Evidence or for Appearance.”

(3) Effect of Withdrawal or Denial Due to Abandonment.

(A) General.

USCIS acknowledgement of a withdrawal may not be appealed. A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under 8 CFR 103.5. Withdrawal or denial due to abandonment does not preclude the filing of a new petition or application with a new fee. The priority or processing date of a withdrawn or abandoned application or petition, however, may not be applied to a later application or petition. (See 8 CFR 103.2(b)(15))

(B) Rescheduling of Interviews.

When an application or petition was denied based on an individual's failure to appear for a scheduled interview, the adjudicator may reopen the application or petition without charging an additional fee to the applicant or petitioner if the adjudicator confirms that:

(i) a request demonstrating good cause for rescheduling the interview was postmarked, faxed, or received

telephonically before the date and time of the scheduled interview but not processed and evaluated by USCIS prior to adjudication of the application or petition; or

(ii) a notification of a change of address was received prior to adjudication of the application or petition.

In these instances, the adjudicator should reschedule the interview and mail a new interview notice.

I. General Policies and Procedures.

(a) Adjudications Environment

It is essential that the person being interviewed appreciate the importance and seriousness of the proceedings. To ensure this, the setting in which the interview takes place must be orderly and official in appearance. Desktops should be uncluttered and files should be housed in cabinets. Flags, USCIS and DHS seals and other official displays can enhance the official appearance. Excessive amounts of personal items should not be displayed in view of applicants, as these may be distracting or detract from the serious nature of the proceedings.

Because adjudications units in local USCIS offices are generally very busy with a high volume of applicants appearing for interviews, it is essential that adequate office space be provided for each district adjudications officer.

Sufficient seating for the officer and the person being interviewed, attorney or other representative and family members should be provided. The attorney or other representative should be seated directly next to the person being interviewed to facilitate appropriate participation unless this cannot be accommodated due to the physical layout of the interview space. If the officer has a concern that the seating arrangements may be inhibiting or negatively impacting the interview process, he or she should contact a supervisor for guidance.

(b) General Office Environment

Ideally, individual offices or high-walled, acoustically insulated, modular offices with doors should be provided to ensure a reasonable level of privacy. Offices should be equipped with video or audio taping devices. If the district lacks sufficient recording equipment, arrangements should be made to provide such equipment for, at least, the most difficult cases. Each work station should be provided with sufficient storage space for files, supplies, research materials and personal items, so that the office remains uncluttered. Acoustical ceiling tiles or other sound dampening material should be installed to minimize noise from other interviews and protect the privacy of each applicant. Lighting and ventilation should be adequate for a pleasant, comfortable and efficient working environment. USCIS will make every effort to make reasonable accommodations for applicants with disabilities. When possible, the public waiting area should be reasonably near the interview area to minimize lost time between interviews.

I. General Policies and Procedures.

(a) Appearance.

It is imperative that the officer conducting the interview dress in a professional manner. Both men and women should wear appropriate business attire, although some offices may permit “business casual” attire on certain days.

(b) Conduct and Attitude.

All interviews should be conducted in a courteous and businesslike manner. The following guidelines will ensure that the interview is conducted professionally:

• Maintain control of the interview at all times. “Maintaining control” does not mean being overbearing or abusive;

on the contrary, it requires that the officer maintain a professional demeanor at all times. The exact nature of that professional demeanor will sometimes vary, according to the interview techniques being employed (see below). The ability of the officer to maintain control of him/herself is instrumental in maintaining control of the interview.

• Speak clearly, distinctly and not too rapidly, using plain and simple language when questioning an applicant,

petitioner or witness. Avoid complex and lengthy questions, and always obtain a responsive answer before proceeding to the next question. Avoid using USCIS or government jargon.

• At all times, maintain due regard for the rights of the person being interviewed.

• Avoid arguments with the person being interviewed, as well as remarks of a personal nature that may be taken

as a reflection of a judgment of a personal lifestyle.

• Refrain from making any extraneous comments or asking extraneous questions, as they are irrelevant to the

purpose of the interview and detract from the professional demeanor that the officer should maintain. Avoid questions about a person's religious beliefs or practices unless they are relevant to determine the individual's eligibility for a benefit. Do not make any comments that might be taken as a negative reflection upon any other person, race, religion, or country.

• Maintain professional conduct even if the person being interviewed becomes abusive or if derogatory information

is developed. If necessary, contact a supervisor. See section 15.4(e) for guidance on Concluding or Terminating an Interview.

• Be fair, courteous, and patient without diminishing a full and complete development of the material facts, whether

they are favorable or adverse to the person being interviewed or any other person.

• When questioning persons concerning sexual relations, always avoid questions which can be construed solely

as prurient or prying.

• Ensure that your demeanor does not imply or reflect prejudice. Interviews should proceed in a fair and impartial

manner so as to avoid complaints regarding the conduct of USCIS officers.

I. General Policies and Procedures.

(a) Basic Interview Procedures and Techniques

Conducting successful interviews is a skill which requires knowledge and experience. Successful approaches will vary widely depending on the interviewer, the interviewee, and subject and purpose of the interview. Certain standards (such as those relating to the rights of the individual and the need for professionalism) remain constant; others change according to the circumstances.

Interview proceedings are not to be adversarial in nature. The purpose of the interview is to obtain the correct information in order to make the correct adjudication of the case, not to prove a particular point or to find a reason to deny the benefit sought. The purpose is to cover (and discover) all the pertinent information, both favorable and unfavorable to the applicant.

The following observations apply to all interviews:

(b) Preparing for the Interview

• The successful interview process begins when USCIS issues a call-in notice. In addition to accurately explaining

the purpose of the interview, the notice should instruct the attorney (or in an unrepresented case, the person(s) being interviewed) on what to bring to the interview. In all cases, the notice should at least instruct the attorney / person being interviewed(s) to bring the originals of all documents previously submitted as photocopies.

• Do not commence an interview, even though time may be limited, until you have reviewed the application

or petition and relating material, including submissions made by the applicant or the applicant's attorney or representative. Depending upon the case, this may range from a rapid scanning of the file to an intensive study of all available material. However, it is essential that the review of the material be made before commencing the questioning in order for the adjudicator to have the requisite knowledge and understanding of all the facts and circumstances involved in the case. Otherwise, the questioning may not cover all pertinent points. The review should be sufficiently thorough to enable the adjudicator to cover all issues necessary for an adjudication, thereby avoiding any need for recalling the applicant, petitioner, or witness for further questioning on an issue which could have been covered during the initial interview. Review of the applicable provisions of the law and precedent decisions also should be made, if necessary, to ensure thorough familiarity with any legal issue that may be developed by questioning. In addition, when possible the adjudicator should review submissions made at the time of an interview that may assist in resolving legal issues. The more complete the preliminary preparation of the

case prior to beginning the interview, the better equipped you will be to conduct an efficient interview, without time-wasting repetition or needless questions.

• If complex issues are involved, prepare an outline of the logical sequence of questioning to be followed, the

information to be developed, and the evidence to be utilized. Such outlines are most conducive to eliciting all essential facts. Additionally, it may be advisable to select certain material from the file or relating files and arrange such material in the sequence of the plan of questioning. The extent of necessary preliminary preparation depends upon the issues involved in the individual case.

(c) At the Interview

• Greet the interviewee in a polite, dignified manner to put him or her at ease.

• Identify yourself, giving your name and title.

• Begin the interview with an explanation in non-technical terms of the purpose of the interview.

• Obtain identification from all parties to the interview, including interpreters, attorneys, and/or other

representatives, unless identity has been previously established.

• Administer the following oath: “Do you solemnly swear (or affirm) that the statements you are about to make

will be the truth, the whole truth, and nothing but the truth?”

• The oath or affirmation should always be administered in such a manner as to impress upon the person being

interviewed the solemnity of the occasion and the importance of the testimony that he is about to give. The adjudicator and the person(s) being interviewed should stand and raise their right hands during the administration of the oath or affirmation. The fact that the interview is being conducted under oath or affirmation should be noted in the transcript or in the file. If a verbatim question and answer statement is taken, the exact wording of the oath or affirmation should be included in the transcript. If such a statement is not taken, the memorandum record of the interview should show that the person being interviewed was under oath or affirmation.

• An applicant or his or her attorney or representative should be permitted to present documents or other evidence

that may help to clarify an issue of concern to the interviewer. When possible, such evidence should be submitted and reviewed before the interview, and when relevant, should be added to the applicant's file.

• In certain other types of cases where more than one individual is to be questioned, it is generally best to question

each party separately, asking each party several of the same questions in order to identify inconsistent answers. It may be necessary to recall either party for further questioning if contradictory answers are provided. In other types of interviews, an entire family group may be interviewed collectively.

• In a case where there is reason to believe that a witness under oath has given or may give false testimony, it may

be advisable to inform the subject that willfully giving false testimony on a material matter under oath constitutes the crime of perjury, and that a person convicted of perjury is subject to a penalty of a fine, imprisonment or both. (However, see the comment below about challenging every false statement immediately.)

• Should the interviewing officer be required to leave the office for any reason during the interview, the relating

file(s) should be removed to avoid unauthorized review during the officer's absence.

(d) Questioning Techniques

• All questions are either “closed-ended” or “open-ended.”

o Closed-ended questions call for specific, factual and usually brief responses (e.g., “Have you ever been arrested?”).

o Open-ended questions solicit views, opinions, thoughts and feelings and generally call for longer, narrative-type responses (e.g., “Tell me about any arrest you have had.”). Open-ended questions are normally more useful in assessing an individual's credibility and for eliciting statements which may later be supported or contradicted.

o Leading questions, which assume a controversial fact or suggest the answer, should be avoided except to expedite obtaining preliminary identifying material. For example, the leading question “You have never been arrested?” anticipates and assumes the subject's answer.

• The person(s) being interviewed should be permitted to give a full explanation of any issue involved in the case.

Fairness requires consideration of all relevant evidence. In some instances, detailed questioning may be desirable in order to make it more difficult for the subject to disavow his statements at a later time or to fabricate a new story. USCIS officers are reminded that the purpose of the interview is to develop the facts, favorable as well as unfavorable, with equal fairness to the subject and to the interests of the Government, in order to properly adjudicate the application or petition.

(e) Concluding or Terminating an Interview

An adjudicator should not unnecessarily prolong an interview, but should conclude it when all necessary information has been elicited. The person(s) being interviewed(s) should be thanked for cooperating and providing information.

On some occasions it may be necessary to terminate an interview even though all essential information has not been elicited; however, termination should be avoided whenever possible. Termination may be necessary in the following situations, which are not intended to be exclusive:

• The person being interviewed is unable to communicate without an interpreter, and one is not available.

• An interpreter clearly has difficulty translating effectively.

• The officer has reasonable doubts about either the ability or impartiality of an interpreter supplied by the

interviewee, and a USCIS or DHS interpreter is not immediately available.

• An attorney or other representative of an applicant or petitioner insists on responding to questions or coaching

the person being interviewed.

75 An attorney or other representative of an applicant or petitioner insists on interpreting for his or her client during an interview.

• The person being interviewed refuses to respond to questions essential to the successful completion of the

interview.

• The conduct of the attorney or other representative has exceeded the bounds of zealous representation and

interferes with the ability of the officer to conduct the interview.

The interviewing officer should explain the reason(s) for the termination. When appropriate, the interview should be rescheduled and (if needed) arrangements made for a competent interpreter. If the person being interviewed(s) or the attorney or other representative insists on continuing, a supervisor should be informed of the reason for the termination. It is the responsibility of the supervisor to determine if termination is warranted and to deal with the subject(s) and/or the attorney or representative if they refuse to accept an unfavorable determination.

(f) After the interview

• An applicant or petitioner, or attorney or accredited representative with a properly executed “Notice of Entry

of Appearance as Attorney or Accredited Representative” (Form G-28), may request a copy of the record of proceedings, including any written record of an interview conducted before a USCIS officer, by filing a Freedom of Information/Privacy Act Request (Form G-639).

[See also Appendix 15-2, Techniques for Interviewing and Preparing Sworn Statements.]

I. General Policies and Procedures.

(a) Introduction.

The following explanation of the “Stokes” decision was prepared by the Adjudications Branch of the New York District Office. Although Stokes applies only to the New York District, it is of interest to Adjudicators throughout the Service, as it not only describes the procedures by which that office deals with the requirements imposed by the court, it also shows how beneficial an effective fraud interview program can be. A sample of the call-in letter used in these cases is included in Appendix 15-1.

(b) Procedures.

“Stokes” refers to a Federal District Court decision, Stokes v. INS, No. 74 Civ. 1022 (S.D.N.Y. Nov. 10, 1976. By the terms of this decision, every I-130 spouse petition filed in the New York District Office in which a question of the bona fides of the marriage is at issue must be adjudicated using the following guidelines:

• a written notice describing the rights of the parties involved must be given to the petitioner,

• a separate attachment of the list of rights must be mailed out with the appointment letter, and

• a list of what documents to submit at the time of the interview must be mailed to the petitioner.

The New York District Office has a separate “Stokes” Unit, which handles suspect I-130 marriage cases and relating adjustment applications. The unit receives the bulk of its work from the regular adjustment of status unit (75%) with the remainder of cases referred from the Litigation Unit. (In litigation cases, the district director lacks jurisdiction over the I-485, unless the case has been specifically remanded by the immigration court, pursuant to an agreement with the government attorney.) Without such a remand, the Stokes Unit adjudicates only the I-130 petition.

I. General Policies and Procedures.

(a) General.

A very important and often overlooked aspect of the district adjudications officer's job is the ability to take useful sworn statements. Because these statements often result in action at higher levels, it is incumbent on the adjudicator to do the best job possible. The sworn statement becomes part of a permanent, official record; successful prosecution may depend on the evidence gained in the statement.

As with any other report writing responsibility, an adjudicator conducting an interview must learn to focus in on an answering the following questions: when? who? what? where? why? and how? More importantly, the adjudicator must structure the statement in a manner that is logical, using a clear progression of facts and questions and not jumping back and forth. Each relevant fact uncovered in a statement should be explored by further questioning and developed to the extent necessary before changing topics.

The interviewing adjudicator should clearly understand the distinction between interviews and interrogations. An officer conducting an interview will sometimes find that the facts revealed in that interview will lead to the conclusion that a more detailed inquiry is required. This type of inquiry is generally referred to as an interrogation and frequently involves eliciting information a subject wishes to conceal.

An interview is the questioning of a person who is believed to have knowledge that is of official interest to the officer. Although it may occur under oath, it is non-adversarial and informal in nature. Routine interviews are generally conducted for naturalization, adjustment of status, etc. An interview ordinarily does not include questioning which extends much beyond the standard questions contained on the application or petition itself.

An interrogation is the questioning of a person suspected of having committed an offense or of a person who is reluctant to make a full disclosure of information in his possession which is pertinent to the investigation. It is a detailed and formal event, generally employing an organized written record in either narrative or question and answer format. Interrogation is often lengthy, detailed and may become adversarial if the person being questioned wants to conceal information detrimental to his or her own interests.

In both cases, however, the officer must possess basic qualities that will maximize the chances of obtaining the information needed. Questions often deal with topics of great sensitivity to the subject. Techniques for conducting effective interviews and taking proper statements are discussed in Appendix 15-2.

(b) Format.

The ideal format for most interviews and simple statements in most situations is videotape. Videotape records not only the answers, but also the demeanor and actions of the interviewee. Properly done, there can be no doubt as to what the interviewee actually said or did. (Improperly done, it also records answers which are indistinct or unintelligible.) Videotape can be transcribed at a later date for use in removal proceedings, but is also immediately available for confronting the interviewee (and/or the interviewee's spouse) with inconsistencies; it allows the conversation to flow without impediments caused by limitations on the officer's typing speed or other factors; it can be reviewed by supervisors during the course of the interview so that suggestions on alternate tactics or questions may be made; and it enables the officer and his supervisor to more effectively review the officer's interview techniques to improve future interviews. Although audio tape can also be used, it is not nearly as effective as videotape.

Under certain circumstances an officer may deem it appropriate to obtain a detailed written record of the interview. Depending on the particular circumstances of the case, this may take the form of a narrative affidavit or a question and answer statement. There are several reasons that may warrant a written record. When the information elicited during the interview will be used as the basis for a denial of the application or will constitute the basis for further inquiry at the consular office, that information must be recorded in a narrative affidavit or a question-and-answer statement.

If the issues are not controversial or involved, a narrative affidavit on Form I-215W is a practical and effective way of taking a statement. The narrative affidavit form makes it possible to reduce the essence of a statement into a concise and compact form. It requires less time and is less difficult to prepare than a question and answer statement. However, the adjudicator must be satisfied that the affiant understands and reads English. If the alien does not understand and read English, an interpreter must be employed. If the adjudicator is fluent in the alien's language, he or she may interview the alien in that language and note the record accordingly. If a separate interpreter is employed, affix to the affidavit a signed statement from the interpreter that he or she read the affidavit to the affiant in his or her own language and that the affiant, before signing, stated he or she understood the contents of the affidavit. An affidavit should be typed, or written in legible longhand by the adjudicator, and signed by the affiant. If prepared in longhand, where feasible, the affidavit should be reproduced in typewritten form and again signed by the affiant. It is also desirable to have a narrative affidavit witnessed by another officer if adverse material is contained in the affidavit, as duress or undue influence may be claimed later.

The verbatim question and answer statement is preferred where the issues are controversial or involved. It leaves little ground for misinterpretation or claims that important information given to the adjudicator has been omitted or misunderstood. However, care must be taken that immaterial and irrelevant matters are not introduced into the transcript. Generally, question and answer statements are recorded by a stenographer or on sound recording equipment. However, if neither a stenographer nor sound recording equipment is available, the questioning may be recorded in legible longhand. Form I-263B is used for the face sheet in question and answer statements.

(c) Content.

Examination and cross-examination, if necessary, should be conducted to develop all known applicable facts. The adjudicator must keep in mind the purpose of the statement and neither engage in a “fishing expedition” nor allow the person being questioned to take the initiative and litter the record with extraneous material. Irrelevant and “off the record” statements should be discouraged. The stenographer or interpreter, if either is employed, should be encouraged to call the adjudicator's attention to an y factor which makes it difficult to obtain a complete and clear stenographic record.

The statement should generally be developed in chronological and logical sequence with respect to all pertinent details. This will assure clarity and completeness. Even when a statement is written or dictated by the adjudicator, it is essential to use the peculiar phraseology of the subject. The affiant's exact words should be used. Otherwise, it could be shown that he or she did not understand what was signed, and it could be argued that the statement was not made freely and voluntarily, and that it doe s not represent a true record of what was said. In controversial matters, background information should be thoroughly covered for positive identification purposes. The background information, by its intimate detail, indicates to a certain degree that the statement was obtained in a free and voluntary manner.

(d) Signatures and Jurat.

The signature, jurat and witnessing of a narrative affidavit statement should be executed using the following format:

I have read the foregoing and verify that it is true and correct to the best of my knowledge and belief, and that it is a full, true and correct record of my statement before the above-named officer of the U.S. Citizenship and Immigration Services. I have initialed the first page of this affidavit and the correction(s) noted on page(s).

Signature ____________________________________________________________

Subscribed and sworn to before me at ____________________________________________________________ (city)

on. (date)

____________________________________________________________ District Adjudications Officer U.S. Citizenship and Immigration Services

____________________________________________________________ Witness (if USCIS officer, identify by title) (address of office)

If the question and answer format is used for the statement, Form I-263A may be used for this purpose.

If a statement is transcribed by a stenographer, it should be certified by the stenographer as a true and complete transcript of the shorthand notes or of the recorded interview, as the case may be. The shorthand notes or sound recording should be retained in the file in a property envelope, appropriately labeled, for possible future use, such as in a contested case. Transcripts of statements should, if possible, be prepared immediately after the statement is taken and the signature of the person obtained before he leaves the office.

Statements should be signed in the presence of the officer executing the jurat (normally the officer taking the statement), and a witness. Another officer may sign as a witness. Witnesses should be in a position to testify, if necessary, that the subject:

• reviewed the entire statement with the officer;

• consented to and knew of any changes made and initialed each change,

• appeared to understand the contents of the statement;

• appeared to know what he or she was doing;

• acted of his or her own free will; and that acknowledged the statement to be true and correct.

If an individual is unable to sign his or her name, but indicates approval, he or she may sign by a mark. It is desirable to have two witnesses in such case. The adjudicator or other witness should write the person's given name before the mark the affiant's surname after the mark. The word “his” or “her” should be placed over the mark and the word “mark” below.

In order to avoid claims of alterations or substitutions in a sworn question and answer or narrative statement, each page should be signed or initialed by the affiant. Any change or correction should be initialed by the person making the statement. Deliberate errors may sometimes be introduced into the statement for correction and initialing to indicate that the maker of the statement has read and observed the contents of that particular page.

I. General Policies and Procedures.

Frequently an attorney will be present to represent a subject. The following rules should be followed when the person being interviewed is accompanied by legal counsel:

• Interviewing officers should verify that a properly executed Notice of Entry of Appearance as Attorney or

Representative (Form G-28) is part of the record.

• The attorney's role at an interview is to ensure that the subject's legal rights are protected. An attorney may advise

his client(s) on points of law but he/she cannot respond to questions the interviewing officer has directed to the subject. The attorney's role is even more restricted with regard to a sworn statement taken from an applicant for admission in conjunction with removal proceedings to determine admissibility, where the alien has not yet legally entered the United States.

• Officers should not engage in personal conversations with attorneys during the course of an interview.

I. General Policies and Procedures.

(a) Quality Assurance Initiative.

Videotape equipment was introduced into the district adjudications environment as part of USCIS's district office quality review program. The program is designed to ensure a systematic review of all decisions in district offices, and to guarantee quality improvements, based on the results of the review. This is a system of continuous improvement, and is consistent with USCIS's quality management goals. Before the initiation of the videotape program, Adjudications had no USCIS -wide quality review system with respect to decisions rendered on casework involving the interview process. Generally, offices reviewed denials, but not approvals or cases returned to applicants for further documentation. This lack of a formal review system created the potential for incorrect and inconsistent decisions and for internal and external fraud.

The use of videotape to capture interviews provides an opportunity for managers to critique their officers. Conversely, the presence of a video record serves to protect adjudications officer from allegations of misconduct by aliens and their attorneys.

(b) Anti-Fraud Tool.

In addition to being a quality improvement tool, the videotape program has played an important role in combating immigration fraud. Videotaped interviews are regularly used as evidence in fraud cases. Perhaps even more importantly, the mere presence of the camera is an excellent fraud deterrent.

See also Chapter 11.2 of this manual for a discussion of retention requirements for videotaped evidence.

I. General Policies and Procedures.

[Removed]

I. General Policies and Procedures.

16.3 USCIS ACTION ON AGENCY RESPONSES AND THE PROCESS BY WHICH LOCAL, REGIONAL AND NATIONAL OFFICES MONITOR COMPLIANCE.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

I. General Policies and Procedures.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Automatic Revocation.

Grounds for automatic revocation are set forth in 8 CFR 205.1.

(1) Family-Based Petitions.

A relative petition may be automatically revoked if the petitioner withdraws the petition, if the petitioner or beneficiary dies, upon legal termination of the marriage upon which the petition was based, upon the marriage of a second preference unmarried son or daughter, or upon the termination of status of a lawful permanent resident petitioner (unless he or she becomes a U.S. citizen). There are other provisions for revocation which allow for automatic conversion to a different classification. In the ca se of the death of the petitioner, USCIS may choose not to revoke the petition for humanitarian reasons. [NOTE: Opting not to revoke a petition is a matter strictly within the discretion of USCIS. There is no application which can be filed to seek “non-revocation,” and no formal decision issued by USCIS (although a letter from an interested party setting forth the facts of the case and a reply from USCIS advising that we have or have not exercised our option not to revoke would not be inappropriate), and no right of appeal from a conclusion not to exercise our option.]

(2) Employment-Based Petitions.

An employment-based petition may be automatically revoked if the labor certification is invalidated, if the petitioner or beneficiary dies, if the petitioner withdraws the petition, or if the petitioner goes out of business.

The Department of State may also terminate the registration of any alien who does not apply for an immigrant visa within one year of being notified of the availability of the visa. This provision is found in Section 203(g) of the Act.

If a Consular officer obtains information that a petition has been automatically revoked or if registration has been terminated under 203(g), the petition will be returned to USCIS. You must send a notice to the petitioner that the petition has been automatically revoked or terminated.

If USCIS receives the information, you must request that the Department of State return the petition before sending out the notice to the petitioner. If the petition is at the National Visa Center (NVC) or at certain consuls, the request may be made by telephone; otherwise, a cable is usually the best option.

(b) Revocation on Notice.

(1) Notice of Intention to Revoke.

The first step of revocation is to retrieve the petition from the consular or USCIS office where it is located. Retrieval of the petition from a consular office may be accomplished by sending a cable to the consular office requesting that the petition be returned for possible revocation. If the petition is still at NVC, the request may be made by telephone.

After the petition has been retrieved, you must notify the petitioner of your intent to revoke the petition. The letter should fully explain the reasons for the revocation and give the petitioner a reasonable period of time (usually 30 days) to submit evidence in opposition to the revocation. Additional time may be granted if the petitioner needs it to obtain documentation from abroad or other meritorious reasons. An A-file should be created to house the petition while waiting for the response.

In some cases the action to revoke the petition may be initiated by the consular office due to information acquired during their review of the petition or during an interview with the beneficiary. In that case the petition should be returned by the consular office with a memo explaining the reasons they believe the petition should be revoked. You may find that the petition is not revocable for the reasons stated by the consular office. If that occurs, the petition must be returned to the consular office with an explanation of your decision not to revoke the petition.

In cases where an I-140 immigrant petition has been approved and an I-485 has been pending for 180 days or more, and the beneficiary has submitted a proper porting request that has been reviewed and favorably adjudicated prior to the issuance of a notice of intent to revoke (NOIR) or notice of revocation (NOR), USCIS must also provide the beneficiary with a NOIR and/or a NOR.

(2) Final Decision.

If the petitioner responds and satisfies you that the approval should not be revoked, advise the petitioner of your decision to reaffirm the petition by letter. If the petition was retrieved from a consular office, return the petition to the consular office with copies of your letter of intent to revoke, the petitioner's response, and your letter of reaffirmation.

If the petitioner does not overcome the basis for the revocation, or fails to respond timely, prepare a decision of revocation. A petitioner may file an appeal on a decision to revoke a petition just as if the petition had been denied originally, except that the authorized period for filing the appeal is only 15 days regardless of the type of petition. A petitioner may also file a motion to reopen or reconsider the decision revoking the decision. As required in opportunity to file a motion to reopen or reconsider.

Do not institute revocation proceedings if the beneficiary has already been adjusted or has been admitted to the United States with an immigrant visa. When the petition has been used, in effect, it no longer exists and the approval cannot be revoked. The appropriate course of action in that case is to institute deportation or rescission proceedings.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

A petitioner or applicant may withdraw a petition or application prior to adjudication. Withdrawal is a voluntary action. It should not be coerced, although it may be suggested as an alternative to a formal denial. Whenever a withdrawal is received, it should be acknowledged, in writing, for the record. Although a withdrawal by a petitioner is not necessarily an indication of fraud, the facts surrounding any prior withdrawal should be considered in the event a subsequent petition is filed by the same petitioner. See Matter of Isber 20 I&N Dec 676 (BIA 1993)

A petition which has been withdrawn cannot be denied. See Matter of Cintron, 16 I&N Dec 9 (BIA 1976).

Where a visa petition has once been withdrawn based on an admission by a party that the marriage was solely entered into to bestow an immigration benefit, any subsequently filed visa petition involving the same petitioner and beneficiary must include at the time of filing: (1) an explanation of the prior withdrawal and (2) evidence supporting the bona fides of the parties' relationship. The BIA has held that “[t]he petitioner bears a heavy burden to establish the bona fides of the marital relationship in the case of a prior visa petition withdrawal and an admission of a fraudulent marriage, and, absent the submission of the previously related materials at the time of filing, a district director can reasonably deny the petitioner based on the admission made in conjunction with the prior withdrawal” [emphasis added]. See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983).

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Background.

Section 213A of the Act and 8 CFR 213a require most family-based and certain employment-based intending immigrants who, on or after December 19, 1997, seek to enter the United States as immigrants or who apply for adjustment of status to establish that they are not inadmissible under section 212(a)(4) of the Act by having a sponsor sign a legally enforceable Affidavit of Support on behalf of the affected intending immigrant(s).

The Affidavit is submitted on Form I-864, or, for those sponsors who are eligible to use it, on Form I-864EZ. The new Form I-864, Form I-864A, and Form I-864EZ, and I-864W are all dated January 15, 2006. The Forms are available at www.uscis.gov. To help ensure an orderly transition from the old Form I-864 and I-864A to the new forms, USCIS should continue to accept old versions of Form I-864 and Form I-864A until October 19, 2006, a grace period of 90 days from the effective date of the final rule.

Unless otherwise noted, references to Form I-864, Affidavit of Support, include Form I-864EZ, a short form Affidavit of Support to be used by certain petitioning sponsors who rely only upon their own employment to meet the affidavit of support requirements. Regulations governing the use of Form I-864 are located in 8 CFR 213a.

(b) Persons Required to Have Sponsorship.

The following intending immigrants are required to have Form I-864 filed on their behalf:

• Immediate relatives, including K nonimmigrants adjusting to LPR status and orphans (unless the orphan would

become a citizen upon adjustment of status pursuant to section 320 of the Act);

• Family based immigrants;

• Employment based immigrants if the petitioning employer is a relative of the alien, and is a U.S. citizen or

Lawful Permanent Resident; and

• Employment based immigrants if a relative of the alien has a significant ownership interest (5% or more) in the

for-profit petitioning entity, and is a U.S. citizen or a Lawful Permanent Resident.

Note

For employment based cases, an Affidavit of Support is required only if the intending immigrant will work for a relative who is eligible to file a Form I-130 on behalf of the intending. Therefore, for purposes of the Affidavit of Support, a relative is defined as (1) a U.S. citizen or LPR who is the intending immigrant's spouse, parent, child, adult son or daughter, or (2) a U.S. citizen who is the intending immigrant's brother or sister.

Note

An applicant for adjustment of status who filed his or her Form I-485 prior to December 19, 1997, is exempt from the Affidavit of Support requirement even if the interview is conducted and/or the application is adjudicated after that date. [See Section 531(b) of Pub. L. 104-208 and 8 CFR 213a.2(a)(2)(i) (adjustment applicants) and 213a.2(a)(2)(ii)(B) (applicants for admission).]

Some editions of the Form I-864 and Form I-864A include a jurat to be completed by a notary or by a consular or immigration officer to show that the person signed or acknowledged the signing of the Form I-864 or I-864A under oath. The Form I-864 and Form I-864A, however, provide that they are signed ““under penalty of perjury.” Thus, 28 USC 1746 (which deals with the legal effect of unsworn statements) makes it unnecessary for Form I-864 and Form I-864A to be signed in the presence of or certified by a notary public or an Immigration or Consular Officer. Note that the jurat has been removed from the January 15, 2006 edition of the Forms I-864 and I-864A. Form I-86EZ is a newer form, and therefore never had the jurat.

Accompanying spouses and children also need to submit Form I-864s. Each spouse or child must submit a photocopy of the principal's I-864, but they do not need to submit a photocopy of the supporting documentation. A spouse or child is considered to be “accompanying” a principal immigrant if they apply for an immigrant visa or adjustment of status either at the same time as the principal immigrant or within 6 months after the date the principal immigrant acquires LPR status.

Following-to-join spouses and children (those who apply for an immigrant visa or adjustment of status 6 months or more after the principal immigrant) require a new Form I-864 at the time they immigrate or adjust status.

(c) Applicants Exempt from Sponsorship.

The following intending immigrants do not need to file Form I-864 when applying for adjustment of status:

• Any intending immigrant who falls within an immigrant classification listed in section 20.5(b) above but

• Has already earned, or can be credited with 40 quarters of coverage pursuant to the Social Security

Administration's regulations; or

• Is classified as the child of a U.S. citizen, if the child's adjustment of status application is approved before the

child's 18th birthday, and if the approval will make the child a citizen under section 320 of the Act (i.e., the Child Citizenship Act of 2000).

• Diversity immigrants.

• Special immigrants.

• Employment based immigrants (other than those for whom a relative either filed the Form I-140 or owns 5%

or more of the firm that filed the Form I-140 ).

• Self-petitioning immigrants (including self-petitioning widow(ers) and battered spouses and children).

• Refugees and asylees adjusting status.

• Registrants under section 249 of the Act.

• Any other intending immigrant not falling within a class of admission listed in section 20.5(b) above.

(d) Sponsor Requirements.

(1) General.

A sponsor who completes Form I-864 must be all of the following:

• The petitioning relative or the relative who has a significant ownership interest in the petitioning entity;

• An individual (a sponsor cannot be a corporation, organization, or other entity);

• A citizen of the United States or a permanent resident (including conditional residents);

• At least 18 years of age;

• Domiciled in the United States, the District of Columbia, or any territory or possession of the United States (see

section (d)(2) below).

• Able to demonstrate the means to maintain an income of at least 125% of the Federal Poverty Guidelines for

the sponsor's household size, including the immigrants being sponsored or previously sponsored. A sponsor on active duty in the U.S. Armed Forces, other than active duty for training, who is petitioning for a spouse or child must only demonstrate the means to maintain an income equal to at least 100% of the Federal Poverty Guidelines. Assets of the sponsor, the intending immigrant, or both may be used to demonstrate this requirement.

Note

A non-citizen U.S. national may sign a Form I-864 only as a joint sponsor.

(2) Domicile.

Domicile means the place where a sponsor has his or her principal residence, as defined in section 101(a)(33) of the Act, with the intention to maintain that residence for the foreseeable future. A United States citizen living abroad whose employment meets the requirements of section 319(b)(1) of the Act is considered to be domiciled in the United States. For purposes of the ability to sign a Form I-864, an LPR living abroad is considered to have a domicile in the United States during a temporary period of residence abroad if he/she has obtained preservation of residence benefits under 316(b) or 317 of the Act. There may be other situations in which a U.S. citizen or LPR can establish that his or her domicile is still in the United States, despite the fact that the citizen or LPR is currently living outside the United States. Critical issue: proof that the residence abroad is intended to be only temporary and that sponsor, during the temporary absence, has maintained an intent to keep his or her domicile in the United States, despite the temporary sojourn abroad.

If the sponsor is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant's admission or adjustment of status. The intending immigrant will be inadmissible under section 212(a)(4) of the Act, and the intending immigrant's application for admission or adjustment of status must be denied, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision on the principal application for admission at a U.S. port of entry on an immigrant visa or adjustment of status.

In the case of a sponsor who comes to the United States intending to establish his or her principal residence in the United States at the same time as the principal intending immigrant's arrival and application for admission at a port-of-entry, the sponsor shall be deemed to have established a domicile in the United States for purposes of this paragraph. If, however, the sponsor is an LPR, and the sponsor's own application for admission is denied, so that the sponsor leaves the United States either under a removal order or as a result of the sponsor's withdrawal of the sponsor's application for admission, the sponsor will not be deemed to have established a domicile in the United States. Thus, the Form I-864 will not be valid and the sponsored immigrant will be inadmissible on public charge grounds.

(3) Use of Spouse's Income.

A sponsor's spouse who qualifies as a household member and wishes to have his or her income included as a household member generally needs to complete a Form I-864A. However, if the spouse is not willing to let the sponsor rely on the spouse's income, that is acceptable. In this situation, the sponsor needs to show his or her own income and which portion of any assets used to qualify can be attributed to him or her.

In some situations, the sponsor's spouse qualifies as a household member and is also the intending immigrant being sponsored. Since a sponsored immigrant cannot agree to support himself or herself, he or she should not complete a Form I-864A. If children are also listed on the Affidavit of Support, and the sponsor intends to rely on the spouse's income to show the ability to support these accompanying family members, then the spouse must complete Form I-864A in order for the sponsor to be able to rely on the spouse's income.

(4) Use of Intending Immigrant's Income.

If the sponsor does not meet the income requirement on the basis of his or her own income and/or assets, the sponsor may also count the intending immigrant's income if (1)(a) the intending immigrant is either the sponsor's spouse or (b) has the same principal residence as the sponsor, and (2) the preponderance of the evidence shows that the intending immigrant's income results from the intending immigrant's lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status. The prospect of employment in the United States that has not yet actually begun does not count toward meeting this requirement.

Note

The revised definition of “household income” retains the requirement that, unless the intending immigrant is the sponsor's spouse, the intending immigrant must have the same principal residence as the sponsor in order for the sponsor to rely on the sponsored immigrant's income. It is no longer required, however, that the intending immigrant must have had the same principal residence as the sponsor for at least 6 months.

Note

The interim rule did not directly address the ability of a sponsor to rely on an intending immigrant's income from unauthorized employment in meeting the Poverty Guidelines threshold for the sponsor's household income. In response to a specific comment relating to the issue of the sponsor's reliance on an intending immigrant's income, the revised definition of “household income” now makes it clear that income from an intending immigrant's unauthorized employment may not be considered in determining whether the sponsor's anticipated household income meets the applicable Poverty Guidelines threshold. The basis for this clarification is the clear public policy, as stated in sections 245(c)(2) and 274A of the Act, 8 USC 1255(c)(2) and 1324a, against unauthorized employment. Unauthorized employment, admittedly, is not always a bar to adjustment of status. Nevertheless, sections 212(a)(4)(C) and 213A of the Act clearly assume that it is primarily the sponsor himself or herself who must meet the income threshold for the Form I-864. This principle is gravely undermined by permitting the sponsor to rely on the intending immigrant's income, if it is derived from unlawful employment.

If there is an accompanying spouse and/or child listed on the Affidavit of Support, then the sponsored intending immigrant must also complete a Form I-864A. If, however, the sponsored intending immigrant is the only person included on the Affidavit of Support, then he or she does not need to complete a Form I-864A.

(5) Use of Intending Immigrant's Assets.

If the sponsor does not meet the income requirement using his or her own income and/or assets, the sponsor may include the net value (the total value of the assets less any offsetting liabilities) of the intending immigrant's assets. The instructions to Part 6 of Form I-864 indicate that the intending immigrant does not need to complete Form I-864A if he or she is using his or her assets to qualify even if he or she has an accompanying spouse and/or children. Instead, the intending immigrant only needs to provide documentation showing the net value of all assets.

The required total net value of assets depends upon the basis upon which the sponsored alien intends to immigrate. For more information, see section (j)(7)(B) below.

(6) Substitute Sponsorship.

(A) For the primary intending immigrant, and accompanying family members.

If the visa petitioner dies before USCIS approves the visa petition, the statute does not permit anyone else to file the Form I-864.

If the visa petitioner dies after USCIS approves the visa petition, however, P.L. 107-150 provides discretion to permit the beneficiary to immigrate.

Under this provision, it is appropriate for USCIS to reinstate approval of the visa petition if the request to reinstate approval is supported by a properly completed Form I-864 signed by an eligible substitute sponsor (and by a joint sponsor, if necessary). The substitute sponsor must be the sponsored alien's: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in- law, brother-in-law, grandparent, grandchild or legal guardian. For more information regarding P.L. 107-150, see section 21.2(g)(1)(C) of this Field Manual.

Note that the final Affidavit of Support rule includes a special accommodation for the spouse of a citizen, if the citizen spouse has died. If, at the time of the citizen spouse's death, the alien spouse qualifies as a surviving “widow(er)” under section 201(b)(2)(A)(i) of the Act, then 8 CFR 204.1(i)(1)(iv) “converts” the citizen spouse's

Form I-130 so that it will be deemed to be a widow(er)'s Form I-360. If the Form I-130 was approved before the citizen spouse died, it will be deemed to be an approved Form I-360. If it was still pending, it can be approved as a Form I360. In either case, the alien spouse will no longer need to have a Form I-864, since he or she will be adjusting status as a widow(er).

If the citizen spouse and alien spouse had not been married for at least two years when the citizen spouse died, then this “conversion” option is not available and the alien spouse remains subject to the Affidavit of Support requirements. As with any other Form I-130, if USCIS approved the Form I-130 before the citizen spouse's death, USCIS has discretion to reinstate the approval if there is a qualified substitute sponsor.

(B) For a family member who is following to join the principal sponsored immigrant.

In those cases where the petitioner has died after the principal sponsored alien has obtained permanent resident status but before a dependent following to join under section 203(d) of the Act has obtained permanent resident status, another person may file a Form I-864 on behalf of the following-to-join dependent, if that person meets all requirements and files a Form I-864 on behalf of the following-to-join dependent. Under the interim rule (8 CFR 213.2(f)), this sponsor is not required to be someone who would qualify as a substitute sponsor. The sponsor could even be the principal sponsored alien, who, by the time the following-to-join dependent immigrates, would be an alien lawfully admitted for permanent residence.

(7) Joint Sponsor.

(A) Joint Sponsor Needed.

If the petitioner or substitute sponsor cannot demonstrate the ability to maintain an income of at least 125% (or 100% when applicable) of the Federal Poverty Guidelines, the intending immigrant may meet the Affidavit of Support requirement by obtaining a joint sponsor who is willing to accept joint and several liability with the principal sponsor as to the obligation to provide support to the sponsored alien and to reimburse agencies who provide means-tested benefits to the sponsored alien during the period that the Affidavit is enforceable. The joint sponsor must demonstrate income or assets that independently meet the requirements to support the sponsored immigrant(s). It is not sufficient for the combination of incomes of the primary sponsor, sponsored immigrant and joint sponsor to meet the threshold.

The regulations at 8 CFR 213a.2(c)(2)(iii)(C) allow, but do not require, two joint sponsors per family unit intending to immigrate based upon the same family petition. No individual may have more than one joint sponsor, but it is not necessary for all family members to have the same joint sponsor.

Each joint sponsor must execute a Form I-864 that is submitted in addition to the Form I-864 submitted by the petitioner or substitute sponsor. A joint sponsor does not have to be related to the petitioning or substitute sponsor, or the sponsored alien. However, a joint sponsor must otherwise meet the same requirements as a petitioning or substitute sponsor.

The use of a joint sponsor does not eliminate the requirement that there be a signed Form I-864 from the petitioner or substitute sponsor with his or her most recent Federal tax return (or proof that there was no obligation to file). The petitioner or substitute sponsor, as well as the joint sponsor, has full financial responsibility for immigrant(s) they sponsor. If two joint sponsors are used, each joint sponsor is responsible for supporting only the intending immigrant(s) listed on that joint sponsor's Form I-864.

(B) Joint Sponsor Not Needed.

If the petitioning or substitute sponsor meets the income requirements based on his or her own income, there can be no joint sponsor. If any additional Form I-864s from joint sponsors are included in the record, they should be removed from the file and returned to the intending immigrant. It is very important to remove all unneeded Form I-864s from the file so there is no confusion about who is legally responsible for the immigrant and any deeming or enforcement actions.

(e) Sufficiency of Form I-864.

(1) In general.

When determining the sufficiency of a Form I-864, USCIS shall first consider the sponsor's anticipated income for the year the sponsor signed Form I-864. Thus, during the initial evidence review, USCIS shall as a general rule determine the sufficiency of a Form I-864 based on the sponsor's reasonably anticipated household income for the year in which the sponsor signed the Form I-864.

Important

If the income is at least 125% (or 100% as applicable) of the governing Poverty Guideline in the Form I-864P, Poverty Guidelines, from the year in which the Form I-864 was filed, the Form I-864 is sufficient.

Important

An Affidavit of Support must be sufficient both at the time the adjustment of status application is filed and at the time the adjustment application is adjudicated. USCIS has determined that an Affidavit of Support is generally sufficient at the time of the adjudication if it was sufficient at the time it was filed with the Form I-485. That is, if the Form I-864 was sufficient when the sponsored immigrant filed the Form I-864 with the adjustment application, USCIS will generally infer from that finding that the alien is not inadmissible under section 212(a)(4) of the Act as of the date of adjudication. In particular, if the sponsor's Federal income tax return shows an income that was at least 125% (or 100% as applicable) of the governing Poverty Guideline for the year the Form I-864 was filed with the sponsored immigrant's adjustment application, USCIS will generally infer that the sponsor's income has remained and will remain sufficient at the time of adjudication.

Therefore, if the Form I-864 was sufficient at the time it was filed with the Form I-485, USCIS should not request any further documentation (e.g., more recent evidence of employment or income) unless more than one year has elapsed since the Form I-864 was submitted and there is a specific reason (other than the passage of time) to question whether the evidence of income is no longer reliable.

Recent practice has been for the Form I-864 to be vetted at the National Benefits Center as part of the process of preparing the Form I-485 for adjudication. If the NBC vetting process indicates that the Form I-864 was sufficient when reviewed, an adjudicator may generally rely on that determination, unless it is determined, on the basis of specific reasons, that a request for evidence is appropriate, as outlined in paragraph 20.5(e)(2).

(2) Requesting updated information. There are two limited, specific situations in which the general rule stated in

section 20.5(e)(1) will not apply:

• The first exception applies if both of the following criteria are met:

• The most recent income tax return, the anticipated household income listed for the year the sponsor signed the

Form I-864, and the evidence for the income for the year of filing all show an income that is less than 125% (or 100% as applicable) of the governing Poverty Guideline for the year the Form I-864 was filed, and

• A joint sponsor has not filed a sufficient Form I-864.

• The second exception applies if at least one year has elapsed since the Form I-864 was submitted, and the facts

in the case, as supported by the evidence in the record, provide a specific reason (other than simply the passage of time) to believe that the sponsor's income is no longer sufficient.

If USCIS determines that either of these situations exists, USCIS should issue a request for evidence. However, the request for evidence should only be for the current year's income information, not for additional evidence concerning the year in which the Form I-864 was filed. For example, if the Form I-864 was filed in 2004 with a tax return from 2003 and employment information for 2004, a request for evidence issued after April 15 of any given year would request the tax return for the immediately preceding year (e.g., a 2005 return, if requested in 2006), and employment information for the current year. In this situation, the sufficiency of the Form I-864 is determined based upon the additional evidence as it relates to the applicable threshold set forth in the Form I-864P in effect when the USCIS issues the request for evidence, rather than the Form I-864P that was in effect when the Form I-864 was signed. USCIS may direct the Form I-485 applicant to submit the additional evidence either by mail or by appearing for a rescheduled interview.

IMPORTANT

USCIS may encounter a case in which the sponsor (i.e., a petitioning sponsor, substitute sponsor, or joint sponsor) neglected to file evidence corroborating the sponsor's claims about his or her employment and anticipated income for the year in which the sponsor signed the Form I-864. Strictly speaking, failure to submit this evidence would be a sufficient reason to issue a request for evidence and to deny the Form I485 if the requested evidence is not submitted. Before issuing a request for evidence, however, USCIS should consider whether other evidence in the record supports the conclusion that the sponsor's claims on the Form I-864 about the sponsor's current employment and anticipated income are true. Remember, the sponsor's statements about his or her employment and anticipated income are made under penalty of perjury. Thus, these statements on the Form I-864 are themselves evidence.

Other evidence in the record may already tend to corroborate those statements. For example, the sponsor's claims about his or her anticipated income for 2006 may well be consistent with the income tax return for 2005. A request for additional evidence may be appropriate if the evidence of record supports a specific reason (other than the passage of time) to believe the sponsor's claims to be false. But if the other evidence tends to support the conclusion that the sponsor's claims are true, USCIS may decide, as a matter of discretion, that a request for evidence is not necessary.

Note

For most Form I-485s filed before November 23, 2005, the sponsor should have filed the three most recent income tax returns. USCIS may encounter a case in which the sponsor has included the most recent income tax return but not one or both of the two earlier returns. Given the change of policy reflected in the final rule, USCIS is no longer required to request the missing earlier return(s).

Note

USCIS may also decide that a request for evidence is not necessary in a case in which the sponsor filed a photocopy, instead of a transcript, but forgot to submit Internal Revenue Service Forms W-2 or 1099. A decision not to request additional evidence will be proper if USCIS concludes that the evidence of record, taken as a whole, makes it reasonable to infer that the information on the tax return is true.

(3) No Local Policy Permitted Regarding When Form I-864 Shall be Filed.

In the past, USCIS permitted each local office to establish its own policy on whether to require submission of Form I-864 at the time of filing for adjustment or at the time of the adjustment interview. Local offices may no longer do so. Under a policy change that took effect November 23, 2005, USCIS requires all applicants to submit Form

I-864 with their adjustment application. If the case was filed prior to November 23, 2005 at an office that required submission at the time of the adjustment interview, USCIS should allow the applicant to submit Form I-864 and the required supporting documentation at the interview.

(f) Sponsor Use of Benefits.

Question 4B of the September 26, 2000 version of the Form I-864 asks if the sponsor or any member of his or her household has used means-tested benefits during the past 3 years. Do not disqualify a sponsor based on a positive response to this question. The reason for this question is to ensure that the value of any such means-tested public benefits is not considered as income on the Affidavit of Support. Federal means-tested benefits currently include SSI (Supplemental Security income), TANF (Temporary Assistance for Needy Families), food stamps, Medicaid, and State Child Health Insurance Programs (SCHIP). State and local means-tested benefits vary by jurisdiction. Earned benefits such as Social Security retirement, Unemployment Compensation, and Workman's Compensation may be included as income.

(g) U.S. Citizen Children.

Any U.S. citizen children of the intending immigrant should not be listed in part 3 of the Form I-864. The Affidavit of Support places no obligation on a sponsor or joint sponsor to support any U.S. citizen children of the sponsored immigrant. Such U.S. citizen children should only be included in household size if they are actually resident in the sponsor's or joint sponsor's household or listed as dependents on the sponsor's most recent tax return.

(h) Withdrawal of an affidavit of support or Form I-864A.

A person who has signed a Form I-864, I-864EZ or I-864A may withdraw the Form. If the person does so, USCIS will adjudicate the application for adjustment of status as if the withdrawn Form I-864, I-864A or I-864EZ had never been filed. In an adjustment of status case, a withdrawal of the Form I-864, I-864EZ or I-864A is not effective unless it is in writing and USCIS actually receives the withdrawal before the final decision on the adjustment application. In an immigrant visa case, once a consular officer has issued an immigrant visa, no Form I-864, I-864EZ or I-864A may be withdrawn unless the visa petitioner also withdraws the visa petition.

(i) Documentation.

(1) Federal Tax Returns.

Each sponsor must submit either a transcript or a copy of his or her most recent US. Federal individual income tax return (Form 1040, 1040A or 1040EZ), including all Schedules filed with the IRS. If the sponsor submits a copy of the tax return, he or she must also include copies of any and all IRS Forms W-2 and 1099 that reflect income used to qualify. The second note under paragraph 20.5(e)(2) provides guidance regarding what to do if a W-2 or 1099 is missing. Note, however, that it is not necessary to submit the Forms W-2 or 1099 if a transcript, rather than a copy, of the tax return is submitted. State or foreign income tax returns are not acceptable; if submitted, they must be returned to the intending immigrant.

The sponsor must submit with the Form I-864 the sponsor's U.S. Federal income tax return for the most recent tax year (that is, the completed tax year immediately preceding the date the sponsor signs the Form I-864). USCIS may generally expect a sponsor, after April 15 of any given year (or April 16 or 17, in a year in which April 15 is on a Saturday or Sunday), to have completed his or her tax return for the previous year. If the sponsor requested an extension, the sponsor should provide proof of filing for the extension. If the sponsor did not file a tax return, the sponsor must prove that he or she was not required to file. If a sponsor should have filed, the sponsor must file retroactively and provide proof of filing. Note that U.S. citizens generally have an obligation to file a tax return on non-U.S. earnings even if there was no tax liability.

Example 1

Sponsor signs the Form I-864 on March 1, 2006. The US Federal income tax return for 2005 is not due until April 17, 2006. Therefore, the sponsor must submit his or her 2004 U.S. Federal income tax return.

Example 2

Sponsor signs the Form I-864 on May 5, 2006. The sponsor must submit his or her 2005 U.S. Federal income tax return.

Example 3

Sponsor signs the Form I-864 on May 5, 2006. However, the sponsor also filed with IRS a Form 4868, obtaining an extension of the 2005 income tax filing deadline. The sponsor must submit his or her 2004 U.S. Federal income tax return.

Note

Typical proof that a sponsor was not required to file a tax return for a particular year would consist of a written statement from the sponsor, signed under penalty of perjury, attesting to the amount of his or her income for the relevant year and to the fact that a tax return was not required by law. USCIS adjudicators handling Form I-864 issues should be aware of the income threshold for the requirement of filing a tax return for the last several years, so that an RFE for evidence of the law is not necessary. In particular, the Instruction booklets for each year's Forms 1040, 1040A, and 1040EZ specify the income threshold below which a person is not required to file a return.

Note

IRS permits and encourages electronic filing of Forms 1040, 1040A and 1040EZ. An electronically filed tax return may also be signed electronically. When a person signs and files the tax return electronically, a “hard copy” of the original tax return will not exist. In this situation, it is acceptable for the person to submit a plain copy printout, showing the tax return as it would have looked, had it been filed on paper, together with the IRS-issued “declaration

control number.” By signing the Form I-864 o r I-864A “under penalty of perjury,” the person certifies that the copy is a copy of what was submitted to IRS. As with paper-filed returns, it is also acceptable for the person to submit an IRS transcript of the electronically filed return.

A sponsor may submit an IRS-issued transcript instead of a photocopy of the sponsor's tax return. A sponsor may obtain a transcript by filing IRS Form 4506-T with the IRS. Currently, the IRS does not charge a fee for transcripts. Tax transcripts provide proof that the returns were filed with IRS, are easier to read, take up less room in the file, and are easily obtained. If a sponsor submits a transcript rather than a photocopy of the tax return, it is not necessary for the sponsor to include copies of any Forms W-2 or 1099.

(2) Job Letters and Proof of Income.

Pay stub(s) showing income for the most recent 6 months and letters from all current employers are no longer required as initial evidence. The applicant, however, may submit either or both of these items (1) in response to a request for additional evidence (RFE), or (2) with a Form I-864 if the applicant believes doing so would help establish that the sponsor meets the governing income/assets threshold. If submitted, letters from current employers should show dates of employment, the nature of the job, wage s or salary earned, number of hours/ weeks worked, and prospects for future employment and advancement. It should be sufficient for the employer to say that the employment is of indefinite duration or words of similar effect. Promises of future employment are not required.

(3) Household Members.

The sponsor may use the income of any member of his or her own household who is at least 18 years old to help meet the household income requirement. The sponsor and household member must complete Form I-864A, which must include a copy or transcript of the household member's most recent tax return and sufficient documentation of all income and assets he or she lists on the Form I-864A. USCIS shall use the same standards for documentary evidence of income and assets listed on a Form I-864A as are used for doc umentary evidence of income and assets listed on Form I-864.

(j) Use of Poverty Guidelines.

HHS publishes new Poverty Guidelines in the Federal Register each year. These guidelines become effective for USCIS purposes on the first day of the second full month following their release. For example, in 2006, new Poverty Guidelines were published in the Federal Register on January 22 and therefore became effective for USCIS purposes on March 1, 2006. To assist sponsors and intending immigrants, USCIS publishes the governing guideline for the location and size of each household on Form I-864P, Poverty Guidelines. The Poverty Guidelines for each year remain in effect during the next year until the effective date of the new guidelines.

Note

If, as specified in paragraph 20.5(e)(2) of this chapter, it is necessary to request additional evidence, the sufficiency of the Form I-864 is determined according to the Poverty Guidelines in effect when the request for evidence is made. Therefore, a copy of the current Form I-864P should be included in the record of proceeding and sent with the request for evidence.

Note

The correct Form I-864P should already be included in the record, since 8 CFR 213a.2(a)(1)(ii) requires the Form I-485 or immigrant applicant to include the current Form I-864P when the applicant submits the application. If the Form I-864P is missing, that fact alone would not warrant a request for evidence, since the USCIS office should maintain past versions of the Form I-864P. When copying a Form I-864P for addition to the record, please be sure to copy the Form I-864P that was in effect when the Form I- 485 was filed, rather than any later version.

(k) USCIS Review.

The following items must be considered by USCIS when reviewing a Form I-864 or Form I-864EZ:

(1) Part 1: Verify That Sponsor Has Checked the Correct Box(es).

If Form I-864EZ is being used, then “Yes” must be checked on boxes a, b, and c. If Form I-864 is being used and box “d” has been checked indicating a single joint sponsor, USCIS should ensure that there are two Form I-864s: one from the petitioner and one from the joint sponsor. If Form I-864 is being used and box ““““““e” has been checked indicating two joint sponsors, USCIS should ensure that there are three Form I-864s: one from the petitioner, one from the first joint sponsor, and one from the second joint s ponsor.

(2) Parts 2-4 of Form I-864 or Parts 2-3 of Form I-864EZ: Verify These Have Been Completed Correctly.

Compare the information provided with information from other documents included in the application and/or verifying data with the sponsored immigrant at the time of the interview.

If the sponsor is using Form I-864, only “accompanying” family members should be listed in the chart in Part 3. Be sure that the first and last name of each accompanying family member is listed. Family members “following to join” (i.e., intending to immigrate more than 6 months after principal intending immigrant) should not be listed in Part 3.

(3) Part 5 of Form I-864 or Part 4 of Form I-864EZ: Sponsor's Household Size.

The sponsor's total household size is used to determine the correct Federal Poverty Guideline. For purposes of Form I-864, a household size includes the total of the following groups of individuals:

• Sponsor;

• Person(s) the sponsor is sponsoring on the Affidavit of Support (will always be one if the sponsor is using Form

I-864EZ instead of Form I-864);

• Sponsor's spouse, if the sponsor is married;

• All of the sponsor's children, as defined in section 101(b)(1) of the Act, except those that have (1) reached the

age of majority (i.e., are at least 18 years old) or are emancipated under the law of the person's domicile, and (2) are not claimed as dependents on the sponsor's most recent Federal income tax return;

• Other persons lawfully claimed as dependents on the sponsor's tax return for the most recent tax year; and

• The number of siblings, parents, and/or adult children who (1) have the same principal residence as the sponsor,

and (2) have combined their income with the sponsor's income by submitting Form I-864A.

Note

When calculating household size, do not count any person more than once.

(4) Part 6 of Form I-864 or Part 5 of Form I-864EZ: Sponsor's Income and Employment

(A) General Rule and Active Duty Military Exception.

Either the petitioning sponsor, substitute sponsor, or a joint sponsor must generally demonstrate the ability to maintain his or her annual household income at 125% of the governing Federal Poverty Guideline threshold.

A petitioner on active duty in the U.S. Armed Forces, other than for training, only needs to demonstrate the means to maintain an annual income equal to at least 100% of the Federal Poverty Guidelines if he or she is petitioning for a spouse or child.

Note that a substitute sponsor or joint sponsor is not eligible to claim the 100% income level based on the petitioner's relationship to the intending immigrant, or the petitioner's military status. A substitute sponsor or joint sponsor may claim the 100% income level only if the substitute sponsor or joint sponsor, himself or herself, is on active duty in the U.S. Armed Forces (other than for training) and the intending immigrant is the spouse or child of the substitute sponsor or joint sponsor.

To qualify for this exception, the petitioner must have provided evidence that he or she is on active duty, such as a military dependent's identification card for the sponsored intending immigrant (the spouse or child), or a photocopy of the military identification card of the sponsor (the spouse or parent).

Regardless of whether a sponsor qualifies for the military exception, all of his or her income counts toward the 125% (or 100%) income requirement, including (in the case of Armed Forces personnel) any allotments received for the dependents.

(B) Poverty Guidelines.

Form I-864P, Poverty Guidelines, provides the Federal Poverty Guidelines calculated at both the 100% level and 125% level for the 48 contiguous states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam. Separate guidelines are published for Alaska and Hawaii.

The Form I-864P guidelines are based on household sizes of 2 to 8. A dollar amount is provided to add for each additional household member or dependent. To determine the requirement for a household size of 10, USCIS should take the poverty line for a household size of 8 and add the additional dollar amount multiplied by 2.

Form I-864P is based upon the Federal Poverty Guidelines that the Department of Health and Human Services

(HHS) publishes annually in the Federal Register (usually in February or March). (See “Federal Register

Publications” under the ““““““Immigration Law and Regulations” button on I-LINK). In concert with the Federal Poverty Guidelines, USCIS annually updates Form I-864P, Poverty Guidelines. USCIS begins to apply the updated Form I-864P guidelines to adjustment of status applications received on the first day o f the second month after the HHS guidelines are published.

(C) Determining the Sponsor's Ability to Provide Sufficient Support.

If the sponsor is using Form I-864EZ, he or she must only use his or her salary or pension as shown on his or her most recent Federal income tax return. If the sponsor provides a photocopy of the return, the sponsor must include a copy of any Form(s) W-2 provided by the sponsor's employer(s) to prove income from employment and/ or Form(s) 1099 to show pension income; if a W-2 or 1099 is missing, follow the guidance in the second note under paragraph 20.5(e)(2). As with other sponsors, these copies are not needed if the sponsor provides an IRS transcript of the return. (See Part 1(a) of Form I-864EZ.) If sponsor relies on other types of income, the sponsor must use Form I-864. The sponsor must also use Form I-864, rather than Form I-864EZ, if the sponsor will be submitting any Forms I-864A.

Regardless of the form the sponsor uses, he or she must provide evidence of any income (and/or assets in the case of Form I-864) used to demonstrate the means to maintain the sponsored immigrant.

Sponsors who use Form I-864 may qualify based only upon their own income and/or assets if either or both are sufficient to reach the income requirement. If, however, the sponsor's combined income and assets are not sufficient to meet the governing threshold, the sponsor may include the income and/or assets of another household member if the household member:

• Is at least 18 years old;

• Is included in the calculation of household size;

• Has the same principal residence as the sponsor (or is the sponsor's spouse); and

• Has completed and signed a Form I-864A.

USCIS should ensure that each Form I-864A is completed and signed by the sponsor and the household member.

As noted above, the intending immigrant does not need to sign a Form I-864A if he or she is immigrating alone (that is, has no accompanying dependents). In this situation, the intending immigrant should be listed on line 24(e) and should be the only person listed in 24(b), with his or her income listed on that line and value of assets listed on the appropriate line(s) in item 28.

(D) Federal Tax Return(s).

No matter whether a sponsor submits Form I-864 or I-864EZ, the sponsor must provide a copy or an IRS-generated transcript of the sponsor's Federal income tax return for the sponsor's most recent tax year. Each Federal tax return must include all the supplements and attachments that were sent to the IRS with the tax return. For purposes of demonstrating means to maintain income, the determining income amount is the income, before deductions, on the sponsor's income tax return. In other words, income means an individual's total income (adjusted gross income for those who file IRS Form 1040EZ) for purposes of the individual's U.S. Federal income tax liability, including a joint income tax return (e.g., line 22 on the 2005 IRS Form 1040, line 15 on the 2005 IRS Form 1040-A, or line 4 on the 2005 IRS Form 1040EZ or the corresponding line on any future revision of these IRS Forms).

Note that, by signing the Form I-864 or Form I-864EZ under penalty of perjury, a sponsor certifies that the transcript or photocopy is true and correct. This certification meets the statutory requirement of presenting a ““certified” copy of the transcript of photocopy. Certification of the returns by the IRS is not necessary; the sponsor's certification under penalty of perjury is sufficient.

If a sponsor filed a joint tax return with a spouse, but is qualifying using only his/her own individual income, the sponsor must submit evidence of that individual income. This evidence would include, for example, the sponsor's own W-2(s), Wage and Tax Statement, and if necessary to reach the income requirement, evidence of other income reported to IRS which can be attributed to him/her, usually on Forms 1099.

(E) Other Evidence of Income.

For purposes of demonstrating means to maintain income, the total income, before deductions, in the sponsor's tax return for the most recent taxable year will be generally determinative. There is no requirement to determine whether the sponsor would have met 125% (or 100%) of the governing Poverty Guideline before the most recent tax year. Income tax information from these years should only be used to take the earning trend into consideration when assessing current and future earning capability.

USCIS, however, may consider other evidence of income (e.g., pay stub(s), employer letter(s), or both), if (1) the sponsor establishes that he/she was not legally obligated to file a Federal income tax return for the most recent tax year, or (2) USCIS determines that the income listed on the Federal tax return for the sponsor's most recent tax year does not meet the governing threshold.

In other words, if the sponsor's current income is sufficient, it can establish that the Form I-864 itself is sufficient even if the tax return without any other documentation might warrant a finding that it is not sufficient. For example, if the sponsor recently started a new job (that USCIS is satisfied will likely continue) and the income from the job now meets or exceeds the legal requirement, USCIS may find the Affidavit of Support to be sufficient, notwithstanding information included in the transcript or copy of the tax return(s).

By contrast, 8 CFR 213a.2(c)(2)(ii)(C) permits USCIS to conclude that a Form I-864 is not sufficient, even if the sponsor's household income meets the Poverty Guideline threshold. USCIS should make this conclusion only if the evidence of record makes it “reasonable to infer that the sponsor will not be able to maintain his or her household income at a level sufficient to meet his or her support obligation.” For example, if the sponsor's income is from a job that is merely temporary or seasonal, USCIS might reasonably conclude that the income is likely not to continue, and could also conclude that the Affidavit of Support, for that reason, is not sufficient.

If the household income meets the Poverty Guidelines threshold, however, USCIS will generally conclude that the Form I-864 is sufficient. There must be some specific reason, supported by evidence in the record, to conclude that the Form I-864 is not sufficient.

(F) Means-Tested Public Benefits Received by the Sponsor.

USCIS has decided that, as a matter of policy, it will require the sponsor to disclose his or her receipt of means- tested public benefits and not consider the fact that a sponsor has received such means-tested public benefits in the past to be an adverse factor in evaluating a Form I-864 or Form I-864EZ. However, the sponsor may not include any means-tested benefits currently being received in calculating the household income.

(G) Compare Total Household Income with Governing Poverty Guideline.

If the sponsor's total household income (line 24c of Form I-864 or line 18 of Form I-864EZ) is greater than or equal to the governing Poverty Guideline threshold, the sponsor does not need to show evidence of assets and does not require a joint sponsor. In this case, USCIS may move to Part 8 of Form I-864 or Part 6 of Form I-864EZ.

If a Form I-864EZ does not demonstrate means to maintain the required income, USCIS may choose to request that the adjustment of status applicant submit a new Form I-864 from the sponsor (if the applicant seeks to qualify based on showing “significant assets”), or to submit a sufficient Form I-864 from a joint sponsor. Note that this request for evidence would go to the applicant, not the sponsor.

If a Form I-864 does not demonstrate means to maintain the required income, USCIS should consider the assets listed in Part 7 of the form.

(5) Part 7 of Form I-864: Use of Assets to Supplement Sponsor's Income.

If a sponsor cannot meet the Poverty Guideline requirement based upon total household income listed on line 24c, he or she may show evidence of assets owned by the sponsor, and/or members of the sponsor's household, that are available to support the sponsored immigrant(s) and can be readily converted into cash within 1 year.

For assets of the intending immigrant and/or household member to be considered, the household member must complete and sign Form I-864A. USCIS should check to make sure that the Form I-864A is completed and signed by the sponsor and the household member.

(A) Evidence of assets.

Evidence of the sponsor's assets should be attached to the Form I-864. Evidence of the principal sponsored immigrant's and/or household member assets should be attached to Form I-864A. In each instance, the evidence should establish the location, ownership, and value of each listed asset, including any liens or liabilities for each listed asset. Evidence of assets includes, but is not limited to:

• Bank statements covering the last 12 months, or a statement from an officer of the bank or other financial

institution in which the sponsor has deposits, including deposit/withdrawal history for the last 12 months, and current balance;

• Evidence of ownership and value of stocks, bonds, and certificates of deposit, and dates acquired;

• Evidence of ownership and value of other personal property and dates acquired; and

• Evidence of ownership and value of any real estate and dates acquired.

(B) Amount of assets required.

In order to qualify using assets, the total net value of all assets must generally equal at least five times the difference between the sponsor's total household income and the minimum income requirement for the current year.

Example for a household size of 4:

125 percent of 2006 Poverty Guidelines $25,000

Sponsor's income $19,500

Difference $5,500

Multiply by 5 x5

Minimum Required Net Value of Assets $27,500

There are two exceptions, however:

• If the adjustment of status applicant intends to immigrate as a spouse of a U.S. citizen or as the child of a U.S.

citizen who will not become a citizen under section 320 of the Child Citizenship Act of 2000 because the child has already reached his or her 18th birthday, the “significant assets” requirement will be satisfied if the assets equal three times, rather than five times, the difference between the applicable income threshold and the actual household income.

Example for a household size of 4: 125 percent of 2006 Poverty Guidelines $25,000

Sponsor's income $19,500

Difference $5,500

Multiply by 3 x3

Minimum Required Net Value of Assets $16,500

• If the adjustment of status applicant intends to immigrate as an IR-4 immigrant (orphans coming to the United

States for adoption), the parents' assets only need to equal or exceed the difference between the applicable income threshold and the actual household income.

Example for a household size of 4: 125 percent of 2006 Poverty Guidelines $25,000

Sponsor's income $19,500

Difference (Minimum Required Net Value of Assets ) $5,500

(6) Joint Sponsors.

If the petitioner or substitute sponsor cannot demonstrate ability to maintain a household income of at least 125% (or 100% when applicable) of the Federal Poverty Guidelines, the intending immigrant may meet the Affidavit of Support requirement by obtaining a joint sponsor who is willing to accept joint and several liability with the principal sponsor as to the obligation to provide support to the sponsored alien and to reimburse agencies who provide means-tested benefits to the sponsored alien during the period that the Affidavit is enforceable. The regulations at 8 CFR 213a.2(c)(2)(iii)(C) allow but do not require two joint sponsors per family unit intending to immigrate based upon the same family petition. Further guidance regarding joint sponsors may be found at paragraph (d)(7) above.

(7) Part 8 of Form I-864 or Part 6 of Form I-864EZ.

Part 8 of Form I-864 or Part 6 of Form I-864EZ constitute the bulk of the contract and covers the purpose of the Affidavit of Support, which is to overcome the public charge grounds of inadmissibility. It also includes the notice of change of address requirements (the sponsor must notify the Secretary of Homeland Security of the

sponsor's new address within 30 days of any change of address by filing Form I-865 with USCIS), means-tested benefit prohibitions and exceptions, consideration of the sponsor's income in determining eligibility for benefits and the civil action to enforce the Affidavit. Additionally, it requires a certification under penalty of perjury that the sponsor is aware of the legal ramifications of being a sponsor under section 213A of the Act.

After placing the sponsor under oath, USCIS should verify that the portion under “Concluding Provisions” has been completed.

Once signed, the concluding provisions satisfy the statutory requirement that the sponsor must make a written statement under penalty of perjury indicating that the copies of the Federal income tax returns submitted with the Affidavit of Support are true copies of the returns filed with the Internal Revenue Service.

A photocopy of the signed Form I-864 may be submitted for each spouse and/or child of the principal beneficiary of the adjustment of status application. Copies of supporting documentation are not required.

(8) USCIS Completion of “Agency Use Only” Box.

In adjustment cases adjudicated by USCIS, USCIS must complete the “Agency Use Only” box on the first page of the Form I-864 or Form I-864EZ. If the petitioner sponsor does not qualify, USCIS should check the box “Does not meet.” In order for the applicant to be approved, there must be in the file another Form I-864 that meets the requirements from a joint sponsor. In such a case, USCIS must check the “Meets” box, and then sign, date, and note the office code for location.

In cases adjudicated by an immigration judge where the judge did not complete the Agency Use Only box, USCIS will complete the processing of the case after the judge's decision by completing the box on the USCIS copy of the Form I-864 by checking either the “Meets” or the “Does not meet” box. USCIS must then add a notation, “Adjustment application approved (or denied) by U.S. Immigration Court at (place) on (date).” USCIS will then sign, date, and note the office code for location.

(9) Verification of Information.

The Government may pursue verification of any information provided on or with Form I-864, I-864EZ, I-864A (e.g., employment, income, and/or assets) with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration.

If USCIS finds that a sponsor, joint sponsor, or household member has concealed or misrepresented material facts concerning income, household size, or any other material fact, USCIS shall conclude that the Affidavit of Support is not sufficient to establish that the sponsored immigrant is not likely to become a public charge. In this situation, the sponsor or joint sponsor may be liable for criminal prosecution under the general statutes relating to the submission of fraudulent immigration documents. Failure of the sponsor or joint sponsor to provide adequate evidence of income and/or assets will result in the denial of the application for adjustment to lawful permanent residence status.

(l) Insufficient Affidavits Submitted in Support of Adjustment Applications.

The Affidavit of Support is not a separate application. It is supporting documentation for an adjustment of status application. Correspondence regarding insufficient Affidavits of Support should be sent to the adjustment applicant and his/her legal representative, but not to the sponsor.

If the Form I-864 or I-864EZ is insufficient, and procedures for requesting additional evidence have been exhausted, the entire adjustment of status application should be denied because the intending immigrant is inadmissible on public charge grounds in addition to any other reasons why the adjustment case may be denied.

The following language should be included in a denial letter of an adjustment of status application which does not fulfill the requirements under section 213A of the Act:

You are not eligible for adjustment of status under section 245 (a)(2) of the Act, because you are inadmissible as an alien who is likely at any time to become a public charge pursuant to section 212(a)(4)(C) of the Act, 8 USC 1182(a)(4)(A) and 1255(a)(2). If you are an alien seeking adjustment of status as (insert appropriate category: an immediate relative, a family based immigrant, or an employment based immigrant who will be employed by a relative or a relative's firm) you are inadmissible under this ground unless an Affidavit of Support that meets the requirements of section 213A of the Act, 8 USC 1183a, has been filed on your behalf. The Affidavit(s) of Support provided in your case does not meet the requirements of section 213A because (insert appropriate language/ deficiency; e.g. failure to meet the income requirement, ineligible sponsor, etc.)

Note

This language must be modified in order to address the specifics of each case, including any other reasons for denial. If the applicant is denied due to an ineligible sponsor, be sure to include the reason why the sponsor is ineligible, e.g., the sponsor cannot be a corporation, organization, or other entity, the sponsor is not at least 18 years of age, etc. Details regarding the sponsor's personal financial matters should not be revealed in the denial letter to the adjustment applicant unless the denial is based at least partially upon such information.

(m) Service Center Processing.

The processing of the packet of forms which subsequently produce an alien registration card (I181, I-485 or OS-155A) includes data entry of Affidavits of Support when they are required by statute. If an applicant fails to submit an Affidavit of Support when one is required, USICS will request that an Affidavit of Support be submitted before the case can be adjudicated.

In those instances where one or more Affidavits of Support are contained in the packets, data from each of them will be entered into CLAIMS as a subscreen of the I-485 or visa to which it is attached.

The types of data entry at the Service Centers will be:

• Forms I-864 attached to a Form OS-155A, immigrant visa received from Ports of Entry;

• Forms I-864 attached to a Form I-485 filed and adjudicated at the Service Center; or

• Forms I-864 attached to Form I-485 filed and/or adjudicated at local offices. The data entry in most of these

cases will be attached to the data entry of a “copy 3” of Form I-181.

All Forms I-864 will be maintained in the same A or T File in which the controlling form is stored. There is no data entry of information from Form I-864A.

(n) Statistical Reporting.

Effective October 1, 2005, hours and actions are tracked on Form G-23.3, Line 171S. Reporting Instructions are provided in the document entitled, “Examinations Activity: G-22.2, G-22.2a, G-22.3, G-22.3a Adjudications Summary Procedures.” These procedures implement Administrative Manual (AM) Policy Statement 3.1.101.

(o) Termination of Sponsor's Obligation and Enforcement.

The obligations created under Form I-864 and I-864A terminate when the sponsored alien:

• Becomes naturalized;

• Is credited with at least 40 quarters of employment in the Social Security system;

• Loses or abandons his or her lawful permanent resident status; or

• Dies.

Note

For any qualifying quarter to be creditable for any period beginning on or after December 31, 1996, the alien must not have received any Federal means-tested public benefit during that quarter. A Federal means-tested public benefit is any public benefit funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds defines as a Federal means-tested public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193). Federal means tested benefits include: SSI (Supplemental Security income), TANF (Temporary Assistance for Needy Families), food stamps, Medicaid, and State Child Health Insurance Programs (SCHIP). State and local means tested benefits vary by jurisdiction.

Note

The qualifying quarters worked by a parent of, or the spouse of such alien during the marriage to the alien may often be credited to the alien beneficiary.

If the sponsored immigrant is the sponsor's child, the legal obligation made in the Affidavit of Support is not terminated by the child's adoption after acquiring permanent residence.

If the sponsored immigrant is the sponsor's spouse, divorce will not terminate the legal obligation made in the Affidavit of Support.

Even when the support obligation has been terminated, the sponsor, or the sponsor's estate may still be held liable for any reimbursable amount that accrued before the termination of the obligation.

(p) Reimbursement Requests.

USCIS is not directly involved in enforcing an Affidavit of Support sponsor's obligation to reimburse an agency for means tested public benefits. USCIS does, however, make information about the sponsor available to an agency

seeking reimbursement. Upon the receipt of a duly issued subpoena, USCIS will provide the agency with a certified copy of a sponsor's Form I-864.

In addition, USCIS routinely provides the sponsor's name, address, and Social Security number to Federal, state, and local agencies providing means-tested benefits. This information is used to determine whether a sponsored immigrant who is applying for benefits is eligible for them. These queries are submitted to USCIS on Forms G-845, G-845S, and the G-845 Supplement.

(q) Sponsor's Address Change Notification.

Under section 213A(d) of the Act, the sponsor must notify the Secretary of Homeland Security of the sponsor's new address within 30 days of any change of address. The sponsor meets this obligation by completing and filing Form I-865 with USCIS. USCIS is obligated by statute to maintain the address and social security number of all sponsors in an automated system.

If a sponsor fails to satisfy this requirement, USCIS may, after notice and opportunity to be heard, impose on the sponsor a civil penalty of not less than $250 or more than $2,000, or if such failure occurs with knowledge that the sponsored alien has received any means-tested public benefits (other than benefits described in 401(b), 403(c)(2), or 411(b) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996) not less than $2,000 or more than $5,000.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Historical Information Regarding Visa Petitions.

In the aftermath of World War I, Congress passed a number of laws restricting immigration to the U.S. by both numbers and qualifications. [Previously, there were restrictions barring certain types of individuals based on individual shortcomings (e.g., the Act of March 3, 1875 which barred convicts and prostitutes, and the Act of August 3, 1882, which barred criminals, paupers, and “mental and physical defectives”), and on race (i.e., the Chinese Exclusion Act of May 6, 1882).] In order to qualify for an immigrant visa (itself a new post-WWI innovation), the alien had to fall within one of the quota categories, or be exempt therefrom. The visa petition was then created as the vehicle for establishing that an alien fell into one of the higher quota categories, or was quota-exempt.

Over the years, the definitions of the various immigrant visa categories have changed with the passage of new legislation, and the requirements have been interpreted and reinterpreted through volumes of case law. However, the need for an approved immigrant visa petition to qualify for most visa classifications has remained a basic requirement of the system of legal immigration to the United States. It is no exaggeration to say that professional adjudication of immigrant visa petitions is one of the keystone s to ensuring that the system works as intended.

(b) Organization of This Chapter.

Many of the basic visa petition adjudication procedures and issues are similar regardless of the form being filed or the classification being sought. Those basic procedures are discussed in subchapter 21.2. Subchapters 21.3 through 21.10 are organized according to the relationship of the petitioner to the beneficiary and discuss those aspects of the adjudication procedures and issues which are unique to those particular relationships. Accordingly, it is intended that the users of this field manual review both subchapter 21.2 and the relevant individual relationship subchapter when seeking information.

(c) Special Parole and Deferred Action Considerations.

On November 15, 2013, USCIS, pursuant to the authority conferred upon the Secretary of Homeland Security by INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A), issued a Policy Memorandum guiding the exercise of discretion with respect to applications for parole by designated family members of U.S. military personnel and veterans. On November 20, 2014, the Secretary directed USCIS to issue new policies on the use of both parole in place and deferred action for certain family members of certain military personnel, veterans, and individuals who are seeking to enlist in the U.S. military. See Secretary of Homeland Security Memorandum,

“Families of U.S. Armed Forces Members and Enlistees” (Nov. 20, 2014), http://www.dhs.gov/sites/default/files/ publications/14_1120_memo_parole_in_place.pdf

These new policies support the Department of Defense (DoD) in several ways, including by:

• Elaborating on general USCIS deferred action policies by identifying factors that are of particular relevance to

discretionary determinations involving military personnel, veterans, and their families;

• Building on existing USCIS and DoD initiatives and policies designed to assist military members, veterans, and

their families in navigating our complex immigration system;

• Facilitating military morale and readiness and supporting DoD recruitment policies by considering temporarily

deferring the removal of certain military family members;

• Furthering the goal of the Military Accessions Vital to the National Interest (MAVNI) program to recruit certain

foreign nationals whose skills are considered vital to the national interest and critical to military services; and

• Ensuring consistent support for our military personnel and veterans, who have served and sacrificed for our

nation, and their families.

For guidance on parole in place for certain family members of military personnel and veterans, see AFM Chapter 21.1(c)(1). For guidance on deferred action for certain enlistees and certain family members of military personnel and veterans, see AFM Chapter 21.1(c)(2).

(1) Special Parole Consideration for Spouses, Parents, Sons, and Daughters of Active Duty Members of the U.S.

Armed Forces, Individuals in the Selected Reserve of the Ready Reserve, or Individuals Who (Whether Still Living or Deceased) Previously Served on Active Duty in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve and Were Not Dishonorably Discharged.

The decision whether to grant parole under INA § 212(d)(5)(A) is discretionary. Generally, USCIS grants parole in place only sparingly. The fact that the individual is a spouse, parent, son, or daughter of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve, or an individual who previously served on active duty in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve (if the former service member was not dishonorably discharged and either is living or died while the family member was residing in the United States), however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS decides to grant parole in that situation, the parole should be authorized in one- year increments, with extensions of parole as appropriate. To request parole, the alien must submit to the director of the USCIS office with jurisdiction over the alien's place of residence:

• Completed Form I-131, Application for Travel Document (The USCIS Director has determined that in this

situation the Form I-131 may be filed without fee, per 8 CFR 103.7(d));

• Evidence of the family relationship (this may include proof of filing a petition in certain cases – see AFM 21.1(c)

(3) below);

• Evidence that the alien's family member is an Active Duty member of the U.S. Armed Forces, individual in the

Selected Reserve of the Ready Reserve, or an individual who (whether still living or deceased) previously served on active duty in the U.S. Armed Forces or the Selected Reserve or the Ready Reserve such as a photocopy of both the front and back of the service member's military identification card (DD Form 1173) (in the case of family

members of veterans (whether still living or deceased), the service member must not have received a dishonorable discharge upon separation from the military)

• In the case of surviving family members, proof of residence in the United States at the time of the service

member's death;

• Two identical, color, passport style photographs; and

• Evidence of any additional favorable discretionary factors that the requestor wishes considered.

Individuals who have obtained parole in place are eligible to apply for work authorization for the period of parole if they can demonstrate economic necessity. See 8 CFR 274a.12(c)(11), (14). See Form I-765, Application for Employment Authorization.

Parole in place may be granted only to individuals who are present without admission and are therefore applicants for admission. Individuals who were admitted to the United States but are currently present in the United States beyond their periods of authorized stay are not eligible for parole in place, as they are no longer applicants for admission.

(2) Deferred Action Consideration for Spouses, Parents, and Sons and Daughters of Active Duty Military

Personnel, Individuals in the Selected Reserve of the Ready Reserve, and Individuals Who (Whether Still Living or Deceased) Previously Served on Active Duty in the U.S. Military or the Selected Reserve of the Ready Reserve and Were Not Dishonorably Discharged; and for MAVNI and other Enlistees in the Delayed Entry Program and their Spouses, Parents, and Sons and Daughters.

(A) Deferred Action for DoD Delayed Entry Program Enlistees (Including MAVNI Recruits) and Certain Family

Members.

Individuals who have no previous military experience and are seeking to enlist in the U.S. Armed Forces must sign a contract by which they enter into the Delayed Entry Program (DEP) for a maximum of 365 days while awaiting Basic Training. While in the DEP, there can be delays in starting active duty for the Active Components or initial active duty for training for the Reserve Components.

Individuals who enlist in the military through the Military Accessions Vital to the National Interest (MAVNI) program may also enter the DEP. The MAVNI program allows certain foreign nationals to enlist in the military to fill positions where there are critical shortages in health care and foreign language skills. See the DoD MAVNI program fact sheet for further details: http://www.defense.gov/news/mavni-fact-sheet.pdf.

Most MAVNI recruits are in a lawful nonimmigrant status at the time that they enlist. For example, it is common for a J-1 foreign exchange visitor or F-1 foreign student to enlist in the U.S. military through MAVNI. Through no fault of their own, MAVNI recruits in the DEP may fall out of their lawful status while waiting to enter Basic Training. This may occur, for example, in cases where an F-1 foreign student completes his or her program of study while waiting to enter Basic Training in the DEP. In the same way, the family members of such recruits often lose their lawful statuses because their statuses depend on those of the recruits. In addition, family members might lack status either because they are present without being admitted or paroled, or because they were admitted or paroled but overstayed their authorized periods of stay even before their MAVNI or other DEP family member entered the DEP.

As in all deferred action determinations, USCIS will make case-by-case, discretionary judgments based on the totality of the evidence. In doing so, USCIS will weigh and balance all relevant considerations, both positive and negative. Certain factors, however, are of particular relevance to the exercise of that discretion when deferred action requests are submitted by individuals in DEP and their family members. Particularly strong positive factors specific to such requests include, but are not limited to:

• Being a DEP enlistee, including through the MAVNI program (even if the enlistee's authorized period of stay

expires while in the DEP); and

• Being the spouse, parent, son, or daughter of a MAVNI recruit or other individual in the DEP (even if present

in the United States without an authorized status).

The presence of one or more of the preceding factors does not guarantee a grant of deferred action but may be considered a strong positive factor weighing in favor of granting deferred action. The ultimate decision rests on whether, based on the totality of the facts of the individual case, USCIS finds that the positive factors outweigh any negative factors that may be present.

If an individual described in either of the two bullets above is granted deferred action in the exercise of discretion, the period of deferred action should be authorized in two-year increments; USCIS may consider requests for renewal of deferred action as appropriate. If the individual withdraws from the DEP or becomes disqualified from joining the military, any period of deferred action for the family member may be terminated. See AFM Chapter 21.1(c)(2)(C) for guidance on filing requests for deferred action. See AFM Chapter 21.1(c)(1) for guidance on parole in place.

(B) Deferred Action for Certain Family Members of Active Duty Members of the U.S. Military, Individuals in the

Selected Reserve of the Ready Reserve, or Individuals Who (Whether Still Living or Deceased) Previously Served on Active Duty in the U.S. Military or in the Selected Reserve of the Ready Reserve and Were Not Dishonorably Discharged.

As in all deferred action determinations, USCIS will make case-by-case, discretionary judgments based on the totality of the evidence. In doing so, USCIS will weigh and balance all relevant considerations, both positive and negative. Certain factors, however, are of particular relevance to the exercise of that discretion when deferred action requests are submitted by the family members of military personnel and veterans. One particularly strong positive factor specific to such requests is that the person has been admitted and is the spouse, parent, son, or daughter of an individual who is serving, or has previously served on active duty in the U.S. military or in the Selected Reserve of the Ready Reserve (if the former service member was not dishonorably discharged and either is living or died while the family member was residing in the United States). Such an individual ordinarily fits the guidelines for parole under section 21.1(c)(1) above, except for being statutorily ineligible solely because of his or her prior admission. See INA §§ 212(d)(5)(A), 235(a)(1), 8 U.S.C. §§ 1182(d)(5)(A), 1225(a)(1). The presence of the preceding factor does not guarantee a grant of deferred action but may be considered a strong positive factor weighing in favor of granting deferred action. The ultimate decision rests on whether, based on the totality of the facts of the individual case, USCIS finds that the positive factors outweigh any negative factors that may be present. If USCIS grants deferred action in the exercise of discretion, the period of deferred action should be authorized in two-year increments; USCIS may consider requests for renewal of deferred action as appropriate.

(C) Filing Request for Deferred Action.

To request deferred action, one must submit the following to the director of the USCIS office with jurisdiction over the requestor's place of residence:

• Letter stating basis for the deferred action request [See AFM 21.1(c)(2)(A) and (c)(2)(B)];

• Evidence supporting a favorable exercise of discretion in the form of deferred action as elaborated in AFM

21.1(c)(2)(A) and (c)(2)(B) – (e.g., evidence of family member's current or previous military service, or alien's or family member's enlistment in the DEP; note that in the case of family members of veterans, whether still living or deceased, the service member must not have received a dishonorable discharge upon separation from the military);

• Proof of family relationship, if applying based on family relationship to military member, veteran, or enlistee

(this may include proof of filing a petition in certain cases – see section below);

• In the case of surviving family members, proof of residence in the United States at the time of the service

member's death;

• Proof of identity and nationality (including a birth certificate, a passport and/or identification card, driver's

license, notarized affidavit(s), etc.);

• If applicable, any document the alien used to lawfully enter the United States (including, but not limited to, Form

I-94, Arrival/Departure Record, passport with visa and/or admission stamp, and any other documents issued by other components of DHS or legacy INS);

• Form G-325A, Biographic Information;

• Two identical, color, passport style photographs; and

• Evidence of any additional discretionary factors that the requestor would like USCIS to consider.

Individuals who have obtained deferred action are eligible to apply for work authorization for the period of deferred action if they can demonstrate economic necessity. See 8 CFR 274a.12(c)(11), (14). See Form I-765, Application for Employment Authorization.

A requestor who has legal representation must submit a properly completed Form G-28, Notice of Entry as Attorney or Accredited Representative.

(3) Petition Filing Requirement for Certain Parole or Deferred Action Requests.

USCIS encourages applicants to continue on a path toward lawful permanent resident status whenever applicable. In cases where it is applicable, USCIS encourages the filing of a Form I-130, Petition for Alien Relative (or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant) to allow USCIS to use an established process in evaluating the bona fides of the pertinent family relationship. In some cases where subsequent parole in place or renewal of deferred action is requested, such filing may be required (see AFM 21.1(c)(3)(A) below). USCIS checks the bona fides of the qualifying family relationship in all parole in place and deferred action requests regardless of whether the Form I-130 (or Form I-360) has been filed.

In all cases where a Form I-130 or Form I-360 has been filed, USCIS may grant either parole in place, as provided in AFM 21.1(c)(1), or deferred action, as provided in AFM 21.1.(c)(2), as long as the applicant's Form I-130 (or Form I-360) is pending or approved (and still valid). Even in cases where the Form I-130 or Form I-360 is required, it does not need to be approved prior to a grant of either parole in place or deferred action. Upon receiving the receipt notice for the Form I-130 or Form I-360, the alien may file the request for either parole in place or deferred

action with the USCIS office with jurisdiction over the alien's place of residence. The request for either parole in place or deferred action must include documentation to establish an eligible family relationship. Such evidence may include a previously approved petition.

Note: Proof of filing the Form I-130 or Form I-360 is not required, even in applicable cases, for initial requests for parole in place or deferred action as provided under AFM 21.1(c)(1) and AFM 21.1(c)(2). See AFM 21.1(c)(3)(B).

(A) Petition Required for Request for Subsequent Parole in Place or Renewal of Deferred Action.

Active Duty military members, individuals in the Selected Reserve of the Ready Reserve, individuals who have previously served on active duty in the U.S. military or in the Selected Reserve of the Ready Reserve, and DEP enlistees, if eligible to file a Form I-130 on behalf of a family member requesting subsequent parole in place or renewal of deferred action as provided under AFM 21.1(c)(1) or (c)(2), must submit a completed Form I-130 for the family member, with fee and according to the instructions on the form, prior to filing the request for subsequent parole in place or renewal of deferred action, as applicable. (See Form I-130 instructions for more information on who may file.)

Surviving spouses, parents, sons, and daughters of deceased service members and veterans (described above) who were residing in the United States at the time of the service member's death and who are eligible to file Form I-360 on their own behalf must submit a completed Form I-360, with fee and according to the instructions on the form, prior to filing the request for subsequent parole in place or renewal of deferred action, as applicable. (See Form I-360 instructions for more information on who may file. See also the USCIS web site at: http://www.uscis.gov/ military/family-based-survivorbenefits/survivor-benefits-relatives-us-citizen-military-members.)

The Form I-130 (or Form I-360) filing requirement for requests for subsequent parole in place or renewal of deferred action as provided under AFM 21.1(c)(1) and AFM 21.1(c)(2) applies only to requests that are submitted on or after November 23, 2017 (one year after publication of memorandum updating AFM 21.1).

(B) Cases where Petition is Not Required at Any Time.

Individuals who are ineligible to file a Form I-130 or a Form I-360 are not required to do so; they may still request parole in place or deferred action, as applicable. In particular, MAVNI recruits in the DEP are not eligible to file Form I-130 and therefore not required to do so. MAVNI recruits may, however, become eligible for naturalization under INA § 329(a) upon entering active duty. Recruits typically must wait until they naturalize before filing a Form I-130 for any eligible family members.

Proof of filing the Form I-130 (or Form I-360) also is not required, even in applicable cases, for initial requests for parole in place or deferred action as provided under AFM 21.1(c)(1) and AFM 21.1(c)(2).

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Petition By Citizen or LPR for a Spouse.

In addition to the general filing and adjudication procedures and issues discussed in Chapter 21.2 of this field manual, this section will discuss matters more specific to the adjudication of an I-130 petition filed by a citizen or LPR on behalf of his or her spouse.

(1) Procedural Concerns Particular to Spousal Petitions.

(A) Concurrent Filing of I-130 and I-485.

A petitioner may file an I-130 immigrant visa petition and the beneficiary may file an I-485 adjustment application concurrently. The petition and application are filed at the local office which has jurisdiction over the beneficiary's place of residence in the United States. (The exception to this is that persons residing in Maryland file the concurrent petition and application through the Vermont Service Center, which forwards them to the Baltimore office after initial processing.) In order to file concurrently, the I-130 petitioner and the I-485 applicant (who is also the I-130 beneficiary) must be able to meet all the requirements of both forms. For example:

• If the beneficiary of the I-130 is subject to section 212(e) of the Act as an exchange visitor who has neither

complied with nor obtained a waiver of the 2-year foreign residency requirement, the I-485 cannot be filed. The I-130 can be filed separately at the appropriate service center.

• If the petitioner is an LPR and second preference visa numbers are not ““current,” the beneficiary cannot apply

for adjustment of status. Again, the I-130 would have to be filed separately at the appropriate service center.

• If the petitioner entered on a K-1 visa and the I-130 petitioner is not the same person who filed the I-129F petition,

the alien is prohibited from adjusting status.

(B) Supporting Documents.

As with other relative petitions, documentation must be submitted to establish both the standing of the petitioner (evidence of U.S. citizenship or lawful permanent residence) and validity of relationship (evidence of the lawful marriage of the petitioner and beneficiary and of the termination of any and all prior marriages of both parties). In addition, in the case of spousal petitions, the supporting documentation must include ADIT-style photographs of

both the petitioner and the beneficiary, a Form G-325 A properly completed by the petitioner, and a Form G-325A properly completed by the beneficiary. If the petitioner has failed to provide any of these documents, either:

• Send the petitioner an RFE requesting the missing documentation; or

• If the I-130 was filed concurrently with the beneficiary's adjustment application, require the petitioner to bring

the missing documentation to the interview.

(2) Adjudication Issues.

In addition to the more general adjudication issues discussed in subchapter 21.2, pay attention to these concerns pertaining specifically to spousal visa petitions:

(A) Proxy Marriages.

Section 101(a)(35) of the Act provides that the term “spouse”, “wife”, or ““husband” does not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage has been consummated. (Note: Consummation of a marriage can only occur after the ceremony, there is no such thing as “pre-consummation” of a marriage.)

(B) Validity of a Marriage Celebrated in a Foreign Country.

One may normally presume the validity of a marriage upon presentation of a marriage certificate, duly certified by the custodian of the official record. As a general rule, the validity of a marriage is judged by the law of the place of celebration. If the marriage is voidable but no court action to void the marriage has taken place, it will be considered valid for immigration purposes. However, if a marriage is valid in the country where celebrated but considered offensive to public policy of the United States, it will not be recognized as valid for immigration purposes. Plural marriages fall within this category.

(C) Marriage Between Close Relatives.

In some foreign countries, and some states in the United States, marriages between close relatives (e.g., cousins) are permitted under certain circumstances. In cases where such marriages do not offend the laws of the state where the parties reside, the marriage will be recognized for immigration purposes.

(D) Fraudulent Marriage Prohibition.

Section 204(c) of the Act provides that:

Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws[,] or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

If there is evidence that the beneficiary has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws, the petition must be denied. However, the evidence of the attempt or conspiracy must be contained in the alien's file. (See also 8 CFR 204.2(a)(1)(ii).)

Note

Section 204(c) prohibits the approval of any petition, not just an I-130 petition. Accordingly, if an alien has attempted of conspired to enter into a fraudulent marriage, USCIS would also be barred from approving an I-140 petition filed in his or her behalf.

(E) Freedom to Marry.

The parties to a marriage must be legally free to marry. Some people “marry” with a bona fide intent to have a life together as man and wife, but the marriage is not valid because one of the parties was not legally free to marry when the marriage was contracted. Although the I-130 petition asks for the names of all prior spouses, the response to the question is sometimes inaccurate. The reasons given for an inaccurate answer are numerous, but the most common reasons are:

• Desire to conceal prior marriage(s) from spouse;

• Separated for many years and unsure if legally divorced;

• Even though legally divorced, not in possession of the divorce decree and unwilling to take time to get it;

• Not divorced because divorce is not allowed in the person's country of origin (e.g., the Philippines).

(F) Legal Separation vs. Divorce or Annulment.

A legal separation is not proof of marital capacity. A final decree of divorce, annulment or death must be presented as proof of termination of a prior marriage. If either party's prior marriage(s) has/have been terminated by divorce or annulment, the petitioner must establish that the divorce or annulment is valid under the laws of the place where pronounced. It must then be judged by the law of the jurisdiction where the parties to the divorce were actually residing at the time of the divorce.

(G) Legal Separation vs. Separate Cohabitation.

You may deny the visa petition in cases where the parties entered into a valid marriage, but have since obtained a legal separation prior to the final adjudication of the visa petition. However, if the parties entered into a valid marriage, have not obtained a legal separation, but simply reside separately, the petition may not be denied merely because of such separate cohabitation. The issue of separate cohabitation is relevant, however, in determining the intent of the parties at the time of the marriage.

(H) Interviewing Petitioner and Spouse.

You will often have to question both the petitioner and the beneficiary to determine whether the marriage is bona fide. Remember that the issue to be resolved during the interview is the bona fides of the marriage, not its ““viability” (i.e., the probability of the parties remaining married for a long time). USCIS is not in the business of determining (or even speculating about) viability. Although the petitioner and the beneficiary may not appear

to have a “viable” marriage, the petition may be approved if the marriage is valid and was not entered into solely for immigration purposes.

On the other hand, a marriage which was contracted solely for immigration purposes does not confer benefits under the Act. A number of factors may raise questions about the intent of the marriage, and therefore necessitate more in depth questioning (see Chapter 15 regarding interviewing techniques), or even a field examination (see Chapter 17) or an investigation (see Chapter 10.5(d)). Some indications that a marriage may have been contracted solely for immigration benefits include:

• Large disparity of age;

• Inability of petitioner and beneficiary to speak each other's language;

• Vast difference in cultural and ethnic background;

• Family and/or friends unaware of the marriage;

• Marriage arranged by a third party;

• Marriage contracted immediately following the beneficiary's apprehension or receipt of notification to depart

the United States;

• Discrepancies in statements on questions for which a husband and wife should have common knowledge;

• No cohabitation since marriage;

• Beneficiary is a friend of the family;

• Petitioner has filed previous petitions in behalf of aliens, especially prior alien spouses.

A sham marriage has been defined by the BIA as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or “good faith”, to live together and which is designed solely to circumvent the immigrations laws. Sham marriages are not recognized for immigration purposes. See Matter of Patel, 19 I&N Dec. 774 (BIA 1988).

(I) Same Sex Marriages.

In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA) (1 U.S.C. § 7), which previously had barred recognition of same-sex marriages for Federal purposes, is unconstitutional. As a result, same-sex marriage is now a lawful basis for all immigration benefits based on marriage.

In order to be valid for immigration purposes, a same-sex marriage must meet all of the same requirements as an opposite-sex marriage. As with opposite-sex relationships, a civil union, domestic partnership, or other relationship that is not recognized as a legal marriage in the place of celebration is not considered a marriage for immigration purposes.

A same-sex marriage that is legally valid in the jurisdiction in which it was celebrated is valid for immigration purposes, regardless of whether the jurisdiction in which the parties reside recognizes same-sex marriage. See Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013).

(J) Transgender issues and marriage. [Revised 8/10/12; PM-602-0061.1, AD12-02]

Prior to the Supreme Court's ruling in United States v. Windsor, 133 S. Ct. 2675 (June 27, 2013), benefits involving the marriage of transgender individuals could be granted pursuant to the Board of Immigration Appeals decision in Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005). Lovo-Lara provides that benefits based upon marriage may be approved on the basis of a marriage between a transgender individual and an individual of the other gender if the Petitioner/Applicant establishes 1) the transgender individual has legally changed his or her gender and subsequently [FN1] married an individual of the other gender, 2) the marriage is recognized as a heterosexual marriage under the law where the marriage took place (Matter of Lovo-Lara, supra), and 3) the law where the marriage took place does not bar a marriage between a transgender individual and an individual of the other gender. LovoLara remains binding precedent for marriages that were celebrated in a jurisdiction that does not allow same- sex marriages. However, following Windsor, whether a spouse is transgender has no bearing on the validity of the marriage that was celebrated in a jurisdiction that recognizes same-sex marriage.

A timely registered marriage certificate from the appropriate civil authority is prima facie evidence of the validity of a marriage. When an officer determines, based on the record or through interview or other means, that a party to a petition has changed gender, the officer must ascertain that the marriage is a valid marriage under the laws of the jurisdiction in which it was contracted.

The validity of the marriage must be established by the preponderance of the evidence. As with most administrative immigration proceedings, the petitioner bears the “preponderance of the evidence” burden. Thus, even if there is some doubt, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “ “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See United States v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). As such, officers should be satisfied that this burden is met if the marriage is recognized in the jurisdiction in which it was contracted. USCIS will presume the validity of the marriage involving a transgender individual in the absence of jurisdictional law and/or precedent that would place the validity of such marriage in doubt.

Only in jurisdictions where a specific law or precedent either prohibits or sets specific requirements for a legal change of gender, and does not permit same-sex marriage, is the individual required to demonstrate that he or she has met the specific requirements needed to establish the legal change of gender and the validity of the marriage. The individual may also show, in an appropriate case, that the law barring a legal change of gender for purposes of marriage has changed and that the marriage is valid under current law, or that under the particular facts of the case and law of the jurisdiction in question, the marriage should be recognized (for example, if state law recognizes neither gender change nor same-sex marriage, then a marriage between a couple that is same-sex as a result of gender change of one of the parties may be considered lawful).

Where an individual claims to have legally changed his or her gender, USCIS will recognize that claim based upon the following documentation:

• Amended birth certificate; or

• Other official recognition of new gender, such as a passport, court order, certificate of naturalization or

citizenship, or driver's license (note that some jurisdictions may have a lower threshold for issuing a driver's license

than to establish a legal change of gender for purposes of the marriage laws, and USCIS would require additional evidence that the individual met the threshold for marriage, if applicable); or

• Medical certification of the change in gender from a licensed physician (a Doctor of Medicine (M.D.) or Doctor

of Osteopathy (D.O.)). This is based on standards [FN2] and recommendations [FN3] of the World Professional Association for Transgender Health, who are recognized as the authority in this field by the American Medical Association. [FN4] Medical certification of gender transition received from a licensed physician (an M.D. or D.O.) is sufficient documentation, alone, of gender change. If the physician certifies the gender transition, USCIS will not question the certificate by asking for specific information about the individual's treatment. Additional information about medical certifications: o For the purposes of this chapter only an M.D. or a D.O. qualifies as a licensed physician. Officers may accept medical certifications from any number of specialties as well as from general practitioners.

o Statements from persons who are not licensed physicians, such as psychologists, physician assistants, nurse practitioners, social workers, health practitioners, chiropractors, are not acceptable.

o The medical certification should include the following information: ◼ Physician's full name;

◼ Medical license or certificate number;

◼ Issuing state, country, or other jurisdiction of medical license/certificate;

◼ Drug Enforcement Administration registration number assigned to the doctor or comparable foreign registration number, if applicable;

◼ Address and telephone number of the physician;

◼ Language stating that the individual has had appropriate clinical treatment for gender transition to the new gender (male or female);

◼ Language stating that he/she has either treated the applicant in relation to the applicant's change in gender or has reviewed and evaluated the medical history of the applicant in relation to the applicant's change in gender and that he/she has a doctor/patient relationship with the applicant

Sex reassignment surgery is not required in order for USCIS to approve a Form I-130 to establish a legal change of gender unless the law of the place of marriage clearly requires sex reassignment surgery in order to accomplish a change in legal gender and the jurisdiction does not permit same-sex marriage. The fact of sex reassignment surgery, however, would generally be reflected in the medical certification. USCIS will not ask for records relating to any such surgery.

These documents are listed in order of evidentiary preference. Officers must recognize, however, that the personal circumstances and jurisdictions involved in an individual's case will affect availability of specific types of documentation. As evidence of the new gender, officers should treat an amended birth certificate as carrying the same weight as USCIS would normally give to other timely registered primary evidence.

This guidance also applies to the adjudication of all immigration benefits based upon marriage, including but not limited to a Petition for Alien Fianc? (e). In the case of a proposed marriage involving a transgender individual, the petition may be approved assuming the same conditions are met for legal gender change and validity of the marriage as described above. If the record indicates the parties' specific intent to marry in a jurisdiction where the marriage would not be valid, the officer will issue an intent to deny in which the petitioner is informed that the marriage would not be valid for immigration purposes and why. USCIS will provide the petitioner the opportunity to submit evidence that USCIS's interpretation of the jurisdiction's law and/or precedent is incorrect or provide an affidavit attesting that the intended marriage will take place in a jurisdiction where the marriage will be valid for immigration purposes.

The same principles for determining the validity of a marriage involving a transgender individual for a spousal Petition for Alien Relative apply to those who may derive an immigrant or nonimmigrant benefit by virtue of a spousal relationship.

If an officer has questions about the validity of a marriage involving a transgender individual, the officer should contact local USCIS counsel.

As in all adjudications, if an officer finds significant substantive discrepancies, has reason to question the accuracy or authenticity of documents submitted, or finds other indicators of fraud, the case may be referred to FDNS in accordance with current national and local policies.

As in all adjudications, if an officer finds significant substantive discrepancies, has reason to question the accuracy or authenticity of documents submitted, or finds other indicators of fraud, the case may be referred to FDNS in accordance with current national and local policies.

(K) Immigration Marriage Fraud Amendments of 1986.

In an effort to deter immigration-related marriage fraud, Congress passed the Marriage Fraud Amendments of 1986 on November 10, 1986. This legislation had a major effect on the adjudication of relative petitions, including:

• In many cases, certain conditions had to be met prior to the acceptance or approval of certain petitions on behalf

of spouses (see paragraphs (L) and (M).

• Criminal penalties were added or enhanced for individuals who were convicted of having engaged in a fraudulent

marriage.

• An alien's lawful permanent residence is “conditional” if the qualifying marriage occurred less than 2 years prior

to the alien's immigration or adjustment. The provision requires that a conditional resident alien seek removal of the conditional basis of the residence shortly before the second anniversary of the date on which he or she immigrated or adjusted (see Chapter 25 regarding removal of conditions).

(L) Marriage within Five Years of Obtaining LPR Status.

Section 204(a)(2)(A) of the Act generally prohibits the approval of a visa petition filed by a lawful permanent resident for a spouse within 5 years of the date on which the petitioner became a LPR if that LPR obtained his or her residence status through a prior marriage. The LPR can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into with the purpose of evading the immigration laws, or that the prior marriage ended through death. 8 CFR 204.2(a)(1)(i) specifies the type of evidence which

the petitioner must submit to meet the clear and convincing standard. If the petitioner falls within this restriction and has not submitted the requisite evidence, send him or her a letter explaining the deficiency and requesting additional evidence. If satisfactory evidence is not submitted within 60 days (or 120 days if the petitioner has requested and been granted additional time), deny the petition.

(M) Marriage During Proceedings.

There is a general prohibition against approval of visa petition filed on behalf of an alien by a United States citizen or a lawful permanent resident spouse if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto. Issues concerning determination of commencement and termination of proceedings and exemptions are covered in 8 CFR 245.1(c)(9), except that the burden in visa petition proceedings to establish eligibility for the exemption in 8 CFR 245.1(c)(9)(iii)(F) rests with the petitioner. The petitioner can request an exemption if he or she:

(i) Is able to establish through clear and convincing evidence that:

• the marriage was entered into in good faith; and

• the marriage was not entered into for the purpose of obtaining LPR status for the beneficiary; or

(ii) The alien beneficiary has resided outside the United States for at least two years after the date of the

marriage.

Note

If the alien was deported from the United States (or was a “self- deport”), he or she may need permission to reapply before immigrating to the United States, but not before the I-130 may be approved. (See Chapter 43 of this field manual.)

(3) Closing Action. See Chapter 21.2(g) of this field manual.

(b) Petition for Widow(er).

(1) Background.

The Immigration Act of 1990 expanded the definition of immediate relatives to include spouses of United States citizens who had been married at least two years before their spouse died. A widow(er) of a U.S. citizen may file a petition on his or her own behalf to be classified as an immediate relative under Section 201(b) of the Act. Section 201(b)(2)(A)(i) of the Act and 8 CFR 204.2(b) govern the process. An alien who obtains an immigrant visa or adjustment of status through this process is not subject to the conditional resident provisions of section 216 of the Act.

(2) Procedure.

An eligible widow or widower may apply for immediate relative classification by filing Form I-360 concurrently with his or her adjustment application with the Service Center having jurisdiction over the petitioner's residence. If the petitioner resides outside the United States, the I-360 petition should be filed with the USCIS office or American consulate having jurisdiction over such residence.

(3) Eligibility,

Widow(er) may be classified as an immediate relative if:

• He/she was married for at least two years to a United States citizen ( Note: The United States citizen must have

been a U.S. citizen at the time of death, but did not have to have the status of a U.S. citizen for the entire two year period);

• The petition was filed within two years of the death of the citizen spouse or before November 29, 1992, if the

citizen spouse died before November 29, 1990;

• The alien petitioner and the citizen spouse were not legally separated at the time of the U.S. citizen's death; and

• The alien spouse has not remarried.

(4) Evidence.

The petition must be accompanied by the following evidence:

• Evidence of citizenship of the United States citizen (birth certificate, certificate of naturalization, certificate of

citizenship, or U.S. passport); and

• Evidence of the relationship, which includes:

— Marriage certificate issued by civil authorities;

— Proof of the terminations of all prior marriages of both husband and wife (divorce or annulment decrees or death certificates of prior spouses); and

— Death certificate of the U.S. citizen issued by civil authorities.

Primary evidence of the relationship (as listed above) is preferred. If the primary evidence is not available, secondary evidence may be considered (see Chapter 11 of this field manual).

(5) Adjudication Issues.

The adjudication of an I-360 petition filed by a widow or widower is quite similar to the adjudication of an I-130 petition filed by a citizen for his or her spouse. The basic eligibility requirements are the same (status of petitioner and relationship between the petitioner and the beneficiary), and the significant concerns are the same (dissolution of any and all prior marriages, fraud, etc.). The most significant difference in the adjudication is the obvious one: the citizen cannot be questioned as to the bona fides of the marriage. However, the burden of proof still rests with the petitioner (who in this case is also the beneficiary), and the resolution of questions regarding the bona fides of the marriage is still the petitioner's responsibility. The basic techniques for determining whether the marriage is suspect still exist: examination of the paper trail; formal interrogation of the petitioner; and field examination or investigation.

Factors which may lead you to doubt the bona fides of the marriage and to more intensively question the petitioner (or to call for a field examination or investigation) include:

• A large age discrepancy between the petitioner and the (now) deceased citizen at the time of the marriage;

• Ill health of the citizen at the time of the marriage, although this is obviated to some extent by the requirement

that the marriage be in existence for at least 2 years before the death of the citizen;

• Lack of common residence of the petitioner and the citizen prior to the latter's demise;

• Lack of intermingling of financial assets and liabilities (and other resources and obligations).

(6) Closing Action.

(A) Approval.

If the petition is approved:

• Place the examiner's approval stamp in the Action Block on the petition;

• Sign your name;

• Annotate the petition with the proper classification (IW1) and the consulate selected by the petitioner;

• If the petitioner will be applying for an immigrant visa, forward the petition to the Department of State's National

Visa Center;

• If the widow(er) is in the U.S. and is eligible for adjustment of status under Section 245 of the Act, retain the

approved petition and write “245 Adjust” in the Consulate box.

(B) Denial.

If the petition is denied, notify the widow(er) in writing of the reasons for the denial. As required in Chapter 10.7(b)(5) of this manual, the decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.

(7) Child of Petitioning Widow(er).

A child of a petitioning widow(er) classified as an immediate relative is also eligible for classification as an immediate relative. Except as provided in section 423 of the Patriot Act (see paragraph (b)(8)), no separate petition is filed for such child. The child of the petitioning widow(er) need not be the child of the deceased citizen and could have been born either before, during, or after the marriage of the petitioner to the (now) deceased citizen. However, the child would not be eligible for derivative classification under the widow(er) provision if:

• He or she has reached the age of 21;

• He or she is married;

• The petitioning widow(er) has remarried;

• He or she was born after date on which the petitioning widow(er) immigrated to the U.S.

Note 1

When the widow/widower provisions were first incorporated into the law (1990), there was no provision for the child of such widow or widower. The provision which allows for immediate relative classification for the child was added by section 219(b)(1) of the Technical Corrections Act of 1994. If a widow(er) who immigrated under the pre-1994 version of this provision had a child who (still) qualifies under the 1994 revision, that child can immigrate under this provision, without the filing of a new petition.

Note 2

Although the statute is silent on whether the child must be accompanying or following to join the petitioning widow(er) /parent, 8 CFR 204.2(b)(4) states that the child “may accompany or follow to join.” Accordingly, by regulation, the child cannot be admitted or adjusted unless and until the petitioning widow(er) /parent has been admitted or adjusted.

(8) Special Provisions Added by the USA Patriot Act of 2001.

In response to the September 11, 2001, terrorist attack on the World Trade Center and the Pentagon, Congress passed Public Law 107- 56, Act of October 26, 2001, 115 Stat. 272 (the “USA Patriot Act”). Section 423 of that law expanded the widow(er) self-petition entitlement for widow(er)s of citizens killed as a direct result of those terrorist acts. It did so in two significant ways:

• It provided that an otherwise qualifying widow(er) of a citizen killed in the terrorist attacks of that day may self-

petition without any regard to the length of the marriage; and

• It provided that any child of a U.S. citizen who was killed in one of the terrorist acts of September 11, 2001, may

file a petition for status as an immediate relative child within two years of the death of the parent, regardless of changes in age or marital status. (In other words, he or she must have met the definition of child on September 11, 2001, but could have turned 21 and/or married after that date.) As a result of the child's ability to self-petition, the regulatory “accompanying or following to join” requirement that normally attaches to the child of a widow(er) (see Note 2 of paragraph (b)(6)) does not apply in the case of a child of a citizen killed as a direct result of the September 11, 2001 terrorist attack.

All other statutory requirements remain unchanged, as do all other aspects of the adjudication of the I-360 petition described in this field manual.

Note

Although a child of a citizen killed as a direct result of the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon may self-petition even if he/she has married, there is no visa category for the spouse or child of such self-petitioning child. If such self-petitioning child has a spouse or child of his/her own, he/she would have to immigrate first and then file a 2nd preference petition for such spouse or child.

(c) Precedent Decisions Relating to Spouse Petitions.

In addition to the decisions cited in section 21.2(h), which apply to I-130 petitions in general, the following precedents apply to petitions filed for a spouse:

• Matter of B-, 5 I&N Dec. 698 (BIA 1954). A proxy marriage must be consummated to be valid for benefits

under the I&N Act.

• Matter of M-, 8 I&N Dec. 217 (BIA 1958). Where no bona fide husband-wife relationship was intended, a

marriage is deemed invalid for immigration purposes regardless of whether it would be considered valid under the domestic law of the jurisdiction where it was performed.

• Matter of Agoudemos, 10 I&N Dec. 444 (BIA 1964); Matter of G-, 9 I&N Dec. 89 (BIA 1960). A marriage

which is voidable but not void without any action to void the marriage is generally valid for benefits under the I&N Act.

• Matter of H-, 9 I&N Dec. 640 (BIA 1962). A polygamous marriage, though valid where contracted, is not

recognized for immigration purposes.

• Matter of Zappia, 12 I&N Dec. 439 (BIA 1967). A marriage complying with all the requirements of the state

of celebration might nevertheless be deemed invalid if it is invalid under the laws of the state where the parties are domiciled at the time of the marriage and where both intend to make their home afterward or if it violates a strong public policy of the state of domicile.

• Matter of Pearson, 13 I&N Dec. 152 (BIA 1969). The marriage following a divorce can only be considered

valid if the divorce is considered valid under the laws of the place where the marriage was contracted.

• Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). The facts of an individual case may suggest or imply that the

marriage was entered into solely for the purpose of obtaining immigration benefits. The mere denial of fraud does not overcome the inference and is insufficient to sustain the petitioner's burden of proof.

• Matter of Weaver, 16 I&N Dec. 730 (BIA 1979).The validity of a divorce should be governed by the law of

the state where the parties were domiciled at the time of the divorce.

• Matter of P-, 4 I&N Dec. 610 (BIA 1952). The validity of a marriage is generally governed by the law of the

place where it is celebrated.

• Matter of Lenning, 17 I&N Dec. 476 (BIA 1980). A petition was properly denied where the parties entered into

a formal, written separation agreement notwithstanding the fact that the marriage had not been finally dissolved by an absolute divorce decree.

• Matter of W-, 8 I&N Dec. 16 (BIA 1958). A Mexican “mail order” divorce, not ordinarily recognized as valid

by California courts,.was not valid for immigration purposes, thus the applicant was not legally free to marry.

• Matter of Kurys, 11 I&N Dec. 315 (BIA 1965). A visa petition filed under compulsion of a court order by a

petitioner who stated that a bona fide marital relationship did not exist and that she did not intend to live with her husband is properly denied. The petition was not filed in good faith.

• Matter of Arenas, 15 I&N Dec. 174 (BIA 1975). In determining the validity of a marriage for immigration

purposes, the law of the place of celebration of the marriage will generally govern. Under Section 2.22 of the Texas Family Code, a marriage is void if either party was married and the prior marriage is not dissolved. However,

the marriage becomes valid when the prior marriage is dissolved and the parties continue to reside together as husband and wife and present themselves to others as being married.

• Matter of DaSilva, 15 I&N Dec.778 (BIA 1976). A marriage between an uncle and his niece is valid for

immigration purposes for a couple who reside in New York but who marry in Georgia where marriage between and uncle and niece are legal. Since the marriage was legally contracted in Georgia and is thus not regulated by New York law nor violative of New York public policy, the marriage is recognized as valid in New York and is valid for immigration purposes.

• Matter of Magana, 17 I&N Dec. 111 (BIA 1979). Where the respondent entered the United States as the spouse

of a citizen, concealing the fact of his prior marriage in Mexico, a decree from a Washington state court declaring the Mexican marriage invalid from its inception will not be given retroactive effect for immigration purposes.

• Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). A marriage entered into for the primary purpose of

circumventing the immigration laws, commonly referred to as fraudulent or sham marriage, is not recognized for the purpose of obtaining immigration benefits.

• Matter of Kumah, 19 I&N Dec. 290 (BIA 1985). A Ghanaian court decree of divorce is accepted as evidence

that a customary divorce was validly obtained, however, it is not deemed to be conclusive proof of the facts certified therein because of the potential for fraud or error in the issuance.

• Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013). Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7,

is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the jurisdiction where it was celebrated.

Footnotes 1 Please consult with OCC in cases where the marriage was originally an opposite-sex marriage celebrated in a state that does not recognize same-sex marriage, and one of the spouses changed gender after the marriage. Return

2 Standards of Care, 7th Version (2012), World Professional Association for Transgender Health (WPATH) Return

3 Identity Recognition Statement (2010), World Professional Association for Transgender Health (WPATH), Return

4 American Medical Association. Res. 122; A-08, Removing Barriers to Care for Transgender Patients (2008) Return

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Eligibility Requirements.

(1) Status.

Only a citizen of the U.S. may file a visa petition for a parent. A petition filed by a LPR must be denied.

(2) Age.

The petitioner must be at least 21 years old at the time of filing.

(3) Relationship.

In order for the beneficiary to be considered the parent of the petitioner:

• The petitioner must have once qualified as the child of the beneficiary under one or more of the definitions

contained in section 101(b)(1) of the Act; and

• The relationship must continue to exist, even though the petitioner is over age 21 and, therefor, no longer a child. If

the relationship has been terminated (as would happen in the case of a stepparent-stepchild relationship if marriage between the stepparent and natural parent were to be terminated by divorce or annulment, or would happen in the case of any other parent-child relationship if the child were to be given up for adoption), the beneficiary would no longer be eligible for classification as a parent, even though the petitioner had once been considered to be the beneficiary's child.

The requirements for establishing the parent-child relationship are the same as with petitions for children, except that the roles of the petitioner and the beneficiary are reversed (see Chapter 21.4 of this field manual).

(b) Filing Requirements.

In accordance with the instructions on the form, the petitioner must file an I-130 petition, with fee and all supporting documents, with:

• the appropriate Service Center, or

• the local office having jurisdiction over the beneficiary's location in the U.S., if the beneficiary is filing a

concurrent Form I-485.

(c) Adjudication.

(1) Evidence to Support a Petition for a Parent.

In addition to evidence of U.S. citizenship as listed in paragraphs (i) through (vi) of 8 CFR 204.1(g), the petitioner must also provide evidence of the claimed relationship. See the references below:

• 8 CFR 204.2(f)(2)(i) – Primary evidence if the petitioner is a legitimate son or daughter of the beneficiary;

• 8 CFR 204.2(f)(2)(ii) – Primary evidence if the petitioner is a legitimated son or daughter of the beneficiary;

• 8 CFR 204.2(f)(2)(iii) – Primary evidence if the petitioner is an illegitimate son or daughter of the beneficiary;

and

• 8 CFR 204.2(f)(2)(iv) – Primary evidence if the petitioner is the adopted son or daughter of the beneficiary.

If primary evidence is not available, secondary evidence may be submitted by the petitioner and considered by the adjudicator. See 8 CFR 204.1(g)(2) and 8 CFR 204.2(d)(v) and Chapter 11.1 of this field manual.

(2) Petitions for More than Two Parents.

There is no limitation on the number of parents for whom a single petitioner may file visa petitions. For example, if the (alien) natural parents of the petitioner divorced and both remarried other aliens prior to the petitioner's 18th birthday, the petitioner could file petitions for his natural mother, his natural father, his stepmother and his stepfather.

(3) Fraud.

While not as common as marriage fraud, parent-child fraud is a serious problem. The same techniques used to detect and deter fraud in petitions filed for children (e.g., DNA tests) apply to petitions filed for parents. See

(4) Final Decision.

(A) Approval.

If no adverse information is developed in a case at a USCIS office, the adjudicating officer shall approve the petition and:

• Forward it, with all attachments, to the National Visa Center (NVC) so that it may be processed and then

forwarded to the embassy or consulate where the beneficiary will apply for an immigrant visa if the alien is outside the U.S. or is unable or unwilling to apply for adjustment of status; or

• Retain the approved petition in the beneficiary's file (i.e., A-file is one is pre- existing or receipt/petition file if

no A-file exists) and invite him or her to apply for adjustment of status if he or she is in the U.S., and is eligible to and intending to so apply.

The adjudicating officer will also send Form I-797, Notice of Approval of Relative Immigrant Visa petition, to the petitioner. If no adverse information is developed in a case at a consulate or the embassy, the consular officer will proceed with the processing of the visa application.

(B) Denial. If the petitioner fails to establish eligibility for the benefit sought, the adjudicating officer

shall deny the petition and notify the petitioner of the reasons in writing. As required in Chapter 10.7(b)

(5) of this manual, the decision must include information about appeal rights and the opportunity to file a

motion to reopen or reconsider.

(C) Revocation Proceedings Based on Adverse Information.

If adverse information is developed subsequent to the approval of the petition, the petition will be returned to the approving office with a memorandum (and supporting evidence) setting forth the arguments for revocation. When the USCIS office of origin receives the petition with the adverse information, that office shall notify the petitioner of the derogatory information and of the Bureau's intent to revoke the approval of the petition. The petitioner is to be given the choice of withdrawing the petition or having a determination of eligibility made in formal revocation proceedings. (See Chapter 20.3 of this field manual.) The USCIS office must notify the immigration or consular officer who developed the adverse information by memorandum of the final action.

If the petition is not withdrawn and the approval is not revoked, the petition and all attachments must be forwarded to the consulate or embassy where the beneficiary has applied or will apply for an immigrant visa. If the adverse information was developed at an overseas DHS office, a memorandum explaining the reasons for not revoking the petition's approval must be attached to the approved petition.

(5) Derivative Beneficiaries.

There are no provisions in the law for issuance of a visa to a dependent spouse or child of a parent of U.S. citizen. If the person in question qualifies as a (step)parent or sibling of the citizen, then that citizen can file a separate petition on his or her behalf. If the person in question does not so qualify, (e.g., if the person in question married the petitioner's parent subsequent to the petitioner's 18th birthday) the parent of the citizen could file a second preference petition on his or her behalf, provided all other requirements are met. This may involve considerable delay between the immigration of the petitioner's parent and the person in question, since the process would require

(1) the immigration of the parent, (2) the filing and adjudication of an I-130 petition by the newly-immigrated

parent, (3) the availability of a second preference visa number, and (4) all necessary steps and checks in the visa issuance process.

(d) Precedent Decisions.

In addition to the following precedent decisions pertaining to visa petitions filed on behalf of parents, the adjudicator should also be familiar with precedents pertaining to visa petitions filed on behalf of children (see

• Matter of Hassan, 16 I. & N. Dec. 16 (BIA, 1976) — In order for a son or daughter to confer immediate relative

status upon a parent, the petitioner must be a U.S. citizen, at least 21 years of age, and must have once qualified as the “child” of the beneficiary as defined in 101(b) of the Act.

• Matter of Fong, 17 I. & N. Dec. 212 (BIA, 1980) — The fact that a petitioner has already successfully petitioned

for a natural parent does not preclude approval of a visa petition filed on behalf of a stepparent in the absence

of a statutory bar such as that existing in section 101(b)(1)(E) of the Act with respect to the natural parents of an adopted child.

• Matter of Li, 20 I. & N. Dec. 700 (BIA, 1993) – An adopted child may not confer immigration benefits upon a

natural parent without regard to whether the adopted child has been accorded or could be accorded immigration benefits by virtue of his or her adoptive status. An adopted child may not confer immigration benefits upon his or her natural sibling, because their common natural parent no longer has the status of parent of the adopted child for immigration purposes.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Establishing the Standing of the Petitioner.

Only a U.S. citizen who is 21 years of age or older may file a petition for a brother or sister for classification under section 203(a)(4).

(b) Establishing a Qualifying Relationship.

It must be established that the petitioner and beneficiary are or once were “children of a common parent” within the meaning of section 101(b)(1) and (2) of the Act. A consanguineous (i.e., blood) relationship between the petitioner and the beneficiary is not required (see Matter of Hueng, 15 I. & N. Dec. 145 and Matter of Garner, 15 I. & N. Dec. 215). The parent-child relationships can be established through any of the means recognized in the definition of child contained in section 101(b)(1) of the Act (i.e., through birth, through adoption, or through a marriage creating a steprelationship). As in the case of a stepparent-stepchild relationship, a stepsibling relationship is normally dissolved should the marriage of the parent and stepparent end in divorce or annulment (see the discussion under Chapter 21.4). It may help, therefore, to look upon the adjudication of a petition for a sibling as being more of an adjudication of two separate relationships: the relationship between the petitioner and his/her parent, and the relationship between the beneficiary and that same parent. An example may help to illustrate this point:

John Smith married Mary Jones. At the time of the marriage, John Smith had a 19 year old son, Fred, and Mary Jones had a 17 year old daughter, Betty and a 22 year old son, Steve. Fred was the legitimate offspring of John's prior marriage, and Betty and Steve were the legitimate offspring of Mary's prior marriage, both prior marriages having been legally dissolved. Of the 5, only Fred is a citizen of the U.S., the rest being neither citizens nor LPRs. Because Fred was over age 18 at the time of the marriage, he is not considered to be Mary's stepson under immigration law; likewise, Steve is not considered to be Fred's stepson. Betty, on the other hand, became John's stepdaughter because she was under age 18. Under immigration law:

• Fred and Betty are children of John and are therefore siblings through John only, but not through Mary.

• Betty and Steve, being the children of Mary and her first husband, are siblings through both of their blood parents.

• Fred is not Mary's son and Steve is not John's son, so (not having a common parent) they are not siblings at all.

If Fred is a citizen, he may file a petition for his sister Betty once he turns 21. He may not file a petition for Steve. Of course, if Betty immigrates to the U.S. and later naturalizes, she may then file a petition for her brother Steve.

(c) Adjudication.

(1) Evidence.

(A) TThe documentation required to establish a sibling relationship varies and depends entirely on the common

parent(s) through whom the relationship occurs. Therefore, officers should carefully review the supporting documents to ensure that both the petitioner and beneficiary have a parent-child relationship with the claimed common parent(s), as defined at INA 101 (b)(1)-(2). The following sections of the regulations discuss the primary or secondary evidence necessary to support a petition for a sibling, depending on the nature of the sibling relationship:

• 8 CFR 204.2(g)(2)(i) – primary evidence, if the siblings share a common mother or are the legitimate children

of a common father;

• 8 CFR 204.2(g)(2)(ii) – primary evidence, if either or both siblings are legitimated;

• 8 CFR 204.2(g)(2)(iii) – primary evidence, if either sibling is illegitimate;

• 8 CFR 204.2(g)(2)(iv) – primary evidence for stepsiblings; and

• 8 CFR 204.2(d)(2)(v) and (iv) – secondary evidence of parent-child relationships.

(B) DNA Evidence. When USCIS determines that primary evidence is unavailable or unreliable, it may suggest

and accept DNA test results as evidence of a full-sibling relationship (where siblings share two biological parents) or a half-sibling relationship (where siblings share one biological parent). Test results should be evaluated for probative value according to the guidance contained in the chart below. Please note that there are currently no regulations requiring a petitioner or beneficiary to submit DNA test results.

Overview of Guidance for Sibling DNA Test Results

DNA Test Result Full-Sibling Interpretation Half-Sibling Interpretation

90% or higher1 Relationship Supported – Probative Relationship Supported – Probative evidence that the claimed relationship evidence that the claimed relationship exists. exists.

9% to 89%2 Inconclusive Result – By itself, the Inconclusive Result – By itself, the test result is not sufficient to establish test result is not sufficient to establish the claimed relationship without the claimed relationship without additional affirmation from an AABB- additional affirmation from an AABB- accredited lab.3 accredited lab.4

Below 9%5 Relationship Not Supported – Inconclusive result – By itself, the Probative evidence that the claimed test result is not sufficient to establish relationship does not exist. the claimed relationship without

additional affirmation from an AABB- accredited lab.6

In contrast to full-sibling results, this result for half-siblings does not necessarily mean the claimed relationship does not exist.

Full- and Half-Sibling Test Results Demonstrating 90 Percent Probability or Higher are Probative Evidence of the Claimed Relationship

Adjudicators must consider DNA test results reflecting 90 percent probability or higher to be probative evidence of a full- or half-sibling relationship. When an officer determines that primary evidence is unavailable or unreliable, the officer may consider DNA test results reflecting 90 percent probability or higher as sufficient to establish the claimed relationship and forego securing additional evidence. However, petitioners are generally expected to submit other available evidence of the claimed sibling relationship (such as primary evidence, secondary evidence, affidavits, or an explanation as to why it is not possible to submit additional evidence) and evidence of legitimation or a bona fide father-child relationship, if necessary. Generally, a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) will not be required for additional explanation or evidence of the relationship when the record contains a probative DNA test result. Where evidence is submitted in addition to DNA test results, adjudicators must consider all evidence in the totality of the circumstances. While a DNA test result may indicate that a relationship is supported, any other evidence to the contrary must also be considered.

Full-Sibling Test Results Between 9 and 89 Percent Probability are Inconclusive Evidence of the Claimed Relationship

USCIS considers DNA results reflecting less than 90 percent, but greater than or equal to 9 percent probability, to be inconclusive evidence of a full-sibling relationship. A valid full-sibling relationship may exist, even when a DNA test result reflects less than 90 percent probability. However, due to the significant variation between inconclusive results, officers should not consider inconclusive results to either support or weaken the case for the existence of the claimed relationship, unless the results include independent clarification from the AABB- accredited lab that demonstrates to the officer that the claimed relationship is more likely than not to exist. For example, comparisons of the test results of the petitioner and beneficiary against the test results of other relatives may lead the lab to indicate that the claimed relationship exists, even if the test results of the petitioner and beneficiary do not reach 90 percent.7 Where a result is inconclusive, an officer must continue to evaluate the remaining evidence in the totality of the circumstances to determine whether the claimed relationship is more likely than not to exist.

Full-Sibling Test Results Below 9 Percent Probability Demonstrate that the Claimed Relationship Does Not Exist

USCIS considers DNA results for full-siblings reflecting less than 9 percent probability to be exclusionary, or as evidence that the claimed full-sibling relationship does not exist. Where DNA test results do not support the existence of a full-sibling relationship, the officer must continue to review other evidence of the claimed relationship. In some rare cases, the remaining evidence may be sufficient to establish a half-sibling or step-sibling relationship.

Half-Sibling Test Results Below 90 Percent Probability are Inconclusive Evidence of the Claimed Relationship

Due to the considerable variations in DNA test results for valid half-sibling relationships, USCIS considers half- sibling test results reflecting less than 90 percent probability to be inconclusive for immigration purposes. While an inconclusive result does not necessarily indicate that the claimed relationship does not exist, officers should not consider inconclusive results for half-siblings to either support or weaken the case for the existence of the claimed relationship, unless the results include independent clarification from the AABB-accredited lab, and they demonstrate to the officer that the claimed relationship is more likely than not to exist.8 Where a result is inconclusive, an officer must continue to evaluate the remaining evidence in the totality of the circumstances. Unlike full-sibling test results, a half-sibling test result below 9 percent does not rule out the possibility that the claimed half-sibling relationship exists.

Encouraging Testing Against Additional Family Members

Direct sibling-to-sibling testing is normally performed when it is not possible to test against the common parent(s). Some labs have reported that, when a DNA test is conducted for immigration purposes, the lab may incorrectly believe that it can only test the individuals named on the petition. However, where the claimed sibling relationship is valid, testing against additional family members improves the likelihood of test results, and thereby reduces the need to issue additional RFEs, NOIDs, or denials. The AABB standards encourage accredited labs to recommend testing against additional relatives, as appropriate.

Including additional family members, particularly first-degree relatives, such as parents and other siblings, or second-degree relatives, such as aunts, uncles, and cousins, in the testing may produce more conclusive results. Therefore, when an RFE or NOID includes a suggestion to undergo voluntary DNA testing, officers should suggest that the petitioner include additional relatives, particularly the shared parent(s), if possible.

Significance of Type of Relationship Test Conducted

The type of test conducted by the lab may also impact the ultimate result. For example, when half-siblings explicitly request a half-sibling test rather than a full-sibling test, they will receive a stronger test result. Conversely, when half-siblings incorrectly request a full-sibling test, they will receive skewed results. The lab may guide a customer as to which test may be appropriate after reviewing initial results. The AABB-accredited lab has sole discretion to set the parameters of the test that will be conducted.

Loci Tested in Sibling Relationships

USCIS guidance for test results that fall below 90 percent is based upon testing at 20 loci. A locus (or loci, in plural) is a genetic marker which indicates a specific location on the DNA strand. Test results that fall below 90 percent probability have the strongest conclusions if they show 20 loci were tested. Each lab report indicates by name which loci have been tested and, thereby, displays the number of loci tested.

In January 2018, the AABB Relationship Testing Subcommittee revised its standards to require accredited labs to test at least 20 loci for full- and half-sibling relationships where results appear lower than 90 percent (inconclusive or exclusionary). Results that measure at or above 90 percent will not be subject to a minimal loci requirement.

Where DNA testing was conducted after January 1, 2018, (the effective date of the 13th edition of the AABB standards) officers will not need to verify the number of loci tested. However, when evaluating a result that was

conducted before January 1, 2018, officers will need to verify the number of loci tested, if a result falls below 90 percent probability.

In general, the officer must advise the petitioner, in writing, of the option to request that the AABB-accredited lab test to 20 loci and/or test against additional relatives to improve the accuracy of results when:

• The result falls below 90 percent probability and fewer than 20 loci were tested;

• The claimed relationship has not otherwise been established by a preponderance of the evidence; and

• The petitioner was not previously advised that results will have the strongest probability if tested to 20 loci.

Parent-Child Test Results

USCIS policy on parentage testing remains unchanged. Parent-child DNA test results between one or both claimed siblings and the claimed common parent will be considered according to current policy relating to DNA testing for parent-child relationships.9

Step-Sibling Relationships

When DNA test results do not establish the validity of the claimed relationship, but other evidence appears to support a step-sibling relationship, the officer may continue to review the relationship as a step-sibling relationship, if appropriate. For example, if a petitioner submits DNA test results that exclude the possibility of a biological relationship, but the file contains evidence, such as marriage certificates or birth certificates, that indicate the existence of a step-sibling relationship, the adjudicator may evaluate the relationship as a step-sibling relationship.

(2) Fraud.

Eligibility for relative classification as a brother or sister depends upon the petitioner establishing that both petitioner and beneficiary were “children” of a common parent. This relationship is usually established through the submission of the birth certificates of the petitioner and beneficiary, as well as evidence of the relationship between their parents, where appropriate. Some indications that a birth certificate attempting to establish a sibling relationship may be fraudulent include:

• A delayed birth certificate for either the petitioner or the beneficiary might indicate an attempt to document a

relationship that does not exist. (Or it might not, since there are also legitimate reasons for obtaining a delayed birth certificate.)

• Birth certificates from countries that are experiencing economic problems or political turmoil should be given

special attention. The incentive to leave those countries is great and that fact sometimes causes petitioners who would otherwise obey the law to submit fraudulent documents in support of petitions on behalf of aliens from those countries.

• Some countries change governments frequently. One indication that a birth certificate may be fraudulent is an

issuance date that is prior to or after the government of a country came into or went out of existence. Officers should be familiar enough with the political backgrounds of the countries so that they are able to detect this type of fraud.

While not as common as marriage fraud, sibling fraud is a potential problem. The same techniques used to detect and deter fraud in petitions filed for children (e.g., DNA tests) apply to petitions filed for parents. See Chapter 21.2 of this field manual.

(4) Final Decision.

(A) Approval.

If no adverse information is developed in a case at a USCIS office, the adjudicating officer shall approve the petition and:

• Forward it, with all attachments, to the National Visa Center (NVC) so that it may be processed and then

forwarded to the embassy or consulate where the beneficiary will apply for an immigrant visa if the alien is outside the U.S. or is unable or unwilling to apply for adjustment of status; or

• Retain the approved petition in the beneficiary's file (i.e., A-file is one is preexisting or receipt/petition file if

no A-file exists) and invite him or her to apply for adjustment of status if he or she is in the U.S., and is eligible to and intending to so apply.

The adjudicating officer will also send Form I-797, Notice of Approval of Relative Immigrant Visa petition, to the petitioner. If no adverse information is developed in a case at a consulate or the embassy, the consular officer will proceed with the processing of the visa application.

(B) Denial.

If the petitioner fails to establish eligibility for the benefit sought, the adjudicating officer shall deny the petition and notify the petitioner of the reasons in writing. As required in Chapter 10.7(b)(5) of this manual, the decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.

(C) Revocation Proceedings Based on Adverse Information.

If adverse information is developed subsequent to the approval of the petition, the petition will be returned to the approving office with a memorandum (and supporting evidence) setting forth the arguments for revocation. When the USCIS office of origin receives the petition with the adverse information, that office shall notify the petitioner of the derogatory information and of the Bureau's intent to revoke the approval of the petition. The petitioner is to be given the choice of withdrawing the petition or having a determination of eligibility made in formal revocation proceedings. (See Chapter 20.3 of this field manual.) The USCIS office must notify the immigration or consular officer who developed the adverse information by memorandum of the final action.

If the petition is not withdrawn and the approval is not revoked, the petition and all attachments must be forwarded to the consulate or embassy where the beneficiary has applied or will apply for an immigrant visa. If the adverse information was developed at an overseas DHS office, a memorandum explaining the reasons for not revoking the petition's approval must be attached to the approved petition.

(d) Precedent Decisions.

In addition to the following decisions, adjudicating officers should be aware of precedents pertaining to visa petitions for parents (see Chapter 21.8 of this field manual) and those pertaining to spousal visa petitions (see

• Matter of Van Pamelen, 12 I. & N. Dec.11 (BIA, 1966) – Acknowledgment, but not legitimation, by natural

father did not give petitioner standing to petition for sibling through the common father. (Note: This case was decided before the amendments to section 101(b)(1)(E) of the Act allowing a parent-child relationship with the father if the child was born out of wedlock.)

• Matter of Mahal, 12 I. & N. Dec. 409 (BIA, 1967) – Citizen may petition for a sibling born to a common father

and different mother where father was married to both mothers in a polygamous relationship if polygamy is legal in the country of the parents marriages and residence. (Note: This case was decided before the amendments to section 101(b)(1)(E) of the Act allowing a parent-child relationship with the father if the child was born out of wedlock.)

• Matter of Wong-Setoo, 12 I. & N. Dec.484 (BIA, 1967) – Petition for a blood niece as a sibling is denied where

petitioner's parents “adopted” the beneficiary (their own granddaughter) in China, since adoption of a grandchild is illegal in China.

• Matter of Campbell, 13 I. & N. Dec. 552 (BIA, 1970) – This decision was overruled by Matter of Heung (see

below).

• Matter of Butterfly, 14 I. & N. Dec. 460 (BIA, 1973) – Citizen may not petition for sibling adopted by petitioner's

mother where the adoption did not meet the provisions of section 101(b)(1) of the Act in that the beneficiary was over 18 at the time of the adoption.

• Matter of Kim, 14 I. & N. Dec. 561 (BIA, 1974) – Citizen cannot petition for sibling who is the child of the

same father and the father's concubine if sibling was never legitimated. (This case was specific to Korea and was overruled in part by Matter of Lee, 16 I. & N. Dec. 305 (BIA 1977).)

• Matter of Heung, 15 I. & N. Dec.145 (BIA, 1974) – Citizen may petition for stepsibling (Matter of Campbell

overruled).

• Matter of Garner, 15 I. & N. Dec. 215 (BIA, 1975) – While the term “sister” is not defined in the Act, petitioner

must establish that he/she and sibling once qualified as the children of a common parent as provided in sections 101(b)(1) and (2) of the Act.

• Matter of Kwong, 15 I. & N. Dec. 312 (BIA, 1975) – Citizen cannot petition for sibling who was born to father's

concubine in Hong Kong if the concubine did not occupy the status of a tsip. Such status requires concubine to enter the household of the man and his principal wife and to accept position subordinate to the principal wife. which did not occur in this case.

• Matter of Mourillon, 18 I. & N. Dec. 122 (BIA 1981). In order to qualify as stepsiblings, either (1) the marriage

which created the step-relationships must continue to exist, or (2) where parties to that marriage have legally separated or the marriage also terminated by death or divorce, a family relationship must continue to exist as a matter of fact between the “stepsiblings”.

• Matter of Li, 20 I. & N. Dec. 700 (BIA, 1993) – An adopted child may not confer immigration benefits upon a

natural parent without regard to whether the adopted child has been accorded or could be accorded immigration benefits by virtue of his or her adoptive status. An adopted child may not confer immigration benefits upon his or her natural sibling, because their common natural parent no longer has the status of parent of the adopted child for immigration purposes.

Footnotes 1 This does not require testing to 20 loci.

2 This assumes testing to 20 loci.This row includes results between 89 and 89.99 percent.

3 For further discussion of the additional affirmation from an AABB-accredited lab, seeFull- Sibling Test Results Between 9 and 89 Percent Probability are Inconclusive Evidence of the Claimed Relationship, as detailed below.

4 For further discussion of the additional affirmation from an AABB-accredited lab, seeHalf- Sibling Test Results Below 90 Percent Probability are Inconclusive Evidence of the Claimed Relationship, as detailed below.

5 This assumes testing to 20 loci.

6 For further discussion of the additional affirmation from an AABB-accredited lab, seeHalf- Sibling Test Results Below 90 Percent Probability are Inconclusive Evidence of the Claimed Relationship, as detailed below.

7 In one case, a lab was able to test the petitioner against the beneficiary and also test the petitioner and beneficiary separately against a third sibling.The test results indicated a 44.99 percent probability between the petitioner tested against the beneficiary, a 99.99 percent probability between the petitioner tested against the third sibling, and a 99.96 percent probability between the beneficiary tested against the third sibling. In evaluating these results, the lab director concluded the following: “Results such as those obtained when testing (the petitioner) against (the beneficiary) can occur even if they are truly full siblings because there is no obligate sharing of alleles in siblings like there is in a parent/child relationship… Using the basic rules of logic, there is a very strong indication that all three are full siblings. Additionally, there are no genetic loci at which four alleles would occur. If it were true that some loci displayed five or six alleles, there would have to be more than two total parents for the three tested alleged siblings. Since this is not true and the indicated Siblingship Indexes were obtained, I feel that the data indicate strongly that all three individuals share the same parents.”

8 For further discussion of the additional affirmation from an AABB-accredited lab, seeFull- Sibling Test Results Between 9 and 89 Percent Probability are Inconclusive Evidence of the Claimed Relationship, as detailed above.

9 The relationship between each sibling and the claimed common parent must be individually established.When one sibling's relationship to the common parent is established through primary and/or secondary evidence already contained in the record, the petitioner may only need to submit additional evidence of the claimed relationship between the other sibling and the common parent. See Aytes, Michael, PM, Genetic Relationship Testing; Suggesting DNA Tests, Revisions to the Adjudicator's Field Manual (AFM) Chapter 21 (AFM Update AD07-25), March 19, 2008 (http://www.uscis.gov/files/pressrelease/genetic_testing.pdf) for additional information on the use of DNA testing to establish a parent-child relationship.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Background.

Section 207(c)(2) of the Act entitles a qualifying spouse or child of a refugee to be admitted as a refugee if accompanying or following to join the refugee. Section 208(b)(3) of the Act entitles a qualifying spouse or child of an asylee to be granted asylum status if accompanying or following to join the asylee.

(b) Eligibility Requirements.

A Form I-730 (“Refugee/Asylee Relative Petition”) may be filed on behalf of either a spouse or a child (i.e., a person meeting the definition contained in paragraphs (A) through (E) of section 101(b)(1) of the Act) by an alien who has been admitted to the United States as a refugee or has been granted asylee status in the United States. A separate Form I-730 must be filed for each beneficiary.

(c) Form and Filing Issues.

Form I-730 must be filed with the Nebraska Service Center.

By regulation, the Form I-730 must be filed within two years of the date on which the refugee petitioner arrived in the United States or was granted asylum status, with the following exceptions:

• If the alien acquired his or her status on or prior to February 27, 1998, the petition could have been filed at any

time prior to February 28, 2000.

• If USCIS determines that valid humanitarian reasons exist for extending the filing deadline, it may do so. (There

is no set limit on the length of extension which may be granted.)

Note

If more than 2 years have passed since the refugee arrived in the U.S. or asylum status was granted, and neither of the exceptions applies, the petitioner's only option is to wait until he or she becomes a lawful permanent resident and then file a Form I-130, Petition for Alien Relative.

(d) General Adjudication Issues.

• Petitioner's Status – A petitioner must be either a refugee or an asylee in the U.S. when the Form I-730 is filed. If,

pursuant to section 209(a) or section 209(b) of the Act, he or she adjusts status to that of lawful permanent resident before the petition is approved, the petition may still be approved and the beneficiary may receive derivative status (provided all other requirements are met).

• Age of (Child) Beneficiary – For asylum and refugee applications pending on or filed after August 6, 2002,

whether or not a son or daughter may continue to be classified as a child is based on the age of the derivative at the time the refugee or asylee application is filed. As long as the child was under 21 on the date of filing the asylum or refugee application, he or she will continue to be classified as a child for purposes of adjudicating the refugee or asylum application, This provision continues to protect the beneficiary after the approval of the Form I-730, through the admission process, and (in the case of a dependent asylee) the section 209(b) adjustment process. (Section 209(a), under which a refugee or derivative refugee “adjusts” to permanent resident status, does not require that a derivative refugee have continued to qualify as the child of a refugee, so aging out is not an issue.) See section 207(c)(2)(B) and section 208(b)(3)(B) of the Act. These special provisions do not apply to beneficiaries who had aged out prior to the filing of an I-730 petition on their behalf or whose I-730 petition had been denied prior to August 6, 2002.

• Marital Status of Beneficiary – A child must be unmarried in order to qualify as a beneficiary of an I-730 petition.

• Time at Which Relationship Was Created – Generally, in order to qualify as a spouse or child of a refugee or asylee

for Form I-730 purposes, the relationship must have existed at the time the petitioner/parent acquired refugee or asylee status (except for in utero children, see below). Relationships created after that date do not qualify for Form I-730 petition purposes, although the refugee or asylee may be eligible to file a second preference petition for the same individual once that refugee or asylee adjusts to LPR status.

Unlike other classifications, the regulations at 8 CFR 207.7 and 8 CFR 208.21 governing following to join dependents of refugees and asylees allow a child to qualify even if the child was not born until after the petitioner acquired refugee or asylee status, provided such child was in utero (i.e., had been conceived) prior to the date on which the petitioner acquired such status. Accordingly, an I-730 petition may be approved for a child who was born within approximately 9 months after the date on which the petitioner acquired status, so long as the beneficiary falls within one of the definitions of child set forth in section 101(b)(1) of the Act.

Note

A child might qualify as the child of the principal refugee or asylee even if the petitioner is not the birth father or birth mother as a matter of fact. For example, the petitioner may have been married to the child's mother when the child was born, but may also have been in the United States continuously since prior to the earliest possible date of the child's conception. First, the law of the place of birth of the child may conclusively establish that the mother's husband is the legal birth father. Second, even if the law does not establish a legal parental relationship, when a child is born as the legal child of only one partner of a married couple, the child is considered the “step- child” of the other partner for immigration purposes. See Matter of Stultz, 15 I&N Dec. 362 (AG 1975). Because the child qualifies as the petitioner's “step-child” under INA 101(b)(1)(B), you do not need to decide if the child is the petitioner's child under INA 101(b)(1)(A), (C), or (D).

• Relationship Between the Petitioner and the Beneficiary – With the exception of the issues covered in the

preceding bullets, the same relationship issues that pertain to an I-130 petition for a spouse or child pertain to an I-730 petition for the same relationship. Accordingly, in adjudicating an I-730 petition, the adjudicator should

be aware of, and follow, the relating guidance set forth in Chapter 21.2, Chapter 21.3 and Chapter 21.4 of this field manual.

• For Adopted Child(ren)- Effects of the Adoption – An adopted child, as defined in INA 101(b)(1)(E), can be the

beneficiary of a Form I-730. See chapter 21.15 of this AFM for information on what qualifies as an ‘adoption’ for immigration purposes.

(e) Final Decision.

(1) Approval.

If no adverse information is developed in a case at a USCIS office, the adjudicating officer shall approve the petition and either:

• Send the approved Form I-730 to the National Visa Center, which will in turn forward it to the appropriate

overseas post. (See Chapter 16.2(d) and Chapter 16.3(b) of the Inspector's Field Manual for information regarding admission of derivative refugees and asylees at ports-of-entry); or

• Retain the approved petition in the beneficiary's file (i.e., A-file is one is pre- existing or receipt/petition file if

no A-file exists) and invite him or her to apply for derivative refugee/asylee status if he or she is in the U.S.

Note

Previously, a Visas Ninety-Two (in the case of a derivative asylee) or Visas Ninety-Three (in the case of a derivative refugee) cable would have been sent to the appropriate U.S. embassy or consulate. Although the practice of sending a cable has been discontinued, I-730 petition approvals are still known as ““Visas 92” and “Visas 93” cases.

(2) Denial.

If the petitioner fails to establish eligibility for the benefit sought, the adjudicating officer shall deny the petition and notify the petitioner of the reasons in writing. There is no appeal from the denial of an I 730 petition. As required in Chapter 10.7(b)(5) of this manual, the decision must include information about the opportunity to file a motion to reopen or reconsider.

(3) Reopening Proceedings Based on Adverse Information.

If adverse information is developed subsequent to the approval of the petition, the petition will be returned to the Nebraska Service Center with a memorandum (and supporting evidence) setting forth the arguments for revocation. When the Nebraska Service Center receives the petition with the adverse information, that office shall notify the petitioner of the derogatory information and of the Bureau's intent to reopen the decision to approve the petition. The petitioner is to be given the choice of withdrawi ng the petition or having a determination of eligibility made in reopened proceedings. There is no appeal from the revocation of a Form I-730. After the new decision has been made, the Nebraska Service Center will notify the immigration or consular officer who developed the adverse information by memorandum of the final action.

If the reopened petition is not withdrawn or denied, the petition and all attachments must be forwarded to the consulate or embassy where the beneficiary is being processed for Form I-730 benefits. If the adverse information

was developed at an overseas DHS office or a consular post, a memorandum explaining the reasons for not reopening and denying the petition must be attached to the re-affirmed petition.

(e) Precedent Decisions.

To date, there have been no precedent decisions relating to Refugee/Asylee Relative Petitions.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Pre-1952 Act.

The requirement of filing a petition to bring workers into the U.S. evolved out of a legislative desire to exercise control over immigration that might negatively affect the American labor market. Restriction of immigration to protect the American labor market is a relatively recent concern of the legislature. In fact, initial federal controls over immigration formulated in 1875 sought to do no more than bar the admission of certain types of ““undesirable” persons. In general, no numerical restraints of any kind were enacted until the quota acts of 1921 and 1924. Even with major revisions of the immigration laws in 1924 and as recently as 1952, with certain exceptions, there was still no firmly established policy of “protecting the job market.”

(b) The Act of June 27, 1952.

Under the Act of 1952, aliens subject to the labor exclusion of 212(a)(14) of the Act were admissible unless the Secretary of Labor made a prescribed disqualifying certification. At that time, the control was meant as an emergency measure that could be invoked in a time of economic stress or crisis.

In the original 1952 Act, section 203(a)(1) stated: “to qualified quota immigrants whose services are determined by the Attorney General to be needed urgently in the United States because of the high education, technical training, specialized experience, or exceptional ability of such immigrants and to be substantially beneficial prospectively to the national economy, cultural interests, or welfare of the United States.” Ch. 477, Title II, Ch. 1, section 203, 66 Stat. 178 (June 27, 1952)(as amended).

(c) The 1965 Amendments.

By legislative amendment in 1965, the Act of 1952 was dramatically altered, abandoning the “national origins” concept and instituting separate numerical limits for Eastern and Western Hemisphere immigrants, dividing immigrants into:

• immediate relatives,

• special immigrants, and

• other immigrants – including all the “preference” classifications.

Immediate relative and certain special immigrants were not restricted by numerical limitations, but all preference immigrants were numerically limited. The 1965 amendments introduced a new control barring the entry of certain classes of immigrants unless they first obtain a certification from the Department of Labor (DOL) that their coming to the United States would not adversely affect American labor.

1965–Subsec. (a). Pub. L. 89-236 substituted provisions setting up preference priorities and percentage allocations of the total numerical limitation for the admission of qualified immigrants, consisting of unmarried sons or daughters of U.S. citizens (20 percent); husbands, wives, and unmarried sons or daughters of alien residents (20 percent plus any unused portion of class 1); members of professions, scientists, and artists (10 percent), married sons or daughters of U.S. citizens (10 percent plus any un used portions of classes 1-3); brothers or sisters of U.S. citizens (24 percent plus any unused portions of classes 1 through 4); skilled or unskilled persons capable of filling labor shortages in the United States (10 percent); refugees (6 percent); otherwise qualified immigrants (portion not used by classes 1 through 7); and allowing a spouse or child to be given the same status and order of consideration as the spouse or parent, for provisions spelling out the preferences under the quotas based on the previous national origins quota systems. Subsec. (b). Pub. L. 89-236 authorized issuance of quota immigrant visas under the previous national origins quota system in the order of filing in the first calendar month after receipt of notice of approval for which a quota number was available.

(d) 1976 Amendments.

Subsec. (a)(27). Pub. L. 94-571, enacted on 10/10/1976, struck out the subparagraph (A) provision defining the term “special immigrant” to include an immigrant born in any independent foreign country of the Western Hemisphere or in the Canal Zone and the spouse and children of any such immigrant, if accompanying, or following to join him and restricting issuance of an immigrant visa until consular officer was in receipt of a determination made by the Secretary of Labor pursuant to former provisions of sect ion 1182(a)(14) of this title; and redesignated as subparagraphs (A) to (D) and former subparagraphs (B) to (E).

Prior to this change all natives of the Western Hemisphere had to be special immigrants or immediate relatives. They were not eligible for preference immigrant status until this change. The change was effective January 1, 1977 (the first month more than 60 days from date of enactment-10/20/1976). [Historical note: under the Act and Regulations in effect from 1965 until 1977, an exemption from the labor certification requirement for Western Hemisphere would be obtained by establishing that one had a child who was a U.S. citizen. One established a priority date for IV issuance by filing a form that verified the existence of the U.S. citizen child (Note: adjustment of status was prohibited for Western Hemisphere natives even as immediate relatives).]

(e) IMMACT 90 and Subsequent Legislation.

The Immigration Act of 1990 (IMMACT 90) divided the preference categories into 2 groups (family-based and employment-based) and expanded the number of employment-based categories from two (the former third and sixth preferences) to three classifications. Those three classifications were further divided into subcategories dealing with specific groups of immigrant workers. IMMACT 90 also placed numerical limits on several special immigrant classifications and added new provisions for entrepreneurs. The classifications under IMMACT 90 include:

• First preference or “priority workers” under section 203(b)(1) of the Act (discussed in Chapter 22.2(b) of this

field manual)

– Aliens with extraordinary ability

– Outstanding professors and researchers

– Certain multinational executives and managers

• Second preference under section 203(b)(2) of the Act (discussed in Chapter 22.2(c) of this field manual)

– Members of the professions holding advanced degrees

– Aliens of exceptional ability

• Third preference under section 203(b)(3) of the Act (discussed in Chapter 22.2(d) of this field manual)

– Skilled workers

– Professionals

– Other workers

• Fourth preference or “certain special immigrants” under section 203(b)(4) of the Act (discussed in Chapter

22.3 of this field manual)

– Ministers of religion & other religious worker cases as defined in section 101(a)(27)(C) of the Act

– Employees of U.S. Government Abroad defined in section 101(a)(27)(D) of the Act

– Panama Canal Zone Employees defined in sections 101(a)(27)(E), (F) and (G) of the Act

– Foreign Medical Doctors defined in section 101(a)(27)(H) of the Act

– International Organization Employees defined in section 101(a)(27)(I) of the Act

– Juvenile Court Dependents defined in section 101(a)(27)(J) of the Act

– U.S. Armed Forces Members defined in section 101(a)(27)(K) of the Act

– NATO personnel defined in section 101(a)(27)(L) of the Act; and

– International broadcast personnel defined in section 101(a)(27)(M) of the Act.

Note 1

Although not included in section 101(a)(27) of the Act at the time of the enactment of IMMACT 90, the “L” and “M” special immigrant classifications are subject to the numerical limitation of section 203(b)(4) of the Act.

Note 2

The Special Immigrant classifications defined in sections 101(a)(27)(A) (returning lawful permanent residents) and 101(a)(27)(B) (certain former citizens of the U.S.) of the Act are not numerically restricted and are not included

in the fourth preference categories. Because these classifications do not require a petition, they are not discussed in this field manual chapter, but are instead included in the discussions in Chapter 23 of this field manual.

• Fifth Preference or “employment creation immigrants” under section 203(b)(5) of the Act (discussed in Chapter

22.4 of this field manual)

– Entrepreneurs or investors

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General. [Revised 9/2/2010; AD 10-04]

Special Immigrant classifications are defined in section 101(a)(27) of the Act. Other than section 101(a)(27)(A) (LPR returning from a temporary visit abroad) and section 101(a)(27)(B) (former U.S. citizen), each of these classifications requires an immigrant visa petition. Special immigrant classifications are subject to the numerical limitations on admissions set forth in section 203(b)(4) of the Act:

• An overall limitation of 7.1 percent of the annual worldwide level for employment-based immigrants (but special

immigrants under sections 101(a)(27)(A) and (B) and not included);

• An annual limit of 5,000 on the number of religious workers described under section 101(a)(27)(F)(ii)(I) and

(II) (which does not include ministers of religion); and

• An annual limit of 100 on the number of broadcasters who may be admitted as principal immigrants under section

101(a)(27)(M) (i.e., the spouses and children of such broadcasters are not included in the limitation).

• A limit of 5,000 per year for 5 successive fiscal years beginning with Fiscal Year 2008 on the number of Iraqi

nationals who worked for on or on behalf of the U.S. Government in Iraq. If the numerical limitation is not reached during a given fiscal year, the numerical limit for the following fiscal year shall be increased by the amount of numbers that were unused; unused numbers from Fiscal Year 2012 may be used in Fiscal Year 2013. (Added AD08-17)

(b) Special Immigrant Ministers of Religion & Other Religious Worker Cases. (Revised 1/15/2009; AD08-09)

(1) General. [Amended 11/9/2010, PM-602-0010, AD11-01]

A U.S. employer or an individual alien may file an I-360 petition for special immigrant religious worker classification. In either case, a U.S. employer must submit certain evidence and an attestation which is now a part of Form I-360 and is required by the final rule in support of the petition. If applicable, the U.S. employer must submit a Religious Denomination Certification which is also now a part of Form I-360. For at least two years preceding the filing of the petition, the beneficiary must have been a member of a religious denomination having a bona fide nonprofit, religious organization in the United States. The beneficiary must be coming to the United States to work:

• Solely as a minister of the U.S. employer's denomination;

• In a religious vocation either in a professional or nonprofessional capacity; or

• In a religious occupation either in a professional or nonprofessional capacity.

The beneficiary must have been carrying on such work continuously for at least two-years preceding the filing of the petition. Additionally, see Appendix 22-3 and the final religious worker rule at 73 FR 72275 (Nov. 26, 2008) http://edocket.access.gpo.gov/2008/pdf/E8-28225.pdf for a general and detailed explanation pertaining to adjudication of special immigrant ministers of religion and other religious worker petitions.

Note

As of November 8, 2010, Form I-360 for the special immigrant religious worker classification, Form I-485, Form I-765, and/or Form I-131 may no longer be filed concurrently pursuant to the order of the Ninth Circuit Court of Appeals in Ruiz-Diaz v. United States, No. 09-35734 (9th Cir. Aug. 20, 2010). The Ninth Circuit's decision vacated the District Court's permanent indjunction allowing for concurrent filing for special immigrant religious workers. Any I-485 application where the underlying basis is an I-360 petition seeking the classification of special immigrant religious worker must be filed based on an approved I-360 petition. See Appendix 22-05 and the legal settlement notice on the USCIS Internet site at http:// www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1/? vgnextoid =2492db65022ee010VgnVCM1000000ecd190aRCRD&vgnextchannel=2492db65022ee010VgnVCM1000000ecd190aRCRD. Those I-485 applications based on I-360 religous worker petitions filed prior to November 8, 2010 shall be accepted and adjudicated pursuant to the guideline established in the August 5, 2009 Memorandum HQDOMO AD09-45, “Clarifying Guidance on the Implementation of the District Court's Order in Ruiz-Diaz v. United States, No C07-1881RSL (W.D. Wash. June 11, 2009). See AFM Appendix 22-4. [Note updated 11-9-2010, PM-602-0010, AD11-01]

Note

All religious workers, other than ministers, immigrating to the United States as special immigrant religious workers must enter the United States with a valid immigrant visa or adjust to permanent resident status (have an approved Form I-485) before September 30, 2012. Statutory amendments may extend this date. USCIS will provide information and further guidance if the date is extended. [Note updated 11-9-2010, PM-602-0010, AD11-01]

(2) Definitions.

There are definitions that apply to both special immigrant religious worker petitions and nonimmigrant R-1 religious worker petitions. Detailed explanations of the definitions for special immigrant religious workers may be found at 8 CFR 204.5(m). Detailed explanations of the definitions for nonimmigrant R-1 religious workers may be found at 8 CFR 214.2(r). Detailed explanations regarding nonimmigrant R-1 religious worker petitions are described in the corresponding AFM chapter 34.5. The evidence that must be submitted for special immigrant religious worker petitions refers to the following definitions:

Bona Fide Nonprofit Religious Organization in the United States means a religious organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Service (IRS) Code of 1986, subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code. The organization must have a currently valid determination letter from the Internal Revenue Service confirming the tax exemption. Unlike the

previous regulations, which allowed the religious organization to submit to USCIS the documentation required by the IRS to establish eligibility for exemption under section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations, in lieu of the actual tax exempt determination, the final rule requires the IRS tax exempt determination in all cases and no longer permits the submission of alternate documentation. Tax exempt organization is defined below. The religious organization may submit an individual 501(c)(3) determination letter if it has its own ruling from the IRS or a letter for the group if it is cove red under a group ruling. See AFM chapter 22.3(b)(5).

Bona Fide Organization That Is Affiliated with the Religious Denomination means an organization that is closely associated with a religious denomination. Religious denomination is defined below. The affiliated organization must be exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, subsequent amendment or equivalent sections of prior enactments of the Internal Revenue Code. The organization must have a currently valid determination letter from the IRS confirming the tax exemption. It must also submit the additional documentation discussed in AFM chapter 22.3(b)(5).

Religious Denomination means a religious group or community of believers that is governed or administered under a common type of ecclesiastical government with one or more of the following:

• A recognized common creed or statement of faith shared among the denomination's members;

• A common form of worship;

• A common formal code of doctrine and discipline;

• Common religious services and ceremonies;

• Common established places of religious worship, religious congregations; or

• Comparable evidence of a bona fide religious denomination.

If there is no hierarchical ecclesiastical government, an individual religious organization may qualify as a religious denomination by submitting a description of its internal governing structure.

Denominational Membership means membership during at least the two-year period immediately preceding the filing date of the petition, in the same type of religious denomination as the United States religious organization where the beneficiary will work. This is a new definition added by the final rule.

Minister can take the form of various names, depending on the religion, such as priest, minister, rabbi, and imam, among others, and means an individual who, according to the denomination's standards:

• Is fully authorized by a religious denomination, and fully trained according to the denomination's standards, to

conduct religious worship and perform other duties usually performed by authorized members of the clergy of that denomination;

• Is not a lay preacher or a person not authorized to perform duties usually performed by clergy;

• Performs activities with a rational relationship to the religious calling of the minister; and

• Works solely as a minister in the United States which may include administrative duties incidental to the duties

of a minister.

Religious Occupation means an occupation which meets all of the following requirements within the religious denomination's standards:

• The duties must primarily relate to a traditional religious function and be recognized as a religious occupation

within the denomination;

• The duties must be primarily related to, and must clearly involve, inculcating or carrying out the religious creed

and beliefs of the denomination;

• The duties do not include positions which are primarily administrative or support such as janitors, maintenance

workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions, although limited administrative duties that are only incidental to religious functions are permissible; and

• Religious study or training for religious work does not constitute a religious occupation, but a religious worker

may pursue study or training incident to status.

Religious Vocation means a formal lifetime commitment, through vows, investitures, ceremonies, or similar indicia, to a religious way of life. The religious denomination must have a class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Examples of religious vocations include nuns, monks, and religious brothers and sisters.

Religious Worker means an individual engaged in and, according to the denomination's standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister. This definition is new.

Tax Exempt Organization means an organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986, subsequent amendment, or equivalent sections of prior enactments of the Internal Revenue Code. The means by which a petitioning organization can establish its tax exempt status that will support an I-360 or an I-129R filing and the documentation that must be submitted are discussed at AFM chapter 22.3(b)(5), initial evidence relating to the prospective employer.

(3) Compensation Requirements.

A religious worker must receive salaried or non-salaried compensation. Salaried means receiving a traditional paycheck. Non-salaried means receiving support such as room, board, medical care, or transportation instead of a paycheck. The Attestation section below lists the evidence that the U.S. employer must submit regarding compensation.

(4) Attestation Requirements.

In addition to completing Form I-360, a prospective U.S. employer must complete an Employer Attestation and a Religious Denomination Certification.

An authorized official of the prospective U.S. employer must complete, sign, and date the Employer Attestation and complete the Religious Denomination Certification. See Appendix 22-2. The authorizing official must sign the attestation, certifying under penalty of perjury that the attestation is true and correct.

If the alien is a self-petitioner and is also an authorized official of the prospective U.S. employer, the self-petitioner may sign the attestation.

Note

The Attestation and Denomination Certification may serve as a checklist for adjudicators as they adjudicate special immigrant religious worker petitions.

On the Employer Attestation form the prospective employer must specifically attest to the following:

• The prospective employer's status as a:

– Bona fide non-profit religious organization; or

– Bona fide organization that is affiliated with a religious denomination and is exempt from taxation.

• The number of members of the prospective employer's organization.

• The number of employees who work at the same location where the alien will be employed and a summary of

those employees' responsibilities.

• Number of aliens holding special immigrant or nonimmigrant religious worker status currently employed or

employed within the past 5 years.

• Number of Special Immigrant Religious Worker I-360 and Nonimmigrant Religious Worker I-129 petitions

submitted by the prospective employer within the past 5 years.

• The title of the position offered to the alien.

• The complete package of salaried or non-salaried compensation being offered.

• A detailed description of the alien's proposed daily duties.

• The position being offered to the alien requires at least 35 hours per week of compensated service.

• The specific location(s) of the proposed employment.

• The beneficiary is qualified to perform the duties of the offered position.

• The beneficiary's membership in the prospective employer's denomination for at least 2 years prior to admission

to the ““United States”.

• The beneficiary will not be engaged in secular employment and any compensation for religious work will be

paid to the alien by the attesting employer.

• The prospective employer's ability and intention to compensate and otherwise support (through housing, for

example) the alien at a level at which the alien and accompanying family members will not become public charges.

(5) Initial Evidence Relating to the Petitioner's Tax Exempt Status.

There are three different ways that a petitioning organization can establish its tax exempt status to support an I-129R nonimmigrant religious worker or an I-360 special immigrant religious worker filing.

• As an Individual Religious Organization Granted Individual Tax Exempt Status: If the petitioner is a religious

organization with its own determination from the Internal Revenue Service (IRS) as a tax exempt organization, it must submit a copy of its valid 501(c)(3) determination letter.

• As an Individual Religious Organization Covered Under a Group Tax Exempt Ruling: If the petitioner is a

religious organization recognized as tax exempt under group IRS tax exempt determination, it must submit a copy of a currently valid 501(c)(3) determination letter for the group.

• As an individual tax exempt organization affiliated with a religious denomination: If the petitioner is an individual

tax exempt organization affiliated with a religious organization, in addition to a copy of its valid 501(c)(3) determination letter, it must also submit: ○ Documentation establishing its religious nature and purpose, such as a copy of the organizing instrument, specifying the nature and purpose of its own organization;

○ Organizational literature, such as books, articles, brochures, calendars, flyers, and other literature describing the religious purpose and nature of its own activities; and

○ A religious denomination certification, which may be in the form of a letter from the affiliated religious organization certifying that both organizations are affiliated.

(6) Initial Evidence Related to Compensation.

The prospective U.S. employer must submit verifiable evidence of how the petitioner intends to compensate the alien. The evidence may include:

• Past evidence of compensation for similar positions;

• Budgets showing monies set aside for salaries, leases, etc.;

• Documentation that food, housing, medical care, or transportation will be provided;

• If IRS documentation, such as IRS Form W-2 or certified tax returns, is available, it must be provided. If IRS

documentation is unavailable, the prospective employer must explain why it is unavailable and submit comparable verifiable documentation.

• Specific evidence must be provided if the alien worked in the United States during the 2 years immediately

before the petition was filed. If the alien: – Received salaried compensation. The prospective employer must submit IRS documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of income tax returns.

– Received non-salaried compensation. The prospective employer must submit IRS documentation of the non- salaried compensation if available.

– Received no salary but provided for his or her own support and for any dependents. The prospective employer must show how support was maintained by submitting documents such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to USCIS.

Note:

As of July 8, 2015, all religious workers, including ministers, immigrating to the United States as special immigrant religious workers need not establish that the qualifying religious work experience gained in the United States for the 2-year period preceding a Form I-360 petition was employment authorized.

(7) Initial Evidence Related to the Religious Worker's Prior Employment.

• The religious worker's qualifying experience during the 2 years immediately preceding the petition (or preceding

any acceptable break in the continuity of the religious work) must have occurred after the age of 14.

• If the religious worker was employed in the United States during the 2 years immediately preceding the filing

of the application and: – Received salaried compensation, the petitioner must submit Internal Revenue Service (IRS) documentation that the alien received a salary, such as an IRS Form W-2 or certified copies of income tax returns.

– Received non-salaried compensation, the petitioner must submit IRS documentation of the non-salaried compensation if available.

– Received no salary but provided for his or her own support, and provided support for any dependents, the petitioner must show how support was maintained by submitting with the petition additional documents such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other verifiable evidence acceptable to USCIS.

If the religious worker was employed in the United States and there was an unacceptable break during the 2 years immediately preceding the filing of the Form I-360 petition, the 2-year clock must restart. The subsequent 2-year period of qualifying employment may be completed in or outside the United States.

• If the religious worker was employed outside the United States during the 2 years immediately preceding the

filing of the application, the petitioner must submit comparable evidence of the religious work.

• A break in the continuity of the work (but not the continuity of the U.S. employment authorization) during the

preceding two years will not affect eligibility so long as: – A break in the continuity of the work during the preceding 2 years will not affect eligibility so long as:

– The beneficiary was still employed as a religious worker;

– The break did not exceed 2 years; and

– The nature of the break was for further religious training or for sabbatical. However, the beneficiary must have been a member of the petitioner's denomination throughout the 2 years of qualifying employment.

Additionally, events such as sick leave, pregnancy leave, spousal care, and/or vacations are typical in the normal course of any employment and will not be seen as a break of the 2-year requirement as long as the beneficiary is still considered employed during that time.

(8) Initial Evidence Related to a Minister.

If filing in behalf of a minister, the petitioner must submit the following additional initial evidence:

• A copy of the religious worker's certificate of ordination or similar documents reflecting acceptance of the

religious worker's qualifications as a minister in the religious denomination; and

• Documents reflecting:

– Acceptance of the religious worker's qualifications as a minister in the religious denomination;

– The religious worker's completion of any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation that establishes that the theological institution is accredited by the denomination.

• For denominations that do not require a prescribed theological education, the following evidence must be

submitted: – The denomination's requirements for ordination to minister;

– The duties allowed to be performed by virtue of ordination;

– The denomination's levels of ordination, if any; and

– Documentation to establish the alien's completion of the denomination's requirements for ordination.

(9) Verification of Evidence.

USCIS may verify the submitted evidence through any means that USCIS determines as appropriate, up to and including an on-site inspection. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such an inspection will be a condition for approval of any petition. The inspection may include:

• A tour of the organization's facilities and, if appropriate, the organization's headquarters, or satellite locations;

• An interview with the organization's officials;

• A review of the organization's records related to compliance with immigration laws and regulations;

• An interview with any other individuals or review of any other records that USCIS considers pertinent to the

integrity of the organization; or

• A visit to the locations where the alien will work or live.

(10) Closing Actions.

• Approval. Using a properly issued approval stamp and security ink, the adjudicator stamps “approved” in the

Action Block on the petition and signs the form on a line over the stamp number and below the date of the approval.

– The adjudicator then annotates the proper classification and consulate. The SR1 classification is for an alien working in a professional capacity or a religious vocation or occupation, while the SD1 classification is for an alien working as a minister of religion.

• Denial. Using a properly issued denial stamp and security ink, the adjudicator stamps “denied” in the Action

Block on the petition and signs the form on a line over the stamp number and below the date of the denial. If the petition is denied, the petitioner shall be informed of the reasons for denial and of the right to appeal. The denial may be appealed to the Administrative Appeals Office.

(11) Validity of Approved Petitions.

An approved petition is valid indefinitely, unless revoked under section 203(e) or 205 of the Act.

(12) Precedent Decisions.

• Matter of Z-, 5 I&N Dec. 700 (C.O. 1954). When a priest has been ordained as such in the Catholic Church,

he is a member of a religious denomination as contemplated by former section 101(a)(27)(F)(i) of the INA. (See current 101(a)(27)(C) of the INA). The fact that he engaged in a course of study in furtherance of his vocation does not support a conclusion that he has abandoned his calling as a minister. A Catholic priest whose duties in the United States will include teaching in seminaries for the training of priests and brothers and teaching in a boarding school where he is required to teach some academic subjects besides teaching religion and doing religious work is regarded as seeking to enter the United States solely to carry on his vocation as a minister of a religious denomination.

Note

The decision, as worded, is in some respects narrowly focused on Catholic priests. For instance, it states: “when a priest has been ordained as such in the Catholic Church, he is required under canon law to celebrate holy mass daily, dispense the sacraments and guide the spiritual lives of those whom he so serves.” Decisions relating to non-Catholic clergy (who are not bound by canon law) should take into account this narrow focus.

• Matter of Bisulca, 10 I&N Dec. 712 (Reg. Comm. 1963). Petition to accord nonquota status as a minister of

a religious denomination, pursuant to former section 101(a)(27)(F) of the INA (see current 101(a)(27)(C) of the INA) is denied since it has not been established he is seeking to enter the United States solely to carry on the vocation of minister since he would receive no salary for his church work and would be required to earn his living by obtaining other employment; neither has it been established that his services are needed as assistant pastor since the church has only 40 members and the present pastor is employed 3 days each week in a different vocation.

Note

Sometimes cited with regard to unpaid religious workers, and the concomitant need for such aliens to seek secular employment. However, be aware of 8 CFR 214.2(r)(11)(ii) pertaining to self-supporting nonimmigrant religious workers under the R-1 classification.

• Matter of Sinha, 10 I&N Dec. 758 (Reg. Comm. 1964). A petitioner has failed to establish that it is a religious

denomination within the meaning of former section 101(a)(27)(F)(i) of the INA (see current 101(a)(27)(C) of the INA) if:

(a) its members may be associated with other religious denominations,

(b) there are no prescribed standards for the selection, training and ordination of its ministers, and

(c) the society does not have a distinct form of worship.

The petitioning organization is financially unable to pay the beneficiary a salary for his services as minister and therefore failed to establish that the beneficiary will be engaged solely in carrying on the vocation of minister of a religious denomination as required by the statute.

Note

Sometimes cited with Matter of Bisulca (above) to support the negative presumption that, if a religious worker is unpaid, then the alien will necessarily be in a position where he/she will engage in outside employment.

• Matter of Rhee, 16 I&N Dec. 607 (BIA 1978). Ordination by a recognized religious organization is not conclusive

as to who qualifies as a minister for purposes of the Act. The alien's training, experience, and duties were in the field of music, not theology.

Note

Cited in instances where an alien is deemed a “minister,” but without any real ministerial functions.

• Matter of Varughese, 17 I&N Dec. 399 (BIA 1980). In determining whether or not one has been ordained as a

minister and has carried on the vocation of a minister of a recognized religious denomination, acceptable evidence includes a letter or other appropriate statement signed by the Superior or Principal of the religious denomination. An alien has not carried on the vocation of minister of the church as defined by section 101(a)(27)(C) of the INA, 8 U.S.C. 1101(a)(27)(C), when only 9 hours per week are devoted to church activities, and the position is of a voluntary nature (delegated by the minister).

Note

Cited in cases involving part-time and/or unpaid workers. However, be aware of 8 CFR 214.2(r)(11)(ii) pertaining to self-supporting nonimmigrant religious workers under the R-1 classification.

• Matter of Hall, 18 I&N Dec. 203 (BIA 1982). The respondent, who engages in fund-raising activities as part

of his missionary work for the Unification Church, is employed within the contemplation of section 245(c)(2) of the Act, 8 U.S.C. 1255(c)(2). Therefore, his employment without the permission of the Immigration and Naturalization Service bars him from adjusting his status in the United States to that of a lawful permanent resident. In considering the applicability of section 245(c)(2) of the Act, the Government does not improperly dictate to the Unification Church the permissible scope of its missionaries' duties by isolating the respondent's fund-raising activities from his purely ministerial duties. Determining the status or duties of an individual within a religious organization is a distinct question from determining whether that individual qualifies for status or benefits under our immigration laws, and authority over the latter determination lies not with any ecclesiastical body but with the secular authorities of the United States.

Note

Most often cited to show that an alien paid in kind (e.g., room & board, etc.) was “employed” rather than a “volunteer.”

Less often cited to distinguish USCIS' role in granting secular benefits vs. claimed constitutional “right” to special immigrant status (i.e., denial of benefit said to infringe on alien's first amendment right to free exercise of religion, or petitioner's right to employ whomever it pleases).

However, be aware of 8 CFR 214.2(r)(11)(ii) pertaining to self-supporting nonimmigrant religious workers under the R-1 classification.

• Matter of Faith Assembly Church, 19 I&N Dec. 391 (Commr. 1986). Any minister, who for the previous 2

years has been or will be engaged in part-time ministerial employment, is precluded from the special immigrant classification, which requires the minister to have been and intend to be engaged solely as a minister of the religious denomination.

Note

Frequently cited, particularly when a minister has worked in secular employment.

• Matter of Church Scientology International, 19 I&N Dec. 593 (Commr. 1988). A detailed comparison between

the Roman Catholic Church and the Church of Scientology with regards to a qualifying relationship between the foreign and U.S. organization for nonimmigrant intra-company transferees. Personnel of religious organizations who meet labor certification and L-1 visa requirements may be granted these benefits.

Note

More often cited in L-1 cases. Sometimes tangentially cited in I-360 cases.

(m) Employees of U.S. Government Abroad.

Section 101(a)(27)(D) of the Act allows for special immigrant status for an alien and his or her spouse and children who is an employee or is an honorably retired employee of the U.S. Government outside the United States. Fifteen (15) years of employment is required. The principal officer of a Foreign Service establishment must first recommend the grant of such status. Such recommendations are to occur only in exceptional circumstances. The Secretary of State must ratify the recommendation and must find it in the national interest to grant such status, upon which the alien may petition to the Department of State for special immigrant status. The USCIS plays no role on the adjudication of this petition.

An approved petition is valid for six months but may be extended for up to an additional year by the Department of State.

(n) Panama Canal Zone Employees.

Under Section 101(a)(27)(E) of the Act, certain former employees of the Panama Canal Zone and their spouses and children may receive special immigrant status. Such employees include those employed for at least one year

by the Zone or Zone government and who were employees on the date the treaty transferring the Canal to Panama took effect, June 16, 1978. Retired former employees who were employed for fifteen years are also eligible, or five years in the case of an employee whose personal safety is endangered because of such employment.

(o) Foreign Medical Doctors. Reserved

(p) International Organization Employees. Reserved

(q) Juvenile Court Dependents.

(1) General.

Adjustment of status based on designation as a Special Immigrant Juvenile (SIJ) is a humanitarian form of relief available to foreign-born minors who enter the US child welfare system due to abuse, neglect, or abandonment. It provides eligible juveniles with a means of legalizing their immigration status in the United States.

(2) Background.

The Immigration Act of 1990 (IMMACT 90) created section 101(a)(27)(J) of the Immigration and Nationality Act (the Act), establishing a special immigrant classification for juvenile aliens (juveniles) who were declared dependent upon a juvenile court in the United States where the court found them eligible for long-term foster care, and where the court or an administrative agency found it would not be in the juvenile's best interest to be returned to his/her (or his/her parents') country of nationality or last habitual residence. Classification as a Special Immigrant Juvenile allowed this individual to apply for adjustment of status to that of lawful permanent resident.

Later amendments (the Miscellaneous and Technical Immigration and Nationality Amendments of 1991) exempted special immigrant juveniles from inadmissibility provisions restricting the admission of aliens who are likely to become public charges, aliens without labor certification, and aliens who entered the United States without proper documents.

The amendments provided waivers of most other grounds of exclusion. The amendments also provided that all special immigrant juveniles shall be deemed, for the purposes of section 245(a) of the Act, to have been paroled into the United States and exempted them from compliance with any of the requirements of section 245(c) of the Act.

Additionally, the amendments provided that neither section 101(a)(27)(J) of the Act nor section 245(h) of the Act could be construed as authorizing an alien to apply for admission or be admitted to the United States in order to obtain special immigrant status under section 101(a)(27)(J) of the Act.

The 1998 Appropriations Act took effect on November 26, 1997. Section 113 of that act amended the special immigrant juvenile provision of section 101(a)(27)(J) of the Act in three ways.

• First, Congress amended this provision to limit eligibility for this status to juveniles declared dependent on

juvenile courts on account of abuse, neglect, or abandonment (emphasis added).

• Second, Congress provided that juveniles are eligible for the status only if the Secretary (formerly the Attorney

General) expressly consents to the dependency order serving as a precondition to the grant of status.

• Third, Congress amended the provision to prohibit juvenile courts from determining the custody status or

placement of a juvenile who is in the actual or constructive custody of the federal government unless the

Secretary specifically consents to the court's jurisdiction to make the determination. Policy guidance has governed implementation of the 1997 legislation. See Memorandum from William R. Yates, Memorandum ◼3-Field Guidance on Special Immigrant Juvenile Petitions (May 27, 2004).

(3) Filing Requirements.

Although current regulations allow for separate filing of the Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) and the Form I-485 (Application To Register Permanent Residence or Adjust Status), USCIS strongly encourages concurrent filing of both forms.

(A) Form I-360.

The Form I-360 must be supported by:

(i) Court order declaring dependency on the juvenile court or placing the juvenile under (or legally committing

the juvenile to) the custody of an agency or department of a State;

(ii) Determination from an administrative or judicial proceeding that it is in the juvenile's best interest not to be

returned to his/her country of nationality or last habitual residence (or the juvenile's parents' country of nationality or last habitual residence) (the “home country”); and

(iii) Proof of the juvenile's age in the form of documents such as birth certificate, passport, official foreign identity

document issued by a foreign government, such as a cedula or cartilla.

(B) Form I-485.

The Form I-485 must also be supported by documentation:

(i) Birth certificate or other proof of identity in compliance with 8 CFR 103.2;

(ii) A sealed medical examination (Form I-639);

(iii) Two full-frontal passport-style color photographs, taken within 30 days;

(iv) Evidence of inspection, admission or parole (if available; but, remember, SIJ applicants are, by law, deemed

to be paroled);

(v) If the applicant is over 14, s/he must also submit a Form G-325A (Biographic Information);

(vi) If the juvenile has an arrest record, s/he must also submit certified copies of the records of disposition; and

(vii) If the juvenile is seeking a waiver of a ground of inadmissibility that is not otherwise automatically waived

under section 245(h)(2)(A) of the Act, s/he must submit a Form I-601 (Application for Waiver of Ground of Excludability) and supporting documents establishing that waiver is warranted for humanitarian purposes, family unity, or in the public interest (supporting documents could include affidavits, letters, press clippings, etc.).

(C) Form I-765.

Applicants may also submit a Form I-765 (Application for Employment Authorization) based on the pending Form I-485, if needed.

(D) Applicants may also submit a request for a fee waiver, pursuant to 8 CFR 103.7(c). SIJ applicants may

be eligible for fee waivers for Forms I-360, I-485 and I-765. Requests for fee waivers should be adjudicated expeditiously, and consistent with prevailing policy guidance. See Memorandum from William R. Yates Memorandum ◼3-Field Guidance on Special Immigrant Juvenile Petitions (May 27, 2004). In considering the applicant's inability to pay the fee, adjudicators should pay particularly close attention to fee waiver guidance relating to consideration of humanitarian or compassionate reasons in support of a request. Id. at 4. Recommendations on fee waiver requests must be forwarded to the appropriate supervisor for decision.

(4) Adjudication of Form I-360.

(A) Threshold Eligibility Criteria.

(i) The threshold eligibility criteria are as follows. On the date the application is adjudicated, the applicant must be:

• under 21 years of age

• unmarried; and

• the subject of a dependency order, or have been adopted or placed in guardianship after being subject to a

dependency order. Note that a child adopted or placed in guardianship after receiving a dependency order continues to be considered eligible for long-term foster care under 8 CFR 204.11(a), and, necessarily, remains considered a juvenile court dependent based on the prior dependency order.

•x

(ii) The applicant must also be eligible to adjust status to lawful permanent resident, subject to section 245(h)

of the Act.

(B) Substantive Eligibility Requirements.

(i) The dependency order:

• Must be issued by a juvenile court, which could include any court whose jurisdiction includes determinations as to

juvenile dependency. Examples (depending on the state jurisdiction): Juvenile Court; Family Court; Probate Court

• Must deem the juvenile eligible for long term foster care

• Must be based on a finding that the child suffered abuse, neglect or abandonment, as defined in the specific

jurisdiction.

– The order must reflect a determination of “abuse, neglect, or abandonment,” but the language of the order may vary based on individual state law, e.g., a juvenile who becomes eligible for long term foster care due to the death of his/her parents might be considered by a court to have suffered abandonment. Specific legal definitions of these terms for the purposes of juvenile dependency proceedings vary from state to state. As such, the determination of whether a child is eligible for long term foster care due to abuse, neglect, or abandonment is a matter for determination by the juvenile court, applying relevant state law.

– While the court order must include a finding of abuse, abandonment or neglect, it does not need to include the basis for that finding. Ordinarily, the order and findings of fact will be contained in the same document. If not, the adjudicator may need to look at alternative evidence (discussed below) to determine whether the court order is sufficient.

– If the order does not include reference to specific facts in support of the determination, it may be supplemented by specific findings of fact.

• Includes or is supplemented by a finding that it is in the best interest of the juvenile not to be returned to the

juvenile's actual or ancestral home country.

(ii) Alternative evidence in support of application.

If an order alone does not establish that it is based on a finding of abuse, neglect, or abandonment, the adjudicator must consider other evidence. The task of the adjudicator is not to determine whether the order was properly issued. Rather, the adjudicator must review additional evidence to determine whether the order was based on a finding of abuse, neglect, or abandonment. Alternative evidence of abuse, neglect, or abandonment would include the following:

• A separate Findings of Fact will normally be sufficient to establish a foundation of abuse, neglect, or

abandonment if the Order lacks such findings;

• If the Order lacks sufficient findings, and there are no separate findings of fact in support of the order, the

adjudicator should request that the applicant submit actual records from the judicial proceeding, or a summary of the evidence presented as it related to a finding of eligibility for long term foster care based on abuse, neglect, or abandonment.

Adjudicators must be mindful of confidentiality rules that may restrict disclosure of records from juvenile-related proceedings. In most cases, when the order alone does not suffice, an affidavit from the Court, or the state agency or department in whose custody the child has been placed summarizing the evidence presented to the court, will be sufficient.

(iii) Consent to the dependency order.

• The addition of requiring USCIS “express” consent to the dependency order serving as a precondition to a

grant of special immigrant juvenile status is required by the 1997 amendment to section 101(a)(27)(J) of the Act. USCIS consent to a dependency order may be based on the order itself, findings accompanying the order, or other evidence that establishes that the order was based on a determination that the juvenile was abused, neglected or abandoned. The extent to which a court order can also establish eligibility for consent depends on the content of the order. Orders that include or are supplemented by specific findings of fact as to its foundation on abuse, neglect, or abandonment are sufficient to establish eligibility for consent, and the adjudicator need not review any additional material. Orders lacking specific factual findings are not sufficient to establish eligibility for consent, and adjudicators should review supplemental materials to determine whether consent is appropriate.

• USCIS Action to Consent to an Order.

– The District Director shall consent to dependency orders that establish that the juvenile was deemed eligible for long term foster care due to abuse, neglect, or abandonment, as described above, when that order is the basis for an approved adjustment of status based on a SIJ determination. Such consent is positive, direct, and unequivocal. Consent to an order is reflected in the approval of the application. Lack of sufficient evidence establishing the consent elements, either through the order itself or through supporting documents, shall result in withholding of consent and denial of the SIJ petition.

– Consent may only be granted to orders that are the basis for an approved self-petition. Self-Petitions may be denied for failure to meet the definition of a special immigrant juvenile or for ineligibility to adjust status to lawful permanent resident.

(iv) Limitation on Additional Evidence.

Generally, no other documentary evidence, other than what is noted above, is required for SIJ applications. In particular, adjudicators should not seek documents such as school or employment records, confirmation of compliance with the Vienna Convention on Consular Relations, or other information not directly related to SIJ status or required for adjustment of status (as described above).

(C) Adjudication of the Form I-485.

See AFM Ch. 23. Remember, pursuant to section 245(h) of the Act, SIJ beneficiaries are deemed to have been paroled for the purpose of adjustment. Also note that SIJ petitioners who are age 14 and over must also comply with fingerprinting and other agency background check requirements. See Memorandum for Regional Directors, Fingerprint Waiver Policy for All Applicants for Benefits under the Immigration and Naturalization Act and Procedures for Applicants Whose Fingerprint Responses Expire after the Age Range During Which Fingerprints Are Required (July 20, 2001).

(D) Interview Requirements.

Current regulations regarding interview requirements for SIJ applicants are based on the general interview requirements for section 245 of the Act. See 8 CFR 245.6. Pursuant to those general requirements, adjudicators may waive the interview of SIJ petitioners who are under age 14.

(E) Age-Out Prevention.

(i) Current regulations require that an applicant for SIJ adjustment must be under 21 years of age, not only at the

time of application, but also at the time of adjustment. Failure to adjust prior to age 21 results in denial of the application, regardless of the merits of the underlying dependency order; this is known as “aging out.” Applicants are strongly encouraged to submit petitions and applications in a timely fashion and to notify the agency when the risk of aging out is strong. In addition, District Offices should assess new applications to avoid the risk of SIJ age outs, and take the following precautions to prevent it:

• Schedule SIJ adjustment interviews well in advance of the petitioner's 21st birthday, or in jurisdictions where

court dependency terminates before age 21, e.g., age 18, well in advance of that birth date.

• Ensure proper completion of background checks, including biometric information clearances and name-checks.

• Provide for expedited processing of cases at risk of aging out, e.g., in-person filing for applicants who age out

within a year; priority interviews and capturing of biometric information; other appropriate administrative relief.

• Officers are also reminded that, in many circumstances, Section 424 of the USAPATRIOT Act provides SIJ

beneficiaries limited age-out protection by extending benefits eligibility for 45 days beyond the 21st birthday. Pursuant to Section 424(2), an alien who is the beneficiary of a petition or application filed on or before September 11, 2001, whose 21st birthday occurs after September 2001 is considered to be a child for 45 days after the alien's 21st birthday for purposes of adjudicating such petition or application. This necessarily extends age out protection on all grounds for 45 days.

(ii) Adjudicators should also be sensitive to the effect aging out has on appeals, and should seek to ensure sufficient

time for appeals processing.

(r) U.S. Armed Forces Members.

(1) General.

The purpose of the Armed Forces Immigration Adjustment Act of 1991 is to provide special immigrant status to a limited number of foreign nationals who have served honorably on active duty status in the Armed Forces of the United States.

(2) Filing Procedure.

An alien Armed Forces enlistee or veteran may file the petition for Armed Forces special immigrant status in his/ her own behalf. The petitioner must file Form I-360, with fee, with the Service office having jurisdiction over the place of the alien's current or intended place of residence in the United States, or with the overseas Service office having jurisdiction over the alien's residence abroad.

(3) Eligibility Requirements.

In order to be eligible for classification under section 101(a)(27)(K), the petition must establish that:

(A) He or she served honorably on active duty after October 15, 1978;

(B) His or her original lawful enlistment was outside the United States;

(C) The service period or periods of active duty amount to an aggregate of a minimum of 12 years or, in the case

of an applicant currently on active duty, a minimum of 6 years with proof of re-enlistment for the required number of years to incur a total active duty service obligation of 12 years;

(D) If now separated from service, he or she was honorably discharged;

(E) He or she is a national of an independent state which maintains a treaty or agreement allowing nationals of that

state to enlist in the U.S. Armed Forces (currently, this only applies to nationals of the Philippines, the Federated States of Micronesia, and the Republic of the Marshall Islands); and

(F) The appropriate military department has recommended the granting of special immigrant status.

(2) Supporting Documentation.

The petitioner must submit the following documentation with the petition for classification in order to establish eligibility for the benefit sought:

(A) His or her birth certificate which establishes that he or she is a national of an independent state which maintains

a treaty or agreement allowing nationals of that state to enlist in the U.S. Armed Forces;

(B) Either:

(i) Certified proof of his or her re-enlistment (after 6 years of active duty service); or

(ii) Both:

• Certification of his or her past honorable active duty status of 12 years from the appropriate military official,

who is at the local command level or higher (Note: see paragraph (5) for a discussion on revocation); and

• The recommendation from the appropriate military official (local command level or higher) that he or she (the

applicant) be granted special immigrant status. (Note: USCIS will accept a letter issued by the command under which the alien is serving or has served. Such a letter shall include all required information: dates of service and place of enlistment, type of discharge (if applicable), and the recommendation of special immigrant status by the authorizing official.)

(3) Closing Action.

(A) Approval.

If the alien meets the eligibility requirements set forth above, endorse the petition by placing your approval stamp in the Action Block and signing your name, annotating the petition (classification SM1), and preparing an approval notice to advise the petitioner of the director's decision.

(B) Denial.

If the petitioner has failed to establish eligibility for the benefit sought, deny the petition, and prepare a formal decision to inform the petitioner of the reasons for denial and of his/her right to appeal. The denial is appealable to the Administrative Appeals Office.

(4) Derivative Beneficiaries.

A spouse or child accompanying or following to join a principal immigrant who has requested benefits under this section may be accorded the same special immigrant classification as the principal alien.

(5) Revocation.

If an applicant ceases to be a qualified enlistee by failing to complete the required active duty service obligation for reasons other than an honorable discharge prior to entering or adjusting, the petition can be automatically revoked under Section 205 of the Act. In order to do so, USCIS must, however, obtain a current Form DD-214 (Certificate of Release or Discharge from Active Duty) from the appropriate military office to verify that the applicant is no longer eligible for special immigrant status.

(s) NATO Civilian Employees or Family Members. Reserved

(t) Iraqi Nationals Who Worked for or on Behalf of the U.S. Government in Iraq. (Added AD08-17)

(1) General.

Section 1244 of Public Law 110-181, National Defense Authorization Act for Fiscal Year 2008, as amended by Public Law 110-242, creates a new special immigrant category under section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)) for Iraqi nationals who worked for or on behalf of the U.S. government in Iraq.

(2) Background.

The Defense Authorization Act for Fiscal Year 2008, Public Law 110-181 was signed into law on January 28, 2008. Section 1244 of this legislation, as amended by section 1 of Public Law 110-242, entitled “Special Immigrant Status for Certain Iraqis” authorizes 5,000 special immigrant visas for Iraqi employees and contractors each year for fiscal years 2008 through 2012. This provision creates a new category of special immigrant visas for Iraqi nationals, who have provided faithful and valuable service to the U.S. Government, while employed by or on behalf of the U.S. Government in Iraq, for not less than one year beginning on or after March 20, 2003, and who have experienced or are experiencing an ongoing serious threat as a consequence of that employment.

(3) Eligibility.

To obtain approval of a petition for special immigrant status under section 1244 of Public Law 110-181, a self- petitioning alien must establish that he or she:

(A) is a national of Iraq;

(B) has been employed by, or on behalf of, the U. S. Government in Iraq, on

or after March 20, 2003, for a period of not less than one year;

(C) provided faithful and valuable service to the U.S. Government, which is documented in a recommendation

from the U.S. citizen or national who is the alien's senior supervisor, or the U.S. citizen or national currently occupying that position, or a more senior U.S. citizen or national, if the alien's senior supervisor has left the employer or left Iraq. If it is not possible to obtain a recommendation from a supervisor who is a U.S. citizen or national, from the alien's senior supervisor, provided the U.S. citizen or national responsible for the contract co- signs the letter. The recommendation must be accompanied by the approval of the Chief of Mission (COM) or designee of the COM based upon an independent review of records maintained by the USG or hiring organization or entity to confirm employment and faithful and valuable service;

(D) has experienced or is experiencing an ongoing serious threat as a consequence of the alien's employment by

the U.S. Government, as documented by a risk assessment conducted by the COM or the designee of the COM;

(E) has cleared a background check and appropriate screening as determined by the Secretary of Homeland

Security; and

(F) is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent

residence. In the determination of such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) (8 U.S.C. 1182(a)(4)) relating to “public charge” shall not apply.

(4) Spouses and Children.

The spouse or child accompanying or following to join a principal immigrant may be accorded the same special immigrant classification as the principal alien. If the petition of the principal alien was revoked or terminated after its approval due to the death of the petitioning alien, the spouse or child is still eligible for a special immigrant visa. This provision is applicable to a petition under either section 1244 of P.L. 110-181 or section 1059 of the National Defense Authorization Act for FY 2006, as amended (P.L. 109-163; 8 U.S.C. 1101 note), which included the alien as an accompanying spouse or child, and which, due to the death of the principal alien, was revoked or terminated; but would have been a basis for visa issuance if the principal alien had survived. Visas issued to derivative spouses and children do not count toward the cap of 5,000 special immigrant visas per year.

(5) Filing Requirements.

(A) General.

An Iraqi national who has worked for or on behalf of the U.S. Government may file this petition on his/her own behalf. The petitioner must file Form I-360 with the Nebraska Service Center.

(B) Supporting Documentation.

Form I-360 must be filed with:

(i) A copy of the applicant's passport, birth certificate or national identification card showing that the applicant is

a national of Iraq, along with a certified English translation, if the document is in a foreign language.

(ii) A positive recommendation from the U.S. citizen or national who is the applicant's senior supervisor or the

U.S. citizen or national occupying the supervisor's position, or a more senior U.S. citizen or national if the senior supervisor has left the employer or has left Iraq, or if it is not possible to obtain a recommendation for a supervisor

who is a U.S. citizen or national, from the alien's senior supervisor, provided the U.S. citizen or national responsible for the contract co-signs the letter, confirming employment of not less than one year beginning on or after March 20, 2003.

(iii) Proof of risk assessment conducted by the Chief of Mission, Embassy Baghdad, or his or her designee,

establishing that the alien has experienced or is experiencing an ongoing serious threat as a consequence of his or her employment by the U. S. Government;

(iv) Proof of an independent review of (ii) above conducted by the Chief of Mission, Embassy Baghdad, or

his or her designee, of records maintained by the U.S. Government or hiring organization or entity, to confirm employment and faithful and valuable service to the U.S. Government.

(v) If the petition is filed by an applicant in the United States, a copy of the front and back of the applicant's Form

I-94, Arrival-Departure Record.

(C) Classification Requested.

Petitioners under the section 1244 category should check box l, Special Immigrant Iraq National who was employed by or on behalf of the United States Government, in Part 2 of Form I-360. If an earlier form is used, petitioners should check box k, Other, explain, and write “Iraqi Worker” in the space provided.

(D) Fees.

There are no filing or biometric fees associated with this petition.

(6) Number of Visas that may be Issued.

The total number of principal aliens who may be provided special immigrant status under this section may not exceed 5,000 per year for Fiscal Years 2008-2012. If the numerical limitation is not reached during a given fiscal year, the numerical limit for the following fiscal year shall be increased by the amount of numbers that were unused. If the numerical limitation for Fiscal Year 2012 is not reached, any unused numbers from that year may be used in Fiscal Year 2013. Numbers will not carry forward into Fiscal Year 2014.

(7) Automatic Conversion for Approved Translators and Interpreters.

A person with an approved petition for special immigrant status under section 1059 of the National Defense Authorization Act for Fiscal Year 2006 (8 U.S. C. 1101 note), for whom a visa under such section is not immediately available, is eligible for special immigrant status under section 1244 of Public Law 110-181, with respect to petitions that are filed on or before September 30, 2008. In such cases, the approval will be counted against available section 1244 visa numbers, but in all substantive respects eligibility is determined under section 1059 rather than under the different eligibility requirements of section 1244.

(8) Eligibility to Adjust Status in the United States. [Revised 9/2/2010; AD 10-04]

Petitioners under this category may not file for adjustment of status concurrently. Section 245(c)(7) of the Immigration and Nationality Act (INA) provides that employment-based immigrants (including special immigrants) are ineligible to adjust status unless they are in a lawful nonimmigrant status. Petitioners who were/ are paroled into the United States are not considered to be in lawful nonimmigrant status. Thus, an alien must have been lawfully admitted as a nonimmigrant, and must still be in lawful nonimmigrant status, in order to meet

the requirement of section 245(c)(7) of the Act. The beneficiary of an approved Form I-360 filed under section 1244, as amended, who is not currently in lawful nonimmigrant status may apply for adjustment of status only if some other provision of the Act or of DHS regulations permits the alien to do so. For example, if the alien was the beneficiary of a different immigrant visa petition that was filed on or before April 30, 2001, the Form I-360 under section 1244, as amended, may qualify as a “grandfathered” petition for purposes of section 245(i). See March 9, 2005, Memorandum from William R. Yates, “Clarification of Certain Eligibility Requirements Pertaining to an Application to Adjust Status under Section 245(i) of the Immigration and Nationality Act.

All approved petitioners and dependents must have successfully completed any appropriate Department of Homeland Security and Department of State background and security checks prior to final issuance of an immigrant visa number. Thus, those petitioners and dependents who are eligible to apply for adjustment of status must undergo the same background and security checks as those who will be seeking immigrant visas.

(9) Immigrant Visa Classifications for Translators. [Revised 9/2/2010; AD 10-04]

SQ-1 – Special Immigrant Iraqi Employee (Principal)

SQ-2 – Spouse of SQ-1

SQ-3 – Child of SQ-1

SQ-6 – Special Immigrant Iraqi Employee (Principal Adjusting Status in the United States)

SQ-7 – Spouse of SQ-6

SQ-8 – Child of SQ-6

(10) Closing Action.

(A) Approval. If the alien meets the eligibility requirements set forth above, endorse the petition by placing your

approval stamp in the Action Block and signing your name, annotating the petition (classification SM1), and preparing an approval notice to advise the petitioner of the director's decision.

(B) Denial. If the petitioner has failed to establish eligibility for the benefit sought, deny the petition, and prepare

a formal decision to inform the petitioner of the reasons for denial and of his or her right to appeal to the Administrative Appeals Office. The petitioner is not required to pay the I 290B filing fee in order to appeal from the denial of a Form I 360 filed under section 1244.

(C) Certification. If a decision on Form I 360 filed under either section 1059 or section 1244 is certified to the

Administrative Appeals Office, prepare a formal decision on Form I 290C detailing the reasons for certification and notify the petitioner of his or her right to submit a brief in support of the petition. (See 8 CFR 103.4).

(u) Afghanistan Nationals Who Worked for or on Behalf of the U.S. Government in Afghanistan. (Revised

09/02/2010; AD10-04)

(1) General.

Section 602(b) of the Afghan Allies Protection Act of 2009, Public Law 111-8, Division F, Title VI, creates a new special immigrant category under section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)

(27)) for Afghan nationals who worked for or on behalf of the U.S. Government in Afghanistan. The President

signed the Afghan Allies Protection Act of 2009 into law on March 11, 2009.

(2) Background.

Section 602(b) of the Afghan Allies Protection Act of 2009 authorizes 1,500 special immigrant visas for Afghan employees and contractors each year for Fiscal Years 2009 through 2013. This provision creates a new category of special immigrant visas for Afghan nationals who meet the stated eligibility requirements.

(3) Eligibility of the Principal Alien.

To obtain approval of a petition for special immigrant status under the Afghan Allies Protection Act of 2009, a self-petitioning alien must establish that he or she:

(A) Is a citizen or national of Afghanistan;

(B) Was or is employed by or on behalf of the United States Government in Afghanistan on or after October 7,

2001, for not less than one year;

(C) Provided faithful and valuable service to the United States Government, which is documented in a positive

recommendation or evaluation from the alien's senior supervisor, or the individual currently occupying that position, or a more senior individual, if the alien's senior supervisor has left the employer or left Afghanistan. The recommendation must be accompanied by the approval of the Chief of Mission (COM) or designee of the COM based upon an independent review of records maintained by the U.S. Government or hiring organization or entity to confirm employment and faithful and valuable service [Note: Under Department of State policy as stated at 9 FAM 42.32(d)(11), the Chief of Mission will approve the recommendation only if made by a U.S. citizen or national (or endorsed by the U.S. citizen or national responsible for the contract under which the petitioner's service was provided)];

(D) Has experienced or is experiencing an ongoing serious threat as a consequence of the alien's employment by

the U.S. Government, as documented by a risk assessment conducted by the COM or the designee of the COM;

(E) Has cleared a background check and appropriate screening as determined by the Secretary of Homeland

Security; and

(F) Is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent

residence. In the determination of such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) (8 U.S.C. 1182(a)(4)) relating to “public charge” shall not apply.

(4) Spouses and Children.

(A) General. The spouse or child accompanying or following to join a principal immigrant may be accorded the

same special immigrant classification as the principal alien.

(B) Deceased Principal. Section Section 602(b)(2)(C) allows a surviving spouse and children to continue to remain

eligible for special immigrant status if the principal alien described in Chapter 22.3(u)(3) had a visa petition approved under section 602(b) of the Afghan Allies Protection Act, but died after the approval. The eligibility of

the surviving spouse and children is also affected by new section 204(l) of the Act, as amended by section 568(d) of Public Law 111-83, since the surviving spouse and children are derivative beneficiaries of a petition filed under section 203(b) of the Act. In light of the interrelationship between section 602(b)(2)(C) and section 204(l):

(i) A pending visa petition under section 602(b) may be approved, despite the death of the principal alien while

the petition is pending; and

(ii) After the death of the principal alien, USCIS may favorably exercise discretion to reinstate the approval of

a visa petition under section 602(b).

(5) Filing Requirements.

(A) General. An Afghan citizen or national who has worked for or on behalf of the U.S. Government may file

this petition on his or her own behalf. The petitioner may also file the petition through an agent acting on the petitioner's behalf. The petitioner (or agent) must file Form I-360 with the Nebraska Service Center.

(B) Supporting Documentation. Form I-360 must be filed with:

(i) A copy of the petitioner's passport, birth certificate, or national identification card showing that the petitioner

is a citizen or national of Afghanistan, along with a certified English translation, if the document is in a foreign language;

(ii) A positive recommendation or evaluation from the petitioner's senior supervisor or the individual occupying

the supervisor's position, or a more senior individual if the senior supervisor has left the employer or has left Afghanistan, confirming employment of not less than one year beginning on or after October 7, 2001 and that the petitioner has provided faithful and valuable service to the U.S. government [Note: Under Department of State policy as stated at 9 FAM 42.32(d)(11), the Chief of Mission will approve the recommendation only if made by a U.S. citizen or national (or endorsed by the U.S. citizen or national responsible for the contract under which the petitioner's service was provided)]

(iii) Proof of risk assessment conducted by the Chief of Mission, Embassy Kabul, or his or her designee,

establishing that the alien has experienced or is experiencing an ongoing serious threat as a consequence of his or her employment by the U.S. Government;

(iv) Proof of an independent review conducted by the Chief of Mission, Embassy Kabul, or his or her designee, of

records maintained by the U.S. Government or hiring organization or entity, to confirm employment and faithful and valuable service to the U.S. Government; and

(v) If the petition is filed by a petitioner in the United States, a copy of the front and back of the petitioner's I-94,

Arrival-Departure Record.

(C) Classification Requested. Petitioners filing under the Afghan Allies Protection Act of 2009 should check box

m, Other, explain and write ““Afghan Worker” in the space provided.

(D) Fees. By statute, there are no filing or biometric fees associated with this petition.

(6) Number of Visas That May Be Issued. Section 602(b)(3)(A) provides for a limit of 1,500 immigrant visas for

principal aliens for each Fiscal Year from 2009 through 2013. But for each fiscal year from 2010 through 2013, the total number is increased by the difference between 1,500 and the number of visas actually used during the

immediately prior fiscal year. If the numerical limitation for Fiscal Year 2013 is not reached, any unused numbers from that year may be used in Fiscal Year 2014. Numbers will not carry forward into Fiscal Year 2015.

(7) Eligibility to Adjust Status in the United States. Petitioners under this category may not file for adjustment of

status concurrently. Section 245(c)(7) of the Immigration and Nationality Act (INA) provides that employment- based immigrants (including special immigrants) are ineligible to adjust status unless they are in a lawful nonimmigrant status. However, section 602(b)(9) of Public Law 111-8 waives three adjustment ineligibilities – sections 245(c)(2), (7), and (8) – for section 1244 and section 602(b) petitioners who were either paroled into the United States or admitted as nonimmigrants. Therefore, a paroled or admitted alien may apply for and obtain adjustment under section 602(b) even if the alien is not currently maintaining a lawful status and even if he or she has failed to maintain a lawful status in the past.

All approved petitioners and dependents must have successfully completed any appropriate DHS security checks prior to final issuance of an immigrant visa.

(8) Class of Admission Codes.

SQ-1 – Special Immigrant Iraqi or Afghan Employee (Principal)

SQ-2 – Spouse of SQ-1

SQ-3 – Child of SQ-1

SQ-6 – Special Immigrant Iraqi or Afghan Employee (Principal Adjusting Status in the United States)

SQ-7 – Spouse of SQ-6

SQ-8 – Child of SQ-6

(9) Closing Action.

(A) Approval. If the alien meets the eligibility requirements set forth above, endorse the petition by placing your

approval stamp in the Action Block and signing your name, annotating the petition (classification SM1), and preparing an approval notice to advise the petitioner of the director's decision.

(B) Denial. If the petitioner has failed to establish eligibility for the benefit sought, deny the petition, and prepare

a formal decision to inform the petitioner of the reasons for denial and of his or her right to appeal to the Administrative Appeals Office. The petitioner is not required to pay the Form I 290B filing fee in order to appeal from the denial of a Form I 360 filed under the Afghan Allies Protection Act.

(C) Certification. If a decision on Form I 360 filed under the Afghan Allies Protection Act is certified to the

Administrative Appeals Office, prepare a formal decision on Form I 290C detailing the reasons for certification and notify the petitioner of his or her right to submit a brief in support of the petition. (See 8 CFR 103.4).

References

Section 101(a)(27)(C) and section 203(b)(4) of the Act; 8 CFR 204.5(m).

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

Under Section 7 of the Central Intelligence Agency Act of 1949, the director of that agency, in coordination with the Attorney General and the Director of USCIS, may grant lawful permanent resident status to a limited number of aliens each year. Such cases are always initiated by the CIA and are handled through the ICE Office of Intelligence, Liaison Projects Unit. No alien may initiate an application for adjustment of status under Section 7, and (unless specifically called upon by ICE Intelligence) your of fice will have no involvement in any Section 7 case. Should an alien attempt to file an application for adjustment under Section 7 through your office, advise him or her that he or she may not do so; if an application for adjustment has been filed through your office, reject (if possible) or deny (if necessary) the application for the reason that the applicant has neither established that he or she is in possession of a current preference number as required by section 203 of the Act nor established that he or she is exempt therefrom. (Note, however, that the alien would not be precluded from filing under any other section of law for which he or she believes he or she may be eligible).

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

The Cuban Adjustment Act (Public Law 89-732) (CAA) became law on November 2, 1966. Section 1 of the Act was designed to permit thousands of Cuban refugees to adjust to lawful permanent residence. Most of these Cubans were parolees or nonimmigrants who could not return to Cuba for political reasons, but could not seek residence through other means. Similar laws have been passed over the years for other nationalities as well, e.g., Public Law 101-167 (for former nationals of the Soviet Union, Laotians, Cambod ians, and Vietnamese).

The Victims of Trafficking and Violence Protection Act of 2000 (Pub. L. 106-386) (VAWA 2000) and the Violence Against Women and Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162) (VAWA 2005), amended the CAA to provide continued eligibility for adjustment of status as the battered or abused spouse or child under section 1 of the CAA. Under certain circumstances, abused spouses or children may remain eligible for adjustment of status even where the:

• Spouse or child is not currently residing with the qualifying Cuban principal; [1]

• Marital relationship was terminated (by divorce, annulment, etc.) not more than 2 years ago; or

• Qualifying Cuban principal died not more than 2 years ago.

A spouse or child must demonstrate by providing any credible evidence that he or she was the subject of abuse or extreme cruelty by the qualifying Cuban principal, during the relationship, to qualify for the VAWA eligibility provisions for adjustment of status under the CAA.

[1] A qualifying Cuban principal is one who: 1) Was inspected and admitted or paroled into the United States after January 1, 1959; 2) Was physically present in the United States for at least 1 year; 3) Is eligible to receive an immigrant visa; 4) Is admissible to the United States for lawful permanent residency; and 5) Has applied for, and is eligible for, adjustment of status; or Has adjusted status, whether under the CAA or another adjustment of status provision.

(b) Eligibility.

In order to be granted adjustment under the CAA, an applicant must:

(1) Be a native or citizen of Cuba. An applicant could meet this requirement through any one of several different

means. He or she could be:

• A person who was born in Cuba, and is still a citizen of Cuba;

• A person who was born in Cuba, but later became a citizen of some other country or became stateless;

• A person who was born on the U.S. Navy Base at Guantanamo Bay, Cuba. Whether this person is or ever was

considered to be a citizen of Cuba by the Cuban government, and regardless of any claims to other nationalities he or she might have through his or her parents, he or she is a native of Cuba simply by being born there. (For example, there were a number of pregnant women among those persons who fled Haiti in the 1990s and were subsequently intercepted at sea by the Coast Guard and transported to the Navy B ase at Guantanamo Bay to await immigration processing. The babies born of those women at Guantanamo Bay meet this requirement.)

• A person who was born outside of Cuba but has become a naturalized citizen of Cuba.

• A person who was born outside of Cuba to a Cuban parent, and who has satisfied all Cuban legal requirements

for the acquisition of Cuban citizenship.

Principal applicants must submit evidence of Cuban citizenship. The following are examples of acceptable documents to prove citizenship:

• A valid Cuban passport.

• A Cuban Civil Registry document issued in Havana.

A Cuban consular certificate documenting an individual's birth outside of Cuba to at least one Cuban parent is not sufficient to establish Cuban citizenship. This remains true even if the consular certificate states that the individual to whom the certificate was issued is a Cuban citizen.

(2) Have been inspected and admitted or paroled into the U.S. after January 1, 1959. Any inspection and admission

or parole, regardless of the classification of admission or purpose of parole, meets this requirement. See generally Matter of Alvarez-Riera, 12 I. & N. Dec. 112 (BIA 1967); Matter of Rodriguez, 12 I. & N. Dec. 549 (R.C. 1967); Matter of Martinez-Monteagudo, 12 I. & N. Dec. 688 (R.C. 1968).

(3) Have at least one year of aggregate physical presence in the U.S. before applying for benefits under section

1 of the CAA (amended from two years by the Refugee Act of 1980). However, if an applicant was admitted or paroled and later departed from the U.S. temporarily with no intention of abandoning his or her residence, and was readmitted or reparoled upon return, the temporary absence shall be disregarded for purposes of the applicant's “last arrival” into the U.S. See 8 CFR 245.2(a)(4)(iii) and Matter of Riva, 12 I. & N. Dec. 56 (R.C. 1967). Factors to consider in determining whether the applicant did in fact have an unabandoned residence in the U.S. are: the duration of the trip abroad; the purpose of the trip; how long the applicant was in the U.S. before departure; and the applicant's family or employment ties in the U.S. Bear in mind, of course, that a subsequent reentry on a nonimmigrant visa to an “unabandoned residence” may have been accomplished by fraud. Principal applicants must submit evidence of Cuban citizenship. The following are examples of acceptable documents to prove citizenship:

(c) Discretion.

An application for adjustment under the CAA may be denied as a matter of discretion if there are sufficient negative factors to overcome the positive ones (see the discussion on discretion in subchapter 23.2(d) and Chapter 10.15 of this field manual). However, in weighing the discretionary factors, keep in mind the nature of the CAA and the political situation in that country (see Matter of Mesa, 12 I. & N. Dec. 432 (Dep. Asst. Comm'r, 1967)).

(d) Bars to Adjustment.

The bars to adjustment enumerated in section 245(c) of the Act are inapplicable. Thus, the following aliens may seek adjustment under the CAA:

• Crewmen (see Matter of Sanabria, 12 I. & N. Dec. 396 (R.C. 1967));

• Transit without visa passengers;

• Nonimmigrant overstays;

• Aliens who have worked without authorization; and

• Aliens who were admitted as nonimmigrant visitors without visas under section 217 of the Act (the Visa Waiver

Permanent Program, formerly known as the Visa Waiver Pilot Program).

(e) Dependents.

(1) General requirements for spouse or child.

The spouse or child of a qualifying Cuban applicant may also seek adjustment under section 1 of the Act regardless of his or her nationality or place of birth. He or she must, however, meet of all the other eligibility criteria stated above, and must reside with the principal applicant. See Matter of Bellido, 12 I. & N. Dec. 369 (R.C. 1967). It is important to note that this is a very different standard from the one relating to spousal visa petition proceedings, where a petitioner need not prove marital viability, but rather that the marriage was valid at its inception.

The adjustment of the spouse or child cannot precede the adjustment of the principal applicant; the adjustment must be completed at the same time as, or subsequent to, the principal's adjustment. Matter of Quijada-Coto, 13 I. & N. 740 (BIA 1971). In addition, the qualifying relationship may have been created before or after the principal's adjustment. Matter of Milian, 13 I. & N. 480 (A.R.C. 1970).

While the principal applicant must have adjusted to lawful permanent resident (LPR) status in order for the non- Cuban spouse or child to qualify under the CAA, it is not necessary for the principal applicant to have adjusted under the CAA itself. Adjustment of a Cuban native or citizen to LPR status under any other adjustment provision will also make it possible for the non-Cuban spouse or child to seek adjustment under the CAA.

Finally, the spouse or child of a Cuban applicant is adjusted as an unconditional permanent resident, regardless of the duration of the qualifying marriage. The restrictions of section 216 of the Act do not apply.

(2) Continued eligibility provisions for abused spouse or child (VAWA).

The spouse or child of a qualifying Cuban principal, subjected to battery or extreme cruelty by the qualifying Cuban principal, may seek adjustment of status under section 1 of the CAA without having to demonstrate current

residency with the qualifying Cuban principal. The abused spouse or child must have resided with the qualifying Cuban principal at some point during the relationship as spouse or child of the qualifying Cuban principal.

As with all CAA derivatives, a qualifying Cuban principal is an individual who is eligible for and has applied for adjustment of status or has adjusted status to a lawful permanent resident, whether under the CAA or another adjustment of status provision.

An abused spouse or child may adjust status under certain circumstances when the qualifying Cuban principal is not a lawful permanent resident.

• Loss of status. If an LPR has battered or subjected to extreme cruelty the LPR's spouse or child, the spouse or

child may file an immigrant visa petition on his or her own behalf. Once the abused spouse or child has filed an immigrant visa petition, the petition remains valid even if the LPR loses his or her LPR status. INA 204(a)

(1)(B)(v). The abused spouse may file an immigrant visa petition even after the LPR loses status, as long as the

spouse files within 2 years of the date the LPR lost status and the LPR lost status “due to an incident of domestic violence.” INA 204(a)(1)(B)(ii)(II)(CC)(aaa). Given the ameliorative purpose of the various VAWA provisions, and the lack of a petition requirement for CAA cases, these INA provisions reasonably modify the ordinary rules for CAA adjustment in the case of abused spouses and children of a Cuban principal. For this reason:

• If the Cuban principal loses LPR status at any time after the abused spouse or child applied for CAA adjustment,

the spouse or child remains eligible for CAA adjustment; and

• If the Cuban principal loses LPR status before the spouse or child applies for CAA adjustment, the spouse or

child can still apply if the Cuban principal lost LPR status due to an incident of domestic violence and the spouse or child applies within 2 years of the date the Cuban principal lost status.

• Divorce. If, at the time of filing, the spousal relationship has been legally terminated (ex. divorce, annulment,

etc.) within the past 2 years, the abused spouse remains eligible for adjustment of status under section 1 of CAA provided that:

• There is a demonstrated connection between the legal termination of marriage within the past 2 years and the

battery or extreme cruelty perpetrated by the qualifying Cuban principal;

• The abused spouse files an application for adjustment of status under section 1 of the CAA within 2 years of

the legal termination of the marriage; and

• The abused spouse resided, at some point during the spousal relationship, with the qualifying Cuban principal.

• Death. As noted, the Cuban principal's death after the abused spouse or child has applied for CAA adjustment

does not end the applicant's eligibility. Also, if the abused spouse of a Cuban principal lived with the Cuban principal at some point during the spousal relationship, but did not file an application before the Cuban principal's death, the abused spouse will remain eligible for adjustment of status under section 1 of the CAA if the abused spouse applies within 2 years after the death of the qualifying Cuban principal.

The provisions in this chapter 23.11(e)(2) concerning the effect of the Cuban principal's loss of status, and of divorce or death apply only to CAA applications filed by abused spouses and children of a Cuban principal.

(f) Admissibility.

The inadmissibility grounds of section 212 of the Act apply, with the exception of section 212(a)(4) of the Act (see Matter of Mesa, 12 I. & N. Dec. 432 (Dep. Assoc. Comm'r, 1967), and sections 212(a)(5), and 212(a)(7) of the Act. Furthermore, on April 19, 1999, INS issued a memorandum to all offices stating that “[t]he policy of the Service is that the inadmissibility ground that is based on an alien's having arrived at a place other than a port of entry does not apply to CAA applicants. All Service officers adjudicating CAA applications will do so in accordance with this policy. So long as the applicant meets all other CAA eligibility requirements, it is contrary to this policy to find the alien ineligible for CAA adjustment on the basis of the alien's having arrived in the U.S. at a place other than a designated port of entry.” (The entire memorandum is reproduced in Appendix 23-4.)

(g) Procedure for Applying.

An applicant must submit:

(1) Form I-485, Application to Register Permanent Residence or Adjust Status.

• The current Form I-485 (Rev. 06/20/13) does not provide an application type for an abused spouse or child of

a qualifying Cuban principal. An abused spouse or child must apply for adjustment of status under section 1 of the CAA using Form I-485 and selecting the application type utilized by non-abused spouses and children of a Cuban applicant (“I am the husband, wife, or minor unmarried child of a Cuban…”). Abused spouses and children may select this application type even if they are no longer residing with the qualifying Cuban principal at the time of filing. A VAWA self-petition is not required

(2) The fee for Form I-485, as specified in 8 CFR 103.7(b), or a request for fee waiver in accordance with 8

CFR 103.7(c). Fee waiver requests are to be adjudicated in accordance with October 1998 guidance issued by the Executive Associate Commissioner for Field Operations (see Appendix 10-5).

(3) Form G-325A, Biographic Information.

(4) Form FD-258, Fingerprint Chart.

(5) 2 Passport-style Photos.

(6) Form I-693, Medical Report.

(7) Form I-643, Health and Human Services Statistical Data Sheet.

(8) A clearance from the local police jurisdiction for any area in the U.S. where the applicant has lived for six

months or longer since his or her 14th birthday. See 8 CFR 245.2(a)(3)(i).

(h) Proof of Eligibility.

The documentation which must be submitted in support of the application depends, in part, on whether the applicant is a Cuban native or national, or a non-Cuban spouse or child of such applicant:

• A qualifying Cuban applicant must present:

– Evidence of lawful admission or parole into the U.S., e.g., a passport and I-94;

– Evidence of Cuban nationality or birth in Cuba. This evidence should include at least one of the following: a Cuban passport; a Cuban birth certificate; or a Cuban naturalization certificate or certificate of citizenship.

• A non-Cuban spouse or child must present:

– A passport and I-94 reflecting lawful admission or an I-94 reflecting parole;

– A marriage certificate for the present marriage;

– Evidence of termination of all previous marriages; and

– Evidence that the marriage has not been entered into solely to convey immigration benefits (i.e., with fraudulent intent).

• A non-Cuban child must present:

– A birth certificate;

– If the principal applicant is the child's father, evidence that the child meets the definition of child contained in section 101(b) of the Act (e.g., marriage certificate of the parents, evidence of legitimation, etc.)

• An individual seeking CAA adjustment as the abused spouse or child of a qualifying Cuban principal must

present the same evidence of the relationship to the Cuban principal listed above. The individual must also present evidence that the individual has been battered or subjected to extreme cruelty by the Cuban principal.

– USCIS applies the “any credible evidence” provision in INA 204(a)(1)(J) of the Act to VAWA CAA cases.

– A VAWA CAA applicant does not need to file a Form I-360.

– But the evidence that could support a VAWA Form I-360 would also be relevant to a VAWA CAA claim.

– In weighing the evidence the following issues would be most salient:

• Whether the abuse occurred in the relationship;

• Whether the applicant resided with the qualifying Cuban principal at some point during the relationship;

• Whether, if the marriage terminated other than by death, the termination was connected to the claimed abuse;

• Whether, if the principal has died, the applicant filed the Form I-485 within 2 years of the principal's death; or

• Whether, if the principal has lost LPR status, the loss of status was due to an incident of domestic violence.

The VAWA confidentiality requirements of 8 U.S.C. 1367 apply to VAWA CAA applicants just as they do to all VAWA cases.

The adjudicator in his or her sole discretion will determine whether the evidence is credible and the weight to give it.

The VAWA amendments to the CAA do not alter other existing evidentiary standards or requirements applicable to adjustment of status applications (e.g., evidence demonstrating that the spouse or child is the spouse or child of the qualifying Cuban principal, was inspected and admitted or paroled, physically present in the United States for 1 year).

• A non-Cuban abused spouse or child does not need to provide a copy of the qualifying Cuban principal's

adjustment of status application. However, the abused spouse or child must provide sufficient information to enable USCIS to verify the qualifying Cuban principal's status or a pending application for adjustment of status under the CAA. Such information may include the following: abuser's full name, date of birth, place of birth, parents' names, alien registration number, Form I-94s, social security number, or other identifying information.

• The burden rests with the applicant to demonstrate by a preponderance of the evidence that he or she is eligible

for the benefit sought.

(i) Jurisdiction.

All applications for adjustment of status under the CAA must be filed in accordance with the current Form I-485 instructions. Abused spouses and children do not need to file a separate VAWA self-petition.

The Vermont Service Center's (VSC) VAWA Unit will adjudicate applications for adjustment of status under section 1 of CAA for an abused spouse or child. The VSC may refer the application to the appropriate field office for interview. If the VSC decides to relocate the application for interview, the adjudicating officer will first render an opinion on the abuse determination, and then relocate the individual's A-file to the appropriate field office for a final decision on the adjustment of status application.

(j) Processing Instructions.

(1) Procedures.

Follow the procedural instructions outlined in subchapter 23.4 of this field manual.

(2) Class of Admission Updates: “384” For VAWA CAA.

An officer adjudicating an application for adjustment of status under section 1 of the CAA filed pursuant to the VAWA amendments will ensure that the Central Index System (CIS) is properly updated with the appropriate class of admission (COA) 384, used to identify these specially protected cases. If the officer is unable to update the CIS, then the officer must contact the local records office with write access to the CIS to request the update to the COA. The 384 COA is entered in advance of a final decision on the adjustment of status application. Once a final decision is made, the COA is populated to reflect the correct classification (i.e., CU-7 if approved); however, the history screen of the CIS will maintain the previous 384 COA.

(3) Previously filed VAWA self-petition, approved, denied, or pending.

If there is evidence of a previously filed VAWA self-petition, the adjudicating officer must review the entire record prior to making a decision on the application for adjustment of status under section 1 of the CAA.

• A previously approved VAWA self-petition based on the same relationship may be considered persuasive

evidence of the existence of abuse in the relationship. Nevertheless, the adjudicating officer should not assume that

the alleged abuser and the basis for the claim in the VAWA self-petition is the same as the basis for the application for section 1 CAA adjustment of status as an abused spouse or child.

• Similarly, a previously denied VAWA self-petition is not necessarily proof that the claim of abuse in the

application for section 1 CAA adjustment of status as an abused spouse or child is unfounded. The VAWA self- petition may have been denied because the abuser was not an LPR at the time of filing or for other reasons unrelated to the abuse or the relationship between abuser and the abused spouse or child. In the case of a denied VAWA self- petition, the adjudicating officer must request the complete A-file and review the evidence provided in support of the VAWA self-petition and reason for denial in advance of a final decision on the section 1 CAA adjustment of status application.

• If the VAWA self-petition is pending, it is within the discretion of the adjudicating officer to wait for a final

decision on the VAWA self-petition prior to rendering a decision on the application for section 1 CAA adjustment of status as an abused spouse or child. The adjudicating officer may contact the VSC to request a possible expedite of the VAWA self-petition.

(k) Interview.

At the discretion of USCIS, the application may be referred to the appropriate field office for an interview. The interviewing procedures and techniques are essentially the same as those on a section 245 interview (see subchapter 23.4). However, three areas of potential difficulty should be addressed:

• • When an applicant indicates the existence of possible ineligibility under 212(a)(3)(D)(i) of the INA, as a member

of the Communist party, a detailed sworn statement should be taken. The areas which should be covered include:

(1) the organization joined; (2) the date and place of joining; (3) an explanation of why the applicant joined; (4) the

nature of the organization; (5) the duties and responsibilities of the applicant within the organization; (6) whether the applicant held an official title or office or was simply a member; and (7) if the applicant has terminated his or her membership, when, and in what manner, this termination took place. Keep in mind that section 212(a)(3)(D)

(ii) of the Act provides an exception from the bar if the applicant was an involuntary member.

• When an applicant reveals that he or she has a criminal conviction in Cuba, a sworn statement should be taken,

and must address these matters: (1) the date and place of the arrest; (2) the specific charges lodged against him or her; (3) the date and place of any judicial proceedings; (4) the outcome of these proceedings; and (5) if the applicant was imprisoned, the place and length of incarceration. It is important to remember that a finding of inadmissibility need not be supported by a record of conviction if there is reason to believe – by the alien's own admission- that there has been a conviction and that the underlying crime involved moral turpitude under prevailing U.S. standards. See Matter of B-, 3 I. & N. Dec. 1 (BIA 1947); Matter of McNaughton, 16 I. & N. Dec. 569 (BIA 1978); and Matter of Doural, 18 I. & N. Dec. 37 (BIA 1981).

• When an applicant has made a claim of abuse and is seeking adjustment of status as an abused spouse or child,

the confidentiality provisions of 8 U.S.C. 1367 apply.

– An abused spouse or child with a pending or approved application for adjustment of status to that of an LPR under section 1 of the CAA is by definition a “VAWA self-petitioner” as defined at section 101(a)(51) (D) of the Act (even if a VAWA self-petition is never filed). If the application for adjustment of status under section 1 of the CAA is denied, the confidentiality provisions will continue to apply to the applicant until all final appeal rights are exhausted. Please refer to the December 15, 2010 guidance memo entitled “Revocation of VAWA- Based Self-Petitions (Forms I-360) (AFM Update AD10-49)” for information on how to comply with the VAWA confidentiality provisions.

(l) Waivers.

An applicant under the CAA who is inadmissible to the U.S. must seek a waiver under section 212(g), (h), or (i) of the Act. The waiver application is made on Form I-601, not on Form I-602. The I-602 may only be filed by an applicant who is a refugee or asylee who was admitted under section 207 or section 208 of the Act. The only exception is an alien who was paroled into the U.S. as a refugee before April 1, 1980.

(m) Approval Procedures.

(1) General.

With the exception of rollback provisions discussed in paragraphs (2) and (3), the general procedures for approval of an adjustment of status application set forth in subchapter 23.2 of this field manual apply to all CAA cases (including VAWA CAA cases). The COA codes pertaining to CAA cases are:

• CU-6: Adjustment class for natives and nationals of Cuba adjusting under the Act.

• CU-7: Adjustment class for non-Cuban spouses and children adjusting under the Act (to include battered or

abused spouses and children of a qualifying Cuban principal or CU-6).

(2) General Rollback Provisions.

When adjudicating an I-485 under section 245 of the INA, the date of admission for lawful permanent residence is the date on which the case is completed, i.e., when the I-181 is signed off. This is not the case with an application under the CAA. When an I-485 is to be approved for a Cuban applicant, the alien's admission for permanent residence is thirty months prior to the filing of his or her application, or the date of his or her last arrival in the U.S., whichever date is later. Consider these examples:

• A Cuban national is paroled into the U.S. on March 1, 1986. On June 3, 1992, he files an I-485. When his

application for adjustment is approved, his date of admission for permanent residence will be December 3, 1989. In this case, the applicant can be granted rollback of a full thirty months, as he was paroled into the U.S. over thirty months before filing for adjustment.

• A Cuban national is admitted to the U.S. as a nonimmigrant visitor for pleasure on January 10, 1990. On

April 3, 1992, he files an I-485. When his application for adjustment is approved, his date of admission for permanent residence will be January 10, 1990. In this case, rollback of thirty months is impermissible, as the date of adjustment would precede the applicant's entry into the U.S.

The non-Cuban spouse and children of a qualifying Cuban applicant are entitled to the same rollback provision as the qualifying Cuban principal. The non-Cuban spouse or child receives the full 30-month rollback, even if that means the individual becomes an LPR before the date on which the individual became the Cuban applicant's spouse or child. See Silva-Hernandez v. USCIS, 701 F.3d 356 (11th Cir. 2012).

This same rule applies to VAWA CAA cases.

(3) Special Rollback Provisions Pertaining to “Mariel” Entrants.

Between April 1, 1980 and October 10, 1980, approximately 125,000 Cuban nationals were paroled into the U.S. as a part of what is commonly referred to as the “Mariel boatlift.” These aliens were given I-94s bearing the designation “Cuban-Haitian Entrant.” A Mariel entrant is eligible to apply for the benefits of the CAA, and will generally receive thirty months of rollback as described above. However, a Mariel entrant who filed his or her application for adjustment of status before February 1, 1987, should be granted “rollback” to his initial parole date in 1980.

(n) Denial Procedures.

A denial of an application under the CAA should be prepared on an I-290C, and certified to the Office of Administrative Appeals (AAO), when the applicant is in a lawful status or when deportation proceedings should not be instituted because of humanitarian factors. However, an I-485 which is denied for lack of prosecution should not be certified to the AAO.

(o) Rescission Proceedings.

As with any other lawful permanent resident, an alien adjusted under section 1 of the CAA may have his or her residence rescinded under section 246 of the Act if it is determined within five years of adjustment that he or she was ineligible. Moreover, the five-year period of statutory limitations begins to run from the actual date the application for adjustment was approved, and not from the retroactive date of permanent residence (the rollback date). Matter of Carrillo-Gutierrez, 16 I. & N. Dec. 429 (BIA 1977)

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

NACARA, a limited provision which provides relief in the form of lawful permanent residence to certain Nicaraguan and Cuban nationals, was signed into law on November 19, 1997. Regulations governing the filing and adjudication of applications for NACARA adjustment are contained in 8 CFR 245.13 , although the NACARA statute is separate and apart from section 245 of the Act. The NACARA program expires March 31, 2000. Applications for benefits under this provision must be properly filed at the Texas Service Center prior to that date.

(b) Receipting and data entry by support services contractor personnel.

Unless in deportation, removal or exclusion proceedings that have not been administratively closed, the applicant must file Form I-485 (revised 9/9/92) with the Texas Service Center, in accordance with the instructions contained on that form as modified by Form I-485 Supplement B. (An alien who is in proceedings should file the application with the immigration judge having jurisdiction over his or her case.) A separate application, including the fee specified in 8 CFR 103.7 , is required for each applicant and dependent. The support services contractor receiving the mail date stamps the application immediately upon receipt, assures the application has the correct fee and that it has been signed by the applicant. The contractor records the fee, endorses and forwards the check (or other payment vehicle) to the fee account, and places each new application in a bar-coded receipt file for delivery to the next stage of the process. Once this step has been completed, the application has been received and can no longer be rejected without going through the process of refunding the fee.

To the extent possible, the contractor should bundle applications submitted by family groups to facilitate later processing.

The contractor completes data entry into CLAIMS, scans the photograph and signature for later card production, preparation of Form I-181, and for other CLAIMS notices and reports. The contractor sends out G-325A checks. The CLAIMS system will automatically generate a notice to the applicant advising him or her of location of the ASC where he/she should report for fingerprinting, and when.

(c) Preliminary Screening by USCIS support personnel.

(1) Processing Actions.

Preliminary review of the application is performed by USCIS personnel after the initial receipting process is complete. The preliminary review ensures that all relevant questions on the form have been completed, that necessary supporting documents are attached, and that the case is ready for adjudication. If the application is lacking relevant answers or documents, these must be requested from the applicant through the I-797 procedure once the application has been receipted. If such deficiencies can be identified prior to fee acceptance, a “rejection” notice may be used, rather than a request for additional information. The preliminary reviewer may annotate the application with information important to the adjudicator, taking care to always identify such notations as the work of the preliminary reviewer.

In conducting the preliminary review, you should include the following steps:

• Ensure that the application is being submitted under the provisions of NACARA. Block “h” should be checked

and endorsed “NACARA principal” or “ “NACARA dependent.” The application must be received prior to April 1, 2000.

• Verify the applicant's nationality. Each NACARA applicant, including any dependent applicant, must submit

evidence of Cuban or Nicaraguan nationality. Ordinarily this will be in the form of a birth certificate; however, someone may submit other documentation, such as a baptismal certificate or a copy of his or her passport. It is also possible that an applicant who was not born in Nicaragua or Cuba derived or acquired such nationality, and may submit evidence of such. (See AFM Appendix 23-2 regarding Nicaraguan nationality law.)

• Examine Form I-485 for completeness. Form G-325A, local police clearances, and ADIT-style photographs are

required.

• Ensure that clearances have been initiated by contractor personnel.

• Check for a completed medical examination record, Form I-693, endorsed by a USCIS approved physician.

• Ensure that the applicant has submitted evidence regarding the physical presence requirements of NACARA. A

principal alien must submit both evidence that his or her physical presence commenced prior to December 1, 1995, and evidence that his or her presence continued through the time of adjudication of the application. A separate statement is required explaining the duration and purpose of every subsequent absence.

• Evidence of commencement of presence may only consist of the following types of documentation:

• Asylum application: copy of filing receipt, asylum interview notice or other correspondence from the INS or

USCIS relating to the processing of an asylum claim.

• Alien in proceedings: copy of I-122, I-221 or other official USCIS, ICE or EOIR-issued document concerning

exclusion or deportation proceedings.

• Adjustment applicant: copy of filing receipt or other official document or correspondence relating to the filing

of an adjustment application.

• Employment authorization application: copy of a filing receipt or other official correspondence relating to filing

of an employment authorization request, Form I-765.

• Evidence of social security wages paid: an original social security earnings statement provided by the Social

Security Administration. A photocopy of an earnings statement is not acceptable.

• Evidence of an application for any other benefit under the INA: copy of a filing receipt or other official

correspondence establishing submission of any application by the alien (not on behalf of the alien, such as an I-130) for any immigration benefit.

• Other official evidence: Beyond the specific forms of evidence enumerated above which are specified in the

statute, an applicant may demonstrate commencement of his or her physical presence by submitting original document or documents issued by any Federal, State, or local governmental organization. Included in this group would be motor vehicle records, public hospital records, public school records, or real property titles. Such documents must be submitted originals, not photocopies, must bear the official seal of the issuing governmental agency, and must be dated prior to December 1, 1995. Documents dated after December 1, 1995, are not acceptable for this purpose, even if they refer to events which occurred prior to December 1, 1995. Do cuments such as copies of tax returns are not acceptable for this purpose.

• Requirements for submission of evidence of continuing physical presence are more flexible. These may consist of

lease agreements, copies of tax returns, regular bills showing account activity and the applicant's mailing address, canceled checks or bank records, employment records, etc. While there is no specific requirement establishing a number of documents which must be submitted (i.e., it is not necessary to submit a utility bill for every month since entry), documents should not leave unaccounted periods of more than 90 days. The credibility and volume of these documents will heavily influence the decision on whether or not an interview will be required. Affidavits executed after the fact attesting to the presence of an applicant are not acceptable. However, it may be necessary to use affidavits to clarify discrepancies such as employment under an assumed name, etc.

• If an applicant is unable to produce a USCIS or INS-issued document, but claims that such a document exists,

USCIS or INS records must be checked to verify the claim. If the claim is verified, attach a printout or other evidence from the record. If the claim cannot be verified, annotate the application: “Unable to verify through USCIS records”, adding your initials and the date.

• If the applicant states he or she is inadmissible to the United States, check to see that he or she filed a waiver

application, the fee was paid, and that the application was properly completed. Applicants who are inadmissible (except under sections 212(a)(4), (5), (6)(A) , (7)(A) and (9)(B), which are inapplicable) may concurrently submit an application for any waiver for which they claim eligibility.

• Check for evidence of eligibility as a dependent, if the alien is applying as such:

– Evidence of Nicaraguan or Cuban nationality (see AFM Appendix 23-2 regarding Nicaraguan nationality law).

– Evidence of relationship as a spouse or child. A NACARA spouse or child must submit evidence of the claimed relationship on or before the date the principal application was approved. Such evidence is the same as would be required for an I-130 petition (i.e., marriage certificate and evidence of termination of any prior marriages for a spouse, birth certificate for a child, etc). A spouse or child must have been physically present in the United States at the time the dependent's application was filed, but does not need to have been present as of December 1, 1995, nor submit any statement regarding subsequent absences or continuing presence.

– Evidence of relationship as an unmarried son or unmarried daughter. The unmarried son or daughter of a NACARA applicant, if the dependent has passed his or her 21st birthday, is also eligible for NACARA benefits, but must show evidence of continuous physical presence as of December 1, 1995, as well as information regarding subsequent absences, in addition to evidence of the parent-child relationship with the principal applicant. A dependent son or daughter must also submit a statement regarding any and all absences since December 1, 1995 and provide evidence to document his or her continuous presence.

• Check for a Form I-94, either original or a copy, which must be submitted if the applicant claims a lawful entry.

However, the lack of such entry (or of the Form I-94, if the alien claims it was lost) does not affect the alien's eligibility for adjustment under NACARA.

• Check to see that the alien has attached a statement regarding his or absences from the United States since

December 1, 1995. This statement is in addition to the required evidence of continuity of presence discussed above.

• Determine if a there are one or more existing “A” files relating to the applicant. Files must immediately be

requested. If no file exists, one must be created. Create a temporary file if an existing “A” file is located in another office. It is critical that any and all existing files be identified and obtained prior to adjudication. Review supporting documents closely to determine existing file number(s).

• Review Form I-181, entering any missing data except for the approval-related blocks.

• If the application is to be adjudicated by a TSC adjudicator, place the case on hold pending the results of the

records checks and fingerprint clearance. Once the checks have been completed, remove the hold and route the file to the adjudicator.

• If the application is being routed to a local office for interview and adjudication:

– At TSC, update CLAIMS and transfer the file to the appropriate local office. CLAIMS will generate a notice to the applicant advising him/her that the application has been transferred and update USCIS.

– At the local office, shelve the file by receipt date until the records check and fingerprint clearances are complete. At that point, schedule the case for the next available interview time and reshelve the case according to the interview date. (However, note the discussion below regarding employment authorization.)

(2) Screening Notes.

(A) Examining documentation establishing entry and continuous physical presence.

Each of the forms of documentation of commencement of physical presence listed above must establish that the relating event or action occurred prior to December 1, 1995, not simply that the alien was present prior to that date. For example, if presence is documented by the filing of an asylum application, the application itself must have been submitted on or before December 1, 1995. A mere statement in a later application claiming entry prior to that date is insufficient. If Social Security earnings statements are used, those must reflect earnings beginning on or before December 1, 1995. Secondary evidence, such as affidavits should normally not be submitted or accepted unless such claims can be verified in government records. Where the documentation cannot be verified by the records or differs from information contained in the records, the file should be so noted. Evidence of entry on or before December 1, 1995 which is not verifiable from government records shall be regarded as fraud-prone. All such cases (including all cases supported by Social Security records and all cases supported by documents issued by other (non- USCIS) Federal, State or local agencies) must be referred for a personal interview.

Documentation of continuous physical presence may be considered less restrictively. In general, reliable, government-issued documents which strongly support a claim of continuous physical presence for the required period should be accepted without official verification. Other, less reliable documents, such as documents supported by affidavits purporting to explain a falsely assumed identity, should be routinely or at least randomly

verified and the case referred for interview. Where the file or other information casts doubt on the continuing physical presence since entry, this should be so noted and the case referred for a personal interview.

(B) Secondary evidence.

Other than as discussed in paragraph (A), an alien may submit secondary evidence in support of the application, if the alien establishes that the primary evidence is unavailable. For example, a baptismal record may be submitted for a birth certificate which cannot be obtained due to destruction of the records by fire or warfare.

(C) Dependents.

It is important to note that the statute provides for two distinct classes of dependents:

• spouses and children under age 21, and

• unmarried sons and daughters who are 21 years of age or older.

All dependents must be either Nicaraguan or Cuban nationals, although a Nicaraguan principal could have a Cuban dependent and vice-versa (see AFM Appendix 23-2 regarding Nicaraguan nationality law). All dependents must provide evidence of the claimed relationship, in the same manner required for a visa petition or any other adjustment. The spouse or child (under 21) of a NACARA principal is not required to have been present since December 1, 1995, but must demonstrate that the qualifying relationship existed when the principal's application was filed on or before the date the principal was approved. The unmarried son or daughter (21 and older) must demonstrate physical presence since December 1, 1995. Claims of dependent eligibility are more likely to be supported by documents issued by authorities other than USCIS. If a principal applicant's supporting documents are supported by INS or USCIS records, but the dependents are supported by other sources, the adjudicating officer need not refer the case for interview, but may do so if there is any suspicion regarding the documentation submitted. For example, if a dependent claims to have been present in the United States at a time when the principal's previous asylum application shows that dependent was still residing in Nicaragua, the file should be so noted and the c ase referred for an interview at a local USCIS office. An application by a dependent may be filed concurrently with or subsequent to the principal applicant's but may not be approved until the principal applicant is granted permanent residence.

(D) Inadmissibility.

Several grounds of inadmissibility are inapplicable to NACARA cases, others may be waived. Those which are statutorily inapplicable include: 212(a) (4) – public charge; 212(a)(5) – labor certification and qualifications for certain immigrants; 212(a)(6)(A)- unlawful entry; 212(a)(7)(A) – immigrant visa; and 212(a)(9)(B) – 180/365 day unlawful presence. Waivers of other applicable grounds may be available on a case-by-case basis as otherwise provided in the INA and 8 CFR 212. If, upon review, it appears the applicant may be inadmissible, the file should be so noted to alert the adjudicator of the possibility.

(d) Adjudication.

(1) Processing Actions at either TSC or the local office.

The following actions are required during the adjudicative process:

• Verify that the application was timely filed.

• Review any existing file. This action is mandatory, but may be waived if the electronic record supports the alien's

claimed status and the file cannot be retrieved within 90 days. An interview is required when a file cannot be located, even if the electronic record supports the alien's claim. Review the file to determine if there is evidence of the required physical presence. The file may also contain evidence, such as an advance parole document, that the alien has been outside the United States for more than 180 days, or it may contain evidence of inadmissibility on other grounds. One of the more critical items of information which must be obtained from the file is whether the alien is in exclusion, deportation or removal proceedings, since this relates directly to the issue of whether USCIS or EOIR has jurisdiction.

• Determine jurisdiction. In the event an adjustment applicant is in exclusion, deportation or removal proceedings

that have not been administratively closed, refer the case to the appropriate Immigration Court. EOIR has authority to grant adjustment of status under NACARA in any case where the alien is in proceedings. USCIS has jurisdiction for NACARA adjustment over both aliens who have not been placed in proceedings and aliens under final orders of exclusion, deportation, or removal. USCIS also has jurisdiction over any cases involving aliens whose proceedings have been administratively closed.

• Carefully review supporting documents and statements made on the application for completeness and for any

indication the applicant does not meet the requirements of NACARA regarding physical presence, nationality and admissibility. Any discrepancy between the applicant's statements and the evidence contained in the file may be resolved during the personal interview at a local office. Remember that there are two aspects to the physical presence requirement. The first aspect deals with the commencement of physical presence, which can only be established through one of the specified forms of government-issued documentation listed above in paragraph (c)

(1). The other aspect has to do with the continuity of physical presence, which can be established through a wider

range of supporting documentation. If there is any doubt about either aspect, such doubt must be resolved during the personal interview. Remember also that in cases where the commencement of presence is supported only by a Social Security or other non-USCIS document, an interview is mandatory.

• If the applicant is 14 years of age or older, ensure that background checks have been completed. If there is a

positive response to any background check which indicates possible inadmissibility, refer the case for an interview at the local office. Review local police clearances to ensure the requisite clearance has been submitted for each jurisdiction in the U.S. where the alien has resided for at least six months.

• Ensure fingerprint checks have been properly completed. If the applicant fails to comply with the instructions

for obtaining fingerprints, the application for adjustment of status must be denied for failure to prosecute.

• Review Form I-693 medical examination. The examination form must be signed by a designated physician. If

there is any medical condition which would result in a finding of inadmissibility, determine if a waiver is available.

• Determine if there is any regulatory or statutory bar which prohibits favorable consideration of the application

or if a waiver is required. It is important to note that NACARA adjustment cases are not subject to the limitations and requirements of section 245 of the Immigration and Nationality Act.

• Although unlikely, if a NACARA applicant indicates he or she previously or currently held A or G nonimmigrant

status, Form I-566 is required. If the State Department's response to the I-566 indicates that the applicant has diplomatic immunity, Form I-508 will also be required.

• Determine if the continuous physical presence requirement has been met. NACARA permits an alien to have

been outside the United States for up to 180 days in the aggregate since December 1, 1995. Any day on which

the alien was present for at least part of the day should not be counted towards the 180 day cumulative total. If an absence commenced prior to that date, count only the time beginning on that date. For example, if an alien first arrived in the United States on July 1, 1995, left on November 1, 1995, and returned on December 31, 1995, only the thirty days from December 1 through December 30 would count towards the 180 day cumulative amount.

(2) Special processing actions relating to TSC adjudication.

The following types of cases must be referred to a local office for interview:

• Any case where the adjudicator is not in possession of all A-files pertaining to the applicant.

• Any case where the evidence presented does not fully support the claimed eligibility or where there is

any discrepancy between documentation provided and the information contained in the USCIS file or other government record pertaining to the applicant.

• Any case involving an inadmissible alien (other than those inadmissible under grounds which NACARA

specifically exempts).

• Any case involving a waiver of inadmissibility.

• Any case involving a medical condition which would result in a finding of inadmissibility.

• Any case where the commencement of presence is supported only by a Social Security, or other non-USCIS,

document.

• Any case in which there is any question as to the nationality of the applicant (e.g., where the applicant claims

to have derived or acquired Cuban or Nicaraguan nationality, or where there is a question as to whether he or she may have lost such nationality).

• Any case in where there are doubts about the familial relationship between the principal applicant and one or

more of the dependents.

In any case being referred, the service center adjudicator must provide in the file for the interviewing officer a memorandum or informal notes explaining the discrepancies noted or other reasons for conducting the interview.

If there are no issues to be resolved by interview, approve or deny the case, and follow TSC guidelines for quality assurance and supervisory review.

(3) Special processing actions relating to local office interview and adjudication.

• Remember that while NACARA does not give USCIS discretionary authority over the application for adjustment,

USCIS does retain its discretionary authority when adjudicating any application for a waiver of inadmissibility. During the course of the interview in a case involving such waiver, the adjudicator should elicit all information, both favorable and unfavorable, which has a bearing on the exercise of administrative discretion regarding the waiver.

• If the applicant fails to appear for a required interview (and USCIS received no request for rescheduling), the

application for adjustment of status must be denied for failure to prosecute.

• If the case does not involve an application for a waiver, the scope of the interview should be limited to just the

factors pertaining to eligibility for adjustment under NACARA:

– Nationality

– Admissibility

– Proof of commencement of physical presence (including authenticity of documentation)

– Proof of continuity of physical presence (including authenticity of documentation)

– Relationship of dependents

• If office policy permits, field examiner procedures may be used when appropriate

(4) Adjudicator's Notes.

(A) Determining Case Status and Jurisdiction.

Because aliens affected by Pub. L. 105-100 were in a variety of lawful and unlawful immigration statuses at the time of passage, you may encounter applications which fall within the jurisdiction of the Immigration Court or the Board of Immigration Appeals. Some applicants will not be in any sort of removal proceedings, others may be in proceedings, still others may have received a final order of removal which has not been executed. Before adjudication, determine the current status and jurisdiction. Jurisdiction rests with the Immigration Court (o r BIA) in any case where an OSC or NTA has been served on the Court and no final order (or order administratively closing the case) has been issued, or if a motion to reopen filed on or before May 21, 1998, is pending with the Court or BIA. If a final order has been issued, or the proceedings have been administratively closed or if any pending motion to reopen was filed was filed after May 21, 1998, jurisdiction rests with USCIS. Transfer out any application where the jurisdiction does not lie with USCIS and notify the applicant of the action. Some applicants may have an asylum application pending at an asylum office or have some other action pending before the USCIS. Once you determine the disposition of the NACARA application, actions may be required to conclude other adjudicative procedures. In the event the NACARA application is denied, follow-up action may be required to reinitiate other pending matters.

(B) Determining Eligibility: Nationality and Relationship.

Every NACARA applicant and dependent must be a national of Nicaragua or Cuba. Dependents of other nationalities do not qualify. Ordinarily, nationality is established by a birth certificate. Other documentation, such as a passport, is secondary evidence and may be accepted if primary evidence is unavailable. Evidence of dependent relationships must be established by birth or marriage certificates, divorce or adoption decrees, etc. (See AFM Appendix 23-2 regarding Nicaraguan nationality law).

(C) Determining Eligibility: Entry and Continuous Physical Presence.

Each NACARA principal alien and unmarried son or daughter must demonstrate presence in the United States on or before December 1, 1995, continuing until the date of filing for NACARA benefits. Absences, with or without prior USCIS approval, totaling 180 days or less have no effect on eligibility. In addition, there are four situations

in which absences from the United States do not count toward the maximum of 180 days an alien is allowed to be outside the United States after December 1, 1995:

• Travel pursuant to an advance parole authorization granted during the pendency of the application, regardless of

whether such travel exceeds 180 days, has no effect on eligibility;

• Travel pursuant to an advance parole issued on or after December 24, 1997, and prior to June 22, 1998, has no

effect on eligibility;

• For an applicant who departed from the United States without an advance parole prior to December 31, 1997,

time spent outside the United States during the period beginning November 19, 1997 (the date of enactment) and ending on July 20, 1998, does not count toward the 180 day cumulative total; and

• Time spent outside the United States after the alien has submitted a request for parole into the United States for

the purpose of filing an adjustment application under NACARA and before the alien is actually paroled for such purpose, does not count toward the 180 day cumulative total.

Physical presence for NACARA purposes may be established in any of several specific ways identified in paragraph (c)(1) as well as in the statute itself. NACARA applicants must produce documentation which is verifiable, either through USCIS records or the records of other government agencies. Affidavits and other secondary evidence may be accepted in unusual circumstances, if primary evidence is unavailable, only if such secondary evidence documents one or more of the specific actions enumerated in paragraph (c)(1) and which is conclusively verified by USCIS records. For example, an affidavit may be accepted which attests to the fact that an applicant was previously granted a USCIS employment authorization provided that USCIS or INS records corroborate the issuance of that document. Documentation of continuous presence may be accepted from a wider range of sources than documentation of commencement of presence. An interview is required in any case involving an applicant who has no prior USCIS record.

If file review indicates possible unexplained absence from the U.S. (e.g., a subsequent apprehension along the border, an application which was formally abandoned or other similar situation) the case should be referred to the appropriate local office for questioning and resolution.

Note

That departure from the United States after the filing of the application for adjustment constitutes an abandonment of the application for adjustment of status, unless the applicant applied for an advance parole prior to his or her departure. Furthermore, the time spent outside the United States during such absence counts toward the 180 day maximum allowed under the statute; this is likely to be significant if the alien either returns to the United States and file a new application for adjustment or files an I-131 seeking parole into the U.S. for the purpose of filing a new I-485.

(D) Determining Eligibility: Inadmissibility.

The grounds of inadmissibility specified in paragraph (2)(C), above, are inapplicable. Other grounds may be waived, on a case-by-case basis, provided eligibility exists pursuant to other provisions of the Act. Waiver applications, with fee, may be filed and processed concurrently with a NACARA adjustment application. All waiver cases must be referred for a personal interview to the local office having jurisdiction over the applicant's residence.

(E) Dependent Eligibility.

No dependent application may be approved until the application for the principal applicant is approved. Dependents outside the United States may not submit an application for parole until the principal's application is approved. Dependents already present in the United States should be encouraged to submit their applications simultaneously with the principal applicant. It is important to note that if the dependent relationship is created after the principal's status is adjusted (e.g., through a marriage, birth or adoption which occurred subsequent to the adjustment), NACARA dependent status is not permitted. In such situations, the principal would be required to submit an I-130 petition for his or her dependent, if the dependent is not able to qualify as a principal NACARA applicant in his or her own right.

(e) Case Closing Actions.

(1) Approval.

Endorse the approval block on the I-485. If the case was approved at the service center without interview, so note the application. Sign Form I-181 and endorse it with the correct adjustment code, office information and date of action.

Approval codes are as follows:

• NC6 for NACARA principals;

• NC7 for NACARA spouses;

• NC8 for NACARA children under 21; and

• NC9 for NACARA unmarried sons and daughters 21 years of age and older.

Upon approval at the TSC, update CLAIMS, ordering the approval notices and production of the alien registration card, Form I-551 and entering new data into the Central Index. If there is no other USCIS action pending, route the file to the file room for storage.

Upon approval at a local office, advise the applicant of the decision (in person if the application is approved during the interview, by mail if it is approved afterwards); process the applicant for an I-551; endorse the passport with the “Processed for I-551 stamp” or issue a temporary I-551; and refer the case to the appropriate parties for USCIS and CLAIMS updates. If there is no other USCIS action pending, route the file to the file room for storage.

If there is any other action pending, such as an asylum application or visa petition, notify the affected office of the decision and take whatever other is appropriate.

(2) Denial.

If a NACARA adjustment application is denied, prepare a denial notice setting forth the specific basis for the adverse action. The denial notice may be served by personal service in accordance with 8 CFR 103.5a(a)(2). As with section 245 adjustment cases, NACARA decisions are not appealable. The Immigration Court has jurisdiction to reconsider NACARA eligibility during the course of a removal hearing.

If the alien is:

• Already subject to a final order of removal: Certify the case for review by the immigration judge, as described

in paragraph (4), below.

• Not already in removal proceedings, but the application is denied and the alien is not maintaining status: Institute

removal proceedings.

• In removal proceedings which were administratively closed: Notify district counsel so that the removal

proceedings may be recalendared.

(3) Supervisory Review.

NACARA decisions are subject to the same review and quality assurance procedures as other adjustment of status cases. Follow local procedures for such review.

(4) Appeals and Certifications.

If a NACARA adjustment cases is filed with, and denied by, USCIS after the alien has been ordered removed by an immigration judge in proceedings in Immigration Court, certify the adverse decision for review to the Immigration Court which ordered the removal, in accordance with 8 CFR 245.13(m)(3). It is not necessary to certify denied cases where the alien has not been ordered removed, since the immigration judge has authority to reconsider NACARA eligibility, along with other forms of relief, during the course of the removal proceedings. In the unlikely event that a NACARA application is denied and the alien is maintaining valid nonimmigrant status, certify the decision to the Administrative Appeals Office in accordance with 8 CFR 103.4(a)(4).

(5) Feedback to TSC. [(b)(2) or (b)(7)(E)]

(f) Ancillary applications.

(1) Waivers.

Various immigrant waivers are available to NACARA applicants on a case-by-case basis. Waivers may be filed concurrently with the application for adjustment or may be filed later, if an inadmissibility ground is identified subsequent to initial filing. Adjudication of a waiver should be completed in the local office, at the time of interview.

(2) Advance parole: alien present in U.S. at time of request. (Chapter 23.12(f)(2)) (Revised 06/06/2005)

The Texas Service Center Director is delegated authority to authorize advance parole of aliens whose properly filed application for adjustment under NACARA is pending at the Texas Service Center, except those cases in which a final order has been issued. In any case where the alien is determined to be in removal proceedings, do not adjudicate the parole request, transfer the NACARA application to the appropriate Immigration Court and the parole request to the local office. If the alien is not in proceedings, adjudicate the parole request, granting parole for the amount of time required for any legitimate business or personal reason. If the alien is the subject of a final order, the local office should contact the Office of International Affairs, Parole and Humanitarian Assistance Branch in Immigration and Customs Enforcement (ICE) Headquarters regarding any parole request.

Parole and Humanitarian Assistance Branch (PHAB) has the authority to provide an advance parole to someone who is in court proceedings as well as one who has received a final order for court proceedings.

(3) Advance parole: alien outside the U.S. at time of request.

Advance parole requests by aliens eligible for NACARA adjustment may be filed by prospective applicants who are not physically present in the United States, provided they are otherwise qualified for NACARA adjustment as a principal applicant. If otherwise eligible, principal aliens who have not been out of the U.S. for more than 180 days in the aggregate since December 1, 1995, and who departed the United States for a brief period on or before December 31, 1997, may submit an application for advance parole together with a photocopy of a fully documented NACARA adjustment application (except for the fee, fingerprints, medical examination and police clearances) to the Texas Service Center (TSC). A NACARA dependent not physically present in the United States may not be granted advance parole unless he or she otherwise meets all NACARA requirements and the application for the principal applicant has been found to meet all requirements, except that results of records checks from other government agencies pertain ing to the principal applicant need not be received before the granting of parole.

An advance parole issued in such circumstances must be noted: “You must properly file an application for adjustment of status within 60 days of your parole into the United States, or March 31, 2000, whichever comes first. Failure to do so may result in termination of parole and institution of removal proceedings.”

If the I-131 is approved, the TSC should advise the Officer in Charge of the DHS office in either Tegucigapla, Honduras or Havana, Cuba, as appropriate of the approval. The Officer in Charge in that location will prepare the advance parole document and make arrangements for its issuance. If the alien does not reside within the jurisdiction of the Officer in Charge in either Tegucigalpa or Havana, the TSC shall prepare the advance parole document and deliver it to the alien through the American Embassy or American Consulate having jurisdiction over the alien's location, using normal procedures for transmission of documents to consular posts (e.g., DHL or similar courier service). Include a copy of the alien's application for parole (including the supporting documents) and an explanation that the parole authorization has been issued pursuant to 8 CFR 245.13(k)(2), and request that the consular personnel verify the alien's identity and review the case for possible fraud before issuing the document. In setting the expiration date for the 32, the TSC should allow a reasonable amount of time for (a) the I-512 to reach the consulate, (b) the consulate to call in and interview the alien, and (c) the alien to make arrangements to travel to the United States. The I-512 should authorize a single-entry parole. (Revised AD 99-09)

(4) Employment authorization.

A NACARA applicant may request an EAD at the time of filing his or her NACARA application. If the I-765 and the I-485 are filed concurrently AND the adjustment application is supported by one of the issued or received documents listed in paragraph 23.12(c) above, the EAD should be issued by the TSC as soon as the preliminary screener determines such (unless the applicant is clearly ineligible for adjustment under NACARA). However, if the application is supported by evidence of commencement of physical presence consisting of either a Social Security document or an “other agency” document, no action may be taken on such EAD request for approximately 150 days. By statute, an EAD application must be approved if a NACARA a djustment application has been pending for 180 days or longer. The office having jurisdiction over the case at that point must ensure that an EAD is issued by the 180th day.

Previously authorized employment by a NACARA applicant based on some other employment eligibility (e.g., employment authorization issued as the result of a pending asylum application) does not terminate because of the filing of a NACARA adjustment application.

If the I-765 and I-485 are not filed concurrently, USCIS is not bound by the statutory requirement that an EAD be issued if the application is pending for 180 days. In that case, USCIS would have to adjudicate the I-765 within 90 days of its filing, or with 180 days of the filing of the I-485, whichever comes later.

(g) Consideration of certain suspension of deportation / cancellation of removal conditional grant cases

for NACARA adjustment.

(1) Background.

On September 30, 1998, the Department of Justice published regulations (at 8 CFR 240.21 ) implementing the provisions of sections 304(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and section 204(a) of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) dealing with the annual numerical limitation on grants of suspension of deportation / cancellation of removal. The effect of these two sections of law is to place a 4,000-person cap on the number of aliens who may receive suspension of deportation (as the provision was known prior to April 1, 1997) or cancellation of removal (as it has been known since that time) in any one year. However, the provisions do exempt certain person s from the numerical cap (Guatemalans, Salvadorans and Eastern Europeans who qualify for section 203 of NACARA, along with certain persons who applied for suspension of deportation under section 244(a)(3) of the I&N Act prior to April 1, 1997), and also provide for a one-time only addition of 4,000 numbers for fiscal year 1998.

In implementing this legislation, the Department of Justice determined that certain persons who received conditional grants of suspension of removal or cancellation of removal between October 3, 1997, and September 30, 1998, should also explore the possibility of being granted permanent residence through adjustment of status under section 202 of NACARA. If granted adjustment under NACARA, the alien would not use one of the limited number of suspension / cancellation slots available. An additional benefit of receiving permanent residence through NACARA adjustment of status instead of suspension of deportation / cancellation of removal is that the alien's spouse and child(ren) may be eligible to apply for adjustment as NACARA dependents, which is very significant if the spouse and child(ren) are unable to qualify for LPR status in their own rig ht.

(2) Persons eligible for consideration.

A total of 1,019 Nicaraguan and Cuban nationals were conditionally granted suspension of deportation or cancellation of removal during the October 3, 1997, to September 30, 1998 time period. All of them are known to the Department of Justice and are listed in a report which was provided to INS by the Executive Office for Immigration Review (EOIR) on October 7, 1998. That report was subsequently provided to all affected offices. IF AN ALIEN IS NOT LISTED ON THAT REPORT, HE OR SHE MAY NOT BE CONSIDERED FO R ADJUSTMENT OF STATUS UNDER THIS PROCESS..

(3) Required action by INS offices upon receipt of the EOIR report.

Upon receipt of the October 7 report, local INS offices must immediately obtain all files pertaining to listed aliens. The file should be reviewed to determine whether the FBI record checks are current (i.e., were checked not later than October 1, 1997, so that they will not be more than 15 months old by December 31, 1998). If the record checks were last conducted prior to October 1, 1997, and the file contains the requisite information for conducting an electronic update of the record check, the checks should be so updated.

A copy of the October 7 EOIR report was also provided to the Texas Service Center (TSC) so that the TSC could check for any record of a previously filed application for adjustment of status under NACARA. If such an application had been filed, the TSC is to immediately contact the local office to advise them of the application,

and forward the previously-filed application to the ADD for Examinations (or other person as designated by the local office). If the TSC does not locate any record of a previously-filed NACARA application, no action by TSC is necessary.

The local office must determine how best to schedule and conduct interviews of the aliens in connection with this process. ALL CASES MUST BE SCHEDULED FOR INTERVIEW NOT LATER THAN NOVEMBER 30, 1998. Accordingly, interview notices must be mailed out no later than November 13, 1998. Each district office must report to ROOPS on or before November 16, 1998, regarding the completion of the interview scheduling process. ROOPS will submit a consolidated report to HQOPS not later than close of business November 17, 1998.

For most offices, the number of persons to be interviewed is so small as to enable the local office to merely add them into the regular interview schedule. In one or two offices, however, it may be necessary to arrange for interviews to be conducted on Saturdays or on a day normally reserved for non-interview work.

Once the interview schedule has been determined, the local office should send call-in notices to the affected aliens and to those aliens' attorneys or recognized representatives. Because the interview process may be abbreviated (in most cases), the local office may wish to schedule more cases per officer per hour than with regular adjustment cases. Form I-895 is used as a call-in notice; it also serves as an attestation form and (once it has been endorsed by a USCIS officer) as a Memorandum of Creation of Record. A photocopy of the call-in notice should be placed in the alien's file.

(4) Interview procedures.

It is important to remember when interviewing the applicant that the decision you will make is not whether to grant or deny permanent residence, but rather whether permanent residence should be granted under the provisions of section 202 of NACARA instead of through the removal of the conditions on the IJ/BIA conditional grant of suspension/cancellation. One way or the other, at the end of the interview the alien becomes a lawful permanent resident.

After establishing the alien's identity, placing him/her under oath, and verifying the information in Part II of Form I-895, the first issue to examine is whether he/she wants to seek LPR status through NACARA instead of suspension / cancellation (item 1 in Part III of the Form I-895). If the alien opts for suspension / cancellation (i.e., checks “yes”) you may ignore the rest of the questions, execute the jurat in Part IV of the form, and complete the case as a suspension / cancellation grant pursuant to 8 CFR 240.21 through the removal of the condition on the EOIR (IJ or BIA) order (see section (g)(7) below).

If the alien prefers to seek adjustment under NACARA (by checking “no” in item 1), go through the rest of the questions in Part III of the Form I-895. If any of the responses on the attestation form indicate a problem which cannot be overcome through a waiver which can be approved on the spot (see section (g)(5) below), advise the alien that the conditional grant of suspension / cancellation is being converted to a full grant by operation of regulation, execute the jurat in Part IV and complete the case as a suspension / cancellation grant pursuant to the automatic conversion of the EOIR order (see section (g)(7) below).

If after going through all 29 items in Part III of Form I-895 you determine that the alien is eligible for adjustment under section 202 of NACARA (including being eligible as a result of your having approved an I-212, I-601 or I-612 application), execute the jurat in Part IV of the Form I-895 and approve the case as a NACARA adjustment grant (see section (g)(7) below).

(5) Waiver applications and applications for permission to reapply for admission after deportation or

removal.

If the alien is ineligible for NACARA adjustment of status solely for a reason which can be remedied through approval of an I-212, I-601 or I-612 application, and the alien has all the documentation with him/her to prove that he/she meets all the normal eligibility requirements for such consideration, he/she may submit the application, without fee, during the course of the interview. While the alien is not exempt from meeting discretionary standards, the fact that he/she will be obtaining permanent residence one way or the other is a strong discretionary factor in his/her favor.

If you decide to approve the I-212, I-601 or I-612 application, advise the alien verbally that you are doing so and endorse the waiver application as you would in any other case. There is no need to give the alien written notice of the approval of the waiver application. Once you have granted the waiver, execute the jurat in Part IV of Form I-895 and approve the case as a NACARA adjustment grant (see section (g)(7) below).

If you decide that the waiver application should NOT be granted, advise the alien verbally that he/she will receive a written decision regarding the waiver application at a later date and that by regulation the EOIR conditional grant of suspension/cancellation is being automatically converted to a full grant. Endorse the I-212, I-601 or I-612 “Waiver eligibility not established, LPR status granted pursuant to conversion of EOIR conditional suspension / cancellation order to full grant”. Execute the jurat in Part IV of Form I-895 and complete the case as a suspension / cancellation grant (see section (g)(7) below).

After the interview has been completed, prepare a formal denial of the waiver application citing the reasons for denial (statutory and/or discretionary) and noting that since the alien has been granted LPR status through suspension of deportation / cancellation of removal, the issue of waiver eligibility is moot. (Note that certain waiver applications require consultation with or concurrence from another agency, which cannot be performed “on the spot,” making such waiver applications inappropriate for this process.)

(6) Failure to appear for the interview.

If the alien does not appear for his/her scheduled interview, annotate the file to that effect and place a call-up on the case for December 31, 1998. There is no need to schedule the alien for a second interview. However, if the alien appears before December 31, 1998, and time allows, conduct the interview as set forth in section (g)(4) above.

If the alien does not appear before December 31, 1998 (or appears but is unable to be interviewed), retrieve the case and annotate the Form I-895 in the file to indicate that alien did not appear for his scheduled interview and that he has not been processed for an I-551. Send a photocopy of the annotated I-895 to HQ, Office of General Counsel (Attn: Ian Hinds) who will notify EOIR that the alien failed to appear for his or her interview so that EOIR may issue an new order making the conditional grant final (a copy of which will be served on the District Counsel's Office). Then route the file to the District Counsel for inclusion of the new EOIR order in the file. After the Office of the District Counsel ensures that a copy of the new IJ/BIA order is placed in the file, the file should be routed to DD&P (so tha t their docket may be cleared) and thence to the file room. If and when the alien is subsequently located, the Adjudications Branch should process him/her for issuance of the I-551.

(7) Closing action.

Except as otherwise provided in section (g)(6) , once the alien has been granted permanent residence under either NACARA adjustment or suspension of deportation/cancellation of removal, you should:

• Check the appropriate box in Part I of the Form I-895.

• Enter your signature, your title, the date, and your location in the appropriate spaces in Part I of the form.

• Place your approval stamp in the approval stamp block in Part I of the form.

• Make a photocopy of the endorsed Form I-895 for transmittal to USCIS Headquarters (Attn: Ian Hinds, Office

of General Counsel). The photocopies may be batched together and must be sent to HQ on a not-less-than-weekly basis.

• Process the alien for issuance of an I-551.

• IF ADJUSTMENT HAS BEEN GRANTED UNDER NACARA, route the file to the Detention and Deportation

Branch with a request instructing them to:

– Expeditiously clear their docket, and

– Route the file to the Texas Service Center for CLAIMS/USCIS update and issuance of the Form I-551.

• IF PERMANENT RESIDENCE HAS BEEN GRANTED THROUGH REMOVAL OF THE CONDITION ON

THE EOIR ORDER OF CONDITIONAL GRANT OF SUSPENSION / CANCELLATION, route the file to the Office of the District Counsel with a request instructing them to:

– Review the case for consideration of filing of a motion to reopen pursuant to 8 CFR 240.21(b)(4) (note the special instructions in (g)(8) )

– IF A MOTION TO REOPEN IS NOT FILED, OR IS FILED AND THEN DISMISSED, route the file to the Detention and Deportation Branch with a request instructing them to:

– Expeditiously clear their docket, and

– Route the file to the Texas Service Center for CLAIMS/USCIS update and issuance of the Form I-551.

(8) Special instructions regarding negative information relating to eligibility for suspension / cancellation.

During the course of your interview, you may uncover information that the alien is statutorily ineligible for suspension of deportation / cancellation of removal for reasons which occurred after the immigration judge or BIA issued the conditional grant (e.g., the alien committed a crime after the IJ's order). If so, you should:

• Process the case for automatic conversion of the conditional grant of suspension/ cancellation to a full grant by

completing Part I of Form I-895 (as set forth in (g)(7) ).

• Prepare Form I-89 and place it in the alien's file.

• To the extent possible, make a complete a record of the facts of the matter (a sworn statement from the alien,

copies of any relevant documents presented by the alien, etc.)

• IMMEDIATELY route the file to the local District Counsel for consideration of a motion to reopen the IJ's order

pursuant to 8 CFR 240.21(b)(4) (such motion to reopen must be filed within 90 days of the date of the conversion of the conditional grant to a full grant).

Note

Under 8 CFR 240.21(b)(4) a motion to reopen may only be filed for reasons of statutory ineligibility. It may not be filed for reasons which might have warranted a discretionary denial.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

The legalization program came into existence with the passage of the Immigration Reform and Control Act of 1986 (IRCA). IRCA added two new sections to the Immigration and Nationality Act (sections 210 and 245A) dealing with legalization. Subsequent legislation (e.g., the Immigration Act of 1990, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and the Legal Immigration Family Equity Act) have amended the benefits available under the legalization program, which has also been the subje ct of numerous lawsuits against INS.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

The Legalization provisions are contained in section 245A of the Act. This section of law provides a means for certain aliens who had maintained an unlawful residence in the United States since prior to January 1, 1982, and who were physically present in the U.S. from November 6, 1986 until the date of filing of the application, to become temporary residents. Then upon application and fulfillment of continuous residence and other conditions, they could file for permanent residence.

(b) Injunctions Against INS and Their Effect.

Two injunctions have, in effect, extended the filing time for certain aliens. They were the LULAC vs INS and the CSS vs Meese (later renamed CSS vs Thornburg when consolidated at the appellate level) lawsuits. INS is required to accept applications from those seeking class membership under the criteria specified in these injunctions.

• LULAC vs INS : Persons who were illegally in the U.S. before January 1, 1982, but departed and reentered with a

fraudulently obtained visa. A waiver under section 212(a)(6)(C) of the Act must be obtained by concurrent filing of the Form I-690, Application for Waiver of Grounds of Excludability.

• CSS vs Thornburg : Persons who were illegally in the U.S. prior to January 1, 1982, but who made a brief, casual

and innocent trip outside the U.S. between May 1, 1987 and May 4, 1988.

The applicant must show that he/she had been misled or discouraged from filing an application before May 5, 1988. Subsequent court decisions have maintained that a simple statement from the alien is sufficient to prove that the alien departed and returned and was “front-desked” by INS.

Some applications filed under these two injunctions are supported by fraudulent affidavits and class membership could be denied on the basis that the affidavits cannot be verified. Some document vendors furnish complete cases for the aiens to file in order to gain employment authorization

(c) Applications for Temporary Residence.

(1) Filing of the Application.

The proper application to file requesting classification as a temporary resident was the Form I-687. The complete application contained Form I-687, photographs, Form I-693 (Medical Examination), Form FD-258 (Fingerprint Cards (2)), proof of identity, and evidence of eligibility. The forms could be filed with a Qualified Designated Entity (QDE) (an organization approved by the Attorney General to accept and process legalization applications). Authority for QDEs to accept applications expired at the end of the prescribed application filing period). A 90 million series A-file was created for each applicant.

(2) Filing Period.

The filing period for Legalization applications was from May 5, 1987 through May 4, 1988. One group of aliens, those classified as “Extended Voluntary Departure”, could apply for temporary residence until December 22, 1989.

(3) Initial Review of the Application.

The Form I-687 is an application for temporary residence for a legalization applicant. The evidence supplied with the application is first reviewed by an officer in the District Office. The alien must prove by a preponderance of the evidence that he or she is eligible for temporary residence. The evidence must be verifiable. Proof of identity must be furnished. And if assumed names have been used by the alien, then proof of common identity must be furnished. Proof of the qualifying illegal residence periods must be furnished.

(4) Initial Decision.

An Immigration Adjudicator within the District Office will make a preliminary decision to grant or to deny the application. Form I-696 will be completed, to document the officer's recommendation, and placed in the A-file. If the initial decision is to grant the application, then the Employment Authorization Document, Form I-688A, is issued to the alien. At this time the Temporary Resident Alien Card, Form I-688, is created and placed in a filing cabinet in terminal digit order. If the initial decision is to deny the application on statutory grounds that do not allow for a waiver, no employment is authorized. The file is then transferred to the Service Center having jurisdiction over the area where the alien resides.

(5) Final Decision.

When the application for temporary residence is granted, a letter is sent from the Service Center requesting that the alien report to a local office to receive the Form I-688, Temporary Resident Alien Card. The I-688 indicates that temporary residence is granted under section 245A of the Act.

(6) Effective Date.

The date of adjustment to temporary resident status is the date of fee receipt.

(d) Termination of Temporary Residence.

Temporary residence may be terminated for cause. Circumstances must exist that would make the alien ineligible for permanent residence (e.g., a felony conviction). The alien is sent a Notice of Intent to Terminate Temporary Resident Status, stating the reasons that would make the alien ineligible for permanent residence or temporary residence if that status was granted in error. The alien is granted 30 days to respond or rebut the allegations. If

no satisfactory response is received, the temporary resident status is terminated by an order issued by a service center director.

(e) Application for Permanent Residence.

(1) General.

The temporary resident under section 245A of the Act could file an application for permanent residence at any time after attaining temporary residence. However, the application would not be processed until the beginning of the nineteenth month after the alien received temporary residence (date the fee for the Form I-687 was receipted by INS). The application package should contain Form I-698, Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603), Form I-693, medical examination form, and one color photograph. IMMACT 90 extended the time period for filing for permanent residence to a maximum of 42 months from the date the alien received temporary residence.

(2) Filing.

The application is filed with the Service Center having jurisdiction over the place of residence of the alien.

(3) Eligibility Requirements.

(A) Residence.

The applicant for permanent residence must show continuous residence from the time temporary residence was granted. The alien could be absent from the U.S. for an aggregate period of 90 days, but no more than 30 days in a single absence, unless he or she could show circumstances beyond their control or of an emergent nature.

(B) Knowledge of U.S. History and Government.

Requirements of section 312 of the Act must be met by taking a standard USCIS test or by certificate of satisfactory completion in a study program approved by the Attorney General, or the alien must be pursuing a course of study approved by the Attorney General. Once the section 312 conditions are met, the alien is not required to take another examination for history and government for naturalization. The section 312 requirements may be waived for an applicant over the age of 65.

(4) Interview.

If the application for permanent residence is complete and approved by the Service Center, then the applicant is sent an interview notice from the Service Center scheduling the alien for an interview at a district office. The interview consists of verifying identity, the completion of section 312 requirements, and the processing of the Form I-89 for the resident alien card.

(5) Admissibility.

The exclusion grounds not applicable to legalization applicants were paragraphs (5) (requirement for labor certification) and (7)(A) (immigrant visa requirement) of section 212 of the Act. Applicants who were not admissible to the United States for other grounds could file Form I-690, Application for Waiver of Grounds of Excludability, for all grounds contained in section 212(a) of the Act, except for those offenses defined in

paragraphs (2)(A) and (2)(B) (relating to criminals); paragraph (4) (relating to aliens likely to become public charges); paragraph (2)(C) (relating to drug offenses, except for a single offense of simple possession of marijuana, 30 grams or less); and paragraph (3) (security related grounds, except for subparagraph (3)). A felony conviction or conviction of three or more misdemeanors made the applicant ineligible for temporary residence and permanent residence.

(6) Denials.

A final denial may be issued by the District Director in an admitted fraud case or where the applicant did not meet statutory requirements. The denial is issued on form I-292 stating the reasons for the denial, and informing the applicant of appeal rights. Should the District Director not wish to make the final decision, with a recommendation of denial, the case could be referred to the Service Center Director having jurisdiction over the residence of the applicant. The denials issued by a Service Center Director are issued on form I-692 setting forth the specific reasons for the denial and informing the applicant of appeal rights. When the denial is issued the applicant should be sent three copies of Form I-694, Notice of Appeal of Decision Under Section 210 or 245A of the Immigration and Nationality Act. If the decision of the District Director or the Service Center Director is appealed, the appeal must be filed with the Director who denied the application within 30 days of receipt of the written denial. After receipt of the fee, the appeal is forwarded to the Administrative Appeals Office. Untimely appeals are accepted as motions to reopen and either granted on the basis of additional evidence submitted or forwarded to the Administrative Appeals Office.

(f) Confidentiality.

INS, USCIS, and DHS may not use or disclose information in a legalization application or its accompanying evidence except to adjudicate the application itself, or for certain law enforcement functions and fraud proceedings. If the legalization application is granted, however, and the alien later files an immigrant visa petition or other status petition under section 204 of the Act, INS and USCIS may use information in the legalization file in adjudicating the immigrant visa petition. This also applies to adjudicating a later naturalization application. Consult with district counsel when contemplating any use or disclosure of this information.

(g) Precedent Decisions.

• Matter of O-, 19 I & N Dec. 871 (Comm'r 1989). The Legalization Appeals Unit will sua sponte reopen and

reconsider section 245A of the Act cases where there appears to be manifest injustice in the original decision. A nonimmigrant exchange visitor is eligible for temporary resident status if he/she was not subject to section 212(e) of the Act or obtained a waiver of section 212(e).

• Matter of M-, 19 I & N Dec. 861 (Comm'r 1989). A conviction exists pursuant to section 245A(a)(4)(B) of

the Act where a judge or jury has found the alien guilty or a plea of guilty or nolo contendere, and the judge has ordered some form of punishment, including but not limited to a fine or probation.

• Matter of S-, 19 I & N Dec. 851 (Comm'r 1988). An immigrant alien who entered the U.S. prior to 1/1/82 is

eligible for temporary resident status if he/she can prove that they were residing in the U.S. in unlawful status since such date. An immigrant who entered the U.S. by means of fraud prior to 1/1/82 must file a waiver of grounds of excludability to be eligible for temporary residence.

• Matter of P-, 19 I & N Dec. 823 (Comm'r 1988). The Application for Waiver of Excludability (Form I-690)

should be adjudicated separately form the Application for Status as a Temporary Resident (Form I-687). A

nonimmigrant alien whose unlawful status is known to the U.S. Government prior to 1/1/82 is eligible for temporary resident status under section 245A of the Act, if otherwise qualified.

• Matter of C-, 19 I & N Dec. 808 (Comm'r 1988). An absence from the U. S. in excess of the 30 day limit does

not interrupt continuous residence defined in 8 CFR 245A.1(c)(1)(i) if the absence was unexpected and emergent.

• Matter of N -, 19 I & N Dec. 760 (Comm'r 1988). A student who acquired reinstatement by fraud, by not

revealing unauthorized employment, did not obtain lawful status. Waiver of excludability is required prior to the grant of temporary residence.

• Matter of Medrano, 20 I&N Dec. 21 (BIA 1990). The status of a lawful temporary resident under section 245A

of the Act who commits a deportable offence must be terminated as a condition precedent to the commencement of deportation proceedings, except as provided by the “Medrano regulations” found at 8 CFR 245a.2(a)(2)(ii).

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

On November 29, 1990, The Immigration Act of 1990 (IMMACT), Public Law 101-649, was enacted. Section 301 of IMMACT provides for relief from deportation, and the granting of employment authorization, to an eligible immigrant who is the spouse or unmarried child of a legalized alien holding temporary or permanent residence pursuant to sections 210 or 245A of the Immigration and Nationality Act, or permanent residence under section 202 of the Immigration Reform and Control Act of 1986 (Cuban/Haitian Adjustment). This new program supersedes the administrative Family Fairness Program. The LIFE Act Family Unity program will be discussed in Chapter 24.6 of this field manual.

(b) Purpose.

The purpose of the Family Unity Program is to provide a transition for certain family members of legalized aliens to family-sponsored second preference immigrant status. This is evident not only from section 301 of IMMACT, but also from its interrelationship with section 112 of IMMACT, which created up to an additional 55,000 visa numbers in fiscal years 1992, 1993, and 1994 for spouses and children of eligible legalized aliens under the family- sponsored second preference classification.

(c) Where to File.

An application for benefits under the Family Unity program must be filed at the Service Center having jurisdiction over the alien's place of residence, on Form I-817, Application for Family Unity Benefits. A separate application must be filed by each person claiming eligibility. Denial of an application may not be appealed. The applicant must submit another application to overcome the grounds of denial.

Note:

A separate Form I-765, Application for Employment Authorization, is NOT required. As part of the settlement of a Nationwide class action lawsuit, Hernandez v. Reno , C.A. No. 9:93 CV 63 (E.D. Tex., filed December 30, 1997), INS agreed to provide for a single application for Family Unity benefits and employment authorization.

(d) Basic Requirements for Family Unity . [Chapter 24.4(d)(1) replaced 08-25-2009]

The following requirements apply to all petitions filed for Family Unity under IMMACT 90, Public Law 101-649:

(1) The applicant must have been the spouse or unmarried child of a legalized alien on May 5, 1988, or December

1, 1988 in the case of a legalized alien under the Special Agricultural Worker (SAW) program. See section 210 of the Act.

If on May 5, 1988, or where applicable, December 1, 1988, an applicant had the requisite relationship to the legalized alien, the applicant should not be found ineligible for Family Unity benefits based on the occurrence of any of the following:

(A) the unmarried applicant subsequently marries; or

(B) the relationship between the applicant and the qualifying legalized alien spouse, though in existence on the

above specified date ends after that date, whether voluntarily or involuntarily; or

(C) the qualifying legalized alien parent is now deceased; or

(D) the qualifying legalized alien spouse is now deceased.

The applicant must meet all other eligibility requirements, see 8 CFR 236.12, and be otherwise eligible for the benefit.

(2) The applicant must have entered on or before May 5, 1988 (or December 1, 1988, where appropriate), and

been residing in the United States since that date. If the applicant leaves the United States without advance parole after May 5, 1988 (or December 1, 1988, where appropriate) the I-817 must be denied; and

(3) The legalized alien must have filed for benefits on or before May 5, 1988 under section 245A of the Act or

on or before December 1, 1988 under section 210 of the Act, or is a permanent resident under section 202 of the Immigration Reform and Control Act of 1986. (See also denied cases)

(e) Legalization Application Pending as of May 5, 1988.

An alien whose 245A legalization application was filed on or before May 5, 1988 but not approved until after that date will be treated as having been a legalized alien as of May 5, 1988 for purposes of the Family Unity program. An alien whose 210 SAW application was filed on or before December 1, 1988 but not approved until after that date will be treated as having been a legalized alien as of December 1, 1988 for purposes of the Family Unity program.

(f) Ineligible Aliens.

The following categories of aliens are ineligible for benefits under the Family Unity program:

(1) An alien who is deportable under any paragraph in section 237(a) of the Act, except paragraphs (1)

(A), (1)(B), (1)(C), and (3)(A); provided that an alien who is deportable under paragraph 237(a)(1)(A)

is also ineligible for benefits under the Family Unity program if deportability is based upon a ground of inadmissibility described in section 212(a)(2) or section 212(a)(3) of the Act;

(2) An alien who has been convicted of a felony or three or more misdemeanors in the United States;

(3) An alien described in section 241(b)(3)(B) of the Act; or

(4) An alien who has committed an act of juvenile delinquency which if committed by an adult would be a felony

involving violence.

The regulations governing the family unity program are found at 8 CFR 236.10 through 8 CFR 236.18, Since these regulations are difficult to follow, the following is a list of those exclusion or deportation grounds which render an alien ineligible for Family Unity benefits.

• 237(a)(1)(A) – Inadmissible at entry pursuant to:

• 212(a)(2) – Criminal and related grounds

• 212(a)(3) – Security and related grounds

• 237(a)(1)(D) – Termination of conditional permanent residence

• 237(a)(1)(E) – Smuggling

• 237(a)(1)(G) – Marriage fraud

• 237(a)(2) – Criminal offenses

• 237(a)(3)(B) – Failure to register or falsification of documents

• 237(a)(3)(C) – Document fraud

• 237(a)(3)(D) – Falsely claiming citizenship

• 237(a)(4) – Security and related grounds

• 237(a)(5) – Public charge

• 237(a)(6) – Unlawful voters

• Other ineligible aliens include those convicted of a felony or three or more misdemeanors in the United States;

aliens who have ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group, or political opinion; aliens who have been convicted by a final judgment of a particularly serious crime and is a danger go the community; aliens where there are serious reasons to believe a serio us nonpolitical crime was committed outside of the United States; aliens who are a danger to the security of the United States; and aliens who have committed acts of juvenile delinquency which if committed by an adult would be a felony involving violence.

(g) Approved Cases.

An alien whose application for benefits under the Family Unity program is granted will receive protection from removal for a 2-year period. He or she will be deemed to be in an authorized period of stay. Such authorized period of stay will be deemed to begin as of the date the Form I-817 was filed and continues without interruption until the Form I-817 is approved and through the period the alien retains Family Unity protection.

(h) Employment Authorization.

An alien granted benefits under the Family Unity program is authorized to be employed in the United States and should be provided an Employment Authorization Document valid for the same 2-year period as the protection from removal.

(i) Travel.

An alien granted Family Unity benefits who intends to travel outside the United States and then return must apply for advance authorization using Form I-131, Application for Travel Document. The authority to grant an application for advance authorization for alien granted family unity benefits rests solely with the district director . (See also Chapter 54 of this field manual.)

(j) Denied Cases.

If an application is denied, the case will be referred to the district director with jurisdiction over the alien's place of residence for consideration of whether to issue a Notice to Appear (NTA). The first case denied for an applicant will not be referred for an NTA until 90 days from the date of the denial, to allow the alien the opportunity to file a new I-817 application in order to attempt to overcome the basis of the denial.

(k) Extension of Family Unity benefits . [Chapter 24.4(k) replaced 08-25-2009]

An application for an extension of Family Unity benefits must be filed by the alien on Form I-817. An extension may be granted if the alien's eligibility for benefits under the Family Unity program continues.

In addition, notwithstanding 8 CFR 236.15(e), if an applicant for extension of Family Unity benefits demonstrates that he or she no longer has a petitionable relationship with a legalized alien, his or her application may be approved even though the applicant is the not the beneficiary of an I-130 petition.

However, applicants who still have a petitionable relationship with the legalized alien must still comply with the I-130 requirements of 8 CFR 236.15(e).

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

On December 21, 2000, the Legal Immigration Family Equity (LIFE) Act, Pub. L. 106-553, and the LIFE Act Amendments, Pub. L. 106-554, were passed. Section 1104 of the LIFE Act and its amendments (LIFE Legalization) allow eligible aliens who have been involved in certain long-standing legalization litigation to apply for adjustment of status to become LPRs under a modified version of section 245A of the Act. Implementation of the LIFE Legalization program started on June 1, 2001 with the publication of the interim rules (66 Federal Register 29661). Final rules were published on June 4, 2002 (67 FR 38341).

(b) Purpose.

The purpose of the LIFE Legalization provisions was to remedy 3 long-standing class action lawsuits CSS , LULAC , and Zambrano (Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) ; League of United Latin American Citizens v. INS, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993); and Zambrano v. INS, vacated, 509 U.S. 918 (1993)) brought against INS arising from the 1986 IRCA legalization program. It is estimated that there are approximately 200,000 long-term U.S. residents who are believed to be eligible for the LIFE Legalization program. INS launched a national public outreach campaign in January 2002 to publicize the program, with a concentrated effort in Los Angeles, Chicago, Houston, and New York City.

(c) Eligibility Requirements.

(1) Eligible alien.

Any alien who filed a written claim for class membership in one of the 3 lawsuits with the AG before October 1, 2000, is eligible to apply for adjustment of status to LPR under the LIFE Legalization program during the application period. This also includes a spouse or child as defined at section 101(b)(1) of the Act of the alien who was such as of the date the alien alleges that he or she attempted to file or was discouraged from filing an application for legalization during the original application period.

(2) Unlawful residence.

LIFE Legalization applicants must have entered the U.S. before January 1, 1982, and resided continuously in the U.S. in an unlawful status since that date through May 4, 1988. They must have been continuously physically present in the U.S. during the final 18 months of this period, from November 6, 1986 until May 4, 1988.

(3) Admissibility.

The exclusion grounds that are not applicable to LIFE Legalization applicants are paragraphs (5) (requirement for labor certification) and (7)(A) (immigrant visa requirement) of section 212(a) of the Act. Applicants who were not admissible to the United States for other grounds could file Form I-690, Application for Waiver of Grounds of Excludability, for all grounds contained in section 212(a) of the Act, except for those offenses defined in paragraphs (2)(A) and (2)(B) (relating to criminals); paragraph (4) (relating to aliens likely to become public charges); paragraph (2)(C) (relating to drug offenses, except for a single offense of simple possession of marijuana, 30 grams or less); and paragraph (3) (security related grounds, except for subparagraph (3)). A felony conviction or conviction of three or more misdemeanors renders the applicant ineligible under LIFE Legalization.

(4) Basic Citizenship Skills.

LIFE Legalization applicants must show that they have a minimal understanding of ordinary English and a knowledge or understanding of the history and government of the United States, or that they are satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve an understanding of English and U.S. history and government.

(d) Application.

The filing period for LIFE Legalization applications is from June 1, 2001 through June 4, 2003. Applicants must file a completed Form I-485, Application to Register Permanent Residence or Adjust Status, along with proof of identity, and 2 photographs. A completed Form G-325A, Biographic Information Sheet, is required if the applicant is between the ages of 14 and 79. Furthermore, applicants between the ages of 14 and 79 are required to submit a fingerprinting fee. For all applicants, a Form I-693, Report of Medical Examination, must be completed by a certified civil surgeon. Specific instructions for LIFE Legalization applicants are on Form I-485 Supplement D, LIFE Legalization Supplement to Form I-485 Instructions.

(1) Where to File.

Completed applications, supporting documents and appropriate fees must be postmarked before midnight, June 4, 2003, and sent to INS, P.O. Box 7219, Chicago, IL 60680-7219. This Chicago address was simply a lockbox where applications and fees were receipted in, after which the applications were forwarded to the National Benefits Center for adjudication.

(2) Filing Fees.

The applicant must pay the filing fees for the Form I-485 and fingerprinting in effect at the time of filing (see 8 CFR 103.7 ).

(3) Work Authorization (EAD).

Applicants who applied for class membership before October 1, 2000, in the three legalization lawsuits will be entitled to work authorization. These individuals may obtain authorization to work while their applications are pending by submitting a completed Form I-765, Application for Work Authorization, with the appropriate fee, along with their Form I-485 to the same Chicago P.O. Box address.

(4) Filing from Abroad.

Individuals residing outside the U.S. can apply for LIFE Legalization by following the same instructions. Furthermore, they can also apply for work authorization. However, an employment authorization document is not an immigration document for admission into the U.S.

(5) Travel.

Applicants who wish to travel abroad while their LIFE Legalization is pending are eligible to mail a completed Form I-131, Application for Travel Document, to the same Chicago P.O. Box address. In urgent humanitarian situations, applicants can file a completed Form I-131 with their local USCIS District Office. As with any other parole requests, the decision on whether to grant advance parole is discretionary and determined on a case-by-case analysis. If the request for advance parole is granted, the applicant is permitted to return to the U.S. after traveling abroad in accordance with any terms and conditions placed on the advance parole document. Individual s who are subject to a final order of removal, deportation or exclusion and who depart the U.S. are subject to certain bars to obtaining LIFE Legalization unless they apply for and obtain approval of Form I-212, Application for Permission to Reapply for Admission after Deportation or Removal, prior to their departure from the U.S.

(e) Benefits.

LIFE Legalization provides eligible applicants with work authorization and a stay of removal or deportation proceedings or orders, while their adjustment applications are pending.

(f) Preliminary Processing :

The evidence supplied with the application is first reviewed by an officer at the National Benefits Center (NBC) to establish that the applicant meets the basic qualifying criteria to apply: he or she is an eligible alien, and he or she is not statutorily ineligible due to a felony conviction or convictions of three or more misdemeanors. If the applicant passes the preliminary processing at NBC, the application is forwarded to the District Office with jurisdiction over the applicant's residence for an inter view and adjudication of the remaining eligibility requirements (e.g., continuous residence, physical presence, admissibility, citizenship skills, etc.). If more than one A-file exists for an applicant, files should be consolidated prior to forwarding. If filed by the applicant, EAD and advance parole requests may be processed after such applicant passes the preliminary processing. If the applicant lacks sufficient evidence to pass the preliminary processing, a Notice of Intent to Deny should be issued.

(1) Eligible Alien.

The alien must prove that he or she (or spouse or child of such an alien) filed a written claim for class membership in CSS , LULAC , or Zambrano with the AG before October 1, 2000.

(A) A number of written forms were used for this (e.g., Form I-687, pre-printed forms not produced by INS,

affidavits, etc.). The form is considered to be a claim for class membership if it contains the name of an alien who alleges that he/she was “front-desked” or “merely discouraged” from filing an application during the 1986 IRCA

application period on the basis of allegations presented in the three lawsuits. If the applicant has INS or USCIS records, check in all the records and files for any evidence of written claim for class membership. It is noted that INS recorded only one name per application for class membership so check to see if it may contain names of family members who would be able to qualify as principal applicants under LIFE Legalization.

(B) INS recorded the class action claims in USCIS using the COA codes CS, LU, and ZM, thus it is likely that

the applicant will have such a code in USCIS. Another possible USCIS code is PEN.

(C) An applicant who was the child or spouse of a principal alien between May 5, 1987 and May 4, 1988, and

whose principal alien filed a written application for class membership before October 1, 2000, is deemed to have filed an application for class membership.

(2) Statutorily Ineligible.

A preliminary criminal records check should be performed on the applicant to see whether he/she has a felony conviction or conviction of three or more misdemeanors. If so, this would render the applicant statutorily ineligible to apply for LIFE Legalization.

(g) Interviews.

Scheduling of interviews is determined by the District Office. The District Office should review the file to determine if a Request for Evidence needs to be mailed with the interview notice. Applicants may submit additional evidence prior to or at the time of the interview.

(h) Adjudication Standards.

During the interview and adjudication of a LIFE Legalization application, an eligible alien must establish that he or she:

(1) Properly filed an application for adjustment pursuant to LIFE Legalization;

(2) Filed a written claim for class membership with the Attorney General before October 1, 2000;

(3) Entered the U.S. before January 1, 1982, and thereafter resided in continuous unlawful status since such date

through May 4, 1988;

(4) Was continuously physically present in the U.S. from November 6, 1986 through May 4, 1988;

(5) Is admissible to the U.S.;

(6) Has not been convicted of a felony or three misdemeanors;

(7) Has never assisted in the persecution of any person or persons on account of race, religion, nationality,

membership in a particular social group, or political group; and

(8) Possesses basic citizenship skills or is satisfactorily pursuing a course of study to achieve these basic citizenship

skills.

(i) Entered the U.S. Before January 1, 1982, and Thereafter Resided in Continuous Unlawful Status since

Such Date Through May 4, 1988.

Carefully check the evidence submitted to establish that the applicant entered the U.S. before January 1, 1982 either as a nonimmigrant or without inspection. If during this period, the alien was outside the U.S. under a deportation order, this breaks his/her continuous residence.

(j) Was Continuously Physically Present in the U.S. from November 6, 1986, Through May 4, 1988.

Evidence of physical presence may consist of any documentation issued by any governmental or non- governmental authority, provided it has the applicant's name, dated at time of issuance, has signature, seal, or other authenticating instrument of the authorized representative of the issuing authority.

(k) Departures from the U.S. Between November 6, 1986, and May 4, 1988.

Any departure during this time must have been brief, casual and innocent so as to not interrupt continuous physical presence. Failure of an alien to have advance parole should not be considered.

(l) Criminal Convictions and Inadmissibility.

(1) No Waivers Allowed.

No waivers are permitted and the application may be denied without an interview if the record of proceeding contains court documents evidencing the following conviction(s):

• felony, three or more misdemeanors, persecution of others, crime involving moral turpitude ( section 212(a)(2)

(A)(i)(I) of the Act),

• multiple criminal convictions ( section 212(a)(2)(B) of the Act),

• controlled substances traffickers ( section 212(a)(2)(C) of the Act),

• controlled substances ( section 212(a)(2)(A)(i)(II) of the Act),

• security and related grounds ( section 212(a)(3) of the Act).

(2) Waivers Allowed.

Section 212(a)(9)(A) and section 212(a)(9)(C) of the Act have not been waived for LIFE Legalization applicants but they may apply for a waiver of those grounds on Form I-690, Application for Waiver of Excludability.

(3) Automatically Waived.

LIFE Legalization applicants are not subject to unlawful presence ground of inadmissibility pursuant to section 212(a)(9)(B) of the Act as this section has been waived for these applicants.

(m) Public Charge.

The “Special Rule” should be applied in LIFE Legalization cases which allows INS or USCIS to look retrospectively at an alien's employment history when determining whether he/she is prospectively likely to become a public charge. Accordingly, INS and USCIS will take into account an alien's employment history in the U.S., to include the period prior to the 1986 advent of employer sanctions.

(n) Citizenship Skills.

If the applicant has a high school diploma, GED, or certification from a state-recognized, accredited learning institution, he/she may not have to pass the citizenship test. This requirement may be waived for applicants age 65 or older, or for medical reasons.

(o) Consideration of the LIFE Legalization Application under IRCA.

An applicant who has established that he/she registered for class membership as required but otherwise does not qualify for adjustment under LIFE Legalization, must be given consideration to whether he/she could be granted temporary resident status under IRCA § 201. For instance, under IRCA, an alien need not show residence or presence after the application was filed. In such an adjudication, the “date of filing the application” is deemed to be the date the applicant establishes that he/she was front-desked or discouraged from filing. If the applicant has established eligibility for adjustment to temporary resident status, the LIFE Legalization application shall be deemed converted to an application for temporary residence under the pre-LIFE Act provisions of section 245A of the Act.

(p) Failure to Appear.

If the applicant fails to appear for the first scheduled interview, check to ensure the notice was sent to the last known address of record. 30 days after the first no-show, a second interview notice should be sent, which should inform the applicant that failure to appear will result in the denial of the application.

(q) Approval.

If the application is approved, the applicant should receive temporary evidence of LPR status. The COA for applicants adjusting to LPR status under LIFE Legalization is W46. Upon approval, update CLAIMS and Copies 1 and 3 of Form I-181 to reflect date, place, and COA (Copy 1 stays in A-file, send A-file to NRC)(send Copy 3 to MSC). If biometric data has not been received, MSC will refer the applicant for an appointment at an ASC.

(r) Notice of Intent to Deny (NITD).

When an adverse decision is proposed, USCIS will notify the applicant of its intent to deny and the basis for denial. The applicant has 30 days to respond to the NITD.

(s) Denials (NOD).

The Notice of Denial should state the reasons for the denial and inform the applicant of appeal rights. If inconsistencies are found between information submitted with the LIFE Legalization application and information previously furnished by the alien to INS, the alien must be given the opportunity to explain these discrepancies

or rebut any adverse information. The denial notice should also advise the applicant that if he/she fails to file an appeal from the decision, the notice of denial will serve as a final notice of ineligibility. Unless the alien was previously subject to a final removal order, the denial notice will not order the applicant to depart the U.S. and Form I-291 will not contain language to that effect. Furthermore, no NTA will be issued pursuant to a denied LIFE Legalization application.

(t) Appeals.

The applicant is entitled to file an appeal on Form I-290B, Notice of Appeal to the Administrative Appeals Unit

(AAU), with the required fee. The appeal must be filed with the office that rendered the denial decision. Appeals

must be filed within 30 or 60 days after service of NOD depending on whether the applicant is residing in or outside the U.S. Upon receipt of the appeal, the administrative record should be forwarded to the AAO for review and decision. Place a copy of the record, decision, and appeal into a work (W) file and keep that at the District Office that issued the denial until the AAO completes the case. Except where the LIFE Legalization application is denied for failure to prove class membership application in CSS , LULAC , or Zambrano, or where the applicant failed to present a prima facie application, employment authorization is granted until a final decision has been rendered on appeal or until the end of the appeal period if no appeal is filed. After exhaustion of an appeal, an alien who believes that the grounds for denial have been overcome may submit another LIFE Legalization application with fee as long as the application period is still open.

(u) Motions to Reopen/Reconsider.

Motions to reopen or reconsider filed by the applicant or his/her attorney or representative will not be considered. However, the Director who decided an application may reopen and reconsider an an approval or denial where appropriate.

(v) Aliens in Removal Proceedings.

Jurisdiction over all LIFE Legalization claims rests with INS or USCIS. Any alien currently in proceedings before the immigration judge (IJ) or Board of Immigration Appeals (BIA) who is prima facie eligible for LIFE Legalization may file an application with INS or USCIS. The alien must request or petition the IJ or BIA to administratively close proceedings. The INS or USCIS counsel must consent before the proceedings can be administratively closed. The INS or USCIS counsel will consent where the alien is prima facie eligible and has filed a LIFE Legalization application with INS or USCIS. If the LIFE Legalization is approved, the proceedings previously administratively closed will be automatically terminated. If the LIFE Legalization is denied, the proceedings will be re-calendared. Therefore, if an application is denied and the alien was in removal proceedings, district counsel should be notified when no appeal is filed within the requisite deadline.

(w) Aliens with Final Orders or Removal, Deportation or Exclusion.

If an alien is the subject of a final order, he/she may still file a LIFE Legalization application with INS or USCIS. The filing of the application automatically stays this order until a final decision is made on the application. However, the alien may be removed on certain criminal grounds that make him/her ineligible under LIFE Legalization. Therefore, if an application is denied and the alien was subject to a final order, district counsel should be notified if no appeal is filed within the requisite dead line. It is noted that section 241(a)(5) of the Act (providing for the reinstatement of a removal order against any alien who illegally re-enters the U.S. after having been removed or after having departed voluntarily under an order of removal) does not apply to an alien adjusting under LIFE Legalization.

(x) Confidentiality.

INS and USCIS may not use or disclose information in a legalization application or its accompanying evidence except to adjudicate the application itself, or for certain law enforcement functions and fraud proceedings. If the legalization application is granted, however, and the alien later files an immigrant visa petition or other status petition under section 204 of the Act, INS or USCIS may use information in the legalization file in adjudicating the immigrant visa petition. This also applies to adjudicating a later naturalization application. Consult with district counsel when contemplating any use or disclosure of this information.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Purpose.

The LIFE Act Amendments provide that certain spouses and unmarried children of aliens eligible for LIFE Legalization receive Family Unity benefits.

(b) Jurisdiction and Proper Filing.

Each applicant for the LIFE Family Unity Program must file a separate Form I-817, Application for Family Unity Benefits, at the National Benefits Center. The Form I-817 must be accompanied by four (4) passport-style photos, documents in support of the claim, and the requisite filing fee and fingerprinting fee.

Note:

A separate Form I-765, Application for Employment Authorization, is NOT required.

(c) Eligibility.

(1) The applicant must currently be the spouse or unmarried child of an alien eligible for LIFE Legalization. Unlike

the Family Unity Program established by IMMACT 90 and discussed in Chapter 24.4 of this field manual, an unmarried child does “age- out” of Family Unity benefits upon the attainment of 21 years of age.

(2) The applicant must have entered the United States before December 1, 1988, and have been residing in the

United States on such date.

(3) The applicant must currently be in the United States.

(4) The principal alien must:

• Be an “eligible alien” (as that term is defined at 8 CFR 245a.10);

• Be an “eligible alien” who has applied for LIFE Legalization (if the applicant is applying for Family Unity

benefits on or after June 5, 2003); or

• Have adjusted status to lawful permanent resident pursuant to LIFE Legalization.

Note

The LIFE Act Amendments also provide Family Unity benefits to certain spouses and unmarried children of aliens who adjusted their status to lawful permanent resident pursuant to LIFE Legalization and who are no longer present in the United States. Regulations providing procedures for granting Family Unity benefits to an otherwise eligible alien who is no longer present in the United States are forthcoming.

(d) Ineligibility.

The folowing individuals are not eligible for Family Unity benefits:

(1) A Family Unity applicant who has been convicted of a felony or of three or more misdemeanors in the United

States.

(2) A Family Unity applicant who has ordered, incited, assisted, or otherwise participated in the persecution of

an individual because of the individual's race, religions, nationality, membership in a particular social group, or political opinion.

(3) A Family Unity applicant who has been convicted by a final judgment of a particularly serious crime and who

is a danger to the community of the United States.

(4) A Family Unity applicant who INS or USCIS has serious reasons to believe has committed a serious

nonpolitical crime outside of the United States before the applicant arrived in the United States.

(5) A Family Unity applicant who INS or USCIS has reasonable grounds to believe is a danger to the security

of the United States.

(e) Decisions.

(1) Approvals.

If the service center director approves a Form I-817, the Family Unity beneficiary will receive protection from removal for a 1-year period if the principal alien has not adjusted to lawful permanent resident status or for a 2-year period if the principal alien has adjusted to lawful permanent resident status. He or she will be deemed to be in an authorized period of stay. Such authorized period of stay will be deemed to begin as of the date the Form I-817 was filed and continues without interruption until the Form I-817 is approved and through the period the alien retains Family Unity protection. The Family Unity beneficiary will also receive an Employment Authorization Document valid for the same period as the protection from removal. The Family Unity beneficiary receives protection from removal provided that the grounds of removal are specified in:

• Section 237(a)(1)(B) of the Act (aliens present in the United States in violation of the Act or any other law of

the United States);

• Section 237(a)(1)(C) of the Act (aliens who violated their nonimmigrant status or violated the conditions of

entry);

• Section 237(a)(3)(A) of the Act (aliens who failed to comply with the change of address notification requirements

of the Act); or

• Section 237(a)(1)(A) of the Act (aliens who were inadmissible at the time of entry) unless it relates to a ground

of inadmissibility described in section 212(a)(2) (criminal and related grounds) or section 212(a)(3) (security and related grounds) of the Act.

Note

If the Family Unity beneficiary is the unmarried child of a principal alien, and he or she will turn 21 during the period for which he or she would be granted Family Unity benefits, the evidence of protection from removal and any EAD will be dated to expire the day before the beneficiary's 21 st birthday.

(2) Denials.

If the service center director finds that a Form I-817 cannot be approved, a written notice of denial must be provided to the applicant. There is no appeal from a denied Form I-817. If the applicant believes that the grounds of denial have been overcome, he or she may submit a new Form I-817, with fee, to the service center director. A notice to appear must not be issued until 90 days after the initial denial.

(f) Extension of Family Unity Benefits.

The LIFE Act Amendments also provide for extensions of Family Unity benefits. Regulations providing procedures for granting extensions of Family Unity benefits are forthcoming.

(g) Termination of Family Unity Benefits.

(1) INS or USCIS may terminate benefits under the Family Unity Program if:

• The Family Unity benefits were acquired through fraud or willful misrepresentation of a material fact;

• The Family Unity beneficiary commits an act that makes him or her inadmissible as an immigrant for benefits

under the Family Unity program;

• The principal alien loses his or her legalized status (naturalization of the principal alien does not render the

Family Unity beneficiaries ineligible for Family Unity benefits), fails to apply for LIFE Legalization by June 4, 2003, or has his or her LIFE Legalization application denied; or

• A qualifying relationship to the principal alien no longer exists (i.e., the principal alien and his or her spouse

divorce, or the child of the principal alien turns 21).

(2) The Service Center Director must provide a written notice of intent to terminate to the Family Unity beneficiary

and allow 30 days for response. A final notice of termination must also be provided to the Family Unity beneficiary upon a determination to terminate.

(3) A Family Unity beneficiary who has his or her benefits terminated will begin accruing unlawful presence

immediately from the date of such termination. Further, if Family Unity benefits are terminated and the alien then

departs from the United States, any unlawful presence accrued prior to the grant of Family Unity benefits may make the alien subject to section 212(a)(9)(B) of the Act and ineligible for other immigration benefits.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

The Marriage Fraud Amendments of 1986 (“IMFA”) were enacted in response to a growing concern about aliens seeking permanent residence in the U.S. on the basis of marriage to a citizen or resident when either the alien acting alone, or the alien and his or her reputed spouse acting in concert, married for the sole purpose of obtaining permanent residence. Congress was particularly moved by the testimony of numerous citizens whose alien spouses had left them shortly after obtaining residence, as well as the testimony of Service representatives concerned with “marriage for hire” schemes. Congress also acknowledged the inherent difficulties faced by the Service in determining whether the marriage is fraudulent and whether the alien intended to leave the marital union once lawful permanent residence was granted.

In response to these concerns, Congress passed IMFA, which added section 216 to the Immigration and Nationality Act. Section 216 created a conditional residence requirement for aliens who acquire permanent residence based on recent marriages. The condition being that persons subject to the provisions of IMFA were required to petition the Service two years after obtaining residence for removal of the conditional basis of the residence. Failure to do so, or denial of the removal petition, would result in the alien losing residence status and being removed from the U.S. as a deportable alien. Section 216 also includes a waiver provision because it recognizes that under certain circumstances (e.g., if the marriage had dissolved through no fault of the alien), the alien's loss of residence and deportation from the U.S. would be inappropriate.

The conditional residence provisions of section 216 apply to:

• Any alien who, based upon a marriage to either a citizen of the U.S. or a lawful permanent resident of the U.S.,

obtains permanent residence within two years of such marriage (i.e., as a spousal Immediate Relative or second preference classification); and

• Any child of such alien who also obtains permanent residence through his or her parent's marriage within 2

years of the marriage.

Note:

Confusion can arise regarding to whom a reference is being made (especially in spousal second preference conditional residence situations due to both parties, husband and wife, being aliens). In order to clarify which party is being referred to, the alien who is subject to the IMFA conditions is known as a “conditional permanent

resident,” while the citizen or LPR who had filed the I-130 petition on behalf of such alien is known as the “petitioning spouse.”

The section 216 provisions do not apply to:

• An alien who obtains permanent residence through a marriage which is more than two years old at the time of

admission or adjustment;

• An alien who obtains permanent residence on a basis other than marriage (e.g., a woman who adjusts through

an employment-based petition, even if she is married to a citizen at the time);

• An alien who (regardless of the age of the marriage at the time) obtains permanent residence as an accompanying

or following to join dependentof an alien who obtains residence under:

— a special immigrant classification;

— a refugee or asylee classification;

— a preference classification other than second preference;

— any other provision of the Immigration and Nationality Act, or any other law, which allows dependents to accompany or follow to join a principal alien.

Note:

It is extremely important that inspectors and adjudicators be very conscious of the date of the marriage at the time the alien is admitted or adjusted. It is not unusual for an alien to be issued a conditional resident immigrant visa by a consular officer shortly before the second anniversary, but to apply for admission after that second anniversary. Likewise, an applicant for adjustment might file a Form I-485 (or even be interviewed regarding such application) prior to the second anniversary, but not be g ranted adjustment until after that second anniversary. In such cases, the alien should be admitted, or adjusted, without conditions (see 8 CFR 235.11(b) regarding the authority of inspectors to amend the visa classification on an immigrant visa in such situations).

(b) Notification Requirements.

The Marriage Fraud Amendments of 1986 require that a conditional permanent resident be notified of his or her obligations under the law at specified points:

• At the time an alien acquires conditional permanent residence through admission to the U.S. with an immigrant

visa or adjustment of status under section 245 of the Act, the Service shall notify the alien of the conditional basis of the alien's status. The Service will notify the alien of the requirements for removal of the conditions within the ninety days immediately preceding the second anniversary of the date the alien was granted status, and will inform the alien that failure to apply for removal of the conditions will result in automatic termination of the alien's lawful status in the U.S. This notification is done (either verbally or in writing) by the inspector or adjudicator who admits or adjusts the alien to conditional resident status.

• Approximately 90 days before the second anniversary of the date on which the alien obtained conditional

permanent residence, the Service must (attempt to) notify the alien a second time of the requirement that the alien and petitioning spouse must file a petition to remove the conditional basis of the alien's lawful permanent

residence. The notification will be mailed to the alien's last known address. However, failure on the part of the Service to provide notification (which can occur, for example, if the alien fails to notify the Service of a change of address) does not relieve the alien and the petitioning spouse of the requirement to file a joint petition within 90 days preceding the second anniversary date of the alien's conditional status. This notification is done on an automated basis by the Immigration Marriage Fraud Amendments System . (This system is known in some offices as IMFAS (“im-FASS”) and in others as MFAS (“MAY-fiss”).)

(c) Filing for Removal of Conditions.

There are two vehicles through which the conditional basis of residence may be removed:

(1) Joint Petition.

Within the 90-day period immediately preceding the second anniversary date on which the alien obtained permanent residence, the alien and the petitioning spouse must file a Petition to Remove Conditions on Residence ( Form I-751 ) with the Service Center having jurisdiction over the alien's place of residence. Normally, a conditional resident child is included in the joint petition filed by his or her parent and step-parent. The joint petition must be filed within this 90-day window regardless of the amount of physical presence which the alien has accumulated in the U.S. The one exception to this rule is that if either the alien or the petitioning spouse (or both) is outside the U.S. on U.S. government orders, the filing window doe s not commence until the person(s) on orders returns to the U.S.

(2) Waiver.

The conditional permanent resident, acting alone, may apply (also on Form I-751 ) for a waiver of the requirement to file the joint petition. See 8 CFR 216.5.The waiver may be filed at any time (i.e., before, during or after the 90- day filing window). The waiver may be sought if the joint petition cannot be filed due to:

• The termination of the marriage through annulment, divorce, or the death of the petitioning spouse;

• The refusal of the petitioning spouse to join in the filing of the petition;

• A conditional resident child being unable to be included in the joint petition of his or her parent (e.g., if the

parent died before seeking removal of conditions);

• The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an

abusive spouse or parent; or

• Any other reason which is provided for in the Act.

Note:

The alien may cite multiple reasons for filing the waiver application. In fact, other than the battered spouse/child waiver, all reasons MUST be applied for at once. (The battered spouse/child waiver may be sought either in combination with other reasons listed on the same Form I-751, or on a separately-filed Form I-751.)

(3) Discretionary Procedures for Petitioning Military Members and Their Dependents . [Chapter added

on 09-22-2009 ]

When adjudicating a Form I-751 filed by a military member on behalf of his or her alien spouse or child, Service Center ISOs must follow the steps below:

• Review every properly filed petition in chronological order by the receipt date; and

• Determine whether the petition involves an active duty military member (by checking the file for military orders)

before issuing a request for evidence (RFE);

Note

The evidence necessary for the issuance of an RFE in this situation includes but is not limited to the list of documents listed in the memo entitled Standalone Form I-130 and Jointly Filed Form I-751 : Discretionary Procedures for Petitioning Military Members and Their Dependents, Sept. 22, 2009. See Appendix 21-8

• Review the evidence submitted to determine the nature of the member's deployment; the claimed bona fides of

the marriage and relationship to any children involved. See memo entitled Standalone Form I-130 and Jointly Filed Form I-751: Discretionary Procedures for Petitioning Military Members and Their Dependents, Sept. 22, 2009. See Appendix 21-8

IF AND THE ISO BELIEVES THEN

The evidence to support the That the I-130 petition is The ISO will approve standalone standalone I-130 is received and all approvable Form I-130 and continue the items provided are sufficient normal post adjudication process

The evidence to support the I-751 That the I-751 petition is The ISO will approved the Form is received and all items provided approvable I-751 and continue the normal post are sufficient adjudication process. If there are any interfiled or concurrently filed Form N-400 applications, the ISO must refer to Processing N-400s Filed Under INA 328 and 329 When Applicant Fails to Respond to a Request for Evidence, April 15, 2009, memorandum for further guidance. See Appendix 21-10.

(d) Ineligibility for Adjustment of Status.

Under section 245(d) of the Act, an alien who is a permanent resident on a conditional basis under section 216 of the Act is not eligible for adjustment of status under section 245(a) of the Act. The implementing regulation is 8 CFR 245.1(c)(5). In Matter of Stockwell, 20 I & N Dec. 309 (BIA 1991), the Board of Immigration Appeals adopted a narrow interpretation of 8 CFR 245.1(c)(5). Under this narrow interpretation, the prohibition against adjustment of status no longer applies if USCIS has terminated the alien's conditional LPR status. In 1996, the Attorney General proposed an amendment to the regulation, so that a conditional permanent resident would remain ineligible for adjustment of status even after termination of conditional LPR status. 61 Fed . Reg . 43,028 (1996). Until the Department of Homeland Security publishes a final rule, and the final rule enters into force, however, USCIS officers are bound to follow Matter of Stockwell. If an officer has a case in which an alien whose conditional LPR status has been terminated is seeking adjustment of status under section 245, the officer should consult with district or service center counsel concerning whether the 1996 proposed rule has been made a final rule.

(e) Documentation.

(1) Joint Petition.

A Form I-751 being filed as a joint petition shall be accompanied by evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S. Such evidence may include:

• Documentation showing joint ownership of property;

• Lease showing joint tenancy of a common residence;

• Documentation showing commingling of financial resources;

• Birth certificates of children born to the marriage;

• Affidavits of third parties having knowledge of the bona fides of the marital relationship (Note: the affiant must

be available to appear at the joint petitioners' interview if required); or

• Other documentation establishing that the marriage was not entered into in order to evade the immigration laws

of the U.S.

(2) Waiver.

A Form I-751 being filed as a waiver application shall be accompanied by:

• Evidence to establish the facts of the case on which the alien is seeking the waiver; and

• Evidence that the marriage was not entered into for the purpose of evading the immigration laws of the U.S.,

as described in paragraph (1), if the marriage was not entered into for such purposes. However, be aware that the extreme hardship waiver provision does not require that the applicant establish that the marriage was entered into in good faith.

(f) Termination of Status for Failure to File.

Failure to properly file Form I-751 within the 90-day period immediately preceding the second anniversary of the date on which the alien obtained lawful permanent residence on a conditional basis shall result in the automatic termination of the alien's permanent residence status and the initiation of proceedings to remove the alien from the

U.S. Form I-751 may be filed after the expiration of the 90-day period only if the alien establishes to the satisfaction of the director, in writing, that there was good cause for the failure to file with in the required time period.

(g) Adjudication of the Joint Petition.

(1) Determination of Credibility of Evidence . [Section (g)(1) updated 06-20-2006]

The director of the regional service center shall review the Form I-751 filed to determine whether to waive the interview required by the Act.

(a) Waive Interview and Accept.

If satisfied that the marriage was not for the purpose of evading the immigration laws, the director may waive the interview and approve the petition.

(b) Waive Interview and Deny.

If after examining the evidence submitted with an I-751 petition, the Service Center Director finds that the case presents substantial and undisputed evidence that the marriage was to circumvent the immigration laws, the Service Center Director shall deny the case.

(c) Interview Necessary.

In cases where an interview is deemed useful for the adjudication of I-751 petitions, the Service Center Director shall forward the petition, along with the assigned fraud level, to the district director having jurisdiction over the place of the alien's residence.

(2) Assigning Fraud Levels . [Section (g)(2) updated 06-20-2006]

If an interview is deemed necessary, the case is sent to the Service Center's Adjudications Unit and given to an adjudicator to assign a fraud level. The fraud levels of A, B, and C are assigned to the I-751 based on the documentation submitted with the application. If the adjudicator is fully satisfied that the case is approvable, then a fraud level of C is assigned. If the adjudicator is less than fully satisfied, but still feels that (based on the information available at the time) the case can be approved, then a fraud level of B is assigned. If the adjudicator has serious concerns about the approvability of the case and/or wants the applicant and the spouse to be interviewed, then the case would be assign ed a fraud level of A.

• Reasons for Assigning Fraud Level C. If you assign a fraud level C, it means that there are no technical problems

(signatures, missing information, lack of evidence, etc.) and you think the case is approvable (no interview necessary). All required supporting documents are attached and there is no indication of fraud that can be identified in the documents or through the biographic data of the parties involved.

• Reasons for Assigning Fraud Level B. Fraud level B cases are those cases which have no technical problems

that need correction and have the minimum number of proper supporting documents, but there is something, or an absence of something (which you may or may not be able to articulate) that creates suspicion about the bona fides of the marriage, the veracity of the evidence, etc. The reasons for suspicion are so varied that a concise list cannot be made. An example would be where the I-751 is supported by t he minimum required number of documents, however the documents are all of recent origin. Remember, though, that a level B case will be approved if the

computer randomly does not assign the case to an interview slot, so do not assign a fraud level B if the application and /or supporting documents are insufficient to approve the case.

• Reasons for Assigning Fraud Level A. Fraud level A should be assigned when the adjudicator strongly suspects

fraud. Reasons fraud level A might be assigned include:

– the petitioner fails to sign the form;

– there is insufficient evidence;

– a large age difference exists between the spouses;

– the married couple is not living together;

– a prior I-751 was denied;

– the petition was filed untimely without a good reason for being late; or

– any other reasons as the service center director may determine.

Note:

The service center adjudicator must indicate when fraud is suspected, rather than a technical omission, to alert the Fraud Detection and National Security (FDNS) Immigration Officer at the District Office.

(3) Entering Cases in the Computer.

Once the fraud level is determined, the adjudicator enters the case in the MFAS data base. The district office assigns a percentage to each fraud level. All fraud level A cases are interviewed. The responsible officer (usually the ADDE) in the district offices may choose to interview between 30% to 100% of all fraud level B cases; and between 10% and 50% of all fraud level C cases. After the case is entered in MFAS, the adjudicator enters the fraud level and the computer determines if the case will be sent for interview depending on the percentage of cases the district office wants to interview.

Note:

As of May 25, 2001, users of the Marriage Fraud Amendment System (MFAS) can set up their interview schedules up to six months in advance. Additionally, MFAS will now allow users to delete dates from the Interview Calendar, even if there are cases scheduled for that date. Those cases will automatically return to the “Ready for Interview Scheduling” status.

(4) Types of Cases.

The following is a breakdown of the Marriage Fraud cases after adjudication by the service center adjudicator, as indicated in the MFAS support system:

(A) Case Granted.

These are cases for which MFAS has determined that an interview is not needed after the adjudicator entered the fraud level. The case is stamped with the adjudicator's approval stamp and routed to an application clerk who sends out the approval notice.

(B) Scheduled for Interview.

If the computer determines that an interview is required, the MFAS automatically slots the petitioner into an available time slot for the district where the petitioner lives. If all available interview slots are filled for the district office, then a “no schedule” phrase is issued. As soon as an interview time is available, they will be slotted into it. Special care should be taken to verify the address and zip code because the interview site is chosen based on the zip code entered from the I-751.

(C) Overseas Holds.

These are cases where the petitioner and/or spouse live outside the U.S. The case is held pending until the return of the petitioner and/or spouse for a U.S. address to be entered into the computer. Once a U.S. address is known the case can be entered into the computer to see if an interview is required.

Form I-751s filed by Conditional Permanent Residents ( CPRs) who are currently overseas pursuant to military or government orders and who have valid APO/FPO addresses are not automatically placed on an “overseas hold.” Instead, the director will review the Form I-751 and supporting documentation filed by the CPR and his or her spouse to determine whether or not to waive the interview requirement.

(D) Terminations.

These cases are denied for failure to file. They are put in a 60 day call-up category to give the petitioner and spouse a last chance to file the Form I-751. If they have not filed after the 60 day call-up time frame has expired, the case is routed to the district office for a Notice to Appear to be issued.

(E) Improperly Classified.

These are cases where the petitioner (conditional permanent resident) was incorrectly classified when he/she entered the U.S. (generally because the inspecting or adjudicating officer failed to notice that the alien had been married for at least two years at the time the alien was admitted to the U.S. as a permanent resident or adjusted his/her status to that of a permanent resident). When the adjudicator of the Form I-751 determines that the alien was improperly classified as a conditional resident, the adjudicator should issue the individual a letter telling the alien that he/she was incorrectly classified and advising him/her to go to a district office to file an I-90 for issuance of an I-551 at no cost. The Form I-751 is also processed for a fee refund on Form G-266, and the Form I-751 is counted as a “statistical denial.”

(F) Battered Spouse.

The battered spouse's address is verified and then the case is sent to an adjudicator. The address is verified so that notices are not sent to the wrong person. After updating in the computer the case is sent to a District office for interview.

(G) OASIS Flag . [(b)(2) or (b)(7)(E)]

(5) Inability of Child to Be Included in Joint Petition.

As a matter of administrative convenience, the regulations allow a conditional resident child who is unable to be included in his/her parents' joint petition to file an separate Form I-751. (This could also be thought of as a hardship issue since otherwise the child would be separated from his or her parent, but the child filing such petition need not document extreme hardship.) Circumstances under which this situation might arise include:

• A child whose conditional resident parent has died;

• A child who entered the U.S. more than 90 days after his conditional resident parent and therefore does not have

sufficient residence in the U.S. to qualify for removal of conditions on the joint petition (but verify that the parent and step-parent's joint petition has been granted before approving the child's petition); and

• Any other circumstances whereby in the determination of the director, the child is prevented from being included

in the joint petition of his or her parent and step-parent through no fault of the child or his or her parents.

In adjudicating the separate petition of a child, you must be satisfied that the conditional residence status was not obtained through fraud and that the petition's approval would not further a fraud scheme. For example, you would not approve a separate petition filed by a child which would enable an otherwise ineligible parent (who obtained conditional status through a questionable marriage) to make a stronger case for an extreme hardship waiver.

(h) Waiver of Joint Filing.

These are cases where the petitioner and the spouse do not file a joint petition. They are usually filed because the petitioner and spouse are divorced, or the petitioner (child of the conditional spouse) could not enter or follow to join the conditional spouse. The documentation to be submitted, and the factors to be determined in the adjudication process, depend on the type of waiver being sought. Section 216(c)(4) of the Act allows an alien to file a waiver application under one (or more) of three circumstances: extreme hardship (section 216(c)(4)(A) ), good faith and not at fault (section 216(c)(4)(B) ), and battering or extreme cruelty (section 216(c)(4)(C) ). Note: Although section 216(c)(4) is entitled “Hardship Waiver”, only waivers under paragraph (A) require that the applicant establish a level of hardship; waivers under the other two paragraphs depend on other issues.

(1) Extreme Hardship.

The waiver applicant must establish that extreme hardship would result if he or she is removed from the U.S . Some important things to remember when adjudicating a waiver filed on this basis are:

• There is no requirement that the applicant establish that the marriage had been entered into in good faith.

However, indications that the marriage had been in bad faith may be considered when weighing the discretionary factors.

• Whether the alien has already suffered hardship during or prior to his or her status as a conditional resident is

irrelevant. Only extreme hardship which would result from deportation (presumably to the alien's home country) is pertinent. The statute is prospective, not retrospective, in this regard. However, in some situations hardship already experienced can have a bearing on hardship which an alien might expect to experience if he or she is removed. For example, in some countries, a woman who has been divorced may suffer extreme isolation (“shunning”) in

her home country or culture which rises to the level of persecution. While such conditions may be rare, they are definitely not non-existent.

• Because the adjudication of a waiver application is a matter of discretion, factors which are not directly related

to the marriage fraud provisions may be taken into account. However, only the most significant negative factors would justify denial of an application where the applicant has sufficiently established that he or she would be subjected to extreme hardship if deported. As with any adjudication proceeding, the applicant bears the burden of proof to establish eligibility for the benefit sought.

(2) Good Faith, Not at Fault.

Despite the best intentions, marriages do not always work out, and sometimes even bona fide marriages fall apart in less than 2 years. IMFA was not meant to be a tool to be used against unlucky or unlikely marriages; it was meant to be a tool against fraud. Accordingly, IMFA provides for a waiver if the alien can establish that he or she entered the marriage in good faith and he or she was not at fault in failing to meet the IMFA requirements. Things to consider when adjudicating this type of waiver include:

• Weight is not given to who filed the divorce. (Initially, the statute required that the alien had to be the moving

party in the proceedings to terminate the marriage (i.e., that the alien had terminated the marriage for ““good cause”). This occasionally resulted in what became known as “the race to the courthouse.” Since the issue was meant to center on whether the alien had good faith when immigrating, not on whose attorney could file for divorce faster, this requirement was dropped.)

• It does not matter if the conditional resident's spouse entered the marriage in good faith, only the intent of the

conditional resident him or herself is relevant. Interviewing the conditional resident's former spouse (either in response to a call-in letter, a field examination or a referral to Investigations) may provide relevant and valuable information on the alien's intent, or it may only result in a spiteful diatribe. Adjudicators should always be aware of the source and motivation of information provided. Also, when interviewing a former spouse, always be extremely careful not to divulge any information (such as the alien's current location) which could result in the alien being subjected to abuse or battering.

• In determining good faith, it is usually helpful to look at the actions of the parties following immigration to

the U.S. The same clues which can be useful in an ongoing marriage (e.g., did they establish joint bank account, were health insurance issues coordinated, etc.) are valuable indications of a fraudulent marriage. Perhaps assets which were commingled at the beginning of the marriage would have just been divided at the end. Reviewing the property settlement, which usually accompanies the divorce decree, may provide valuable information.

• The statute requires that the alien establish that he or she “was not at fault in failing to meet the requirements”

for filing a joint petition for removal of conditions. This should not be read as requiring that the alien's divorce decree finds his or her spouse to have been at fault, nor does it require that the divorce was obtained on a no-fault basis. You still might determine that the alien was wholly or partly responsible for not meeting the joint petitioning requirements. Likewise, a divorce decree stating that the alien was “at fault” (with regards to the breakup of the marriage) does not preclude you from independently determining that he or she was not at fault, at least with regard to the requirements of the immigration law.

As the adjudicator, you must make your own determination on this issue. While the language of the divorce decree may provide useful information on the reasons why the marriage was terminated (and therefore why a joint petition was not possible), and may even significantly increase the alien's burden of proof, the decision on whether to grant the waiver belongs to the Service, not to the divorce court judge. Remember that in the worst marriage fraud cases,

the parties to the fraud would agree in advance that the alien would file for divorce and that the petitioning spouse would accept fault for the breakdown of the marriage.

• The statute uses the phrase “has been terminated” when talking about the marriage. As such, an alien whose

conditional resident status is approaching the 2-year anniversary of the grant of such status, but who is unable to file a joint petition to remove the conditions because divorce or annulment proceedings have commenced, may not apply for a waiver of the joint filing requirement based on the “good faith” exception. If an alien's conditional resident status is terminated because he or she could not timely file a Form I-751, and he or she is placed in removal proceedings, then he or she may request a continuance from the immigration judge to allow for the finalization of the divorce or annulment proceedings. It is noted that the conditional resident whose status has been terminated should be issued a temporary I-551 during the pendency of his or her case before the immigration judge (see Genco Opinion 96-12).

(3) Battering or Extreme Cruelty.

The original IMFA (as enacted in 1986) did not contain a separate waiver provision for victims of battering or extreme cruelty. Although in most cases, such victims could easily qualify for either of the two waiver provisions, Congress found that there was a need to spell out that victims of such treatment are entitled to special consideration under the law. As a result, section 216 of the Act was amended by section 701 of the Immigration Act of 1990 to add this waiver. It is important that in adjudicating such waiver applications INS officers are aware of and in accord with the views of Congress in passing this legislation. Other issues to bear in mind when adjudicating a battering or extreme cruelty waiver include:

• Persons who have been subjected to such treatment may have difficulty in discussing their experiences. While

it is almost always necessary to discuss the abusive events with the applicant, such discussions should be carried on in a professional manner which does not further abuse the applicant by forcing him or her to unnecessarily re-live abusive episodes.

• Police reports and hospital records can be key documents in establishing that battering or extreme cruelty

existed, but not all cases of abuse contain these items. Officers must be prepared to accept and evaluate other, less traditional, forms of documentation. Conversely, in the worst marriage fraud cases it is not unheard of for evidence of abuse or battering to be fabricated (someone who is willing to commit marriage fraud would not be unwilling to file a false police report).

(i) Interview at the Local Office.

Unless waived, an interview shall be conducted by an immigration adjudicator or other officer at the district office, files control office or suboffice having jurisdiction over the joint petitioners' residence.

(1) Joint Petition.

An interview based on a joint petition is used to determine the bona fides of the marriage. As such, it is quite similar to an interview conducted in relation to a pending I-130 petition or a (marriage-based) adjustment application. (See Chapter 21.3 and Chapter 23 of this field manual, resp. General interview techniques and procedures are also discussed in Chapter 15 of this field manual.)

It is important to remember that the only issues being resolved through the I-751 interview process are those relating to the bona fides of the marriage and the removal of conditions. Should any other issues arise, they must

be dealt with outside the I-751 interview and adjudication process. (Since there is no discretionary authority to be exercised when adjudicating a joint petition, the other factors have no bearing on the case at hand.) For example, if during an I-751 interview you determine that you have no doubts about the bona fides of the marriage but also determine that the conditional resident had been arrested and convicted for a crime involving moral turpitude, you could not deny the Form I-751 joint petition on that basis. Instead, you would have to either initiate rescission proceedings under section 246 of the Act (see Chapter 26 of this field manual) or refer the case to Investigations for initiation of removal proceedings (depending on when the arrest and conviction occurred).

(2) Waiver of Joint Petitioning Requirement.

Only under the rarest of circumstances should the interview requirement be waived in the case of an alien seeking a waiver of the filing requirement under section 216(c)(4) of the Act. When interviewing an applicant for a joint waiver, remember that he or she may have suffered an extreme hardship, may be uncomfortable about the dissolution of his or her marriage, may even have been the victim of spousal (or parental) abuse (otherwise he or she should not have filed the waiver application). While you are required to conduct a thorough interview to uncover the facts of the case, you should do so in a professional manner which avoids unnecessary discomfort or embarrassment to the alien.

In determining whether extreme hardship exists or existed, be aware that the statute only allows factors and circumstances which occurred or arose during the time when the alien was a conditional permanent resident. Factors arising, or events occurring, outside of that time period should not be considered (unless they can be tied to related events which happened during such time period).

Normally, an alien will only seek a waiver on one of the grounds set forth in section 216(c)(4) of the Act. However, on occasion an alien may claim to be eligible for a waiver on more than one ground. If so, the applicant must indicate all applicable waivers on the Form I-751, with the exception of the spousal/parental abuse waiver (which may be sought either on the same application or on a separate application). Your interview must cover all of the grounds for which waiver eligibility is claimed. If you find that the alien is not eligible under each of the grounds claimed, the waiver application must be denied.

Note

While the applicant is required to state all grounds on the one application (with the exception of the spousal/ parental abuse waiver), the failure to do so at the time of filing may be cured by amending the form at the time of interview, if the interviewing officer determines that a different waiver ground is more applicable. Likewise, if after the application has been denied it is determined that the alien would have had a better claim based on a ground other than the one(s) claimed, the applicant may file a motion to reopen the proceedings and amend the application. The Service would then have to decide whether there is sufficient justification for reopening the proceeding and (if so) render a new decision on the merits of the reopened case.

Unlike joint petition proceedings, the statute on IMFA waiver proceedings grants the Attorney General discretionary authority. Accordingly, if significant negative factors are discovered during the waiver interview (such as the alien having a criminal record) which outweigh the positive factors, they can be used to deny the waiver application.

(j) Post-adjudication Actions.

(1) Approval.

If the Form I-751 is approved, the alien is notified of the approval (which may be by the CLAIMS system if the approval is done at a service center, in person if the approval is done during the interview at a local office, or by letter if it is done by a local office at a later date). The alien is also either processed for a new Form I-551 or (if the approval is not done at the interview) instructed on how to be processed for a new I-551. Do not forget that an approval of a Form I-751 joint petition or waiver application also applies to any conditional resident children who are included on the form and are eligible for removal of conditions. (But not to a child who has not acquired at least 21 months of residence; that child would have to file a separate I-751 at a later date under the regulatory waiver provision.)

(2) Denial.

There is no appeal from the denial of a Form I-751 filed as either a joint petition or a waiver application. Instead, the alien is placed in removal proceedings where he or she may renew the petition or application before the immigration judge. Do not forget that an approval of a Form I-751 joint petition or waiver application also applies to any conditional resident children who are included on the form and are eligible for removal of conditions.

(k) Naturalization Issues Relating to Conditional Residence . [Chapter 25.1 updated 08-04-2009]

Generally, before approving a naturalization application filed by a conditional permanent resident, the adjudicator should ensure that the applicant has met all of the applicable requirements of section 216 of the Act as evidenced by an approved Form I-751.

Note:

There are special circumstances to consider in cases involving conditional permanent residents applying for naturalization under section 319(b) of the Act. See guidance provided in AFM Chapter 25.1(k)(2).

Additionally, any conditional permanent resident who is otherwise eligible for naturalization under section 329 of the Act (based on military service), and who is not required to be lawfully admitted to the United States for permanent residence as provided for in section 329 of the Act, is exempt from all of the requirements of section 216 of the Act. This is because section 329 does not require certain otherwise eligible applicants to have a lawful admission for permanent residence in order to qualify. See section 329 of the Act. Therefore, these applicants are not required to have an approved Form I-751 before their Form N-400 s are approved.

(1) Treatment of Period under Conditional Status for Purposes of Naturalization.

Section 216(e) of the Act provides that for purposes of naturalization an alien in conditional status “shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence.”

While this provision ensures that the time spent in the United States as a conditional permanent resident may, after the conditions have been removed, be considered for purposes of establishing the residence and physical presence requirements for naturalization (such as those in sections 316(a) and 319(a) of the Act), it does not relieve a conditional permanent resident applying for naturalization from the requirements of section 216. See sections 216(c), 216(d), and 216(e) of the Act. Also see H.R. REP. 99-906, 1986 U.S.C.C.A.N. 5978.

Note:

There are special circumstances to consider in cases involving conditional permanent residents applying for naturalization under section 319(b) of the Act. See guidance provided below in AFM Chapter 25.1(k)(2).

(2) Form I-751 and Form N-400 Issues.

(A) Concurrent Adjudication of Pending Form I-751 and Form N-400.

Because of differences in the adjudication processing times for Form I-751 and Form N-400 and because conditional permanent residents are eligible to apply for naturalization (if otherwise eligible) pursuant to 8 CFR 216.1, there may be instances when a conditional permanent resident admitted pursuant to section 216 of the Act will apply for naturalization while their Form I-751 is pending.

Unless otherwise provided by the Act, the adjudicator should ensure that the Form I-751 filed by the conditional permanent resident applying for naturalization is adjudicated in accordance with section 216 prior to, or concurrently with, the adjudication of Form N-400. In all cases where a final decision on Form I-751 has been reached, the adjudicator should update MFAS accordingly.

Note:

There are special circumstances to consider in cases involving conditional permanent residents who have both a pending Form I-751 and Form N-400 filed under section 329 of the Act. See guidance provided in the introductory paragraphs of AFM Chapter 25.1(k)(2).

(i) Form N-400 with Pending Form I-751 at Different USCIS Office.

Generally, a Form N-400 should not be continued to await the final adjudication of a Form I-751 that is pending at a different USCIS office. The adjudicator should conduct the Form N-400 examination as scheduled and should request the pending Form I-751 from the other USCIS office. Once the adjudicator receives the Form I-751, the adjudicator may adjudicate to completion both the Form N-400 and Form I-751 in accordance with all applicable provisions.

However, while the adjudication of a conditional permanent resident's naturalization application should not be delayed solely because of USCIS processing delays of Form I-751, a pending Form N-400 should not be approved under any circumstances prior to the adjudication of a pending Form I-751, unless otherwise provided by the Act. In all cases where a final decision on Form I-751 has been reached, the adjudicator should update MFAS accordingly.

(ii) Form N-400 Filed under Section 319(a) or 319(b).

In almost all cases, a Form N-400 that is filed while a Form I-751 is pending will have been filed pursuant to section 319(a) or 319(b) of the Act. These provisions require a higher level of evidence of marital union and joint residence than is required for the approval of Form I-751 filed jointly.

If a Form I-751 is pending at the time of the conditional permanent resident's Form N-400 examination, the adjudicator should conduct the examination for naturalization. The adjudicator should ensure that the applicant has established that they are the spouse of the qualifying U.S. citizen and that they are in a bona fide marriage prior to the favorable adjudication of their Form N-400.

If the Form I-751 is in the applicant's A-file and the applicant establishes their eligibility for naturalization under Section 319(a) or 319(b), and also established that they have met the requirements under sections 216(b)(1) and 216(d)(1)(A) of the Act (as evidenced by such documentation listed in 8 CFR 216.4(a)(5) ), the adjudicator may approve the applicant's Form I-751 and Form N-400 concurrently. See AFM Chapters 25.1(k)(2)(A) and 25.1(e).

If the Form I-751 is not in the applicant's A-file, the adjudicator should proceed with the naturalization examination and request the pending Form I-751 from the USCIS office with custody of the petition. However, the applicant's Form N-400 should not be approved until the pending Form I-751 is reviewed and approved based on a determination that the applicant meets the requirements of section 216 of the Act. See AFM Chapter 25.1(k)

(2)(A)(i).

(iii) Form N-400 Filed under Provision Not Requiring Marital Union.

Regardless of whether a Form N-400 is filed under a provision of law that does not require marital union (in contrast to Section 319(a) or 319(b), the adjudicator should request any applicable Form I-751 that is pending prior to the final adjudication of Form N-400. After receipt of the Form I-751, both the Form I-751 and Form N-400 may be concurrently adjudicated to completion as instructed in AFM Chapter 25.1(k)(2)(A)(i).

(B) Reaching Form I-751 Filing Period while Form N-400 is Pending.

Unless otherwise provided by the Act, any conditional permanent resident admitted pursuant to section 216 who files for naturalization, to include those filing under section 319(b), who reaches the 90-day period for filing Form I-751 prior to the final adjudication of their naturalization application or prior to taking the Oath of Allegiance for naturalization should be instructed to file Form I-751 in accordance with section 216(d)(2) of the Act.

After the conditional permanent resident has properly filed Form I-751, the adjudicator should proceed with the adjudication of the naturalization application in accordance with the guidance provided AFM Chapter 25.1(k)

(2)(A).

(C) Naturalization under Section 319(b) Prior to Form I-751 Filing Period.

Conditional permanent residents admitted pursuant to section 216 are permitted to naturalize under section 319(b) of the Act, if otherwise eligible for naturalization under section 319(b), prior to filing Form I-751 so long as they have been conditional permanent residents for less than one year and nine months, and have therefore not reached the Form I-751 filing period at the time of the final adjudication of their naturalization application and at the time of taking the Oath of Allegiance for naturalization.

Note:

Applicants for naturalization pursuant to section 319(b) of the Act are not required to establish any specific period of residence or physical presence in the United States. See 8 CFR 319.2 and AFM Chapter 73. Therefore, in many cases, a conditional permanent resident who applies for naturalization under section 319(b) of the Act may not yet have reached the Form I-751 filing period when they file their application for naturalization.

Such conditional permanent residents (who seek naturalization under section 319(b) and who have not reached the Form I-751 filing period) must, however, comply with the applicable requirements of section 216 because section 319(b) otherwise requires “compliance with all the requirements of the naturalization laws.” This includes

the requirement that naturalization applicants establish they have been lawfully admitted for permanent residence “in accordance with all applicable provisions” of the Act as stipulated in section 318 of the Act.

Accordingly, conditional permanent residents admitted pursuant to section 216 who apply for naturalization under section 319(b) must, therefore, comply with the requirements of, though such applicants who have not reached the 90-day Form I-751 filing period described in section 216(d)(2) of the Act at the time of their naturalization under section 319(b) should not file Form I-751 because they would not be within the designated filing period.

However, such conditional permanent residents admitted pursuant to section 216 who seek naturalization under section 319(b) prior to the Form I-751 filing period must nevertheless establish, before they may be naturalized under section 319(b), that the qualifying marriage (1) was entered into in accordance with the laws of the place where the marriage occurred; (2) has not been judicially annulled or terminated; (3) was not entered into for the purpose of procuring an alien's admission as an immigrant; and (4) that no fee or other consideration was given (other than attorney's fees) for filing the immigrant or fiancé(e) visa petition that forms the ba sis for their admission to the United States.

The adjudicator should pay particular attention to issues surrounding the bona fides of the qualifying relationship in such cases and should review the record for documentary evidence of the type required to support an I-751 petition, in addition to the eligibility criteria for naturalization, though the applicant is not required to file Form I-751. See sections 216(b)(1) and 216(d)(1)(A) of the Act. Also see 8 CFR 216.4(a)(5) and AFM Chapter 25.1(e).

Under no circumstances can an application for naturalization be approved under section 319(b) of the Act unless the applicant meets their burden of proof of demonstrating compliance with the requirements of section 216 of the Act or as otherwise provided by the guidance in AFM Chapter 25.1(k).

Note:

If the documentary evidence suggests that there are legitimate concerns that can be properly articulated about the bona fides of the qualifying marital relationship, the adjudicator is reminded that they are authorized to request for further evidence or for the attendance of witnesses, to include the U.S. citizen spouse, as part of the naturalization examination. See section 335(b) of the Act and 8 CFR 335.2(d).

(D) Form I-751 Filed by a Naturalized Citizen.

The requirement to apply for the removal of conditions through the filing of Form I-751 does not apply to conditional permanent residents who were admitted pursuant to section 216 of the Act and who have already naturalized under section 319(b) of the Act (or under section 329 in accordance with the guidance provided in the introductory paragraphs of AFM Chapter 25.1(k)(2), or as otherwise provided by the Act) prior to the Form I-751 filing period described in section 216(d)(2) of the Act.

If a naturalized U.S. citizen files Form I-751 either jointly with their petitioning spouse or individually as a waiver under section 216(c)(4) of the Act, the adjudicator should advise the naturalized U.S. citizen in writing that, as a citizen of the United States, the removal of conditions provisions do not apply.

Moreover, the Form I-751 filing fee should be refunded in cases where the U.S. citizen filed a Form I-751 because of USCIS error (for example, if the U.S. citizen received a computer-generated notice advising they should file). In such cases, the Form I-751 should be counted as a statistical denial.

Note

If the naturalized citizen is the parent of a child who was admitted as a conditional permanent resident based on the parent's marriage, and that child did not also become a citizen, the child is required to file Form I-751 for removal of conditions in accordance with section 216 of the Act and 8 CFR 216.4(a)(2).

(l) Precedent Decisions.

The following precedent decisions pertain to the adjudication of joint petitions to remove conditions and applications for waivers of the requirement to file such joint petitions:

• Matter of Lemhammad, 20 I&N Dec. 316 (BIA 1991) – Original jurisdiction to rule on the merits of an

Application for Waiver of Requirement to File Joint Petition for Removal of Conditions rests only with the Service, and not the immigration judge.

• Matter of Mendes, 20 I&N Dec. 833 (BIA 1994) – Where the parties to a marriage have jointly filed a Petition

to Remove the Conditions on Residence, but one of the parties withdraws support from the petition before its adjudication, the joint petition shall be considered withdrawn and shall be adjudicated under section 216(c)(2)

(A) of the Act (i.e., the CPR status terminated). When a respondent in deportation proceedings has not filed

an application for a waiver under section 216(c)(4) of the Act and is prima facie eligible for such relief, the proceedings should be continued in order to grant the respondent a reasonable opportunity to file the application before the Service and for the Service to decide the application.

• Matter of Anderson, 20 I&N Dec. 888 (BIA 1994) – A conditional permanent resident alien who seeks to

remove the conditional basis of that status by means of a waiver under section 216(c)(4) of the Act should apply for any applicable waiver provided under that section. An alien whose application for a specific waiver under section 216(c)(4) of the Act has been denied by the Service may not seek consideration of an alternative waiver under that section in deportation proceedings before the immigration judge. Where an alien becomes eligible for an additional waiver under section 216(c)(4) of the Act due to changed circumstances, the proceedings may be continued in order to give the alien a reasonable opportunity to submit an application to the Service. Inasmuch as the Board of Immigration Appeals only has authority to review a waiver application after the Service and the immigration judge have considered it, an alien may not apply for a waiver under section 216(c)(4) of the Act on appeal.

• Matter of Nwokoma, 20 I&N Dec. 899 (BIA 1994) – The Service retains authority to deny a Joint Petition to

Remove the Conditional Basis of Alien's Permanent Resident Status pursuant to section 216(c)(3)(A) of the Act, notwithstanding the Service's failure to adjudicate the joint petition within 90 days of the interview of the alien and his or her spouse.

• Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995) – The provisions of former section 241(f)(1) of the Act, do

not waive an alien's deportability under former section 241(a)(9)(B) of the Act, because termination of the alien's conditional permanent resident status constitutes a basis for deportability which is separate and distinct from the charge that the alien is “excludable at the time of entry” within the meaning of former section 241(f)(1). In order to preserve an application for relief under section 216(c)(4) of the Act, a n alien must request before the immigration judge a review of the Service's denial of such application.

• Matter of Tee, 20 I&N Dec. 949 (BIA 1995) – An alien becomes statutorily ineligible for approval of a joint

petition under section 216(c)(1) of the Act where the marriage has been terminated prior to adjudication of the petition.

References: Section 216 of the Act

8 CFR 216

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

Note:

Rescission is a cumbersome process once required as a prelude to initiating proceedings against certain lawful permanent residents. See Matter of Saunders, 16 I&N Dec. 326 (BIA 1977) (lawful permanent resident who (1) obtained his or her status through adjustment of status and (2) was subject to the rescission provisions of section 246 of the Act could not be placed into deportation proceedings prior to rescission of his or her status by INS ). Rescission is now an option that USCIS should use only in limited instances. In most cases, USCIS, based on the change in the law brought about by Section 378 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (effective April 1, 1997), can and should place the alien into removal proceedings under Section 240 of the Act with a Notice to Appear. Any subsequent order of removal issued by an immigration judge is now sufficient to rescind the LPR's status. Because most cases that used to require rescission (e.g., adjustment obtained by fraud) now may be resolved in the context of proceedings under Section 240 of the Act, rescission should be an infrequent process.

Rescission proceedings serve only the goal of eliminating an improperly granted benefit. It places the alien in the status that he or she would have if adjustment had never been granted. In certain limited circumstances this can result in the alien having some form of lawful immigration status even after rescission. In most instances, however, it will result in the alien having no lawful status and being liable for removal proceedings. A contested rescission proceeding requires a hearing before an immigration judge, so, as stated above, most cases subject to possible rescission should be treated with removal proceedings.

The following procedures should be followed in those less-frequent situations where USCIS chooses to initiate rescission proceedings.

(a) General.

A person who has adjusted status to that of an alien lawfully admitted for permanent residence under sections 210, 240A, (the former) 244, 245, 245A or 249 of the Act, or under any other provision of law may be placed into rescission proceedings at any time during the first five years after the granting of permanent residence, if:

• USCIS determines that the alien was not eligible for adjustment of status at the time that permanent residence

was granted; and

• The alien would have not been eligible for adjustment under any other provision of law.

In order to rescind an alien's adjustment, he or she must be served with a Notice of Intent to Rescind within five years of the date of his or her adjustment. Once the Notice has been served, rescission action may proceed even beyond the five year time limit (in other words, the serving of the Notice ““stops the clock”). In the case of an alien whose adjustment contained a ““““““rollback” provision (e.g., a Cuban who adjusted under the Cuban Adjustment Act), the five year time period is figured from the actual date on which the adjustment was granted, not on the date to which the adjustment was rolled back. (See Matter of Carrillo-Gutierrez, 16 I&N Dec.429 (BIA 1977))

Note:

A determination that an alien is not subject to rescission proceedings does not necessarily mean that no further action may be taken. An adjudicator should be aware that an individual who is not subject to rescission may still be subject to removal proceedings. Accordingly, consideration must be given to issuing a Notice to Appear or to referring the case to investigations for possible initiation of removal proceedings based on your district policy (see Chapter 10.6 of this field manual).

(b) Jurisdiction.

The district office which has jurisdiction over the alien's place of residence institutes the rescission proceedings. The sole exception is that if an asylum office granted an alien's adjustment of status under section 209(b) of the Act and 8 CFR 240.70, the director of that asylum office has jurisdiction. In all other cases, including adjustments granted by another district director, by a service center director, by an immigration judge, or in any other manner, the district director having jurisdiction over the person's residence has jurisdiction over the initiating of rescission proceedings.

(c) Effective Date of Rescission.

A rescission is effective retroactive to the date of the approval of the adjustment application. In the case of an alien who received a “roll back”, the residence period acquired by the roll back is likewise rescinded.

(d) Effect of Rescission on Other Benefits Derived from LPR Status.

Because the lawful permanent resident status is voided abinitio, any rights acquired by third parties are also cancelled (see Matter of Valiyee, 14 I&N Dec. 710 (BIA 1974)).

(e) Rescission of Adjustment of a Conditional Permanent Resident.

With regards to marriage-based or entrepreneur-based conditional permanent residents, the two year period that an alien may spend as a conditional resident counts as part of the five year limitation under section 246 of the Act. But, the rescission authority of Section 246 of the Act is not used for those aliens who are conditional residents pursuant to Section 216 of the Act to terminate conditional resident status if the reason for termination is among those set forth in that section . ( Section 216 of the Act, 8 CFR 216, and Chapter 25 of this field manual describe the procedures used for termination of conditional residence for such reasons.) For example, if the alien's qualifying marriage was entered into for the purpose of procuring his/her adjustment of status, section 216 (termination) would apply; if the alien concealed a criminal record, section 246 (rescission) would be used, even during the first two years.

(f) Deportability Based on Events Arising after Adjustment.

If an alien became deportable as a result of an event which occurred after adjustment of status to lawful permanent residence, he or she is not subject to rescission as a result thereof. Accordingly, the case should be referred to the Investigations Branch for the possible institution of removal proceedings.

(g) Discretionary Authority to Not Pursue Rescission.

The fact that an alien was not eligible for adjustment of status does not automatically mean that you must rescind the alien's lawful permanent resident status. If the alien was not aware of the ineligibility and intended no fraud or deception in obtaining lawful permanent resident status, you may decide not to institute rescission proceedings, particularly if the alien has accrued other equities during his or her residence. If the decision is made not to rescind lawful permanent resident status, prepare a memorandum for the signature of the District Director stating the background and facts of the case explaining why it was decided not to rescind. Place the signed memorandum in the alien's file. Once the decision not to rescind is made, the matter may not be reconsidered unless new facts are uncovered that were not known at the time of the original decision.

(h) Rescission of Adjustment After Alien Has Naturalized.

Section 246(b) of the Act states:

(b) Any person who has become a naturalized citizen of the United States upon the basis of a record of a lawful

admission for permanent residence, created as a result of an adjustment of status for which such person was not in fact eligible, and which is subsequently rescinded under subsection (a) of this section, shall be subject to the provisions of section 340 of this Act as a person whose naturalization was procured by concealment of a material fact or by willful misrepresentation.

While this section may provide a legal basis for initiating rescission proceedings against a naturalized citizen without first going through denaturalization proceedings, INS and USCIS have never used this subsection against a naturalized citizen and USCIS is unlikely to do so in the future. Where appropriate, the preferred approach is to initiate denaturalization proceedings under section 340 of the Act, not proceedings under section 246(b) of the Act. (See Chapter 76 of this manual and Chapter 22 of the Special Agent's Field Manual.) Accordingly, any office contemplating using this provision must obtain the concurrence of the Office of Chief Counsel and the Office of Field Operations before initiating any action under section 246 against a naturalized citizen.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

Section 101(a)(15) of the INA specifies various classes of persons admissible to the U.S. as nonimmigrants. Requirements for admission in each category are discussed 8 CFR 214 and in Chapter 15.4 of the Inspector's Field Manual. This chapter will discuss general requirements for maintaining status, changing status, and obtaining extensions of stay. Requirements for maintaining and changing status which apply only to specific nonimmigrant classes are discussed in Chapters 31 through 37 and Chapter 15 of the Inspector's Field Manual. Matters relating to parole of aliens are contained in Chapter 16 of the Inspector's Field Manual, and matters relating to Temporary Protected Status are contained in Chapter 38 of this manual.

(b) Activities Consistent with Status.

A nonimmigrant may engage only in activities consistent with his or her status. In general, the filing of an application for a different status or even the approval of a petition (for example an I-129 petition to accord H, L, O or P status), does not constitute authorization to engage in the activities permitted in the new status. (However, under certain conditions, an alien who is already in H-1B status may commence working for a new employer upon the filing of a new petition by that new employer.) With regards to a change of status applicant, it is only the formal approval of the change of status application by USCIS that constitutes authorization to engage in activities consistent with that new status. An alien who, prior to approval of a change of status, engages in activities not consistent with his or her present status is at risk fo being found to be in violation of status in the event the application is denied, although approval is often retroactive to the date of the original application [See Matter of Teberan, 15 I&N Dec. 689 (BIA 1976), and Matter of Dacanay, 16 I&N Dec. 238 (BIA 1977)]. However, in accordance with 8 CFR 248.1(c), an alien may be granted a change of status to that of F-1 or M-1 student even though he or she may have begun attending the school even before the application was submitted.

There is a significant body of information available concerning what activities are or are not appropriate for particular visa classifications. The B-1 and B-2 classifications have historically been the object of many such interpretative discussions. If you have any questions concerning particular activities, you should consult available resources including: 8 CFR 214.2; Chapter 15.2 of the Inspector's Field Manual; the Department of State's Foreign Affairs Manual (FAM), and precedent decisions.

(c) Voluntary Departure vs. Nonimmigrant Status.

Voluntary departure is not a nonimmigrant status. It is, however, regarded as an authorized period of time for purposes of section 212(a)(9). Accordingly, time spent in voluntary departure does not add to an alien's unlawful presence. For example, a B-2 nonimmigrant files for an extension after his stay expires. The extension is denied and the alien is granted 15 days of voluntary departure. In calculating unlawful presence, count as unlawful the days between the expiration of the B-2 status and the issuance date of the Form I-210 granting voluntary departure, as well as any time after the voluntary departure expired, but do not count the 15 day voluntary departure period itself. Voluntary departure is discussed in 8 CFR 240.25.

Although voluntary departure time is not counted when calculating unlawful presence, an alien who has been given a period of voluntary departure is not considered to be maintaining status for purposes of receiving an extension or status change [See Matter of Lennon, 15 I&N Dec. 9 (BIA 1974).].

(d) Contents Deleted and Moved to Chapter 40.9.2 [05-09-2009].

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

Except as stated below, a nonimmigrant admitted for a specified period of time may request an extension of his or her admission period in order to continue to engage in those activities permitted under the visa category in which he or she was admitted. General requirements (such as those relating to passport validity, waivers of inadmissibility, and posting of a bond) for an extension of stay are discussed in 8 CFR 214.1(a). An application for an extension of stay is filed on Form I-129, Petition for a Nonimmigrant Worker, or Form I-539, Application to Extend/Change Nonimmigrant Status, as specified in 8 CFR 214.1(c), depending upon the nonimmigrant classification of the applicant. Form I-539 is used primarily for B-1/B-2, A-3/G-5, and M-1/M-2 extensions, as well as for student reinstatements and extensions of some dependents not included on the I-129 extension for a principal alien. Form I-129 is used to extend nonimmigrants working for a specific employer.

(b) Limitations.

Aliens in classes C, D, K, WT, WB, and TWOV are ineligible for an extension of stay.

(c) Use of Form I-539 for Extension of Stay.

(1) Initial receipting.

The applicant must file Form I-539 with the service center having jurisdiction over his or her residence, except student (F or M) reinstatement requests, which are filed at local offices. Editions of Form I-539 prior to the most current edition should not be accepted for purposes of extension of stay. A single application may be filed by a family group, provided all family members hold the same status or derivative status.

(2) Preliminary Review.

Preliminary review, in addition to general items discussed in Chapter 10.2, includes the following:

(A) The applicaton must be filed wit the office having jurisdiction. All I-539 extension requests must be filed at

the appropriate service center except those relating to F/M student reinstatements.

(B) Aliens in B-1 or B-2 status must provide a statement explaining the purpose of the requested extension,

departure arrangements and what, if any, effect the proposed extensions would have on his or her permanent residence.

(C) A-3 and G-5 aliens must submit an executed Form I-566, a letter from their employer detailing their job duties

and evidence of the employee's status (usually an I-94 copy). [See also Chapter 30.6.]

(D) J nonimmigrants must submit a current IAP-66 covering the requested period of extension.

(E) Dependents of various temporary workers must submit evidence of the principal alien's status (or evidence

of a pending petition for such status).

(F) Students seeking reinstatement must submit evidence of eligibility, including financial information and a

current I-20.

(G) (Chapter 30.2(c)(2)(G), revised 07-27-2005). The applicaiton must contain the original or copy of the arrival

portion of the applicant's Form I-94, if any. Original I-94 forms are required in cases which are adjudicated at district offices. Copies may be submitted in cases which are adjudicated at service centers.

Note 1:

If I-94 copies are submitted even though originals were required, or vice versa, and the application will be adjudicated in CLAIMS, continue processing unless there is some apparent need to examine an original form. The CLAIMS-generated approval notice, Form I-797A includes a replacement I-94, which is to be attached to the original. Upon approval, return any original I-94 which was improperly submitted.

Note 2:

If an extension applicant claims to have lost his or her I-94, a separate Form I-102, Application for Replacement/ Initial Arrival/Departure Record should be filed. Although a CLAIMS-generated I-94 is issued in the course of adjudicating the extension application, the instructions indicate that it is to be attached to the original I-94 (or the replacement original). Verify arrival from TECS or, if no record can be found, obtain a copy of the applicant's passport page containing the admission stamp. Please consult TECS manual for current instructions.

(H) Dependents.

When an application for an extension of a dependent is not filed concurrently with the principal alien, evidence of the principal's status must accompany the application. This information may be verifiable in CLAIMS. There is no dependent status for Q-1 or TN nonimmigrants; however such dependents may separately qualify for nonimmigrant status, usually B-2.

Note:

(The Q-3 nonimmigrant category pertains only to dependents of Q-2 nonimmigrants.)

(3) Adjudication.

Nonimmigrant extensions are generally simple to adjudicate. Because the benefit sought is short-lived, these applications should be processed as quickly as possible, to ensure the request is acted upon while it is still relevant. Timely adjudication is also important because an applicant is not considered to be maintaining status simply because an extension application is pending [See Matter of Teberan, 15 I&N Dec. 689 (BIA 1976)]. The following actions, in addition to the general steps described in Chapter 10.3, are ordinarily required during the I-539 adjudication process:

(A) Determine If the Application Was Timely Filed.

Although an application for extension of stay is ordinarily required to be submitted before the expiration of the applicant's previously authorized period of stay, the adjudicator has discretion to grant an extension based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the applicant's control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the applicant is otherwise a bona fide nonimmigrant, and whether the applicant has been apprehended and placed in proceedings by the Service.

Note 1

Issues surrounding the alien's original entitlement to nonimmigrant status were explored by INS or CBP and Department of State officials at the time of initial admission and visa issuance (or, in the case of visa exempt aliens, by INS or CBP alone). Absent gross error, changed circumstances or new information, these should not be revisited in extension proceedings. However, if the adjudicator has strong reason to believe that the alien was not entitled to a nonimmigrant status in the first place, he or she may seek clarification from the applicant through correspondence or by requiring an interview at the appropriate local office. If it is established that the applicant was not entitled to the status initially, the application should be denied and (if appropriate) the information provided to the visa issuing post or port-of-entry through normal intelligence and liaison procedures. Additionally, the information may form the basis of an additional charge (under section 237(a)(1)) on the Notice to Appear initiating removal proceedings. In extreme cases, where employee misconduct is suspected, the Office of Professional Responsibility should be advised.

Note 2

Inadmissibility Issues . At times, you may encounter an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and been granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien applied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspect ing officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension.

(B) Verify Passport Validity.

An applicant need not submit a valid passport with his or her application since Part 4 of the application contains passport validity information. The applicant must hold a valid passport at the time of application and is required to maintain validity during the entire period of his or her stay in the United States. [See 8 CFR 214.1.] This does not preclude the adjudicating officer from requiring submission of evidence of the validity of the passport, if the officer has reason to believe that the alien has falsely claimed that it is valid.

(C) Decide If a Favorable Exercise of Discretion Is Warranted.

Applications for extensions of stay are matters solely within the administrative discretion of the director. Before approving an application for an extension, the adjudicator must be satisfied that the applicant will continue to engage only in activities specifically consistent with his or her nonimmigrant status. [See Matter of Sourbis, 11 I&N Dec. 335 (BIA 1965); Matter of Sparmann, 11 I&N Dec. 285 (Acting District Director, 1965); Matter of Rogalski, 14 I&N Dec. 507 (District Director, 1973); Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA, 1979)]. In determining whether a favorable exercise of discretion is warranted consider, among other things:

• the applicant's age and condition (and how that relates to the specific reasons given for the requested extension).

For example, a healthy, working or school age B-2 extension applicant staying in the home of a family with small children for a prolonged period could give rise to the suspicion that the applicant is actually providing child care or attending school.

• whether the applicant is likely to attempt to stay indefinitely. USCIS may terminate a nonimmigrant's authorized

period of stay when it becomes aware the alien intends to remain indefinitely in the U.S. [See Matter of Safadi, 11 I&N Dec 446 (BIA 1965) ].

(D) Determine Whether Alien Is a Visas Mantis Case.

If so, follow the Visas Mantis reporting procedures discussed in Chapter 30.2(e).

Note:

The usual time allowed for an extension for a B-1 visitor is the length of time requested, or no more than six

(6) months at one time, whichever is less. However, B-1 members of a religious denomination doing temporary

missionary work may be granted extensions up to one year in length.

(4) Interview.

Requiring a personal appearance by an applicant or requesting a formal investigation for an extension should rarely be required. Likewise, requests for additional evidence should be relatively unusual. The application itself, supporting documentation required by the instructions on the form and existing INS or USCIS records will enable you to adjudicate virtually any extension of stay request.

(5) Revocation of Extensions.

USCIS has the authority to reopen and deny an extension which was granted without knowledge of the true facts material to the case [See Matter of T – -, 9 I&N Dec. 239 (BIA 1961).] Such actions require a “Motion to Reopen”

written in letter format, followed by the actual decision written in formal order. Note: Even in those few cases where on fee is collected on a motion to reopen (I.e., when USCIS is the moving party), it is still counted as an application or petition (as appropriate) received and completed.

(6) Bonds.

A maintenance of status and departure bond, although seldom used, may be required as a condition for approval of an extension or change of status request. [See Inspector's Field Manual, Chapter 45, for procedures on posting bonds.]

(7) File Review.

In adjudicating an Form I-539, a relating “A” file shall be obtained and reviewed prior to adjudication if a bond has been posted on the alien's behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating “A” file can be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the applicant's Form I-94 is noted “ARL” the file should not be requested, but the Arlington, VA. District Office should be con sulted before an extension of stay is granted. In all cases in which an “A” file exists, the adjudicated application and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.

(8) (Chapter 30.2(c)(8)(A), revised 07-27-2005).

(A) Approval.

Determine the appropriate amount of time for the extension. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.] Endorse the action block on the application and indicate the actions taken in the “INS (or as updated forms are issued, USCIS) use only” section of the form. Upon approval, update CLAIMS, ordering approval notices. The Form I-530 forwarding the record of approval is automated at the service centers and the data is sent to TECS. Returning the receipt file to Records. The CLAIMS approval notice, Form I-797A, contains a tear-off section which serves as a replacement Form I-94, indicating the extension date. If the application is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the approval date, office three-letter code, and officer stamp number. In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding of Form I-530 or the automated equivalent for each alien included on the application and (unless the I-94 is hand-delivered to the alien) completion of an approval notice on Form I-542.

(B) Denial.

Endorse the action block on the application and indicate the actions taken. Set a voluntary departure period, if the alien is no longer maintaining status. For denials processed in CLAIMS, select proper standard denial paragraphs from CLAIMS, adding special text if necessary. In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial; and prepare Forms I-530 for the applicant and each dependent and forward to NIIS. Delivery of the decision may be accomplished by routine service, as described in 8 CFR 103.5a.

(C) Routing of Miscellaneous Documents.

In the case of a J-1 application for an extension of stay, always return the pink colored, USCIS annotated, IAP-66 with the I-94 to the applicant or attorney. The yellow copy of the IAP-66 is sent to the Department of State, Bureau

of Educational and Cultural Affairs and the white copy stays in the file with the application. In the case of the F-1 student the school copy of Form I-20AB is sent to the data facility in London, Kentucky and the student copy (Form I-20ID) is returned to the student or attorney, in accordance with Appendix 15-8 of the Inspector's Field Manual.

(9) Appeal.

There is no appeal from an adverse decision on Form I-539. Decisions may be certified to the Administrative Appeals Unit in accordance with 8 CFR 103.4. An alien may seek review of an improper decision by filing a motion pursuant to 8 CFR 103.5.

(d) Use of Form I-129 for Extension of Stay.

(1) Initial Receipting.

General receipting procedures are discussed in Chapter 10 of this manual. The applicant's employer must file Form I-129 with the service center having jurisdiction over his or her (the alien's) place of employment. A single application may be filed by the employer on behalf of a family group, provided all family members hold the same status or derivative status. Family members may not be included in a petition for multiple principal beneficiaries. Although technically a readmission, NAFTA extensions for TN and L-1 nonimmigrants may also be adjudicated at ports-of-entry when the applicant seeks reentry. [See Inspector's Field Manual, Chapter 15.5.] Editions of Form I-129 prior to the most current edition may not be accepted for purposes of extension of stay for nonimmigrants.

(2) Preliminary Review.

In addition to the steps discussed in Chapter 10 of this field manual:

(A) Ensure the form is completed as required and the correct supplement is filled out for the applicable

nonimmigrant category.

(B) Review supporting documents. If there has been no change in employment, only the appropriate I-129

supplement and a letter from the employer confirming continuing employment is required, except that the employer must also submit:

• a copy of the employer's labor condition application and Form I-129W for H-1B applicants.

• a valid labor certification for H-2B applicants.

• a valid labor certification for H-2A applicants, unless it is a request for an extension not to exceed two weeks

(or less, if the original certification was for less than two weeks) for employment included in a prior certification.

Other special supporting documents required for nonimmigrant extensions where there is a change in the terms and conditions of employment are discussed in the Chapters 31-35, relating to specific categories.

Note 1:

Form I-94 . If an original I-94 is attached, rather than a copy, it should be returned when action is completed on the application, since CLAIMS generates a new I-94, to be attached to the original, upon approval of the extension.

Questions regarding original admission or previous status can usually be resolved by searching CLAIMS or NIIS data bases. NIIS records should contain arrival information, in the event an I-94 is not submitted.

Note 2:

Jurisdiction . Normally cases submitted in the wrong jurisdiction must be transferred to the appropriate office; however, in certain situations local management may choose to assume jurisdiction in a case. Consult with supervisory personnel before processing an application which does not appear to be submitted in the proper jurisdiction. Remember that jurisdiction is determined by the petitioner's address in cases involving temporary employment:

• for the same employer at more than one location;

• for more than one agricultural employer, where an association is petitioning for H-2A workers; or

• for one, or more than one, non-agricultural employer, where an established agent is serving as the petitioner.

Note 3:

Dependents . Dependents may be included on an I-129 extension request if the I-129 includes only one principal alien. In the event a multiple beneficiary I-129 is submitted which includes dependents for one or more principals, request that the dependents submit separate extension applications on Form I-539. A separate I-539 is required for each family group of dependents.

(3) Adjudication.

Nonimmigrant extensions on Form I-129 are ordinarily fairly simple to adjudicate, unless there is a change in previously authorized employment. Because the benefit sought is short-lived, these applications should be processed as quickly as possible, to insure the request is acted upon while it is still relevant.

Extensions of stay filed on Form I-129 must be divided into two categories. Extensions involving aliens in E, R or TN status are single-step requests, although it is necessary to consider eligibility both in terms of requirements relating to the employer and those relating only to the alien. There is no separate adjudication of a petition extension, technically filed by an employer on the alien's behalf.

Extensions involving H, L, O, P or Q aliens are, in reality, a two-step adjudication: consideration of the employer's request to extend the petition to classify the alien as a nonimmigrant worker and consideration of the alien's request for additional time as a nonimmigrant. This distinction is an important one, since a denial of the employer's petition extension may be appealed to the Administrative Appeals Office while a denial of the extension of stay may not be appealed. The issues relating to the petit ion extension are the same as those for an initial petition. These requirements are discussed separately in Chapters 31-33 and 35. The issues surrounding an alien worker's request to extend his or her nonimmigrant stay in the U.S. are generally the same as for any other nonimmigrant category.

Note:

The alien beneficiary of a Form I-129 being filed by his or her employer for an extension has previously been found eligible for nonimmigrant status, either by INS, USCIS or CBP at the time of admission or through an initial petition, or by the Department of State during the visa issuance process. Absent apparent gross error, a

change in the circumstances surrounding the alien's stay, or discovery of new information not previously available, the adjudicator should not engage in an in-depth review of issues relating to the initial status. In the event of adverse action on a reopened I-129 petition (or denial of a petition extension request), the petitioner has the same appeal right s available in the original petition proceedings (see chapter 10.17 of this Field Manual for additional discussion of motions to reopen and motions to reconsider).

In addition to the general procedures described in Chapter 10.3, the following actions are ordinarily required during the adjudicative process:

(A) For H, L, O, P or Q-1 aliens, determine if the petitioning employer's eligibility has changed in any way. It

is generally not necessary to request new supporting documents (except any required labor certification or labor condition application), nor should the original file be routinely requested. If eligibility has changed or the original petition was improperly approved, follow the procedures in Chapters 31-35 for denial or for reopening based on a USCIS motion (see chapter 10.7(c) of this Field Manual). If the petition was properly approved and the employer's eligibility remains unchanged, consider the alien's eligibility for an extension, as outlined below.

(B) For E, Q-2, R and TN cases, consider the original eligibility requirements for the status, as discussed in

Chapters 34 and 35. If eligibility has changed or the alien was not originally entitled to the status, deny the extension request, following the procedures below. If employment-related eligibility requirements continue to be met, consider other aspects of the extension request, as outlined below.

(C) Determine if the Form I-129 was timely filed.

Although timely filing is ordinarily required, the adjudicator has discretion to grant an extension based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the alien's control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings by the Service.

(D) Verify passport validity.

An alien need not submit a valid passport with his or her application, since Part 4 of the application contains a check-block requiring the applicant to indicate he or she has a valid travel document. The alien must hold a valid passport at the time of filing and must agree to maintain its validity during the entire period of his or her stay.

(E) Ensure that co-applicant dependents remain entitled to dependent status.

(F) Review the validity of any required labor certification or labor condition application. No extension may be

granted beyond their validity.

(G) Determine whether alien is subject to the Visas Mantis reporting procedures discussed in Chapter 30.2(e).

(4) Interview.

Requiring a personal appearance by an alien for an extension should rarely be required and requests for additional evidence should likewise be relatively unusual. The Form I-129 itself, supporting documentation required by the instructions on the form and existing USCIS records will enable you to adjudicate most extension of stay requests. In the event either action is required, follow local procedures for forwarding the application for interview

or establishing a call-up for the returned case. The application itself, supporting documentation required by the instructions on the form and existing USCIS records will enable you to adjudicate virtually any extension of stay request. When an interview is conducted, a sworn statement (or a memorandum containing the results or notes summarizing the interview) should be included in the record. If the interview was conducted at the request of a service center or another field office, that office should be notified of the findings.

(5) Temporary vs. Permanent Intent: Effect on Nonimmigrant Status.

Although nonimmigrants, by definition, are in temporary status and should be able to demonstrate their intention to return to their home country, H-1 and L nonimmigrants need not maintain a residence in a foreign country and are considered to be maintaining status even after taking overt actions to remain permanently in the United States. Other classes of nonimmigrants may be required to provide evidence of their intent to depart from the United States when their authorization to remain expires.

(6) File Review.

In adjudicating an extension on Form I-129, a relating “A” file shall be obtained and reviewed prior to adjudication if a bond has been posted on the alien's behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating “A” file can be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the alien's Form I-94 is noted ““ARL” the file should not be requested, but the Arlington, VA. District Office should be consulted before an extension of stay is granted. In all cases in which an “A” file exists, the adjudicated Form I-129 and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.

(7) Closing Actions.

In addition to the general procedures described in Chapter 10, the following closing actions are required:

(A) Approval.

Determine the appropriate amount of time for the extension. [See 8 CFR 214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.] Endorse the action block on the Form I-129 and indicate the actions taken in the “INS use only” section of the form. Upon approval in CLAIMS, update the system, ordering approval notices and forwarding the record of approval to NIIS. The CLAIMS approval notice, Form I-797A, contains a tear-off section which serves as a replacement Form I-94, indicating the extension date. If the case is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the approval date, office three-letter code, and officer stamp number. In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding to NIIS of Form I-530 for each alien included on the application and completion of an approval notice on Form I-171C.

Note:

Approval of a timely-filed I-129 extension is always considered nunc pro tunc, effectively forgiving the status violation for overstaying or continuing employment (with the same employer) which may have occurred between the expiration of the original admission period and the approval date of the extension. [See Matter of Dacanay 16 I&N Dec. 238 (BIA 1977).]

(B) Denial

Endorse the action block on the Form I-129 and indicate the actions taken, including setting a voluntary departure period, if the alien is no longer maintaining status. For denials processed in CLAIMS, select proper standard denial paragraphs from CLAIMS, adding special text if necessary. In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial, set a period of voluntary departure; and in both CLAIMS and non- CLAIMS denials, prepare Forms I-530 for each alien included on the application and forward to NIIS. Delivery of the decision should be by routine service, as described in 8 CFR 103.5a.

(8) Appeal.

There is no appeal from an adverse decision on Form I-129 filed for purposes of seeking an extension of stay, except in H, L, O, P and Q cases where the denial is based on petition-related issues. If the adjudicator reopens an original petition and denies a case on petition-related grounds, the matter may be appealed to the Administrative Appeals Unit.

(e) Visas Mantis Cases.

(1) Background.

Visas Mantis is a pre-issuance name-check procedure utilized by the Department of State (DOS) when an alien applies for a visa to enter the United States to engage in study or commerce in a field on the Technology Alert List

(TAL). The TAL consists of two parts: a critical fields list of major fields of controlled good and technologies of

technical transfer concern, including those subject to export controls for nonproliferation reasons, and the State Department's list of State Sponsors of Terrorism. DOS de veloped the Visas Mantis pre-issuance name-check procedure in response to concern from the United States law enforcement and intelligence community that U.S. produced goods and information are vulnerable to theft. The primary security objectives of the Visas Mantis program are to stem the proliferation of weapons of mass destruction and missile delivery systems, restrain the development of destabilizing conventional military capabilities in certain regions of the world, prevent the transfer of arms and sensitive dual-use items to terrorist states, and to maintain U.S. advantages in certain military critical technologies.

Prior to the implementation of the Visas Mantis, the DOS utilized designators such as SPLEX, CHINEX and VIETEX that focused on nationalities from finite geographical areas (i.e., the former Warsaw pact, China and Vietnam). While the designators CHINEX, VIETEX and SPLEX were post-issuance name-check procedures relative to specific nationalities and finite geographical areas, the Visas Mantis is a pre-issuance name-check procedure designed for worldwide application. On August 24, 1999, DOS ceased the use of a ll previous designators. However, for purposes of this Visas Mantis reporting requirement, USCIS officers must also report to USCIS Headquarters Office of Program and Regulatory Development any and all applications or petitions for benefits filed by or on behalf of an alien national from China or Russia who had a prior CHINEX or SPLEX clearance.

In consultation with the DOS Visa Office, USCIS Headquarters Office of Program and Regulatory Development has determined that it is only necessary for USCIS field officers to contact Headquarters Office of Program and Regulatory Development in cases where a Chinese or Russian national has had a prior Visas Mantis, CHINEX or SPLEX clearance done by the State Department. USCIS field officers need not report to HQOPRD when they encounter aliens of other nationalities with prior DOS cable clearances.

(2) Reporting Requirement.

Service Center and District Adjudications Officers must telephonically report to Headquarters Office of Program and Regulatory Development (attn: Visas Mantis Desk Officer, Residence and Status Branch ) at 202-514-4754 when they encounter applications or petitions for extension of stay or change/adjustment of status filed by or on behalf of Chinese or Russian aliens who have had a previous Visas Mantis, CHINEX, or SPLEX cable clearance done by the State Department. Officers in the field must make this report via telephone call so that the particulars of the case may be discussed with Headquarters Office of Program and Regulatory Development. The report must contain the following information:

• Name

• Date and Place of Birth

• Passport number

Upon completion of the telephonic report, the adjudicator should annotate the application “Visas Mantis reported” and add the date and the reporting officer's initials.

Although Service Center and District Adjudications Officers are required to report such encountered aliens to Headquarters Office of Program and Regulatory Development, officers are not precluded from adjudicating the application or petition for extension of stay or change/adjustment of status. Decisions on such applications or petitions should in no way be prejudiced by the fact that the alien had a previous Visas Mantis, CHINEX, or SPLEX cable clearance.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

Section 248 of the Act provides a nonimmigrant, lawfully admitted to the U.S., who is continuing to maintain the status in which he or she was admitted or previously changed, the opportunity to change from one classification under section 101(a)(15) of the Act to another, with certain restrictions. Its purpose is to allow such nonimmigrant, in meritorious situations, to avoid the delay and expense of departing from the U.S. and returning, in order to engage in activities other than those permitted in his or her original or current nonimmigrant visa category. The applicant must meet all eligibility criteria for the new category. An application for a change of status is filed on Form I-129, Petition for a Nonimmigrant Worker or Form I-539, Application to Extend/Change Nonimmigrant Status, as specified in 8 CFR 248.3, depending upon the nonimmigrant classification being sought. The I-539 is used for changes to A, B, F, G, I, J, M, N, S and NATO and for dependents of other classes when the principal has already been accorded another status. The I-129 is used for nonimmigrants seeking E, H, L, O, P, Q, R and TN status concurrently with approval of a petition to accord such status. Special requirements for each status are discussed in Chapters 31-35. No request or application is required to change status from B-1 to B-2. Other within- class changes, such as F-2 to F-1 or H-4 to H-1, require a formal application and fee even though they are not, strictly speaking, changes of status under section 248 of the Act.

(b) Limitations.

(1) Changes from a Specified Class (Chapter 30.3(b)(1), Revised 07-13-2005).

An alien in classes C, D, K, S, WT, WB, or TWOV is ineligible for a change of nonimmigrant status. An alien admitted as an exchange visitor (J) who is subject to the two-year foreign residence requirement of section 212(e) of the Act and who has not received a waiver of that requirement, can change only to A or G status. See Matter of Kim, 13 I&N Dec. 316 (R.C. 1968). Any J nonimmigrant who was admitted (or acquired such status) to pursue graduate medical education or training is ineligible to change status, even if he or she obtains a waiver of section 212(e). An alien who has been admitted as an Irish Peace Process Cultural and Training Program visitor (Q-2 alien) is subject to the two-year foreign residence requirement of section 212(t) of the Act. Such an alien cannot apply for another nonimmigrant status, an immigrant visa, or permanent residence until the residency requirement has been met or a waiver has been granted. However, 212(t) only applies to those Q-2 aliens who initially entered the United States on or after December 10, 2004.

(2) Changes to a Specified Class.

Although an application and fee are required, changing from J-1 to J-2 is not regarded as a change of status, therefore, it is not prohibited. An M-1 nonimmigrant cannot change to F-1 status or to H status if the M-1 training helped him or her qualify for H status. No nonimmigrant can be granted M-1 status in order to gain training necessary to qualify for H status. [See also 8 CFR 248.2 and §248 of the INA.]

(c) Form I-539.

(1) Initial Receipting.

The applicant must file Form I-539 with the service center having jurisdiction over his or her place of residence. A single application may be filed by a family group. The basic procedures for receiving such applications are discussed in Chapter 10.

Note:

On April 12, 2002, the INS amended 8 CFR 248.1(c) to add a provision prohibiting most B-1 or B-2 nonimmigrants from changing status to that of F or M full-time student if that B-1 or B-2 nonimmigrant has already begun taking classes at the school. USCIS must deny the requested change if there is evidence that the alien has begun course work prior to the adjudication (approval) of the I-539 application. The rule applies to any B-1 or B-2 nonimmigrant who:

• Last entered the United States as a B-1 or B-2 nonimmigrant on or after April 12, 2002; or

• Although admitted to the United States as a B-1 or B-2 nonimmigrant prior to April 12, 2002, filed an application

for an extension of his or her nonimmigrant status on or after April 12, 2002; or

• Although admitted in any nonimmigrant category either before, on, or after April 12, 2002, filed an application

for a change of nonimmigrant status to that of B-1 or B-2 on or after April 12, 2002; or

• Although granted a change of status to that of B-1 or B-2 nonimmigrant prior to April 12, 2002, filed an

application for an extension of his or her B-1 or B-2 nonimmigrant status on or after April 12, 2002.

An applicant who does not meet ANY of these four provisions is “grandfathered in” under the old (pre-April 12, 2002) regulations and is NOT subject to the bar.

(2) Preliminary Screening.

In addition to the steps described in Chapter 10, preliminary review includes the following:

(A) Determine Jurisdiction.

Jurisdiction is generally based on the alien's location in the United States. Consult with supervisory personnel before accepting an application which does not appear to be submitted in the proper jurisdiction.

Note:

(A) Determine Jurisdiction.

Jurisdiction is generally based on the alien's location in the United States. Consult with supervisory personnel before accepting an application which does not appear to be submitted in the proper jurisdiction.

Note:

Normally cases submitted in the wrong jurisdiction must be transferred to the appropriate office; however, in certain situations local management may choose to assume jurisdiction in a case. Consult with supervisory personnel before processing an application which does not appear to be submitted in the proper jurisdiction.

However, the Washington District Office and the New York District Office have jurisdiction over certain adjudications concerning A, G, NATO nonimmigrants.

• Changes into or within an A, G, or NATO Classification. Requests for change of status into or within an A,

G, or NATO nonimmigrant classification are adjudicated exclusively by USCIS personnel from the Washington District Office, who meet weekly with personnel in the Department of State (DOS) Visa Office in Washington, DC, or by New York District Office personnel who work closely with the U.S. Mission to the United Nations (USUN) in New York. This was a long-standing arrangement between DOS and the former Immigration and Naturalization Service, which continues with USCIS. These two USCIS offices have assigned adjudicators to this function. Change of status requests into or within any of these classifications should not be adjudicated at any other district office or at a service center.

When an alien in the United States requests a change of nonimmigrant status into or within an A, G, or NATO classification, that request must first be considered by the DOS Office of Protocol, USUN for aliens assigned to the United Nations or to a foreign mission to the United Nations, or by the North Atlantic Treaty Organization/ Headquarters, Supreme Allied Commander Transformation (NATO/HQ SACT) for aliens assigned to a NATO command. A change within a classification would include instances in which aliens receive promotions or otherwise change their responsibilities and may require a change within the existing classification, for example, from A-2 to A-1.

How to Handle Requests for Change of Status into or within an A, G, or NATO Classification Filed at Other District Offices or Service Centers. Should another district office or service center receive a request for a change of status into or within an A, G, or NATO classification, the request should be returned to the alien, using the following recommended language:

“Your application was filed incorrectly. Please resubmit your application along with any required supporting documents to your embassy, international organization or permanent mission thereto, or NATO command. Your employing organization must first review this application and then forward it on to one of these certifying organizations: Department of State, U.S. Mission to the United Nations, or North Atlantic Treaty Organization/ Headquarters, Supreme Allied Commander Transformation. Following certification by one of these organizations, your application will then be submitted to the USCIS by one of them. You do not submit this type of application directly to USCIS.”

• Extension of Stay for A-3, G-5, or NATO-7 Classifications. Requests for an extension of stay for an A-3, G-5, or

NATO-7 nonimmigrant are adjudicated exclusively by the Washington District Office or New York District Office, following a thorough review of the circumstances of such requests by DOS, USUN, or NATO officials. These officials are able to verify that the sponsoring employer continues to hold the qualifying position and to review updated employment contracts to ensure that the terms of employment are consistent with current requirements. Such requests f or an extension should not be adjudicated at other district offices or service centers.

How to Handle Extension of Stay Requests for A-3, G-5, or NATO-7 Nonimmigrants Filed at Other District Offices or Service Centers. Should another district office or service center receive any such request, the request should be returned to the alien, using the following recommended language:

“Your application was filed incorrectly. Please contact your employer's embassy, international organization, or NATO command for proper filing procedures.”

• Change from an A, G, or NATO Classification. When A, G, or NATO aliens wish to change to another

nonimmigrant classification, such requests are adjudicated at service centers, provided there is an endorsement by a DOS Visa Office or a USUN official at Part 7 on Form I-566 (Interagency Record of Request), accompanying Form I-539 (Application to Extend/Change Nonimmigrant Status) or Form I-129 (Petition for a Nonimmigrant Worker). Please note that the DOS Visa Office, not NATO/HQ SACT, endorses this form on behalf of NATO nonimmigrants.

Should questions arise during the adjudication, USCIS personnel may wish to consult with one of the following:

Diplomatic Liaison Division of the DOS Visa Office at telephone (202) 663-1743 or fax (202) 663-1608 — for aliens in A classification and for aliens in G classification except those who are assigned to the United Nations, for example a G nonimmigrant working at the World Bank in Washington, DC;

Advisor for Host Country Affairs at USUN at (212) 415-4167 or fax (212) 415-4162 — for aliens in G classification and assigned to the United Nations Secretariat or an individual mission to the United Nations;

Legal Affairs Office at NATO/HQ SACT at (757) 747-3640 or fax (757) 747-3310 — for aliens in NATO classification.

• After the adjudication of a change of status from these classifications: USCIS officers must complete Part 8 of

the revised Form I-566 by documenting action taken and returning a copy of that form to the appropriate office:

For the Department of State, Office of Protocol, use the following address:

Office of Foreign Missions

3507 International Place, NW

Washington, DC 20522-3302

For the U. S. Mission to the United Nations, use the following address:

U.S. Mission to the United Nations

799 United Nations Plaza

New York, NY 10017

For the North Atlantic Treaty Organization/Headquarters, Supreme Allied Commander Transformation, use the following address:

NATO/HQ SACT

Legal Affairs Office

7857 Blandy Road, Suite 100

Norfolk, VA 23551

DOS, USUN, and NATO/HQ SACT update their records based upon information USCIS personnel provide on this form. Thus, it is important that a complete copy of the Form I-566 be forwarded promptly to the appropriate agency or organization, noting what action was taken and the date it was taken, as well as the name and telephone number of the adjudicating office for use in the event that should DOS, USUN, or NATO/HQ SACT have questions regarding the adjudication.

(B) Ensure Form I-94, either original or a copy, is submitted. If there are multiple applicants on a single

application, insure a copy of each I-94 is attached.

Note 1:

Form instructions on Form I-539 indicate that aliens seeking B, F, J or M status are required to submit their original Form I-94. Others should submit only a copy of their I-94. If I-94 copies are submitted even though originals were required, or vice versa, and the application will be adjudicated in CLAIMS, continue processing unless there is some apparent need to examine an original form. The CLAIMS-generated approval notice, Form I-797A, includes a replacement I-94, which is to be attached to the original I-94. Return to the applicant any original I-94 which was improperly submitted.

Note 2:

If a change of status applicant claims to have lost his or her I-94, a separate Form I-102, Application for Replacement/Initial Arrival/Departure Record should be filed since the I-94 issued in the course of adjudicating the application indicates that it is to be attached to the original I-94. Verify arrival from NIIS or, if no record can be found, obtain a copy of the applicant's passport page containing the admission stamp.

Note 3:

Inadmissibility Issues. At times, you may encountered an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise, you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and been granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien app lied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspecting officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration.

If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension.

(C) Ensure the applicant has attached supporting documentation for the classification sought:

• Aliens seeking F-1 or M-1 status must submit the appropriate Form I-20 and evidence of financial ability to

maintain the new status. Aliens seeking J-1 status must submit Form IAP-66.

• Aliens seeking A-3 or G-5 status must submit an executed Form I-566, a letter from their employer detailing

their job duties and evidence of the employer's status (usually an I-94).

• Dependents of various temporary workers must submit evidence of the principal alien's status (or evidence of

a pending request for such status).

Note:

Information relating to a principal alien's status, if missing or questionable, may be verified in CLAIMS or NIIS. There is no dependent status for Q-1 or TN nonimmigrants; however, such dependents may separately qualify for nonimmigrant status, usually B-2.

Detailed discussions of supporting documents for each status are contained in Chapters 34 through 37.

(3) Adjudication.

Applications for a change of status on Form I-539 are relatively simple to adjudicate. Because the benefit sought is generally short-lived or time-sensitive, these applications should be processed as quickly as possible, to insure the request is acted upon while it is still relevant. The following actions, in addition to the steps described in Chapter 10.3, are ordinarily required during the adjudicative process:

(A) Determine if the application was timely filed.

Although ordinarily required, the adjudicator has discretion to grant a change of status based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the applicant's control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings. If the alien is guilty of more than excusable tardiness (e.g., if he/she has worked without authorization or has committed a crime), the adjudicator has no discretion to excuse the tardiness.

(B) Verify passport validity.

An applicant need not submit a valid passport with his or her application, but must complete Part 4 of the application which contains passport validity information. The applicant must hold a valid passport at the time of application and is required to maintain validity during the entire period of his or her stay in the U.S.

(C) Determine if any and all required supporting forms, such as Form I-20, DS-2019, or I-566 are

attached, properly completed, and endorsed. [See also Chapters 34-37 discussions of supporting documentation.]

(D) Determine if a Favorable Exercise of Discretion Is Warranted.

Change of status applications are discretionary in nature. In deciding whether a favorable exercise of discretion is warranted, consider such things as the alien's financial ability to maintain the status sought, whether there was possible deception when the original visa or admission was sought, what the applicant's ultimate intentions may be, veracity of documentation submitted, and the overall effects of a positive or negative decision. It is important to keep in mind that discretionary does not mean arbitrary. Given similar fact patterns, discretionary decisions should yield similar results regardless of where such cases are adjudicated or by whom. There is a significant body of precedent decisions which discuss the appropriate exercise of discretion under a variety of situations. Familiarity and conformity with these precedents are critical to achieving consistent and fair results in such cases.

Note 1:

Ability to Maintain Status. Maintenance of status is discussed generally in Chapter 30.1. In order to change status, an applicant must be a bona fide nonimmigrant, maintaining his or her current status [Matter of Haddad, 10 I&N Dec 785 (R.C. 1964)]. Matter of Lee, 11 I&N Dec. 601 (R.C. 1966) found that an H-1 nonimmigrant's failure to continue the temporary employment for which he was admitted constituted a failure to maintain status.

With the exception of H-1 or L nonimmigrants who are covered by section 212(h) of the Act, because an alien who is seeking a change of status and/or an extension of stay bears the burden of establishing eligibility for the benefit sought, if he or she has filed an application for adjustment of status or an application for asylum (or even if he or she is the beneficiary of a permanent or temporary visa petition, unless the applicant can establish that he or she is the unwilling or unknowing beneficiary) he o r she cannot meet this burden and the application for change of status or extension of stay should be denied. Contrast this issue with the discussion in Chapter 23 on whether an alien automatically violates his or her nonimmigrant status by merely applying for adjustment of status or asylum. However, under certain very limited circumstances, extension or change of status may be granted to an alien who

(1) had previously been denied adjustment or asylum or whose previously approved visa petition has been wit

hdrawn or revoked, (2) who met the criteria discussed in Chapter 23 for being considered as having maintained his or her status throughout the pendency of the asylum/adjustment application, and (3) is able to satisfy the officer adjudicating the application for change or extension that he or she has completely abandoned his or her intend to remain in the United States beyond the period which can be authorized under the change or extension being sought.

In addition, the applicant must demonstrate he or she is able to maintain him or herself in the status sought, particularly financially. This issue needs particular examination when the applicant seeks a prolonged stay in any status where employment is not a routine part of the status, for example student status. Maintenance of status is discussed in AFM Chapter 30.1; the accrual and the effects of unlawful presence pursuant to section 212(a)(9) of the Act are discussed in AFM Chapter 40.9.2.

Note 2:

Preconceived Intent. The adjudicator will encounter applications where it appears, either from the statements made on the application or from the sequence of events (from initial visa application and issuance, admission, obtaining supporting documents for a new status, until the date of filing) that the applicant concealed his or her true purpose for entering the U.S., either on the visa application or to the inspector at the time of admission. Most frequently, this situation occurs in requests to change status from

B-2 to F-1. The issuance dates of Forms I-20, affidavits of support, etc. are often helpful in determining whether preconceived intent or actual fraud exists.

USCIS policy discourages such deliberate actions. In cases where the new status is one which requires substantial financial assets by the applicant or an overseas sponsor, the consular officer in the applicant's home country is in a better position to assess the situation than a USCIS adjudicator. Similarly, where an applicant's overseas employment or ties to his or her home country are at issue, again the consular officer on the scene can most easily assess eligibility.

Although the facts in such situations could be indicative of actual visa fraud, more often the appropriate course of action may be to deny the application as a matter of discretion. A denial would not be warranted simply because an applicant entered as a visitor, for example, and was later offered an opportunity to attend school, receive specialized training or accept employment. It is necessary to look closely at the facts of the particular case, examining such facts as dates on supporting documents. If necessary, seek additional information from the applicant concerning all facts leading to his or her request.

A series of precedent decisions and court cases uphold USCIS's decision to deny a change of status in such a situation. Matter of Hsu, 14 I&N Dec. 344 (R.C. 1973), denied a change of status to an applicant who obtained a visa under the pretext of a visit for business when the actual purpose was to seek acceptance at a school. In Matter of Le Floch, 13 I&N Dec. 251 (BIA 1969), the Board ruled that even the applicant's claim that she was misinformed by a consular officer regarding the need for a student visa was insufficient to justify entry as a visitor. In Seihoon v. Levy, 408 F. Supp. 1208 (D. La. 1976), the court upheld the decision to deny an application to change status based on a finding that a rapid sequence of events leading to enrollment in a school is sufficient for a finding that the applicant had a preconceived intent to change nonimmigrant status and circumvent the normal visa issuance process.

Assuming other eligibility requirements are met, favorable consideration should be given to the cohabitating partner or other household member of a principal nonimmigrant visa holder when the cohabitating partner or other household member is applying for change to B-2 status for the duration of the principal nonimmigrant's stay. A “household member” of a principal nonimmigrant is an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

Note 3:

Applicant Is an Intending Immigrant. Matter of Gutierrez, 15 I&N Dec. 727 (R.C. 1976), denied a change of status to an alien who was determined to be an intending immigrant. However, it should be noted that not all nonimmigrants are required to maintain a foreign residence and that in some categories even overt evidence of intent to remain permanently in the United States is not a ground for denial of a change of status request. However, in the most commonly filed requests, those seeking F, J or M classification, before approving a case the adjudicator should be satisfied that the alien is not an intending immigrant.

Note 4:

Visas Mantis Cases. In adjudicating an application for change of status on behalf of an alien who was admitted under the Visas Mantis program, follow the same procedures as are set out for extension of stay applicants in Chapter 30.2(e) .

Note 5:

Inadmissibility Issues. At times, you may encountered an applicant for change of status and/or extension of stay who is inadmissible to the U.S., but who never obtained a waiver of such inadmissibility. Likewise,

you may encounter an alien who had previously received a limited duration waiver of inadmissibility which has expired, or will expire before the end of the extension he/she is seeking. In either case, you may not grant such alien a change of status or an extension of stay unless and until he or she has applied for and b een granted a waiver of his or her inadmissibility which covers the entire period of his or her proposed stay in the U.S. [See AFM Chapter 42 regarding adjudication of nonimmigrant waivers of inadmissibility] In addition to the general factors discussed in Chapter 42, in the case of an alien who was inadmissible at the time of his or her original admission as a nonimmigrant but was not in possession of waiver, you must also determine the reason(s) a waiver was not obtained at that time or when the alien app lied for a nonimmigrant visa. If the alien willfully concealed his or her inadmissibility from the consular officer or the inspecting officer, the alien may be inadmissible under section 212(a)(6)(C) of the Act in addition to the original grounds of inadmissibility. If the waiver was not obtained due to an honest misunderstanding on the part of the alien, or an error on the part of the consular or immigration officer, then only the merits of waiving the original ground of inadmissibility need be taken under consideration. If appropriate, the waiver request may be granted nunc pro tunc to cover the original admission as well as the proposed extension.

(4) Personal Interview.

Requiring a personal appearance by an applicant for a change of status should rarely be required and requests for additional evidence should likewise be relatively unusual. In the event either action is required, follow local procedures for forwarding the application for interview or establishing a call-up for the returned case. (If the case is being referred for an interview, prepare a memorandum explaining the reasons for the referral.) The application itself, supporting documentation required by the inst ructions on the form, and existing records will enable you to adjudicate virtually any extension of stay request. When an interview is conducted, a memorandum containing the results or notes summarizing the interview should be included in the record. If the interview was conducted at the request of a service center or another field office, that office should be notified of the findings.

(5) Indirect Attainment of a Prohibited Change of Status.

restrictions by virtue of having attained an intermediate status. Matter of Kim, 13 I&N Dec. 316 (R.C. 1968), denied a change of status from A-2 to F-1 because the applicant was originally admitted as a J-1. Such a change would be an indirect change from exchange visitor to student, a prohibited action.

(6) Changes of Nonimmigrant Classification Formerly Permitted Without Application or Fee.

Prior to January 11, 1994, 8 CFR 248.3(c) specifically allowed certain changes without fee or application. Those changes included:

(A) A change to classification under section 101(a)(15)(A) or (G) of the Act;

(B) A change to classification under sections 101(a)(15)(A) or (G) of the Act for an immediate family

member, as defined in 22 CFR 41.1, of a principal alien whose status has been changed to such a classification;

(C) A change to the appropriate classification for the nonimmigrant spouse or child of an alien whose

status has been changed to a classification under sections 101(a)(15)(E), (F), (H), (I), (J), (1), or (M) of the Act;

(D) A change of classification from that of a visitor for pleasure under section 101(a)(15)(B) of the Act to

that of a visitor for business under the same section;

(E) A change of classification from that of a student under section 101(a)(15)(F)(I) of the Act to that of an

accompanying spouse or minor child under section 101(a)(15)(F)(ii) of the Act or vice versa;

(F) A change from any classification within section 101(a)(15)(H) of the Act to any other classification

within section 101(a)(15)(H) of the Act provided that the requisite visa petition has been filed and approved;

(G) A change of classification from that of a participant under section 101(a)(15)(J) of the Act to

classification as an accompanying spouse or minor child under that section or vice versa;

(H) A change of classification as an intra-company transferee under section 101(a)(15)(1) of the Act to

classification as an accompanying spouse or minor child under that section or vice versa; and

(I) A change of classification from that of a student under section 101(a)(15)(M)(I) of the Act to that of an

accompanying spouse or minor child under section 101(a)(15)(M)(ii) of the Act or vice versa.

The reason for discontinuing these provisions related to the need to eliminate circumstances whereby persons could change status without paying a fee (in effect transferring the USCIS' cost of doing business onto someone else), not with proscribing any of these actions. The types of changes for status listed above remain equally available to persons in such classifications today, provided that the person(s) involved file the application, pay the requisite fee, and are otherwise eligible. After Jan. 11, 1994, only those aliens described in (A) remain exempt fee.

Note:

It has been determined that 8 CFR 248.3(b) applies to the B-2 spouse or children of B-1 nonimmigrants. Therefore, if a B-1 nonimmigrant applies for and is granted an extension of temporary stay, the status of the spouse and children will be changed without fee or application. Upon this change of status, Forms I-94 must be endorsed “B-1 spouse” or “B-1 child”.

(7) Change of Status within the J Classification.

8 CFR 248.2 prohibits a change from the J nonimmigrant classification for any individual who became a J in order to receive graduate medical training or who is subject to the 2-year residency requirement. However, this prohibition does not prevent someone (who is otherwise eligible) from seeking a change within the J category from J-1 to J-2, or vice versa. However, three important items should be noted regarding this type of change:

(A) Any alien(s) subject to the 2-year residency requirement retains that obligation despite the change

from J-1 to J-2 or vice versa;

(B) The alien(s) involved may acquire a 2-year residency requirement which they did not have previously

[e.g., a J-1 not subject to the requirement who becomes a J-2 accompanying spouse of someone who is subject acquires the same obligation as the (new) J-1 principal]; and

(C) Before approving any such change, the adjudicator should be satisfied that it is being requested for

legitimate exchange visitor purposes and not merely to extend the stay in the United States by “flip- flopping” the roles of the principal alien and the accompanying spouse.

(8) Bonds.

A maintenance of status and departure bond, although seldom used, may be required as a condition for approval of an extension or change of status request. See Inspector's Field Manual, Chapter 45, for procedures on posting bonds.

(9) Affidavits of Support.

See Chapter 30.8 of this manual.

(10) File Review.

When adjudicating an application for change of status, obtain and review any relating “A” file prior to adjudication if a bond has been posted on the alien's behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating “A” file may be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the applicant's Form I-94 is noted “WAS” the file should not be requested, but the Washington, D.C. District Office should be consulted before an extension of stay is granted. In all cases in which an “A” file exists, the adjudicated application and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.

(11) Case Closing Actions.

(A) Approval.

Complete the following steps when approving an application for change of status:

• Determine the appropriate amount of time for the extension of stay in the new visa classification. [See 8 CFR

214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.]

• Endorse the action block on the application and indicate the actions taken in the section of the form designated

“for Government Use Only”.

• For CLAIMS-processed cases, upon approval, update CLAIMS and order approval notices. The system will

forward the record of approval to NIIS. The CLAIMS approval notice, Form I-797A, contains a tear-off section which serves as a replacement Form I-94 indicating the new status and extension date.

• If the application is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the

action taken (e.g. “c/s to F-1”), approval date, office three-letter code, and officer stamp number. Also, endorse the I-94 manually or using a rubber stamp, with the notation: “You must obtain a new visa to reenter this country in your present status.” In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding to NIIS of Form I-530 for each alien included on the application and completion of an approval notice on Form I-542.

(B) Denial.

If denying the application for change of nonimmigrant status, complete the following steps:

• Endorse the action block on the application and indicate the actions taken in the section of the form designated

“for Government Use Only”.

• Using Form I-210, set a period of voluntary departure if the applicant is no longer maintaining status and he or

she has agreed to accept voluntary departure.

• For denials processed in CLAIMS, select the proper standard denial paragraphs from CLAIMS, adding special

text if necessary.

• In non-CLAIMS cases, prepare Form I-541 to advise the applicant of the reasons for denial.

• In both CLAIMS and non-CLAIMS cases, prepare Form(s) I-530 and forward to NIIS — Service Centers do not

prepare I-530s on denials of I-129s ir I-539s.

(C) Routing of Miscellaneous Documents.

Returning the pink colored, USCIS annotated, IAP-66 with the I-94 is no longer the process. IAP-66 has been replaced by SEVIS generated DS-2019s. This is no longer a multiple copy form. Annotated original DS-2019 is returned to the applicant or attorney after approval of the COS. A photo copy of the annotated DS-2019 should go into the file. In the cas of the F-1 form I-20, the original endorsed I-20 is returned to the student or attorney, a photocopy of the annotated I-20 goes into the case file and nothing is sent to London, KY. SEVIS has eliminated STSC which is where the data from the copies of the I-20s were entered previous to SEVIS.

The yellow copy of the IAP-66 is sent to the Department of State, Bureau of Educational and Cultural Affairs and the white copy stays in the file with the application. In the case of the F-1 student the school copy (Form I-20AB) is sent to the data facility in London, Kentucky and the student copy (Form I-20ID) is returned to the student or attorney, in accordance with Appendix 15-8 of the Inspector's Field Manual.

(12) Appeal.

There is no appeal from an adverse decision on Form I-539 filed for purposes of seeking a change of status.

(d) Form I-129.

(1) Initial Receipting.

In order to receive a change of status to any category which requires an employer to submit a petition, the applicant must file Form I-129 with the service center having jurisdiction over his or her residence. The I-129 serves both as the employer's petition and the nonimmigrant's request for the new status. A single application may be filed by a family group, provided all family members hold the same status or derivative status and provided that there is no more than one principal alien on the petition. See general receipting instructions in Chapter 10. Editions of Form I-129 prior to the most current edition may not be accepted.

(2) Preliminary Screening.

Preliminary review of the application is performed by USCIS personnel. In addition to the general actions described in Chapter 10, preliminary review should include the following:

(A) Determine jurisdiction.

Jurisdiction is based on the location where the work is to be performed. Consult with supervisory personnel before accepting an application which does not appear to be submitted in the proper jurisdiction.

Note:

Normally cases submitted in the wrong jurisdiction must be transferred to the appropriate office; however, in certain situations local management may choose to assume jurisdiction in a case. Consult with supervisory personnel before processing an application which does not appear to be submitted in the proper jurisdiction. In cases involving temporary employment at more than one location, for more than one employer, or where there is an agent acting as a petitioner, jurisdiction is determined by the petitioner's address.

(B) Applicants must submit a copy of their I-94.

Since the CLAIMS-generated approval notice, Form I-797A includes a replacement I-94, return any original I-94 which was improperly submitted. If there are multiple applicants on a single application, insure a copy of each I-94 is attached.

(C) Ensure the petition or application and appropriate schedule supporting the change of status is

completely filled out and documented in accordance with the instructions on the form.

Other special supporting documents required for nonimmigrant classes are discussed in Chapters 31-35, relating to specific categories. There is a wide variety of supporting documents, such as labor certifications, advisory opinions and labor condition applications. An application for a change of status submitted without such required documentation is not considered properly filed, even if the fee was collected and a receipt issued.

(3) Adjudication.

Change of status applications are ordinarily fairly simple to adjudicate, once eligibility for any underlying petition has been established. Because the benefit sought is short-lived, these applications should be processed as quickly as possible, to insure the request is acted upon while it is still relevant. Although the petition and change of status are usually adjudicated simultaneously, they are actually two separate processes. This chapter will discuss only those requirements which relate to the change of status, not to the underlying petition. Petition requirements are discussed in Chapters 31-35. In addition to the steps described in Chapter 10.3 , the following actions are ordinarily required during the adjudicative process:

(A) First adjudicate the nonimmigrant petition.

If the petition is approvable, continue to the steps below. Once the underlying petition is denied and the denial is final (i.e., the appeal has been dismissed or the period for filing the appeal has expired with no appeal having been filed), the change of status application must also be denied.

(B) Determine if the application was timely filed.

Although ordinarily required, the adjudicator has discretion to grant a change of status based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the applicant's control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way [such as by working in the U.S. for the petitioner — be especially alert for this if the alien has previously worked for the same employer in another capacity (e.g., as an F-1 student on practical training)], whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings.

(C) Verify passport validity.

An applicant need not submit a valid passport with his or her application since Part 4 of the application contains passport validity information. The applicant must hold a valid passport at the time of application and is required to maintain validity during the entire period of his or her stay in the U.S.

(D) Ensure that co-applicant dependents remain entitled to dependent status.

However, a dependent's ineligibility for change of status does not preclude approval of the principal's application only.

(E) Because the alien applicant on Form I-129 will be gainfully employed once the new status is granted,

it is generally not necessary to further explore an applicant's ability to maintain status financially (unless the rate of remuneration is so low that the principal would be unable to support him/herself and all dependents). A rapid sequence of events between arrival and filing for a change of status may be indicative of the applicant's attempt to avoid consular scrutiny of his or her prior employment. The credibility of evidence submitted to support prior employment experience should be explored as part of the petition adjudication, rather than in the context of the change of status request.

(F) Determine if a Favorable Exercise of Discretion Is Warranted.

Change of status applications are discretionary in nature. Many of the discretionary considerations present when considering a change of status to a student or visitor are either inapplicable or of considerably less weight when adjudicating a case where the alien is seeking an employment-related status. However, you should still consider whether there was possible deception when the original visa or admission was sought, what the applicant's ultimate intentions may be, veracity of documentation submitted, and the overall effects of a positive or negative decision. It is important to keep in mind that discretionary does not mean arbitrary. Given similar fact patterns, discretionary decisions should yield similar results regardless of where such cases are adjudicated or by whom. There is a significant body of precedent decisions which discuss the appropriate exercise of discretion under a variety of situations. Familiarity and conformity with these precedents is critical to achieving consistent and fair results in such cases.

Note:

Visas Mantis Cases. In adjudicating an application for change of status on behalf of an alien who was admitted under the Visas Mantis program, follow the same procedures as are set out for extension of stay applicants in Chapter 30.2(e) .

(4) Interview.

Requiring a personal appearance by an applicant for a change of status should rarely be required and requests for additional evidence should likewise be relatively unusual, once the underlying visa petition has been adjudicated. In the event either action is required, follow local procedures for forwarding the application for interview or establishing a call-up for the returned case. Care must be exercised when requesting additional evidence to support a petition that the request is complete enough to insure the adjudicator's ability to complete action on both the petition and change of status request.

(5) Unauthorized Employment.

An alien who engages in employment which is inconsistent with his or her current status is ineligible to change status [Matter of Kyriakarakos, 10 I&N Dec. 646 (R.C. 1963)]. Often, an alien seeking a change from a non- employment authorized classification to one which permits employment (e.g., H, L or E) will indicate that he or she intends to commence employment on a specific date. If that date has passed, and the alien has begun employment without the change of status having been approved, the alien is in violation of status,. Occasionally, such changes of status are granted without the adjudicating officer knowing that the alien commenced work prior to the approval. If such unauthorized employment comes to the attention of USCIS, USCIS may initiate a motion to reopen the case and deny the change of status decision. Likewise, if at some point in the future the alien applies for adjustment of status, he or she is subject to the provisions of section 245(c) of the Act.

(6) File Review.

In adjudicating a change of status request, a relating “A” file shall be obtained and reviewed prior to adjudication if a bond has been posted on the alien's behalf or if the alien has been granted a section 212(d)(3) waiver. In any other case, a relating “A” file may be obtained and reviewed if there is reason to believe it may contain relevant information needed to decide the case. In a section 212(d)(3) waiver case, if the applicant's Form I-94 is noted “ARL” the file should not be requested, but the Arlington, VA. District Office should be consulted before an extension of stay is granted. In all cases in which an “A” file exists, the adjudicated application and all relating material shall be placed in the file. The file number shall be noted on the application and the Form I-94.

(7) Case Closing Actions.

(A) Approval.

If the application for change of nonimmigrant status is being approved, complete the following steps:

• Determine the appropriate amount of time for the extension of stay in the new visa classification. [See 8 CFR

214.1 for general requirements and 8 CFR 214.2 for the specific requirements relating to each nonimmigrant classification.]

• Endorse the action block on the application and indicate the actions taken in the section of the form designated

for “Government Use Only”.

• For CLAIMS-processed cases, upon approval, update CLAIMS and order approval notices. The system will

forward the record of approval to NIIS. The CLAIMS approval notice, Form I-797A, contains a tear-off section which serves as a replacement Form I-94 indicating the new status and extension date.

• If the application is not processed in CLAIMS, the original I-94 must be manually noted on the reverse with the

action taken (e.g. “c/s to L-1”), approval date, office three-letter code, and officer stamp number. Also, endorse the I-94 manually or using a rubber stamp, with the notation: “You must obtain a new visa to reenter the U.S. in you present status.” In addition, both CLAIMS and non-CLAIMS approvals require the preparation and forwarding to NIIS of Form I-530 for each alien included on the application and completion of an approval notice on Form I-171C.

(B) Denial.

If the application for change of nonimmigrant status is being denied, complete the following steps:

• Endorse the action block on the application and indicate the actions taken in the section of the form designated

for “Government Use Only”.

• Using Form I-210, set a period of voluntary departure if the applicant is no longer maintaining status and he or

she has agreed to accept voluntary departure.

• For denials processed in CLAIMS, select proper standard denial paragraphs from CLAIMS, adding special text

if necessary.

• In non-CLAIMS cases prepare Form I-541 to advise the applicant of the reasons for denial.

• In both CLAIMS and non-CLAIMS cases, prepare Forms I-530 for each applicant and forward to NIIS –Service

Centers do not prepare I-530s on denials of I-129s or I-539s.

(8) Appeal.

There is no appeal from an adverse decision the nonimmigrant's request for change of status filed on Form I-129. However, an adverse decision on the employer's petition may be appealed to the Administrative Appeals Office.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) A-3 Extensions.

An A-3 alien seeking to extend his/her temporary stay shall submit through his or her diplomatic mission a completed Form I-539 with fee, his/her Form I-94, and a signed statement as required by 8 CFR 214.2(a)(1). The statement shall identify the employing A-1 or A-2 by name, visa status and official title; it shall name the embassy, consulate, mission or office for which the A-1 or A-2 works; it shall state the period of time that the A-1 or A-2 intends to continue employing the A-3, and shall describe the duties the A-3 shall perform.

USCIS may consult with the Department of State (Visa Office, Diplomatic Liaison Division, CA/VO/P/D, Washington, D.C. 20522-0113) about the eligibility of an individual applying for extension of A-3 status, or an employer's eligibility to employ an A-3.

(b) G-5 Extensions.

A G-5 alien seeking to extend his/her temporary stay shall submit through his or her international organization a completed Form I-539 with fee, his/her Form I-94, and a signed statement as required by 8 CFR 214.2(g)(1). The statement shall identify the employing G-1, G-2, G-3 or G-4 by name, visa status and official title; it shall name the international organization or mission for which the G-1, G-2, G-3 or G-4 works; it shall state the period of time that the G-1, G-2, G-3 or G-4 intends to continue employing the G-5, and shall describe the duties the G-5 shall perform.

USCIS may consult with the Department of State about the eligibility of individuals applying for extension of G-5 status and about the eligibility of the employer to employ the G-5. Inquiries involving United Nations personnel should be directed to United States Mission to the United Nations [799 U.N. Plaza, New York 10017]; inquiries involving other G personnel should be directed to the Department of State [Visa Office, Diplomatic Liaison Division, CA/VO/P/D/, Washington, D.C. 20522-0113].

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

30.7 UNAUTHORIZED EMPLOYMENT AND OTHER INCIDENTS INVOLVING A OR G NONIMMIGRANTS.

(a) Unauthorized Employment.

(1) Reporting Requirement.

If it comes to USCIS's attention that an A-1, A-2, G-1, G-2, G-3, or G-4 nonimmigrant is engaged in unauthorized employment, USCIS shall notify the employer and the alien that the employment is unauthorized. An A-file shall be created, if one does not exist. The incident shall be reported in writing within 72 hours and shall be expeditiously forwarded through official channels to Headquarters (Operations). The receiving Headquarters unit shall forward a copy of the report to the U.S. Department of State. Reports involving United Nations personnel should be directed to United States Mission to the United Nations [799 U.N. Plaza, New York 10017]; reports involving other A or G personnel should be directed to the Department of State [Visa Office, Diplomatic Liaison Division, CA/VO/ P/D, Washington, D.C. 20522-0113].

The report should include, but is not necessarily limited to, as much of the following information as is available: the case officer's name, title, duty office, and phone number; the alien's name, date of birth, place of birth, A-number, I-94 number, social security number, Department of State personnel identification number (PID), if known; the name of the principal alien, his/her official title, the international organization, mission, etc., which employs him/ her, his or her Department of State PID, if known; whether the alien ceased working after being notified that the employment was unauthorized; the job the alien was performing, hours per week worked, length of employment, salary and other compensation received; whether social security, income taxes and other applicable taxes are or were being withheld; whether any fraudulent documentation was used to obtain the employment. Additionally, copies of any documentation relating to the unauthorized employment should be attached to the report.

The report shall also indicate whether the incident appears to be isolated or part of pattern. Indicators of a pattern include, but are not limited to: the alien has a history of unauthorized employment; other members of the alien's family are employed without authorization; aliens who can be identified with the same international organization, mission, etc. are found to be engaged in unauthorized employment; or the employer has a history of employing unauthorized aliens.

A copy of the report, all relating correspondence and supporting documentation shall be housed in the A-file.

(2) Department of State Determination.

If the Department of State notifies USCIS in writing that it no longer recognizes the alien as entitled to A or G classification and cancels the visa, USCIS may initiate appropriate action on the basis of the unauthorized employment. If the Department of State notifies USCIS in writing that it continues to recognize the alien as entitled to A or G classification, then USCIS is precluded from taking action against the alien as long as he/she remains in status. In either instance, the Department of State's written reply shall be housed in the A-file.

(3) Notification to the Field.

Upon receiving the Department of State's decision, the receiving Headquarters unit will expeditiously notify the region having jurisdiction and originating office of the decision and forward a copy of the report.

(4) Field Office Action.

The originating field office will take appropriate action in accordance with the Department of State's determination.

(5) Employer Sanctions Not Affected.

These instructions shall in no way be construed as discouraging or preventing USCIS or ICE from taking appropriate action against the alien's employer under section 274A of the Act and 8 CFR 274a.

(6) The Effect of Violations.

(A) Alien in A-1, A-2, G-1, G-2, G-3, or G-4 Classification Applying for a Change of Nonimmigrant

Classification.

An alien in A-1, A-2, G-1, G-2, G-3, or G-4 classification who engages in unauthorized employment may be allowed to continue in that classification based on recognition by the Department of State. USCIS and ICE hold that such recognition and continuation in classification does not eliminate the fact that the alien has violated status under 8 CFR 214.1(e). Therefore, an application for change of nonimmigrant classification under section 248 of the Act filed by an A-1, A-2, G-1,G-2, G-3, or G-4 who is/was engaging in unauthorized employment is deniable based on his/her violation of status.

(B) Alien in A-1, A-2, G-1, G-2, G-3 or G-4 Classification Applying for Adjustment of Status.

An A-1, A-2, G-1, G-2, G-3 or G-4 alien who has engaged in unauthorized employment and who applies for adjustment of status under section 245 of the Act is subject to section 245(c) of the Act, pursuant to 8 CFR 214.1(e).

(C) G-4s Adjusting as Special Immigrants.

The provisions of section 245(c) of the Act do not apply to G-4s who are adjusting status as special immigrants under section 101(a)(27)(I) of the Act [see P.L.100-525 effective October 24, 1988].

(D) Alien in Violation of Status Other than G Status, Applying for G Status.

A change of nonimmigrant status to G requires a favorable recommendation from the Department of State. When a nonimmigrant who has violated status applies for G status, the adjudicator shall consider: the nonimmigrant's immigration history, the nature and length of the violation, the position being offered, the level of Department

of State interest, and whether the Department of State knew the nonimmigrant was in violation of status when it made its recommendation. Clarification on the last three points may be obtained from the Department of State. Consultation with the Department of State is required prior to denying a case in which State has made a favorable recommendation.

(E) Alien in A-3 or G-5 Classification.

An A-3 or G-5 does not have the protection of other A and G aliens. Therefore, any violation of status subjects an A-3 or G-5 to USCIS or ICE action without referral to the Department of State.

(b) Other Reportable Incidents.

Service officers shall use the procedures described above as guidelines when they encounter an A-1, A-2, G-1, G-2, G-3 or G-4 nonimmigrant involved in other activities which would make him/her liable to deportation were it not for the diplomatic protection afforded him/her. When the activity involves a crime involving moral turpitude, a felony-level offense, or an offense involving controlled substances, telephonic notification to Headquarters (Operations) through channels shall also be made. While diplomatic immunity may preclude prosecution and removal proceedings, the reporting procedure will provide the Department of State with the information to decide whether or not to cancel the offender's visa and/or file a protest with the diplomatic mission or international organization regarding the offense.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

Every nonimmigrant seeking admission or extension or change of status must satisfy the inspector or adjudicator that he or she is capable of maintaining status and will not become a public charge. In situations where the status sought involves employment, the income from the employment itself generally satisfies the support requirement. A separate affidavit of support or other evidence of financial resources is most commonly required for nonimmigrant students and for certain visitors for pleasure (e.g., elderly and infirm visitors seeking a lengthy stay in the U.S.). An affidavit in such a situation may be filed on Form I-134 or it may be prepared on plain paper and signed. It should be accompanied by documentation, such as bank records, to corroborate the claims made on the affidavit.

Such affidavits, although helpful in judging financial ability, are not legally binding. Form I-134 may only be used for nonimmigrant cases. The affidavit of support used for immigrants is Form I-864, discussed separately in Chapter 20.

Relatives and sponsors of visa applicants abroad who inquire at a USCIS office concerning the submission of affidavits of support in behalf of such applicants shall not be referred to anyone outside the USCIS; instead, Forms I-134 shall be furnished them. They shall be advised, however, that the Forms I-134 are furnished solely as a guide as to items generally required in affidavits of support (see notes to 22 CFR 41.91(a)(15) and 42.91(a)(15) in Volume 9–Visas, Foreign Affairs Manual). Forms I-134 are to be made available only for use in individual cases and are not to be distributed outside the USCIS.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

A C-2 nonimmigrant admitted pursuant to the United Nations Headquarters Agreement is limited geographically to a 25 mile radius of Columbus Circle, New York City, New York during his or her stay in the United States. If such person wishes to depart from the 25 mile radius of he or she may make application to the New York District Office. There is neither application nor fee for this application and the decision of the director is final and unappealable. The decision should be communicated by letter and carried by the alien when traveling beyond the 25-mile limit.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

There are two different procedures under which the approval of an H, L, O, P, or Q nonimmigrant petition may be revoked by USCIS: automatic revocation and revocation upon notice. In addition, a decision to approve or deny a petition may be reopened or reconsidered under the provisions of 8 CFR 103.5.

(a) Automatic Revocation.

A petition is automatically revoked if the petitioner goes out of business or files a written withdrawal of the petition. Place a copy of the evidence on which the automatic revocation is based in the relating file(s) and the annotate the petition to show that it has been revoked. An automatic revocation does not require notice to the petitioner or the beneficiary and may not be appealed.

(b) Revocation Upon Notice.

If automatic revocation is not appropriate, the approval of a nonimmigrant petition may be revoked under certain circumstances and upon appropriate notification to the petitioner (who then has an opportunity to rebut the alleged reasons for revocation). A notice of intent to revoke will be sent if any of the following occurs:

• The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the

beneficiary is no longer receiving training as specified in the petition;

• The statement of facts contained in the petition was not true and correct;

• The petitioner violated terms and conditions of the approved petition;

• The petitioner violated the requirements of section 101(a)(15)(H), (L), (O), (P) or (Q) of the Act or of 8 CFR

214.2 (h), 214.2(l), 214.2(o), 214.2(p), or 214.2(q), as appropriate; or

• The approval of the petition violated the provisions of 8 CFR 214.2 (h), 214.2(l), 214.2(o), 214.2(p), or 214.2(q),

as appropriate, or involved gross error.

The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation, shall state whether USCIS intends to revoke the petition in whole or in part (and if in part, which part(s)), and shall advise the petitioner of his or her right to review and/or rebut the allegations upon which the intended revocation is based

within 30 days of the date of the notice. (“Revoked in part” means that the approval is revoked with regard to one or more, but not all, of the beneficiaries of a multiple beneficiary petition, or with regard to one or more, but not all, of the proposed employment sites or events listed in a multi-site/event petition.) The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. The director shall consider all relevant evidence presented in deciding whether to revoke the petition in whole or in part. If the petition is revoked in part, the remainder of the petition shall remain approved and a revised approval notice shall be sent to the petitioner with the revocation notice. A decision to revoke a petition, in whole or in part, may be appealed to the Office of Administrative Appeals.

There is a similar provision for automatic termination of a fiancé(e) petition if the petitioner dies or withdraws the petition prior to the beneficiary's arrival in the United States.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

Under section 212(a)(5)(C) of the Act, an alien who seeks admission to the United States for the primary purpose of performing labor as a health care worker, other than a physician, is inadmissible unless he or she presents a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS) or an equivalent credentialing organization. Section 212(r) of the Act provides an alternate certification process for nurses. The certification generally verifies that the alien's training, license, experience, and English-language ability meet minimum standards and are comparable with that required for an American health care worker of the same type.. Any equivalent credentialing organizations must be approved by the Department of Homeland Security (DHS) in consultation with the Secretary of Health and Human Services.

(b) Health Care Occupations Requiring Certification.

The health care occupations requiring certification are nurses (licensed practical nurses, licensed vocational nurses, and registered nurses), physical therapists, occupational therapists, speech-language pathologists and audiologists, medical technologists (also known as clinical laboratory scientists), medical technicians (also known as clinical laboratory technicians) and physician assistants.

(c) Affected Nonimmigrant Classifications.

Nonimmigrants coming for the primary purpose of performing work as a health care worker will most likely be in the H-1B, H- 1C, J, O, and TN Classifications, although they may be petitioned for in other classifications.

(d) Certification Not Required.

Certification is required for all nonimmigrants who are entering for the primary purpose of performing labor as a health care worker. Accordingly, a nonimmigrant entering the United States to receive training in an occupation, including an F-1 or H-3 nonimmigrant receiving practical training or a J-1 nonimmigrant coming to undertake a training program in a medical field, is not required to obtain certification. The nonimmigrant spouse and dependent children of an immigrant or nonimmigrant alien subject to the certification requirement are not required to obtain certification.

(e) Authorized Credentialing Organizations.

CGFNS is authorized to issue health care worker certificates for all 7 occupations. The National Board for Certification in Occupational Therapy (NBCOT) is authorized to issue certificates for occupational therapists only. The Foreign Credentialing Commission on Physical Therapy (FCCPT) is authorized to issue certificates for physical therapists only.

(f) Implementation Dates.

(1) Prior to July 26, 2004, the DHS will admit and approve applications for extension of stay or change of status

for nonimmigrant health care workers without requiring certification. The temporary admission, extension of stay, or change of status of such a nonimmigrant will be subject to the following conditions:

(i) The admission, extension of stay, or change of status may not be for a period longer than 1 year from the date

of the decision, even if the relevant provision of 8 CFR 214.2 would ordinarily permit the alien's admission for a longer period;

(ii) The alien must obtain the requisite health care worker certification within 1 year of the date of decision to

admit the alien or to extend the alien's stay or change the alien's status; and,

(iii) Any subsequent petition or application to extend the period of the alien's authorized status or change the

alien's status must include proof that the alien has obtained the health care worker certification if the extension or stay or change of status is sought for the primary purpose of the alien's performing labor in an affected health care occupation. If the alien is adjusting status, all eligibility requirements must be met at the time of filing the application for adjustment of status. 8 CFR 103. 2(b)(12). Therefore, a health care worker in one of the affected occupations must submit evidence of certification at the time the adjustment of status is filed.

(2) On or after July 26, 2004, if an alien seeks admission to the United States, a change of status, or an extension of

stay, the alien must provide evidence of health care worker certification if his or her primary purpose for coming to or remaining in the United States is employment in one of the affected health care occupations. The DHS will then exercise its discretion to waive the certification requirement only on a case by case basis.

(g) Applications for Authorization to Issue Health Care Worker Certificates.

Credentialing organizations may seek authorization from USCIS issue health care worker certificates. An organization must apply for authorization by submitting Form I-905, Application for Authorization to Issue Certification for Health Care Workers, to the Nebraska Service Center (NSC). The application must be accompanied by the appropriate filing fee. The NSC will issue a receipt notice, and then forward the packet to the Department of Health and Human Services (HHS):

[(b)(2) or (b)(7)(E)]

Once HHS has reviewed the application, it will return the Form I-905 and any accompanying documents to the NSC with a formal recommendation on whether or not the credentialing organization should be authorized to issue health care worker certificates for the requested occupations. The NSC will issue a final decision to the applicant advising the applicant whether or not the Form I-905 has been approved. Though DHS will give great weight to the HHS recommendation, the final authority to approve or deny the application rests with the DHS. If the application is approved, the NSC will advise the applicant that it has been authorized to issue health care

certificates for a period of five years and notify the public through publication in the Federal Register. The approval notice must list all of the health care occupations for which the organization is authorized to issue certificates. If the application for authorization is not approved, the applicant will have 30 days in which to appeal the decision to the Administrative Appeals Office.

Credentialing organizations that seek to extend their authorization must file an application on Form I-905 prior to the expiration of the five-year authorization period. If an organization's authorization expires prior to USCIS approval of the extension application, the organization will not be authorized to issue health care worker certificates until the USCIS approves the extension application. At the time the authorization extension is filed, the DHS will review the credentialing organization to ensure continued compliance with the regulatory standards. In addition, the DHS reserves the right to conduct a review of the approval at any time within the 5-year period. If the DHS determines that an organization has been convicted, or the directors or officers of an authorized credentialing organization have individually been convicted, of the violation of state or federal laws, or other information is developed such that the fitness of the organization to continue to issue certificates or certified statements is called into question, the DHS shall automatically terminate authorization for that organization. The DHS will provide notice, including the basis for the termination, to the organization.

(h) Information on the Certificates.

A certifying organization generally must verify that the foreign health care workers' education, training, licensing, experience and English competency meet all statutory and regulatory requirements of section 212(a)(5)(C) of the Act or, for certain nurses, section 212(r) of the Act. The health care worker certificate or certified statement must contain the following elements:

• The name, address, and telephone number of the credentialing organization, and a point of contact to verify the

validity of the certificate or certified statement;

• The date the certificate or certified statement was issued;

• The health care occupation for which the certificate was issued; and

• The alien's name, and date and place of birth.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) Current Law.

The present nonimmigrant temporary worker categories have changed significantly, becoming more restrictive in some ways and more generous in others, in several stages since 1986. Current law provides for the admission of several specific categories of temporary workers (H nonimmigrant categories, as well as L, O and P categories discussed in other chapters of this manual):

• H-1B classification, created by Public Law 101-238 (1989) (and the Immigration Nursing Relief Act which also

created the now defunct H1-A nurse classification) and modified by Public Law 101-649 (1990) is reserved for aliens employed in “specialty occupations”, defined as in section 214(i) and for fashion models of “distinguished merit and ability”;

• H-1C classification, created by Public Law 106-95 (1999), is reserved for registered nurses employed in

specifically designated nursing shortage areas;

• H-2A classification, created by Public Law 99-603 (1986), is reserved for temporary or seasonal agricultural

workers;

• H-2B classification, created by Public Law 99-603 (1986), is reserved for other temporary workers;

• H-3 classification is reserved for “industrial trainees” who will not primarily be engaged in productive labor.

Each of these categories is precisely defined in section 101(a)(15)(H) of the Act and the petition requirements for each are set out in 8 CFR 214.2(h).

(b) Prior Laws.

The Immigration Act of 1952 established a new nonimmigrant class of temporary workers. In these provisions, Congress sought to grant the Attorney General sufficient authority to admit temporarily certain alien workers, industrial, agricultural, or otherwise, for the purpose of alleviating labor shortages as they exist or may develop in certain areas or certain branches of American productive enterprises, particularly in periods of intensified production. The provisions also enabled foreign trainees to acquire the knowledge of American industrial, agricultural, and business methods. In 1970, Congress eliminated the requirement that an alien of distinguished merit and ability must be coming to a temporary position. However, both the petitioner and the beneficiary must

intend that the employment be for a temporary period of time. Also, in that year Congress added another new immigrant category, the L-1, intracompany transferee.

Prior to 1989, there were three H nonimmigrant worker classifications. The H-1 category included all “persons of distinguished merit and ability” which was generously interpreted to include all persons engaged in occupations which required a bachelor's degree or equivalent. Also included were registered nurses, athletes, artists and entertainers. There was no maximum time limit on the total period of stay or number of extensions which could be approved for an H-1, although in practice an H-1 requesting an extension beyond five years was generally denied as an “intending immigrant.” There was no limit on the number of H-1 aliens who could be admitted to the United States on an annual basis, nor was there any labor market test required. Among the professions, only medical doctors, other than those entering to perform teaching or research, were precluded from the H-1 classification.

In 1986, Pub. L 99-603 created a separate H-2A category for temporary/seasonal agricultural workers. Other temporary workers were redesignated as H-2B.

In 1989, Pub. L. 101-238 created a separate category (H-1A) for registered nurses. This Act also redesignated the existing H-1 category as H1-B. The H-1A category was permitted to sunset on September 1, 1995, with some nurses granted extensions in the category through September 30, 1997. On November 12, 1999, the category was replaced by the present, more restrictive, H-1C category created by Pub. L. 106-95.

In 1990, athletes and entertainers, as well as prominent persons in business, science and education were separated into the new O and P categories as a result of Pub. L 101-649, and the definition of H-1B changed from an alien of “distinguished merit and ability” to one coming to perform “services in a specialty occupation.” In addition, numerical limitations on new admissions of H-1B, H-2A and H-2B nonimmigrants were imposed for the first time. Further, the new law imposed a “labor condition application” provision that required the employer to pay any H-1B worker the higher of the actual or prevailing wage for the occupation in the local area of employment. The requirement that an alien have a residence in a foreign country which he has no intention of abandoning was also removed from the H-1 and L nonimmigrant classifications; however, limits were imposed on the amount of time an alien could remain in H-1B or P status. The H-2 and H-3 nonimmigrant classifications retained the foreign residence requirement, and the new O, P, and Q nonimmigrant classifications also required that the alien have a residence in a foreign country which he or she has no intention of abandoning.

In 1991, the Miscellaneous and Technical Immigration and Naturalization Amendments further modified the H-1B definition by including fashion models in the category.

In 1998, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) mandated that most H-1B petitioners pay an additional fee (originally $500, later raised to $1,000) which is designated for the funding of training programs for American workers.

In 2000, three significant pieces of legislation affecting H nonimmigrants were enacted. On October 17, 2000, the President approved enactment of The American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Public Law 106-313. On the same date, the President also approved enactment of Public Law 106-311, an untitled bill to increase the fee for certain H-1B petitions. Finally, on October 30, 2000, the President approved enactment of Public Law 106-396, the Visa Waiver Permanent Program Ac t (Visa Waiver Act). These amendments made the following changes:

• Public Law 106-313:

— Increased the numerical limitation on the H-1B nonimmigrant classification to 195,000 for fiscal year 2001 through fiscal year 2003;

— Allowed for the continued H-1B employment of certain H-1B nonimmigrant aliens who change H-1B employers;

— Exempted certain H-1B nonimmigrants from the annual numerical limitation;

— Allowed certain aliens who have applied for adjustment of status to change employers under certain conditions;

— Allowed INS (now USCIS) to grant an extension of stay to H-1B nonimmigrant aliens who are the beneficiaries of employment-based petitions under certain circumstances;

— Modified the method of counting H-1B nonimmigrant aliens;

— Provided that certain H-1B petitions that are revoked because of fraud or willful misrepresentation shall be subtracted from the numerical count for the year in which the petition was revoked;

• Public Law 106-311:

— Increased the additional filing fee for certain H-1B petitions to $1,000, with some exceptions;

• Public Law 106-396:

— Amended section 214 of the Act to address whether an amended petition is required of an H-1B petitioner when the petitioner undergoes corporate restructuring.

On November 2, 2002, President Bush signed into law the Twenty-First Century Department of Justice Appropriations Authorization Act (21 st Century DOJ Appropriations Act). One section of the new law amends § 106(a) of the American Competitiveness in the Twenty-first Century Act (AC21) by making the following change:

• Public Law 107-273:

— Removes the six-year limitation on H-1B status for certain aliens on whose behalf an alien labor certification or employment-based (EB) immigrant petition has been pending for 365 days or more.

On December 8, 2004, President George W. Bush signed the Omnibus Appropriations Act of FY 2005 (also known as the H-1B Visa Reform Act) into law. This act:

• Reinstated and increased an additional filing fee to $1,500 for certain H-1B petitions filed by petitioners with

more than 25 employees in the United States, with some exceptions. This is known as the ACWIA (American Competitiveness and Workforce Improvement Act of 1998) fee.

• Set the additional fee at $750 for certain H-1B petitions filed by petitioners with 25 or fewer employees in the

United States, with some exceptions.

• Instituted a Fraud Prevention and Detection Fee of $500 for the first H-1B petition filed by a particular petitioner

on behalf of a specific beneficiary on or after March 8, 2005.

On August 13, 2010, President Barack Obama signed Public Law 111-230. Public Law 111-230:

• Requires the submission of an additional fee of $2,000 for certain H-1B petitions where those petitions are

postmarked on or after August 14, 2010;

• Applies if:

o The H-1B petitioner employs 50 or more employees in the United States; and

o More than 50 percent of the petitioner's employees in the United States are in H-1B, L-1A, or L-1B nonimmigrant status; and

• Will remain in effect through September 30, 2014.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

Petition filing requirements, requirements for maintaining status and requirements for obtaining an extension of stay or change of nonimmigrant status are discussed in Chapter 30 of this manual. General adjudicative practices are discussed in Chapter 10. The remainder of this chapter deals with the adjudication of I-129 petitions for all H-class temporary workers. Regulations governing the filing and adjudication of these petitions may be located at 8 CFR 214.2(h). Also helpful are the instructions for Form I-129. These regulations and instructions are detailed and somewhat complex, because the requirements of the statute itself are complex.

(b) Filing of Petitions.

(1) Filing Location.

A petition to classify a worker under section 101(a)(15)(H) of the Act must be filed with the service center which has jurisdiction over H petitions in the area of intended employment, except in emergent situations. Petitions are filed at the service center unless there is an emergent situation as directed by HQOPRD. In such a case, the district officer must obtain a file number from the service center and send the file to the service center after disposition for records retention. The service centers do not have jurisdiction over special filing situations, such as petitions for Canadian woodsmen. Such petitions are filed with the local district office or a designated USCIS office. (See Appendix 31-4 for a list of such “special filing situation” cases.)

(2) Who Can File.

Although the statute requires the employer to file an H petition, USCIS allows others to file for the employer to accommodate some situations.

• H-1B petition. A U.S. employer or an agent where appropriate may file the petition.

• H-1C petition. A “facility” as defined by Department of Labor regulations at 20 CFR 655.1102 may file the

petition.

• H-2A petition. A U.S. employer, the employer's agent, or an association of U.S. agricultural producers named

as a joint employer on the labor certification may file the petition.

• H-2B petition. A U.S. employer, a U.S. agent, or a foreign employer filing through a U.S. agent may file the

petition.

• H-3 petition. A U.S. employer must file the petition.

(3) Services in More than One Location.

Such petitions are usually filed by an agent who is representing numerous employers in various locations, or by one employer which has work to be performed by the beneficiary in more than one location. A detailed itinerary is required to accompany the petition. The procedure where each employer must file a separate petition in order for the alien to work part-time for multiple employers does not apply in petitions filed by agents. [See 8 CFR 214.2(h)(2)(i)(B).]

(4) Amended Petition.

An amended petition requires the same filing fee as a new petition. Because the amended petition supplements the original petition, documentation does not have to be duplicated in the amended petition. However, an amended petition must be accompanied by evidence addressing the change which necessitated the filing of the amended petition.

(5) Agents as Petitioners.

A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in it behalf. A United States agent may be:

• The actual employer of the beneficiary;

• The representative of both the employer and the beneficiary;

• A person or entity authorized by the employer to act for, or in the place of, the employer as its agent.

Whenever the beneficiary(ies) will be employed by a single employer, the actual employer(s) must file the petition. USCIS reserves the right to require information from the actual employers and beneficiary(ies). The itinerary of firm engagements provided by the agent is acceptable in lieu of signed contracts, unless the adjudicator has reason to believe the statements are not true and correct. However, the adjudicator should request any additional information from the petitioning agent. Speculative employment should not be included in an itinerary. When the agent, such as a modeling agency, is functioning as the employer, a contract between the agency and the alien, guaranteeing the wages and conditions of employment, must accompany the petition.

(6) Named Beneficiaries.

Nonagricultural H petitions must identify the beneficiary (or beneficiaries) by name and other information required on Form I-129, except in emergent situations involving multiple H-2B aliens. [See 8 CFR 214.2(h)(2)(iii).]

(A) Emergent Situations.

The decision not to require names in an emergent situation is a discretionary one which the director must make. The petitioner's inability to provide names at the time the petition is adjudicated should be due to circumstances which the petitioner could not anticipate or could not control. The names and evidence that the aliens meet the requirements of the labor certification must be provided by the petitioner to the port of entry or the consular officer prior to their admission at a port of entry or application for a visa.

(B) Multiple Petitions Using the Same Labor Certification.

The petitioner may file multiple petitions at different times as the names of aliens become known, and use copies of the same labor certification until all of the positions covered by the labor certification have been filled. Each subsequent petition must refer to the petition number of all previously filed petitions using that labor certification, if available to the petitioner.

(7) Multiple Petitions.

An H-1B beneficiary can work simultaneously for more than one employer, provided each files a separate petition with its own LCA. Such separate petitions are not necessary if an agent serves as the sole petitioner.

(c) Effect of a Prior H-petition Approval.

Evidence of prior approvals as a form of documentation on a subsequent new petition cannot serve as the basis for future eligibility. Knowledge of prior approval of an H petition can be helpful to USCIS when considered along with other evidence eligibility. A prior approval, however, does not obligate USCIS to approve a subsequent petition or relieve the petitioner of providing sufficient documentation to establish current eligibility.

(d) Limits on a Temporary Stay . [Chapter 31.2(d) revised 12-05-2006]

(1) Principal Alien.

Specific limits on what is regarded as a temporary period of stay in all H classifications are included in the regulations to reflect the temporary nature of these classifications and to achieve consistency in the handling of requests for extensions of stay.

The maximum time limit in an H classification and the requirement to reside abroad upon expiration of this period cannot be avoided by leaving the United States before the expiration of the maximum time limit and reentering within a short period of time under a new petition. In such cases, the approval period of the new petition shall be consistent with and count towards the maximum time limit on an alien's temporary stay.

A new period of authorized stay may begin only when the alien has resided outside the United States for a period required by the classification, or when the alien qualifies for an exemption from limits on the maximum period of stay as discussed below.

(2) Spouse and Dependents.

Limitations on the duration of time spent in H-1B, H-2, or H-3 nonimmigrant status refer only to the principal worker in H status and do not apply independently to the principal worker's dependent spouse and children. Normal rules for maintenance of derivative status still apply such that the dependent may remain in the United States only for the purpose of family unity with the principal worker.

Time spent as an H-4 dependent does not count against the maximum allowable period of stay for principals in H-1B, H-2, or H-3 status. Thus, a foreign national who was previously an H-4 nonimmigrant and subsequently becomes an H-1B, H-2, or H-3 principal may be eligible for the maximum period of stay allowed under the H-1B, H-2 or H-3 classifications. Furthermore, a principal H-1B, H-2, or H-3 nonimmigrant who subsequently changes to H-4 status may remain in the new derivative status for as long as the principal foreign national spouse maintains that principal status. The application for a change of status to H-4 must be properly filed before the H-1B, H-2, or H-3 foreign national has spent the maximum allowable period of stay in the United States.

USCIS may limit, deny, or refer for removal an H-4 dependent that is not primarily intended for the purpose of being with the principal worker in the United States. Therefore, a spouse or child may be required to show that the requested stay is not intended to evade the normal requirements of the nonimmigrant classification that otherwise would apply when the principal foreign national is absent from the United States.

USCIS officers may adjudicate applications for dependent stays in order to prevent an H-1B nonimmigrant from using only occasional work visits to the United States in order to “park” the family members in the United States for extended periods while the principal alien is normally absent.

(3) Seasonal, Intermittent or Aggregate Periods of Employment of Six Months or Less.

The limitation on the total period of stay does not apply to H-1B, H-1C, H-2B, or H-3 aliens who do not reside continually in the United States and whose employment in the United States is seasonal or intermittent or for an aggregate of six months or less per year.

Further, the limitations do not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. To qualify for this exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad.

(4) Exemptions to Limitations of Stay . [Updated May 28, 2008]

The limitation on the total period of stay does not apply to H 1B aliens when, as of the date of filing the extension request:

• 365 or more days have passed since the filing of any application for labor certification, Forms ETA 750 http://

www.foreignlaborcert.doleta.gov/750inst.cfm or ETA 9089, that is required or used by the alien to obtain status as an EB immigrant; and the labor certification, if approved, has not been revoked, is unexpired or has been timely filed with an EB petition within the labor certification's validity period; or

• 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or

• The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S.

permanent legal residence based on the unavailability of an immigrant visa number.

(5) Applying for Exemptions to Limitations of Stay.

In sections 106 and 104(c) of AC21 [ link to “Sec. 11030A. Extension of H-1B status for aliens with lengthy adjudications” on the i-link Public Laws Amending the INA], Congress provided exemptions from maximum stay

rules for certain H-1B aliens who were being sponsored by employers for permanent residence and were subject to long delays either for government processing or for visa numbers.

The relevant subsections emphasize exemption from the maximum admission under INA section 214(g)(4). Congress did not restrict eligibility for additional periods of admission beyond the maximum six years to only requests for extension of stay.

A qualified alien need not be in H-1B status in order to benefit from sections 106 and 104(c) of AC21. The alien may obtain such additional periods of H-1B admission through a petition to change status from another nonimmigrant classification, or through H-1B visa issuance at a U.S. consulate (unless visa exempt) and admission from abroad.

Note:

The burden of proof rests with the petitioner and alien to establish his or her eligibility for any additional periods of stay in H-1B status beyond the six year maximum, including evidence of job requirements, alien credentials, labor condition application approval, previous H-1B status, pending labor certification or immigrant petition, and unavailability of immigrant visa number, and admissibility or maintenance of nonimmigrant status.

(e) Amended Petitions.

An amended petition must be filed when there is a material change in the terms and conditions of employment or the beneficiary's eligibility. The amended petition procedure was not devised merely as an avenue to advise USCIS of minor changes in the conditions of employment or the beneficiary's eligibility. Petitioners should advise USCIS of these minor, immaterial changes when extensions of the beneficiary's stay are filed.

The following examples would require a new or amended petition to be filed:

• When a beneficiary is transferred from one employer to another, the filing of a new petition ensures that the

new employer is liable for the alien's return transportation abroad and that the employer files a labor condition application.

• A change of the alien's duties from one specialty occupation to another.

• When a beneficiary is transferred from a firm to another firm within the same organization, and the new

firm becomes the beneficiary's employer. The mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial petitioner remains the alien's employer and, provided further, the supporting labor condition application remains valid.

• When the beneficiary's employer merges with another firm to create a third entity which will subsequently

employ the beneficiary. This circumstance is distinguished from a change in ownership.

The following examples would not require a new or amended petition to be filed:

• When a beneficiary is transferred from one branch of a firm to another branch of the same firm. A branch of a

firm is not considered to be a separate entity from its parent company.

• If the petitioner changes its name. The petitioner should advise USCIS of the name change if and when it files

to extend the alien's stay.

• Changes in the ownership structure of the petitioning entity. It is understood that the new owner(s) of the firm

assumes the previous owner's liabilities which would include the assertions the prior owner made on the labor condition application.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

[Ch 31.4 revised 06-24-2009]

(a) General.

The H-2A nonimmigrant classification applies to an alien seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States. USCIS defers to the Department of Labor's determination on the temporary labor certification for H-2A employment as to whether the proffered position qualifies as agricultural.

(b) Definitions.

(1) Seasonal.

In the H-2A context, employment is of a seasonal nature where it is tied to a certain time of the year by an event or pattern, such as a short annual growing cycle (including planting, thinning, harvesting, and similar activities). It can also apply to a longer cycle.

(2) Temporary.

Except in extraordinary circumstances, temporary agricultural employment does not last longer than one year. See 8 CFR 214.2(h)(5)(iv)(A). Ordinarily, the certification by the Department of Labor (DOL) is sufficient evidence that the employment is temporary. See 8 CFR 214.2(h)(5)(iv)(B). When, however, the employer files a permanent certification for the same alien or another alien for the same position, or where USCIS has other substantial evidence that it is not a temporary position, the petition will be denied. Id.

(c) Timely Processing.

On August 10, 2007, then-Secretary of Homeland Security Michael Chertoff announced a series of reforms to include streamlining the H-2A program. As part of the reform process, it is USCIS' goal to process all H-2A petitions timely and efficiently. See Memorandum: Updated Procedures for H-2A (Agricultural Worker I-129 Petitions (Oct. 19, 2007), Appendix 31-2. In accordance with the October 19, 2007 memo, USCIS provides special handling of H-2A petitions in which:

• Personnel in the Service Center mail room are instructed to generate fee receipts, enter data, and route H-2A

petitions for immediate distribution;

• H-2A petitions are distributed to adjudication officers no later than the third day after receipt;

• Adjudications officers are reminded to adjudicate unnamed beneficiaries' H-2A petitions on the day the cases

are assigned to them; and

• Once an H-2A approval notice is generated and printed, it should be sent to petitioners within 24 hours of the

decision.

(d) Labor Certification.

An H-2A petition must be filed on Form I-129 with a single valid temporary agricultural labor certification. See 8 CFR 214.2(h)(5)(i)(A). Generally, the original temporary labor certification should be submitted to USCIS. However, a photocopied labor certification may be accepted by USCIS in cases where the petitioner is filing multiple petitions using the same labor certification.

Each subsequent petition must reference all previously filed petitions using the same temporary labor certification. The total number of beneficiaries of a petition or series of petitions based on the same temporary labor certification may not exceed the number of workers indicated on that document. See 8 CFR 214.2(h)(5)(i)(B).

In emergent circumstances, a single H-2A petition may be extended for a brief period of time up to two weeks without extending the temporary labor certification. The H-2A worker, however, must continue to be employed by the same employer that obtained the previously approved petition and must continue to perform the same duties. See 8 CFR 214.2(h)(5)(x).

(e) H-2A Eligible Countries.

H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program.

The list of H-2A eligible countries will be published in a notice in the FR on a rolling basis. This list was initially developed based, in part, on an identification of the top participating countries in the H-2A and H-2B visa programs and their record of timely acceptance of the return of their nationals who are removed from the United States.

Designation of countries on the H-2A list of eligible countries will be valid for one year from publication. The first H-2A eligible countries list was published in the FR on December 18, 2008. See 73 FR 77043. This list is also posted on the USCIS website.

A national from a country not on the H-2A eligible country list may only be the beneficiary of an approved H-2A petition if the Secretary of Homeland Security, in her sole and unreviewable discretion, determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition. See AFM Chapter 31.4(h)(3); 8 CFR 214.2(h)

(5)(i)(F)(1)(ii).

(f) Petitioner Requirements.

(1) An H-2A petition may be filed by the employer listed on the labor certification, the employer's agent, or the

association of ““U.S.” agricultural producers named as a joint employer on the labor certification.

A U.S. agent may file a petition only in cases where:

• Workers are traditionally self-employed;

• Workers use agents to arrange short-term employment on their behalf with numerous employers; or

• A foreign employer authorizes the agent to act on its behalf.

(2) All H-2A petitions must state the nationality of all beneficiaries.

See AFM Chapter 31.4(e). To avoid processing delays, petitioners are advised to file the petitions for workers from designated H-2A eligible countries and non-eligible countries separately. See 8 CFR 214.2(h)(2)(ii).

Adjudicating officers will issue a request for evidence when petitions filed on behalf of a combination of aliens from both H-2A eligible and non-eligible countries lack sufficient evidence to establish whether the beneficiaries from non-eligible countries qualify for H-2A classification.

(3) Employment-related notifications.

The petitioner must agree to notify USCIS within 2 work days if:

• a worker fails to report to work within 5 work days of the employment start date on the petition or within 5 work

days of the start date established by his or her employer, whichever is later;

• the agricultural labor or services for which workers were hired is completed more than 30 days earlier than the

employment end date stated on the petition; or

• the worker has not reported for work for a period of 5 consecutive work days without the consent of the employer

or the worker is terminated prior to the completion of agricultural labor or services for which he or she was hired.

See 8 CFR 214.2(h)(5)(vi)(B)(1). Instructions explaining how a petitioner should make an employment-related notification to USCIS were published in a notice in the FR on December 18, 2008. See 73 FR 77049.

Note:

USCIS defers to the DOL's definition of “workday” which, according to the Fair Labor Standards Act, generally means the period between the time on any particular day when an employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities.

A petitioner that fails to meet these requirements is subject to liquidated damages in the amount of $10 per violation. Failure to notify USCIS in a timely fashion may be excused at the discretion of USCIS if it is demonstrated that the delay was due to extraordinary circumstances beyond the control of the petitioner and USCIS finds the delay commensurate with the circumstances.

Such a determination will be made on a case-by-case basis. If the petitioner fails to demonstrate good cause for failure to make a timely notification, USCIS will notify CBP that the petitioner is liable for liquidated damages. The petitioner will then receive a demand letter for payment directly from CBP. See 8 CFR 214.2(h)(5)(vi)(B)(3).

(4) Payment of Fees by Aliens to Obtain H-2A Employment.

An H-2A petition will be denied or revoked on notice if USCIS determines that the petitioner has collected, or entered into an agreement to collect a fee or compensation as a condition of obtaining the H-2A employment, or that the petitioner knows or should have known that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service as a condition of obtaining the H-2A employment.

The types of fees that would be prohibited include recruitment fees, attorneys' fees, and fees for preparation of visa applications. Prohibited fees do not include the lower of the fair market value or the actual reasonable costs of transportation to the United States and any payment of government-specified fees required of persons seeking to travel to the United States (e.g., fees required by a foreign government for issuance of passports, fees imposed by the U.S. Department of State for issuance of visas, inspection fees), except where the passing of such costs to the worker is prohibited by statute or by DOL regulation. See e.g., Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002) (under FLSA, transportation from Mexico to Florida and visa costs under H-2A program may not be passed to H-2A workers).

All H-2A petitioners are required to attest in the H Classification Supplement submitted with the Form I-129 whether:

(A) The petitioner has used a staffing, recruiting, or placement service or agent to locate the H-2A workers included

in the petition. If so, the name & address of the service should be provided;

(B) The beneficiaries have paid any form of compensation as a condition of the employment (or have made an

agreement to pay such compensation at a later date), not including the lower of the fair market value or actual reasonable costs of transportation to the United States and government-specified fees required for travel to the United States (provided the passing of such costs by the petitioner/employer to the beneficiary is not prohibited by law) for which the worker may be responsible, and answer the following:

(i) If the beneficiary has paid any form of compensation, has the beneficiary been reimbursed? If yes, evidence

of the reimbursement must be submitted.

(ii) If the beneficiary has made an agreement to pay such compensation at a later date, has this agreement been

terminated? If yes, evidence of the termination must be submitted.

AND

(C) The petitioner has ever had an H-2A petition denied or revoked because an employee paid a job placement

fee or other compensation. If so, the information about when it was and the receipt number must be provided. If the worker(s) was/were reimbursed for such fees or compensation, evidence of reimbursement must be submitted. If the worker(s) was/were not reimbursed because of the failure to locate the beneficiary, evidence of the efforts to locate the beneficiary must be submitted.

Adjudicating officers will verify that the petitioner has signed the attestation included on the H Classification Supplement and will review the petitioner's answers to ensure that they are consistent with the petitioner's type of business.

If the alien has paid prohibited fees, the petition will not be denied or revoked if the petitioner demonstrates that:

• prior to the filing of the petition, the alien beneficiary has been reimbursed for the prohibited fees paid;

• where the prohibited fees have not yet been paid, that the agreement to pay has been terminated; or

• where, after the petition is filed, the petitioner learns that the prohibition on collecting or agreeing to collect

a fee has been violated by a recruiter or agent, the petitioner notifies USCIS about the prohibited payments, or agreement to make such payments, within 2 work days of finding out about such payments or agreements. See 8 CFR 214.2(h)(5)(xi)(A).

Instructions explaining how a petitioner should make a fee-related notification to USCIS were published in a notice in the Federal Register on December 18, 2008. See 73 FR 77049.

If the H-2A petition is denied or revoked on these grounds, then, as a condition of approval of future H-2A petitions filed within one year of the denial or revocation, the petitioner must demonstrate that the beneficiary has been reimbursed or that the beneficiary cannot be located despite the petitioner's reasonable efforts. See 8 CFR 214.2(h)(5)(xi)(C).

(g) Multiple Beneficiaries.

More than one beneficiary may be included in an H-2A petition as long as the total number of beneficiaries does not exceed the number of positions certified by the DOL on the relating temporary labor certification and the beneficiaries will be performing the same service, or receiving the same training, for the same period of time, and in the same location. See 8 CFR 214.2(h)(5)(i)(B).

(h) Beneficiary Requirements.

(1) Petitions filed on behalf of beneficiaries currently in the United States requesting a change of status or extension

of stay in H-2A status must identify each beneficiary and provide evidence to show that each beneficiary meets the minimum employment and job training requirements listed on the temporary labor certification (if applicable).

(2) Petitions filed on behalf of beneficiaries who are outside the United States requesting consular notification

are not required to identify the beneficiaries or to provide evidence of each beneficiary's qualifications and/or education with the petition because that evidence may be submitted to the consulate at the time of a visa application or to the CBP at a port of entry or pre-flight inspection location upon admission.

(3) Beneficiaries from countries not listed as eligible for H-2A classification. The H Classification Supplement

to the Form I-129, revised 01-22-2009 (p. 8 — 12 of the form) now requires a petitioner who chooses to file an H-2A petition on behalf of H-2A workers who are not from a country that has been designated as an H-2A eligible country to name those beneficiaries and provide the following information about such beneficiaries:

• Full Name;

• Date of birth;

• Country of birth; and

• Country of citizenship.

This provision applies both to beneficiaries who are currently within the United States who are seeking an extension of H-2A stay or change of status to H-2A, as well as to beneficiaries who are outside of the country.

A petition filed on behalf of H-2A workers who are not from a country that has been designated as an H-2A eligible country may be approved only if DHS determines, in its sole and unreviewable discretion, that it is in the U.S. interest for that alien to be a beneficiary of such petition. See 8 CFR 214.2(h)(5)(i)(F). In order to make this discretionary determination of U.S. interest, USCIS may take into account the following four factors, including, but not limited to:

Factors:

1. Evidence that a worker with the required skills is not available among U.S. workers or from among foreign

workers from a country on the list of eligible countries;

2. Evidence that the beneficiary has been admitted to the United States previously in H-2A status and complied

with the terms of his/her status.

3. Any potential for abuse, fraud, or other harm to the integrity of the H-2A program through the potential

admission of these worker(s) that a petitioner plans to hire; and

4. Other factors that would serve the U.S. interest, if any.

Each request for a U.S. interest exception is fact-dependent, and therefore must be considered on a case-by-case basis. Although USCIS will consider any evidence submitted to address each factor, USCIS has determined that it is not necessary for a petitioner to satisfy each and every factor. Instead, a determination will be made based on the totality of circumstances.

For factor no. 3 above, USCIS will take into consideration, among other things, whether the alien is from a country that cooperates with the repatriation of its nationals.

For factor no. 4 above, circumstances that are given weight, but are not binding, include evidence substantiating the degree of harm that a particular U.S. employer, U.S. industry, and/or U.S. government entity might suffer without the services of H-2A workers from non-eligible countries.

Petitions filed on behalf of beneficiaries from non-eligible countries that do not initially provide sufficient evidence to overcome the requirements of 8 CFR 214.2(h)(5)(i)(F)(1)(ii) will be issued a request for evidence allowing 30 days to respond to USCIS. See 8 CFR 103.2(b)(8)(ii) and (iv).

(4) The approval of a permanent labor certification, or the filing of a preference petition for an alien currently

employed by the same petitioner, shall be a reason, by itself, to deny the alien's extension of stay. See 8 CFR 214.2(h)(16)(ii).

(i) Decision Procedures.

(1) Approval.

If the documentary requirements have been met and the petition is approvable, endorse the action block. The approval period should coincide with the period requested by the petitioner, but should not exceed the validity dates indicated on the temporary labor certification from the Department of Labor.

If the alien is present in the United States and requires a change of status, follow the procedures described in AFM

described in AFM Chapter 30.2. Notify the petitioner of the action taken using Form I-797, Notice of Action. After approval, the file containing one copy of the petition and the supporting evidence should be forwarded to the Harrisonburg File Storage Facility (HBG).

(2) Denial.

Prepare a notice of denial and advise the petitioner of the right of appeal to the Administrative Appeals Office

(AAO). Retain the file, in accordance with local procedures, until the appeal period expires or an appeal is received.

Note:

While the denial of a petition filed on behalf of a national of a country not listed on the H-2A Eligible Countries List for failure to establish eligibility for the U.S. interest exception in 8 CFR 214.2(h)(5)(i)(F) may be appealed to the AAO, there is no judicial appeal available to challenge such a discretionary denial, as such decisions, by regulation, are, as noted above, made in the Secretary's sole and unreviewable discretion. Id.

(3) Partial Approvals.

A partial approval occurs with petitions for multiple beneficiaries when only some of the beneficiaries included on the petition are found to be approvable and some must be denied.

For example, a partial approval may result in cases where a petition is filed for a combination of beneficiaries from H-2A eligible and non-eligible countries and the petitioner is unable to provide sufficient evidence in response to a USCIS request for evidence that the beneficiaries from non-eligible countries meet the U.S. interest requirement of 8 CFR 214.2(h)(5)(i)(F)(1)(ii).

Since USCIS systems are not capable of counting two actions for one receipt, the action on a partial approval is counted as an approval for reporting purposes. Generally, a petitioner may appeal the decision to deny classification to one or more of the beneficiaries or file a new petition in their behalf.

(j) Transmittal of Petitions.

(1) Visa Applicants.

If the beneficiary requires a visa and requests consular notification, the duplicate of the approved petition (if submitted), with the supporting documents, shall be sent to the Department of State's Kentucky Consular Center

(KCC).

(2) Visa-exempt Applicants.

If the beneficiary does not require a visa and requests notification to the port of entry or pre-flight inspection facility, forward the duplicate petition (if submitted) with supporting documents to the appropriate port of entry or pre-flight inspection facility.

(k) Special Handling.

(1) Sheepherders.

Until the most recent H-2A final rule went into effect on January 17, 2009, USCIS refrained from applying the three-year maximum period of stay for H-2A sheepherders. See 73 FR 76891 However, effective January 17, 2009, sheepherders are subject to the same three-year maximum period of stay and departure requirements applicable to other H-2A workers. This change in the handling of sheepherders is mandated by the statutory requirement that H-2A employment be of a temporary nature.

(2) Canadian Custom Harvest or Combine Operators.

Annually, a group of Canadian custom harvest and combine workers come to the Midwestern United States to assist U.S. farmers with harvesting wheat, corn, and other crops. Because the growing season for these crops varies depending on their specific geographical location, a definitive itinerary of services and locations is generally not provided; however, the operators typically start working in the South and work their way through a number of states north over the course of the harvesting season.

Although petitioners filing for Canadian harvest or combine workers may not have a U.S. address, USCIS has traditionally accepted petitions filed by Canadian employers requesting these types of workers. Such operators typically are coming into the United States to provide services for U.S. employers, who have contracted with a member of the Association of Canadian Harvesters.

(3) Certain Caribbean Residents Seeking Admission to the United States as H-2A Agricultural Workers.

A visa is currently not required for H-2A workers who are British, French, or Netherlands nationals, or nationals of Barbados, Grenada, Jamaica, or Trinidad and Tobago, who have their residence in British, French, or Netherlands territory located in the adjacent islands of the Caribbean area, or in Barbados, Grenada, Jamaica, or Trinidad and Tobago. See 8 CFR 212.1(b)(1).

(l) Adjudicative Issues.

(1) Substitution of Beneficiaries.

Beneficiaries may be substituted for previously approved H-2A workers in the following situations, as long as the total number of beneficiaries will not exceed the number of workers authorized in the temporary labor certification:

(A) Before admission.

Substitutions of beneficiaries who have not yet been admitted to the United States are processed directly with the consulate or, if the alien is visa exempt, at the port of entry or pre-flight inspection location.

(B) Stateside substitution:

An H-2A petition may be filed to replace H-2A workers already admitted to the United States:

• Whose employment was terminated earlier than the end date stated on the original H-2A petition and before

the completion of work;

• Who failed to report to work within five work days of the employment start date (The worker has never worked

at the work-site and it has been 5 days since his employment was scheduled to begin); or

• Who absconded from the work-site. An H-2A worker has absconded if he or she has not reported for work for a

period of 5 consecutive workdays without the consent of the employer. (The worker has been working at the work- site, but abandoned his employment for a period of 5 consecutive workdays without the consent of the employer).

To request a stateside substitution, the petitioner must file an amended petition at the Service Center where the original petition was filed. This amended petition requesting substitution(s) must be filed with:

• A filing fee;

• A copy of the temporary labor certification;

• A copy of the approval notice covering the workers for which replacements are sought;

• A statement giving each terminated worker's name, date and country of birth, termination date, the reason for

termination, and the date that USCIS was notified that the alien was terminated or absconded, if applicable; and

• Other evidence as required under 8 CFR 214.2(h)(5)(i)(D).

A petition requesting substitution(s) may not be approved where the requirements of paragraph 8 CFR 214.2(h)

(5)(vi) of this section (regarding consent, liabilities and non-compliance) have not been met.

Additionally, a petition requesting substitution(s) does not constitute the notification requirements of paragraph 8 CFR 214.2(h)(5)(vi)(B)(1).

(2) Limitation on Period of Stay.

Generally, H-2A workers are authorized a maximum uninterrupted stay of three (3) years in H-2A classification.

An individual who has held H-2A status for a total of 3 years may not again be granted H-2A status until such time as he or she remains outside the United States for an uninterrupted period of 3 months. See 8 CFR 214.2(h)

(5)(viii)(C).

Absences from the United States that are less than 3 months can interrupt the accrual of time spent as an H-2A nonimmigrant against the 3-year limit:

• If the accumulated stay is 18 months or less, an absence is interruptive if it lasts at least 45 days; or

• If the accumulated stay is greater than 18 months, an absence is interruptive if it lasts for at least 2 months.

As of January 18, 2009, sheepherders are no longer exempt from this 3-year limitation of stay. See 73 FR 76906.

Note:

H-2A aliens do not fall under the exception listed in 8 CFR 214.2(h)(13)(v). This regulation refers only to H-1B, H-2B, and H-3 classifications, giving them an exception to the limitation on the maximum period of stay for aliens who commute part-time to the United States. or who do not reside continually in the United States and whose employment is seasonal, intermittent, or for an aggregate of 6 months or less per year.

(3) Extension with a New Employer.

In most cases, an H-2A worker who changes employer cannot begin working for the new employer until USCIS approves the petition requesting a change of employer.

However, in cases where a new employer that is participating and in good standing with E-Verify files a petition for a change of employer on behalf of an H-2A alien requesting an extension of stay, the H-2A alien may work for the new employer, as soon as USCIS receives the petition.

While the petition is pending, the H-2A alien's employment authorization is extended up to 120 calendar days. If USCIS does not approve the new petition within 120 days or denies it before 120-day period expires, USCIS will automatically terminate the H-2A alien's employment authorization in 15 calendar days. In those cases, E-Verify will not notify the new employer that USCIS has terminated employment authorization.

At its discretion, USCIS may periodically audit any new employer's participation in E-Verify, as well as the status of the alien's employment on a post-adjudication basis. Violators will be subject to petition and/or status revocation.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

If a strike or other labor dispute certified by the Secretary of Labor involving a work stoppage of workers is in progress in the occupation and at the place where the beneficiary is or will be employed or trained, and if the employment or training of the beneficiary would adversely affect the wages and working conditions of United States citizens and lawful resident workers, the following rules apply:

(1) A petition to classify an alien as an H nonimmigrant shall be denied.

(2) If the petition has already been approved, but the alien has not yet entered the United States, the approval

of the petition is automatically suspended, and the application for admission on the basis of the petition shall be denied. Notify the consular officer or port of entry to which the approved petition was sent. The notification to the consular officer shall request deferral of visa issuance, or revocation of the visa if already issued. The notification to the port of entry shall request action to place the alien in removal proceedings, permit withdrawal or defer inspection, as appropriate.

(3) If the alien has already commenced employment in the United States under an approved petition and is

participating in a strike or other labor dispute involving a work stoppage of workers, whether or not such strike or other labor dispute has been certified by the Department of Labor, the alien shall not be deemed to be failing to maintain his or her status solely on account of dispute involving a work stoppage of workers. However, the alien is subject to the following terms and conditions:

• The alien shall remain subject to all applicable provisions of the Immigration and Nationality Act, and regulations

promulgated in the same manner as all other H nonimmigrants;

• The status and authorized period of stay of such an alien is not modified or extended in any way by virtue of his

of her participation in a strike or other labor dispute involving a work stoppage of workers; and

• Any alien who violates his or her status or who remains in the United States after his or her authorized period

of stay has expired will be subject to removal proceedings.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

The spouse and unmarried minor children of the principal H nonimmigrant beneficiary are entitled to H nonimmigrant classification and will be classified as H-4 nonimmigrants. They are subject to the same period of admission and limitations as the beneficiary, if they are accompanying or following to join the beneficiary in the United States. Brief periods of time when the principal alien is outside the United States (e.g., on business) do not affect dependent status. Neither the spouse nor a child of the beneficiary may accept employment unless he or she is the beneficiary of an approved petition authorizing employment and has been granted a change of status to such nonimmigrant category. Such dependents may attend school and may individually be eligible for student status.

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

The L classification, which originated with the 1970 amendments to the Immigration and Nationality Act, Pub.

L. 91-225, was designed to facilitate the temporary transfer of foreign nationals' management, executive, and

specialized knowledge skills to the United States to continue employment with an office of the same employer, its parent, branch, subsidiary, or affiliate.

The Immigration Act of 1990 (IMMACT), Pub. L. 101-649, made several modifications to the existing L category. Section 123 of IMMACT changed the definition of manager in section 101(a)(44) of the Act to also include “functional managers”, or those managers that manage an essential function within the company.

Section 205(b) of IMMACT eliminated L nonimmigrants from being “presumed to be an immigrant” under section 214(b) of the Act.

Section 206 of IMMACT specified new limitations on the period of stay for L visa holders: seven years for executives/managers and five years for specialized knowledge personnel. That section also modified the definition of ““affiliate” to specifically include the international partnership agreements used by international accounting firms. Section 206 also mandated a “blanket” petition process to accelerate the admission of individual L nonimmigrants. Finally, section 206 modified the prior qualifying experience requirement to allow one year of the prior three (rather than the immediate prior year) to qualify an L-1 employee.

Section 6 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95, further expanded the definition of “affiliate” to qualify for L-1 classification employees of international management consulting firms (most of which had been spun off from international accounting firms bearing the same names).

II. Immigrants and Other Permanent or Semi-Permanent Classifications.

(a) General.

One of the keys to the adjudication of a petition for L-1 classification is the understanding of the meaning of several key terms. These terms have been defined over the years through various documents, including statutes, regulations, precedent decisions, and policy memoranda. While the following chart provides a brief explanation of these terms, it may be necessary to review the full document (statute, regulation, or precedent decision) in order to understand all the nuances of any given term.

TERM STATUTORY REGULATORY PRECEDENT REFERENCE REFERENCE DECISION(S)

Intracompany transferee § 101(a)(15)(L) 8 CFR 214.2(l)(1)(ii)(A)

Executive § 101(a)(44)(A) INA 8 CFR 214.2(l)(1)(ii)(C)

Manager § 101(a)(44)(B) INA 8 CFR 214.2(l)(1)(ii)(B) 13 I&N Dec. 654

Specialized knowledge § 214(c)(2)(B) INA 8 CFR 214.2(l)(1)(ii)(D) 18 I&N Dec. 117, 18 and (E) I&N Dec. 49, 17 I&N Dec. 248, 13 I&N Dec.

New office 8 CFR 214.2(l)(1)(ii)(F) 13 I&N Dec. 816

Doing business 8 CFR 214.2(l)(1)(ii)(H)

Qualifying organization 8 CFR 214.2(l)(1)(ii)(G) 19 I&N Dec. 362, 18 I&N Dec. 289, 18 I&N

Dec. 13, 17 I&N Dec.