08 CFR 0.0 8 CFR Ch. I (1-1-93 Edition)
08 CFR 0.0 Immigration and Naturalization Service, Justice
08 CFR 0.0 Title 8 -- Aliens and Nationality
Part
chapter i -- Immigration and Naturalization Service, Department of
Justice 1
Note: Other regulations issued by the Department of Justice appear
in title 4, chapter II, title 21, chapter II, and title 28, chapters I,
III and V.
08 CFR 0.0 8 CFR Ch. I (1-1-93 Edition)
08 CFR 0.0 Immigration and Naturalization Service, Justice
08 CFR 0.0 CHAPTER I -- IMMIGRATION AND NATURALIZATION SERVICE,
DEPARTMENT OF JUSTICE
Cross Reference: For State Department regulations pertaining to
visas and Nationality and Passports, see 22 CFR, chapter I, subchapters
E and F.
Note: This table shows sections of title 8 of the United States Code
and corresponding sections of the Immigration and Nationality Act and of
parts in subchapters A, B, and C of chapter I of title 8 of the Code of
Federal Regulations. Those sections of title 8 of the United States
Code bearing an asterisk do not have a corresponding part in chapter I
of title 8 of the Code of Federal Regulations.
08 CFR 0.0 SUBCHAPTER A -- GENERAL PROVISIONS
Part
Page
1 Definitions
2 Authority of the Commissioner
3 Executive Office for Immigration Review
08 CFR 0.0
08 CFR 0.0 SUBCHAPTER B -- IMMIGRATION REGULATIONS
100 Statement of organization
101 Presumption of lawful admission
103 Powers and duties of service officers; availability of service
records
109 (Reserved)
204 Immigrant petitions
205 Revocation of approval of petitions
207 Admission of refugees
208 Procedures for asylum and withholding of deportation
209 Adjustment of status of refugees and aliens granted asylum
210 Special agricultural workers
210a Replenishment agricultural workers
211 Documentary requirements: Immigrants; waivers
212 Documentary requirements: Nonimmigrants; waivers; admission of
certain inadmissible aliens; parole
213 Admission of aliens on giving bond or cash deposit
214 Nonimmigrant classes
215 Controls of aliens departing from the United States
216 Conditional basis of lawful permanent residence status for
certain alien spouses and sons and daughters
217 Visa waiver pilot program
221 Admission of visitors or students
223 Reentry permits
223a Refugee travel document
231 Arrival-departure manifests and lists; supporting documents
232 Detention for examination to determine mental or physical defects
233 (Reserved)
234 Physical and mental examination of arriving aliens
235 Inspection of persons applying for admission
236 Exclusion of aliens
237 Deportation of excluded aliens
238 Contracts with transportation lines
239 Special provisions relating to aircraft: Designation of ports of
entry for aliens arriving by civil aircraft
240 Temporary protected status for nationals of designated states
241 Controlled substance violations
242 Proceedings to determine deportability of aliens in the United
States: Apprehension, custody, hearing, and appeal
243 Deportation of aliens in the United States
244 Suspension of deportation and voluntary departure
245 Adjustment of status to that of person admitted for permanent
residence
245a Adjustment of status to that of persons admitted for lawful
temporary or permanent resident status under Section 245A of the
Immigration and Nationality Act, as amended by Public Law 99-603, the
Immigration Reform and Control Act of 1986, and Public Law 100-204,
Section 902
246 Rescission of adjustment of status
247 Adjustment of status of certain resident aliens
248 Change of nonimmigrant classification
249 Creation of records of lawful admission for permanent residence
250 Removal of aliens who have fallen into distress
251 Arrival manifests and lists: Supporting documents
252 Landing of alien crewmen
253 Parole of alien crewmen
258 Limitations on performance of longshore work by alien crewmen
264 Registration and fingerprinting of aliens in the United States
265 Notices of address
270 Penalties for document fraud
271 Diligent and reasonable efforts to prevent the unauthorized entry
of aliens by the owners of railroad lines, international bridges or toll
roads
274 Seizure and forfeiture of conveyances
274a Control of employment of aliens
280 Imposition and collection of fines
282 Forms for sale to public
286 Immigration user fee
287 Field officers; powers and duties
289 American Indians born in Canada
292 Representation and appearances
292a Listing of free legal services programs
293 Deposit of and interest on cash received to secure immigration
bonds
299 Immigration forms
08 CFR 0.0
08 CFR 0.0 SUBCHAPTER C -- NATIONALITY REGULATIONS
306 Special classes of persons who may be naturalized: Virgin
Islanders
310 Naturalization authority
312 Educational requirements for naturalization
313 Membership in the Communist Party or any other totalitarian
organizations; subversives
315 Persons ineligible to citizenship: Exemption from military
service
316 General requirements for naturalization
318 Pending deportation proceedings
319 Special classes of persons who may be naturalized: Spouses of
United States citizens
322 Special classes of persons who may be naturalized: Children of
citizen parent
324 Special classes of persons who may be naturalized: women who
have lost United States citizenship by marriage and former citizens
whose naturalization is authorized by private law
325 Nationals but not citizens of the United States; residence
within outlying possessions
327 Special classes of persons who may be naturalized: Persons who
lost United States citizenship through service in armed forces of
foreign country during World War II
328 Special classes of persons who may be naturalized: Persons with
three years service in Armed Forces of the United States
329 Special classes of persons who may be naturalized:
Naturalization bases upon active duty service in the United States Armed
Forces during specified periods of hostilities
330 Special classes of persons who may be naturalized: Seamen
331 Alien enemies; naturalization under specified conditions and
procedures
332 Naturalization administration
333 Photographs
334 Application for naturalization
335 Examination on application for naturalization
336 Hearings on denials of applications for naturalization
337 Oath of allegiance
338 Certificate of naturalization
339 Functions and duties of clerks of court regarding naturalization
proceedings
340 Revocation of naturalization
341 Certificates of citizenship
342 Administrative cancellation of certificates, documents, or
records
343 Certificate of naturalization or repatriation; persons who
resumed citizenship under section 323 of the Nationality Act of 1940, as
amended, or section 4 of the Act of June 29, 1906
343a Naturalization and citizenship papers lost, mutilated, or
destroyed; new certificate in changed name; certified copy of
repatriation proceedings
343b Special certificate of naturalization for recognition by a
foreign state
343c Certifications from records
349 Loss of nationality
392 Special classes of persons who may be naturalized: Persons who
die while serving on active duty with the United States armed forces
during certain periods of hostilities
499 Nationality forms
08 CFR 0.0
08 CFR 0.0 8 CFR Ch. I (1-1-93 Edition)
08 CFR 0.0 Immigration and Naturalization Service, Justice
08 CFR 0.0 SUBCHAPTER A -- GENERAL PROVISIONS
08 CFR 0.0 PART 1 -- DEFINITIONS
Authority: 66 Stat. 173; 8 U.S.C. 1101; 28 U.S.C. 509, 510; 5
U.S.C. 301.
08 CFR 1.1 Definitions.
As used in this chapter:
(a) The terms defined in section 101 of the Immigration and
Nationality Act (66 Stat. 163) shall have the meanings ascribed to them
in that section and as supplemented, explained, and further defined in
this chapter.
(b) The term Act means the Immigration and Nationality Act, as
amended.
(c) The term Service means the Immigration and Naturalization
Service.
(d) The term Commissioner means the Commissioner of Immigration and
Naturalization.
(e) The term Board means the Board of Immigration Appeals.
(f) The term attorney means any person who is a member in good
standing of the bar of the highest court of any State, possession,
territory, Commonwealth, or the District of Columbia, and is not under
any order of any court suspending, enjoining, restraining, disbarring,
or otherwise restricting him in the practice of law.
(g) Unless the context otherwise requires, the term case means any
proceeding arising under any immigration or naturalization law,
Executive order, or Presidential proclamation, or preparation for or
incident to such proceeding, including preliminary steps by any private
person or corporation preliminary to the filing of the application or
petition by which any proceeding under the jurisdiction of the Service
or the Board is initiated.
(h) The term day when computing the period of time for taking any
action provided in this chapter including the taking of an appeal, shall
include Saturdays, Sundays, and legal holidays, except that when the
last day of the period so computed falls on a Saturday, Sunday or a
legal holiday, the period shall run until the end of the next day which
is not a Saturday, Sunday, nor a legal holiday.
(i) The term practice means the act or acts of any person appearing
in any case, either in person or through the preparation or filing of
any brief or other document, paper, application, or petition on behalf
of another person or client before or with the Service, or any officer
of the Service, or the Board.
(j) The term representative refers to a person who is entitled to
represent others as provided in 292.1(a) (2), (3), (4), (5), (6), and
292.1(b) of this chapter.
(k) The term preparation, constituting practice, means the study of
the facts of a case and the applicable laws, coupled with the giving of
advice and auxiliary activities, including the incidental preparation of
papers, but does not include the lawful functions of a notary public or
service consisting solely of assistance in the completion of blank
spaces on printed Service forms by one whose remuneration, if any, is
nominal and who does not hold himself out as qualified in legal matters
or in immigration and naturalization procedure.
(l) The term immigration judge means special inquiry officer and may
be used interchangeably with the term special inquiry officer wherever
it appears in this chapter.
(m) The term representation before the Board and the Service includes
practice and preparation as defined in paragraphs (i) and (k) of this
section.
(n) The term Executive Office means Executive Office for Immigration
Review.
(o) The term director means either district director or regional
service center director, unless otherwise specified.
(23 FR 9115, Nov. 26, 1958, as amended at 30 FR 14772, Nov. 30, 1965;
34 FR 12213, July 24, 1969; 38 FR 8590, Apr. 4, 1973; 40 FR 23271,
May 29, 1975; 48 FR 8039, Feb. 25, 1983, 52 FR 2936, Jan. 29, 1987; 53
FR 30016, Aug. 10, 1988)
08 CFR 1.1 PART 2 -- AUTHORITY OF THE COMMISSIONER
Authority: 28 U.S.C. 509, 510; 5 U.S.C. 301; 8 U.S.C. 1103.
08 CFR 2.1 Authority of the Commissioner.
Without divesting the Attorney General of any of his powers,
privileges, or duties under the immigration and naturalization laws, and
except as to the Executive Office, the Board, the Office of the Chief
Special Inquiry Officer, and Special Inquiry Officers, there is
delegated to the Commissioner the authority of the Attorney General to
direct the administration of the Service and to enforce the Act and all
other laws relating to the immigration and naturalization of aliens.
The Commissioner may issue regulations as deemed necessary or
appropriate for the exercise of any authority delegated to him by the
Attorney General, and may redelegate any such authority to any other
officer or employee of the Service.
(48 FR 8039, Feb. 25, 1983)
08 CFR 2.1 PART 3 -- EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Sec.
3.0 Executive Office for Immigration Review.
08 CFR 2.1 Subpart A -- Board of Immigration Appeals
3.1 General authorities.
3.2 Reopening or reconsideration.
3.3 Notice of appeal.
3.4 Withdrawal of appeal.
3.5 Forwarding of record on appeal.
3.6 Stay of execution of decision.
3.7 Notice of certification.
3.8 Motion to reopen or motion to reconsider.
08 CFR 2.1 Subpart B -- Office of the Chief Immigration Judge
3.9 Chief Immigration Judge.
3.10 Immigration Judges.
3.11 Administrative control offices.
08 CFR 2.1 Subpart C -- Rules of Procedure for Immigration Judge
Proceedings
3.12 Scope of rules.
3.13 Definitions.
3.14 Jurisdiction and commencement of proceedings
3.15 Contents of the order to show cause and notification of change
of address.
3.16 Representation.
3.17 Appearances.
3.18 Scheduling of cases.
3.19 Custody/bond.
3.20 Change of venue.
3.21 Pre-hearing conferences and statement.
3.22 Interpreters.
3.23 Motions.
3.24 Waivers of fees in Immigration Judge proceedings.
3.25 Waiver of presence of respondent/applicant.
3.26 In absentia hearings.
3.27 Public access to hearings.
3.28 Recording equipment.
3.29 Continuances.
3.30 Additional charges in deportation hearings.
3.31 Filing documents and applications.
3.32 Service and size of documents.
3.33 Translation of documents.
3.34 Testimony.
3.35 Depositions.
3.36 Record of proceeding.
3.37 Decisions.
3.38 Appeals.
3.39 Finality of decision.
3.40 Local operating procedures.
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1362; 28
U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR,
1949-1953 Comp., p. 1002.
Editorial Note: Nomenclature changes to part 3 appear at 52 FR 2941,
Jan. 29, 1987.
08 CFR 3.0 Executive Office for Immigration Review.
The Executive Office for Immigration Review shall be headed by a
Director, who shall be responsible for the general supervision of the
Board of Immigration Appeals and the Office of the Chief Immigration
Judge in the execution of their duties in accordance with 8 CFR part 3.
The Director may redelegate the authority delegated to him by the
Attorney General to the Chairman of the Board of Immigration Appeals or
the Chief Immigration Judge. The Director shall be assisted in the
performance of his duties by an Executive Assistant.
(48 FR 8039, Feb. 25, 1983)
08 CFR 3.0 Subpart A -- Board of Immigration Appeals
08 CFR 3.1 General authorities.
(a)(1) Organization. There shall be in the Department of Justice a
Board of Immigration Appeals, subject to the general supervision of the
Director, Executive Office for Immigration Review. The Board shall
exercise so much of the immigration and nationality laws as he may
delegate to it. The Board shall consist of a Chairman and four other
members. A vacancy, or the absence or unavailability of a Board Member,
shall not impair the right of the remaining members to exercise all the
powers of the Board, and three members of the Board shall constitute a
quorum of the Board. The Director may in his discretion designate
immigration judges to act as temporary, additional Board members for
whatever time the Director deems necessary. In the event that
immigration judges are so designated, two panels of three members each
may be designated by the Chairman. Each panel shall be empowered to
review cases by majority vote. Each panel may exercise the appropriate
authority of the Board as set out in part 3 which is necessary to review
cases before it. The permanent Board may, by majority vote on its own
motion, reconsider en banc any case decided by a panel. The total
number of Board members and temporary, additional Board members may not
exceed seven individuals at any time. There shall also be attached to
the Board such number of attorneys and other employees as the Deputy
Attorney General, upon recommendation of the Director, shall from time
to time direct.
(2) Chairman. The Chairman shall direct, supervise, and establish
internal operating procedures and policies of the Board. He shall
designate a member of the Board to act as Chairman in his absence or
unavailability. The Chairman shall be assisted in the performance of
his duties by a Chief Attorney Examiner, who shall be directly
responsible to the Chairman. The Chief Attorney Examiner shall serve as
an Alternate Board Member when, in the absence or unavailability of a
Board Member or Members, his participation is deemed necessary by the
Chairman. Once designated, his participation in a case shall continue
to its normal conclusion.
(3) Board Members. Board Members shall perform the quasi-judicial
function of adjudicating cases coming before the Board.
(b) Appellate jurisdiction. Appeals shall lie to the Board of
Immigration Appeals from the following:
(1) Decisions of Immigration Judges in exclusion cases, as provided
in part 236 of this chapter.
(2) Decisions of Immigration Judges in deportation cases, as provided
in part 242 of this chapter, except that no appeal shall lie from an
order of a Immigration Judge under 244.1 of this chapter granting
voluntary departure within a period of at least 30 days, if the sole
ground of appeal is that a greater period of departure time should have
been fixed.
(3) Decisions of immigration judges on applications for the exercise
of the discretionary authority contained in section 212(c) of the Act as
provided in part 212 of this chapter.
(4) Decisions involving administrative fines and penalties, including
mitigation thereof, as provided in part 280 of this chapter.
(5) Decisions on petitions filed in accordance with section 204 of
the act (except petitions to accord preference classifications under
section 203(a)(3) or section 203(a)(6) of the act, or a petition on
behalf of a child described in section 101(b)(1)(F) of the act), and
decisions on requests for revalidation and decisions revoking the
approval of such petitions, in accordance with section 205 of the act,
as provided in parts 204 and 205, respectively, of this chapter.
(6) Decisions on applications for the exercise of the discretionary
authority contained in section 212(d)(3) of the act as provided in part
212 of this chapter.
(7) Determinations relating to bond, parole, or detention of an alien
as provided in part 242 of this chapter.
(8) Decisions of Immigration Judges in rescission of adjustment of
status cases, as provided in part 246 of this chapter.
(9) Decisions of Asylum Officers of the Service on applications for
asylum or withholding of deportation filed by alien crewman or
stowaways, as provided in 253.1(f)(4) of this chapter.
(10) Decisions of Immigration Judges relating to Temporary Protected
Status as provided in part 240 of this chapter.
(c) Jurisdiction by certification. The Commissioner, or any other
duly authorized officer of the Service, any Immigration Judge, or the
Board may in any case arising under paragraph (b) of this section
require certification of such case to the Board.
(d) Powers of the Board -- (1) Generally. Subject to any specific
limitation prescribed by this chapter, in considering and determining
cases before it as provided in this part the Board shall exercise such
discretion and authority conferred upon the Attorney General by law as
is appropriate and necessary for the disposition of the case.
(1-a) Summary dismissal of appeals. (i) Standards. The Board may
summarily dismiss any appeal or portion of any appeal in any case in
which:
(A) The party concerned fails to specify the reasons for the appeal
on Form EOIR-26 or Form EOIR 29 (Notices of Appeal) or other document
filed therewith;
(B) The only reason for the appeal specified by the party concerned
involves a finding of fact or a conclusion of law that was conceded by
that party at a prior proceeding;
(C) The appeal is from an order that granted the party concerned the
relief that had been requested;
(D) The Board is satisfied, from a review of the record, that the
appeal lacks an arguable basis in law or fact, or that the appeal is
filed for an improper purpose, such as to cause unnecessary delay;
(E) The party concerned indicates on Form EOIR-26 or FORM EOIR-29
that he or she will file a brief or statement in support of the appeal
and, thereafter, does not file such brief or statement, or reasonably
explain his or her failure to do so, within the time set for filing; or
(F) The appeal fails to meet essential statutory or regulatory
requirements or is expressly excluded by statute or regulation.
(ii) Disciplinary consequences. The filing by an attorney or
representative accredited under 8 CFR 292.2(d) of an appeal which is
summarily dismissed under paragraph (d)(1-a)(i) of this section may
constitute frivolous behavior under 8 CFR 292.3(a)(15). Summary
dismissal of an appeal under paragraph (d)(1-a)(i) of this section does
not limit the other grounds and procedures for disciplinary action
against attorneys or representatives.
(2) Finality of decision. The decision of the Board shall be final
except in those cases reviewed by the Attorney General in accordance
with paragraph (h) of this section. The Board may return a case to the
Service or Immigration Judge for such further action as may be
appropriate, without entering a final decision on the merits of the
case.
(3) Rules of practices: Discipline of attorneys and representatives.
The Board shall have authority, with the approval of the Director,
EOIR, to prescribe rules governing proceedings before it. It shall also
determine whether any organization desiring representation is of a kind
described in 1.1(j) of this chapter, and shall regulate the conduct of
attorneys, representatives of organizations, and others who appear in a
representative capacity before the Board or the Service or any special
Inquiry Officer.
(e) Oral argument. When an appeal has been taken, request for oral
argument if desired shall be included in the Notice of Appeal. Oral
argument shall be heard at the discretion of the Board at such date and
time as the Board shall fix. The Service may be represented before the
Board by an officer of the Service designated by the Service.
(f) Service of Board decisions. The decision of the Board shall be
in writing and copies thereof shall be transmitted by the Board to the
Service and a copy shall be served upon the alien or party affected as
provided in part 292 of this chapter.
(g) Decisions of the Board as precedents. Except as they may be
modified or overruled by the Board or the Attorney General, decisions of
the Board shall be binding on all officers and employees of the Service
or Immigration Judges in the administration of the Act, and selected
decisions designated by the Board shall serve as precedents in all
proceedings involving the same issue or issues.
(h) Referral of cases to the Attorney General. (1) The Board shall
refer to the Attorney General for review of its decision all cases
which:
(i) The Attorney General directs the Board to refer to him.
(ii) The Chairman or a majority of the Board believes should be
referred to the Attorney General for review.
(iii) The Commissioner requests be referred to the Attorney General
for review.
(2) In any case in which the Attorney General reviews the decision of
the Board, the decision of the Attorney General shall be stated in
writing and shall be transmitted to the Board for transmittal and
service as provided in paragraph (f) of this section.
(23 FR 9117, Nov. 26, 1958, as amended at 27 FR 96, Jan. 5, 1962; 27
FR 10789, Nov. 6, 1962; 30 FR 14772, Nov. 30, 1965; 36 FR 316, Jan. 9,
1971; 40 FR 37207, Aug. 26, 1975; 44 FR 67960, Nov. 28, 1979; 47 FR
16772, Apr. 20, 1982; 48 FR 8039, Feb. 25, 1983; 52 FR 2943, Jan. 29,
1987; 52 FR 24981, July 2, 1987; 53 FR 15659, May 3, 1988; 55 FR
30680, July 27, 1990; 56 FR 624, Jan. 7, 1991; 57 FR 11570, Apr. 6,
1992)
08 CFR 3.2 Reopening or reconsideration.
The Board may on its own motion reopen or reconsider any case in
which it has rendered a decision. Reopening or reconsideration of any
case in which a decision has been made by the Board, whether requested
by the Commissioner or any other duly authorized officer of the Service,
or by the party affected by the decision, shall be only upon written
motion to the Board. Motions to reopen in deportation proceedings shall
not be granted unless it appears to the Board that evidence sought to be
offered is material and was not available and could not have been
discovered or presented at the former hearing; nor shall any motion to
reopen for the purpose of affording the alien an opportunity to apply
for any form of discretionary relief be granted if it appears that the
alien's right to apply for such relief was fully explained to him and an
opportunity to apply therefor was afforded him at the former hearing
unless the relief is sought on the basis of circumstances which have
arisen subsequent to the hearing. A motion to reopen or a motion to
reconsider shall not be made by or in behalf of a person who is the
subject of deportation proceedings subsequent to his departure from the
United States. Any departure from the United States of a person who is
the subject of deportation proceedings occurring after the making of a
motion to reopen or a motion to reconsider shall constitute a withdrawal
of such motion. For the purpose of this section, any final decision
made by the Commissioner prior to the effective date of the Act with
respect to any case within the classes of cases enumerated in 3.1(b)
(1), (2), (3), (4), or (5) shall be regarded as a decision of the Board.
(27 FR 96, Jan. 5, 1962)
08 CFR 3.3 Notice of appeal.
(a) A party affected by a decision who is entitled under this chapter
to appeal to the Board shall be given notice of his or her right to
appeal. An appeal shall be taken by filing Notice of Appeal Form I-290A
in triplicate with the Service office or Office of the Immigration Judge
having administrative jurisdiction over the case, within the time
specified in the governing sections of this chapter. The certification
of a case as provided in this part shall not relieve the party affected
from compliance with the provisions of this section in the event that he
is entitled, and desires, to appeal from an initial decision, nor shall
it serve to extend the time specified in the applicable parts of this
chapter for the taking of an appeal. Departure from the United States
of a person under deportation proceedings prior to the taking of an
appeal from a decision in his case shall constitute a waiver of his
right to appeal.
(b) Fees. Except as otherwise provided in this section, a notice of
appeal or a motion filed under this part by any person other than an
officer of the Service shall be accompanied by the appropriate fee
specified by, and remitted in accordance with, the provisions of 103.7
of this chapter. In any case in which an alien or other party affected
is unable to pay the fee fixed for an appeal or a motion, he or she
shall file with the notice of appeal or the motion, his or her
affidavit, or unsworn declaration made pursuant to 28 U.S.C. 1746,
stating the nature of the motion or appeal and his or her belief that he
or she is entitled to redress. Such document shall also establish his
or her inability to pay the required fee, and shall request permission
to prosecute the appeal or motion without prepayment of such fee. When
such a document is filed with the officer of the Service or the
Immigration Judge from whose decision the appeal is taken or with
respect to whose decision the motion is addressed, such Service officer
or Immigration Judge shall, if he or she believes that the appeal or
motion is not taken or made in good faith, certify in writing his
reasons for such belief for consideration by the Board. The Board may,
in its discretion, authorize the prosecution of any appeal or motion
without prepayment of fee.
(c) Briefs. Briefs in support of or in opposition to an appeal shall
be filed in triplicate with the officer of the Service having
administrative jurisdiction over the case within the time fixed for
appeal or within any other additional period designated by the
Immigration Judge or Service Officer who made the decision. Such
Immigration Judge or the Board for good cause may extend the time for
filing a brief or reply brief. The Board in its discretion may
authorize the filing of briefs directly with it, in which event the
opposing party shall be allowed a specified time to respond.
(23 FR 9118, Nov. 26, 1958, as amended by Order No. 325-64, 29 FR
14717, Oct. 29, 1964; 48 FR 8040, Feb. 25, 1983; 52 FR 2936, Jan. 29,
1987)
08 CFR 3.4 Withdrawal of appeal.
In any case in which an appeal has been taken, the party taking
appeal may file a written withdrawal thereof with the office with whom
the notice of appeal was filed. If the appeal has been taken by a trial
attorney, such written withdrawal may be made by the district director
or regional commissioner having administrative jurisdiction over the
case or by the General Counsel. If the record in the case has not been
forwarded to the Board on appeal in accordance with 3.5 the decision
made in the case shall be final to the same extent as though no appeal
had been taken. If the record has been forwarded on appeal, the
withdrawal of the appeal shall be forwarded to the Board and, if no
decision in the case has been made on the appeal, the record shall be
returned, and the initial decision shall be final to the same extent as
though no appeal had been taken. If a decision on the appeal shall have
been made by the Board in the case, further action shall be taken in
accordance therewith. Departure from the United States of a person who
is the subject to deportation proceedings subsequent to the taking of an
appeal but prior to a decision thereon shall constitute a withdrawal of
the appeal, and the initial decision in the case shall be final to the
same extent as though no appeal had been taken.
(29 FR 2692, Feb. 26, 1964, as amended at 52 FR 2936, Jan. 29, 1987)
08 CFR 3.5 Forwarding of record on appeal.
If an appeal is taken from a decision, as provided in this chapter,
the entire record of the proceeding shall be forwarded to the Board by
the office having administrative jurisdiction over the case upon timely
receipt of the briefs of the parties, or upon expiration of the time
allowed for the submission of such briefs. A district director need not
forward an appeal to the Board, but may reopen and reconsider any
decision made by the director when an appeal to the Board has been
filed, if the district director's new decision will grant the benefit
which has been requested; provided that the district director's new
decision is served on the appealing party within 45 days of receipt of
any briefs or upon expiration of the time allowed for the submission of
any briefs. If the district director's new decision is not served
within these time limits or the appealing party will not agree that the
new decision disposes of the matter, the record of proceeding shall be
immediately forwarded to the Board.
(48 FR 52432, Nov. 18, 1983)
08 CFR 3.6 Stay of execution of decision.
(a) Except as provided in 242.2 of this chapter and paragraph (b) of
this section, the decision in any proceeding under this chapter from
which an appeal to the Board may be taken shall not be executed during
the time allowed for the filing of an appeal unless a waiver of the
right to appeal is filed, nor shall such decision be executed while an
appeal is pending or while a case is before the Board by way of
certification.
(b) The provisions of paragraph (a) of this section shall not apply
to an order of a Immigration Judge under 242.22 of this chapter denying
a motion to reopen or reconsider or to stay deportation, except when a
stay pending appeal has been granted by the Immigration Judge. The
Board may, in its discretion, stay deportation while an appeal is
pending from any such order if no stay has been granted by the
Immigration Judge.
(c) Saving clause. Notwithstanding the provisions of paragraph (b)
of this section, any stay of execution of decision existing under
paragraph (a) of this section when paragraph (b) of this section becomes
effective shall continue until the Board has disposed of the appeal.
(36 FR 316, Jan. 9, 1971)
08 CFR 3.7 Notice of certification.
Whenever in accordance with the provisions of 3.1(c), a case is
required to be certified to the Board, the alien or other party affected
shall be given notice of certification. A case shall be certified only
after an initial decision has been made and before an appeal has been
taken. If it is known at the time the initial decision is made that the
case will be certified, the notice of certification shall be included in
such decision and no further notice of certification shall be required.
If it is not known until after the initial decision is made that the
case will be certified, the Service office or Office of the Immigration
Judge having administrative control over the Record of Proceeding shall
cause a Notice of Certification (Form I-290C) to be served upon the
party affected. In either case, the notice shall inform the party
affected that the case is required to be certified to the Board and that
he or she has the right to make representation before the Board,
including the making of a request for oral argument and the submission
of a brief. If the party affected desires to submit a brief, it shall
be submitted to the Service office or Office of the Immigration Judge
having administrative control over the Record of Proceeding for
transmittal to the Board within ten (10) days from the date of receipt
of the notice of certification, unless for good cause shown such Service
office or Office of the Immigration Judge or the Board extends the time
within which the brief may be submitted. The case shall be certified
and forwarded to the Board by the Service office or Office of the
Immigration Judge having administrative jurisdiction over the case upon
receipt of the brief, or upon the expiration of the time within which
the brief may be submitted, or upon receipt of a written waiver of the
right to submit a brief.
(52 FR 2936, Jan 29, 1987; 52 FR 7369, Mar. 10, 1987)
08 CFR 3.8 Motion to reopen or motion to reconsider.
(a) Form. Motions to reopen and motions to reconsider shall be
submitted in triplicate. A request for oral argument, if desired, shall
be incorporated in the motion. The Board in its discretion may grant or
deny oral argument. Motions to reopen shall state the new facts to be
proved at the reopened hearing and shall be supported by affidavits or
other evidentiary material. Motions to reconsider shall state the
reasons upon which the motion is based and shall be supported by such
precedent decisions as are pertinent. In any case in which a
deportation order is in effect, there shall be included in the motion to
reopen or reconsider such order a statement by or on behalf of the
moving party declaring whether the subject of the deportation order is
also the subject of any pending criminal proceeding under section 242(e)
of the Act, and, if so, the current status of that proceeding. If the
motion to reopen or reconsider is for the purpose of seeking
discretionary relief, there shall be included in the motion a statement
by or on behalf of the moving party declaring whether the alien for
whose relief the motion is filed is subject to any pending criminal
prosecution and, if so, the nature and current status of that
prosecution. Motions to reopen or reconsider shall state whether the
validity of the deportation order has been or is the subject of any
judicial proceeding and, if so, the nature and date thereof, the court
in which such proceeding took place or is pending, and its result or
status. The filing of a motion to reopen or a motion to reconsider
shall not serve to stay the execution of any decision made in the case.
Execution of such decision shall proceed unless a stay of execution is
specifically granted by the Board or the officer of the Service having
administrative jurisdiction over the case.
(b) Distribution of motion papers when alien is moving party. In any
case in which a motion to reopen or a motion to reconsider is made by
the alien or other party affected, the three copies of the motion papers
shall be submitted to the officer of the Service having administrative
jurisdiction over the place where the proceedings were conducted. Such
officer shall retain one copy, forward one copy to the officer of the
Service or Immigration Judge who made the initial decision in the case,
and submit the third copy with the case to the Board.
(c) Distribution of motion papers when the Commissioner, or any other
duly authorized officer of the Service is the moving party. Whenever a
motion to reopen or a motion to reconsider is made by the Commissioner
or any other duly authorized officer of the Service, he shall cause one
copy of the motion to be served upon the alien or party affected, as
provided in part 292 of this chapter, and shall cause the record in the
case and one copy of the motion to be filed directly with the Board,
together with proof of service upon the alien or other party affected.
Such alien or party shall have a period of ten days from the date of
service upon him of the motion within which he may apply, if he so
desires, submit a brief in opposition to the motion. If such a brief is
submitted, two copies thereof shall be filed directly with the Board and
one copy directly with the Commissioner. The Board, in its discretion
for good cause shown may extend the time within which such brief may be
submitted.
(d) Ruling on motion. Rulings upon motions to reopen or motions to
reconsider shall be by written order. If the order directs a reopening,
the record shall be returned to the officer of the Service having
administrative jurisdiction over the place where the reopened
proceedings are to be conducted. If the motion to reconsider is
granted, the decision upon such reconsideration shall affirm, modify, or
reverse the original decision made in the case.
(23 FR 9118, Nov. 26, 1958, as amended at 27 FR 7488, July 31, 1962;
48 FR 8040, Feb. 25, 1983)
08 CFR 3.8 Subpart B -- Office of the Chief Immigration Judge
08 CFR 3.9 Chief Immigration Judge.
The Chief Immigration Judge shall be reponsible for the general
supervision, direction and scheduling of the Immigration Judges in the
conduct of the various programs assigned to them. This shall include:
(a) Establishment of operational policies;
(b) Evaluation of the performance of Immigration Judge offices,
making appropriate reports and inspections and taking corrective action
where indicated.
(48 FR 8040, Feb. 25, 1983)
08 CFR 3.10 Immigration Judges.
Immigration Judges shall exercise the powers and duties in this
chapter regarding the conduct of exclusion and deportation hearings and
such other proceedings which the Attorney General may assign them to
conduct.
(48 FR 8040, Feb. 25, 1983)
08 CFR 3.11 Administrative control offices.
Certain Immigration Judge offices are administrative control offices.
These offices create and maintain Record of Proceedings for assigned
geographical areas. All documents and correspondence pertaining to a
Record of Proceeding shall be filed with the Immigration Judge office
having administrative control over that Record of Proceeding and shall
not be filed with any other Immigration Judge office. A list of
administrative control offices with their assigned geographical areas
will be made available to the public at any Immigration Judge office.
(52 FR 2942, Jan. 29, 1987)
08 CFR 3.11 Subpart C -- Rules of Procedure for Immigration Judge
Proceedings
Source: 52 FR 2936, Jan. 29, 1987, unless otherwise noted.
08 CFR 3.12 Scope of rules.
These rules are promulgated to assist in the expeditious, fair, and
proper resolution of matters coming before Immigration Judges. Except
where specifically stated, these rules apply to all matters before
Immigration Judges, including, but not limited to, deportation,
exclusion, bond, rescission, departure control proceedings, and
disciplinary proceedings under 8 CFR 292.3.
(57 FR 11571, Apr. 6, 1992)
08 CFR 3.13 Definitions.
As used in this subpart:
Administrative Control means custodial responsibility for the Record
of Proceeding as specified in 8 CFR 3.11.
Charging document means the written instrument which initiates a
proceeding before an Immigration Judge including an Order to Show Cause,
a Notice to Applicant for Admission Detained for Hearing before
Immigration Judge, and a Notice of Intention to Rescind and Request for
hearing by Alien.
Filing means the actual receipt of a document by the appropriate
Office of the Immigration Judge.
Service means physically presenting or mailing a document to the
appropriate party or parties.
(57 FR 11571, Apr. 6, 1992)
08 CFR 3.14 Jurisdiction and commencement of proceedings.
(a) Jurisdiction vests, and proceedings before an Immigration Judge
commence, when a charging document is filed with the Office of the
Immigration Judge by the Service, except for bond proceedings as
provided in 8 CFR 3.19 and 8 CFR 242.2(b). When a charging document is
filed, a certificate of service that indicates the Office of the
Immigration Judge in which the charging document is filed must be served
upon the opposing party pursuant to 8 CFR 3.32.
(b) When an Immigration Judge has jurisdiction over an underlying
proceeding, sole jurisdiction over applications for asylum shall lie
with the Immigration Judge.
(57 FR 11571, Apr. 6, 1992)
08 CFR 3.15 Contents of the order to show cause and notification of
change of address.
(a) In the Order to Show Cause, the Service shall provide the
following administrative information to the Executive Office for
Immigration Review. Omission of any of these items shall not provide
the alien with any substantive or procedural rights:
(1) The alien's names and any known aliases;
(2) The alien's address;
(3) The alien's registration number, with any lead alien registration
number with which the alien is associated;
(4) The alien's alleged nationality and citizenship;
(5) The language that the alien understands;
(b) The Order to Show Cause must also include the following
information:
(1) The nature of the proceedings against the alien;
(2) The legal authority under which the proceedings are conducted;
(3) The acts or conduct alleged to be in violation of law;
(4) The charges against the alien and the statutory provisions
alleged to have been violated;
(5) Notice that the alien may be represented, at no cost to the
government, by counsel or other representative authorized to appear
pursuant to 8 CFR 292.1;
(6) The address of the Office of the Immigration Judge where the
Service will file the Order to Show Cause; and
(7) A statement that the alien must advise the Office of the
Immigration Judge having administrative control over the Record of
Proceeding of his or her current address and telephone number and a
statement that failure to provide such information may result in an in
absentia hearing in accordance with 3.26.
(c) Address and telephone number. (1) If the alien's address is not
provided on the Order to Show Cause, or if the address on the Order is
incorrect, the alien must provide to the Office of the the Immigration
Judge where the Order to Show Cause has been filed, within five days of
service of the Order, a written notice of an address and telephone
number at which the alien can be contacted, on Form EOIR-33, change of
address form.
(2) Within five working days of any change of address, the alien must
provide written notice of the change of address on Form EOIR-33, change
of address form to the Office of the Immigration Judge where the Order
to Show Cause has been filed, or if venue has been changed, to the
Office of the Immigration Judge to which venue has been changed.
(3) The information required by paragraphs (c)(1) and (c)(2) of this
section shall include, where applicable, the alien's name, alien
registration number, the old address and telephone number, the new
address and telephone number, and the effective date of change.
(57 FR 11571, Apr. 6, 1992)
08 CFR 3.16 Representation.
(a) The government may be represented in proceedings before an
Immigration Judge.
(b) The respondent/applicant may be represented in proceedings before
an Immigration Judge by an attorney or other representative of his or
her choice in accordance with 8 CFR part 292, at no expense to the
government.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.17 Appearances.
(a) In any proceeding before an Immigration Judge in which the
respondent/applicant is represented, the attorney or representative
shall file a Notice of Appearance on the appropriate EOIR form with the
Office of the Immigration Judge and shall serve a copy of the Notice of
Appearance on the Service as required by 8 CFR 3.32(a). Such Notice of
Appearance must be filed and served even if a separate Notice of
Appearance(s) has previously been filed with the Service for
appearance(s) before the Service.
(b) Withdrawal or substitution of an attorney or representative may
be permitted by an Immigration Judge during proceedings only upon oral
or written motion submitted without fee.
(57 FR 11571, Apr. 6, 1992)
08 CFR 3.18 Scheduling of cases.
All cases shall be scheduled by the Office of the Immigration Judge.
The Office of the Immigration Judge shall be responsible for providing
notice of the time, place, and date of the hearing to the government and
respondent/applicant.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.19 Custody/bond.
(a) Custody and bond determinations made by the service pursuant to
part 242 of this chapter may be reviewed by an Immigration Judge
pursuant to part 242 of this chapter.
(b) Application for an initial bond redetermination by a respondent,
or his or her attorney or representative, may be made orally, in
writing, or, at the discretion of the Immigration Judge, by telephone.
(c) Applications for the exercise of authority to review bond
determinations shall be made to one of the following offices, in the
designated order:
(1) If the respondent is detained, to the Office of the Immigration
Judge having jurisdiction over the place of detention;
(2) To the Office of the Immigration Judge having administrative
control over the case; or
(3) To the Office of the Chief Immigration Judge for designation of
an appropriate Office of the Immigration Judge.
(d) Consideration by the Immigration Judge of an application or
request of a respondent regarding custody or bond under this section
shall be separate and apart from, and shall form no part of, any
deportation hearing or proceeding. The determination of the Immigration
Judge as to custody status or bond may be based upon any information
that is available to the Immigration Judge or that is presented to him
or her by the alien or the Service.
(e) After an initial bond redetermination, a request for a subsequent
bond redetermination shall be made in writing and shall be considered
only upon a showing that the alien's circumstances have changed
materially since the prior bond redetermination.
(f) The determination of an Immigration Judge with respect to custody
status or bond redetermination shall be entered on the appropriate form
at the time such decision is made and the parties shall be informed
orally or in writing of the reasons for the decision. An appeal from
the determination by an Immigration Judge may be taken to the Board of
Immigration Appeals pursuant to 3.38.
(g) While any proceeding is pending before the Executive Office for
Immigration Review, the Service shall immediately advise the Office of
the Immigration Judge having administrative control over the Record of
Proceeding of a change in the respondent/applicant's custody location or
of release from Service custody, or subsequent taking into Service
custody, of a respondent/applicant. This notification shall be in
writing and shall state the effective date of the change in custody
location or status, and the respondent/applicant's current fixed street
address, including zip code.
(h) An alien in deportation proceedings who has been convicted of an
aggravated felony shall not be released from custody on bond or other
conditions. Nevertheless, an alien who has been lawfully admitted to
the United States and who establishes to the satisfaction of the
Immigration Judge that the alien is not a threat to the community and
that the alien is likely to appear at any scheduled hearings, may be
released on bond or other conditions designed to guarantee such
appearance.
(57 FR 11571, Apr. 6, 1992)
08 CFR 3.20 Change of venue.
(a) Venue shall lie at the Office of the Immigration Judge where the
charging document is filed pursuant to 8 CFR 3.14.
(b) The Immigration Judge, for good cause, may change venue only upon
motion by one of the parties, after the charging document has been filed
with the Office of the Immigration Judge. The Immigration Judge may
grant a change of venue only after the other party has been given notice
and an opportunity to respond to the motion to change venue.
(c) No change of venue shall be granted without identification of a
fixed street address, including city, state and ZIP code, where the
respondent/applicant may be reached for further hearing notification.
(57 FR 11572, Apr. 6, 1992)
08 CFR 3.21 Pre-hearing conferences and statement.
(a) Pre-hearing conferences may be scheduled at the discretion of the
Immigration Judge. The conference may be held to narrow issues, to
obtain stipulations between the parties, to exchange information
voluntarily, and otherwise to simplify and organize the proceeding.
(b) The Immigration Judge may order any party to file a pre-hearing
statement of position that may include, but is not limited to: A
statement of facts to which both parties have stipulated, together with
a statement that the parties have communicated in good faith to
stipulate to the fullest extent possible; a list of proposed witnesses
and what they will establish; a list of exhibits, copies of exhibits to
be introduced, and a statement of the reason for their introduction;
the estimated time required to present the case; and, a statement of
unresolved issues involved in the proceedings.
(c) If submission of a pre-hearing statement is ordered under
paragraph (b) of this section, an Immigration Judge also may require
both parties, in writing prior to the hearing, to make any evidentiary
objections regarding matters contained in the pre-hearing statement. If
objections in writing are required but not received by the date for
receipt set by the Immigration Judge, admission of all evidence
described in the pre-hearing statement shall be deemed unopposed.
(57 FR 11572, Apr. 6, 1992)
08 CFR 3.22 Interpreters.
Any person acting as an interpreter in a hearing shall swear or
affirm to interpret and translate accurately, unless the interpreter is
an employee of the United States Government, in which event no such oath
or affirmation shall be required.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.23 Motions.
(a) Pre-decision motions. Unless otherwise permitted by the
Immigration Judge, motions submitted prior to the final order of an
Immigration Judge shall be in writing and shall state, with
particularity the grounds therefore, the relief sought, and the
jurisdiction. The Immigration Judge may set and extend time limits for
the making of motions and replies thereto. A motion shall be deemed
unopposed unless timely response is made.
(b) Reopening/Reconsideration. (1) Motions to reopen or reconsider a
decision of the Immigration Judge must be filed with the Office of the
Immigration Judge having administrative control over the Record of
Proceeding. Such motions shall comply with applicable provisions of 8
CFR 208.4, 208.19, and 242.22. Any motion to reopen for the purpose of
acting on an application for relief must be accompanied by the
appropriate application for relief and all supporting documents. The
Immigration Judge may set and extend time limits for replies to motions
to reopen or reconsider. A motion shall be deemed unopposed unless
timely response is made.
(2) When requested in conjunction with a motion to reopen/reconsider,
the Immigration Judge may stay the execution of a final order of
deportation or exclusion.
(52 FR 2936, Jan. 29, 1987, as amended at 55 FR 30680, July 27, 1990.
Redesignated at 57 FR 11571, Apr. 6, 1992)
08 CFR 3.24 Waivers of fees in Immigration Judge proceedings.
Any fees pertaining to a matter within the Immigration Judge's
jurisdiction may be waived by the Immigration Judge upon a showing that
the respondent/applicant is incapable of paying the fees because of
indigency. A properly executed affidavit or unsworn declaration made
pursuant to 28 U.S.C. 1746 by the respondent/applicant must accompany
the request for waiver of fees and shall substantiate the indigency of
the respondent/applicant.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.25 Waiver of presence of respondent/applicant.
The Immigration Judge may, for good cause, waive the presence of a
respondent/applicant at the hearing where the alien is represented or
where the alien is a minor child whose parent(s) is present. In
addition, in absentia hearings may be held pursuant to section 242(b) of
the Act with or without representation.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.26 In absentia hearings.
In any proceeding before an Immigration Judge in which the
respondent/applicant fails to appear, the Immigration Judge shall
conduct an in absentia hearing if the Immigration Judge is satisfied
that notice of the time and place of the proceeding was provided to the
respondent/applicant on the record at a prior hearing or by written
notice to the respondent/applicant or to respondent/applicant's counsel
of record, if any, at the most recent address contained in the Record of
Proceeding.
(57 FR 11572, Apr. 6, 1992)
08 CFR 3.27 Public access to hearings.
All hearings, other than exclusion hearings, shall be open to the
public except that:
(a) Depending upon physical facilities, the Immigration Judge may
place reasonable limitations upon the number in attendance at any one
time with priority being given to the press over the general public;
(b) For the purpose of protecting witnesses, parties, or the public
interest, the Immigration Judge may limit attendance or hold a closed
hearing.
(c) In a proceeding before an Immigration Judge pursuant to section
216(c)(4) of the Act concerning an abused alien spouse or an abused
child, the Record of Proceeding and the hearing shall be closed to the
public, unless the abused alien spouse or abused child agrees that the
hearing and the Record of Proceeding shall be open to the public. In
the case of an abused child, the Immigration Judge may decide if the
hearing and Record of Proceeding shall be open.
(52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571,
11572, Apr. 6, 1992)
08 CFR 3.28 Recording equipment.
The only recording equipment permitted in the proceeding will be the
equipment used by the Immigration Judge to create the official record.
No other photographic, video, electronic, or similar recording device
will be permitted to record any part of the proceeding.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.29 Continuances.
The Immigration Judge may grant a motion for continuance for good
cause shown.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.30 Additional charges in deportation hearings.
At any time during the proceeding, additional or substituted charges
of deportability and/or factual allegations may be lodged by the Service
in writing. The respondent shall be served with a copy of these
additional charges and allegations and may be given a reasonable
continuance to respond thereto.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.31 Filing documents and applications.
(a) All documents and applications that are to be considered in a
proceeding before an Immigration Judge must be filed with the Office of
the Immigration Judge having administrative control over the Record of
Proceeding.
(b) All documents or applications requiring the payment of a fee must
be accompanied by a fee receipt from the Service or by an application
for a waiver of fees pursuant to 8 CFR 3.24. Any fee relating to
Immigration Judge proceedings shall be paid to, and accepted by, any
Service office authorized to accept fees for other purposes pursuant to
8 CFR 103.7(a).
(c) The Immigration Judge may set and extend time limits for the
filing of applications and related documents and responses thereto, if
any. If an application or document is not filed within the time set by
the Immigration Judge, the opportunity to file that application or
document shall be deemed waived.
(57 FR 11572, Apr. 6, 1992)
08 CFR 3.32 Service and size of documents.
(a) Except in in absentia a copy of all documents (including proposed
exhibits or applications) filed with or presented to the Immigration
Judge shall be simultaneously served by the presenting party on the
opposing party or parties. Such service shall be in person or by first
class mail to the most recent address contained in the Record of
Proceeding. A certification showing service on the opposing party or
parties on a date certain shall accompany any filing with the
Immigration Judge unless service is made on the record during the
hearing. Any documents or applications not containing such
certification will not be considered by the Immigration Judge unless
service is made on the record during a hearing.
(b) Unless otherwise permitted by the Immigration Judge, all written
material presented to Immigration Judges including offers of evidence,
correspondence, briefs, memoranda, or other documents must be submitted
on 8 1/2" 11" size paper. The Immigration Judge may require that
exhibits and other written material presented be indexed, paginated, and
that a table of contents be provided.
(52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571,
11572, Apr. 6, 1992)
08 CFR 3.33 Translation of documents.
Any foreign language document offered by a party in a proceeding
shall be accompanied by an English language translation and a
certification signed by the translator that must be printed legibly or
typed and specifically must include the following statement:
I, (name of translator), certify that I am competent to translate
this document, and that the translation is true and accurate, to the
best of my abilities.
(57 FR 11573, Apr. 6, 1992)
08 CFR 3.34 Testimony.
Testimony of witnesses appearing at the hearing shall be under oath
or affirmation.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.35 Depositions.
(a) If an Immigration Judge is satisfied that a witness is not
reasonably available at the place of hearing and that said witness'
testimony or other evidence is essential, the Immigration Judge may
order the taking of deposition either at his or her own instance or upon
application of a party.
(b) Such order shall designate the official by whom the deposition
shall be taken, may prescribe and limit the content, scope, or manner of
taking the deposition, and may direct the production of documentary
evidence. The Immigration Judge may also issue a subpoena in the event
of the refusal or willful failure of a witness within the United States
to appear, give testimony, or produce documentary evidence after due
notice.
(c) The witness and all parties shall be notified as to the time and
place of the deposition by the official designated to conduct the
deposition.
(d) Testimony shall be given under oath or affirmation and shall be
recorded verbatim.
(e) The official presiding at the taking of the deposition shall note
but not rule upon objections, and shall not comment on the admissibility
of evidence or on the credibility and demeanor of the witness.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.36 Record of proceeding.
The Office of the Immigration Judge shall create and control the
Record of Proceeding.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.37 Decisions.
(a) A decision of the Immigration Judge may be rendered orally or in
writing. If the decision is oral, it shall be stated by the Immigration
Judge in the presence of the parties and a memorandum summarizing the
oral decision shall be served on the parties. If the decision is in
writing, it shall be served on the parties by first class mail to the
most recent address contained in the Record of Proceeding or by personal
service.
(b) (Reserved)
(57 FR 11573, Apr. 6, 1992)
08 CFR 3.38 Appeals.
(a) Decisions of Immigration Judges may be appealed to the Board of
Immigration Appeals as authorized by 8 CFR 3.1(b).
(b) The notice of appeal of the decision shall be filed with the
Office of the Immigration Judge having administrative control over the
Record of Proceeding within ten (10) calendar days after service of the
decision. Time will be 13 days if mailed. If the final date for filing
falls on a Saturday, Sunday, or legal holiday, this appeal time shall be
extended to the next business day.
(c) Briefs may be filed by both parties pursuant to 8 CFR 3.3(c).
(d) In any proceeding before the Board wherein the
respondent/applicant is represented, the attorney or representative
shall file a notice of appearance on the appropriate form. Withdrawal
or substitution of an attorney or representative may be permitted by the
Board during proceedings only upon written motion submitted without fee.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.39 Finality of decision.
Except when certified to the Board, the decision of the Immigration
Judge becomes final upon waiver of appeal or upon expiration of the time
to appeal if no appeal is taken whichever occurs first.
(52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571,
11573, Apr. 6, 1992)
08 CFR 3.40 Local operating procedures.
An Office of the Immigration Judge having administrative control over
Records of Proceedings may establish local operating procedures,
provided that:
(a) Such operating procedure(s) shall not be inconsistent with any
provision of this chapter;
(b) A majority of the judges of the local Office of the Immigration
Judge shall concur in writing therein; and
(c) The Chief Immigration Judge has approved the proposed operating
procedure(s) in writing.
(52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6,
1992)
08 CFR 3.40 SUBCHAPTER B -- IMMIGRATION REGULATIONS
08 CFR 3.40 PART 100 -- STATEMENT OF ORGANIZATION
Sec.
100.1 Introduction.
100.2 Organization and functions.
100.3 Places where, and methods whereby, information may be secured
or submittals or requests made.
100.4 Field Service.
100.5 Regulations.
100.6 Rule making.
100.7 OMB control numbers assigned to information collections.
Authority: 8 U.S.C. 1103; 8 CFR part 2.
Source: 32 FR 9616, July 4, 1967, unless otherwise noted.
08 CFR 100.1 Introduction.
The following sections describe the organization of the Immigration
and Naturalization Service, including statements of delegations of final
authority, indicate the established places at which, and methods
whereby, the public may secure information, direct attention to the
regulations relating to the general course and method by which its
functions are channeled and determined, and to display OMB control
numbers assigned to the information collection requirements of the
Service. Part 103 of this chapter sets forth the procedures governing
the availability of Service opinions, orders, and records.
(48 FR 37201, Aug. 17, 1983)
08 CFR 100.2 Organization and functions.
(a) Office of the Commissioner. The Attorney General has delegated
to the Commissioner, the principal officer of the Immigration and
Naturalization Service, authority to administer and enforce the
Immigration and Nationality Act and all other laws relating to
immigration, naturalization, and nationality as prescribed and limited
by 28 CFR 0.105 et seq.
(1) Office of the General Counsel. The Office of the General
Counsel, headed by the General Counsel, provides legal advice to the
Commissioner and staff, prepares legislative reports, assists in
litigation and prepares briefs and other legal memoranda when necessary,
directs the activities of regional counsels, oversees the professional
activities of all Service attorneys assigned to field offices, and makes
recommendations on all personnel matters involving Service attorneys.
(2) Office of Congressional and Public Affairs. Headed by the
Director for Congressional and Public Affairs, a staff member to the
Commissioner, responds to congressional inquiries, advises the
Commissioner and staff concerning legislative matters, directs and
coordinates public notices, announcements, press releases, and other
public information.
(3) Office of Professional Responsibility. Headed by the Director
for Professional Responsibility who is subject to the general
supervision and direction of the Commissioner, and who supervises,
directs, and coordinates the Professional Responsibility Program.
(4) Office of Program Inspection. Headed by the Director for Program
Inspection who is subject to the general supervision and direction of
the Commissioner and who supervises, directs, and coordinates the Field
Inspections and Program Audit and the Evaluation and Productivity
Improvement Programs.
(b) Office of the Deputy Commissioner. Headed by the Deputy
Commissioner who is authorized to exercise all power and authority of
the Commissioner unless any such power or authority is required to be
exercised by the Commissioner personally or has been specifically
delegated to another Service official or class of Service officer.
(1) Office of Enforcement. Headed by the Associate Commissioner for
Enforcement who is responsible for planning, developing, directing,
coordinating, and reporting on Service enforcement programs and
activities, and participating in formulating Service enforcement
policies. The Associate Commissioner for Enforcement directly
supervises:
(i) Border Patrol Division,
(ii) Investigations Division,
(iii) Detention and Deportation Division,
(iv) Office of Anti-Smuggling, and
(v) Intelligence Unit.
(2) Office of Management. Headed by the Associate Commissioner for
Management who is responsible for planning, developing, directing,
coordinating, and reporting on Servce management programs and activities
and participating in formulating Service management policies. The
Associate Commissioner for Management directly supervises:
(i) Office of the Comptroller,
(ii) Personnel and Training Division,
(iii) Administration Division, and
(iv) Office of Equal Employment Opportunity.
(c) Office of the Executive Associate Commissioner. Headed by the
Executive Associate Commissioner who assists the Commissioner and Deputy
Commissioner in all aspects of the administration of the Immigration and
Naturalization Service by development and overall coordination of
Servicewide policies and programs. The Executive Associate Commissioner
provides general direction to and supervision of the Office of Plans and
Analysis, Office of Information Systems, Office of Examinations, and all
overseas offices.
(1) Office of Plans and Analysis. Headed by the Director for Plans
and Analysis who is responsible for developing overall Service policies,
strategic plans and programs, reviewing and analyzing the budget, and
administering the Service's statistics and research programs.
(2) Office of Information Systems. Headed by the Associate
Commissioner for Information Systems who is responsible for planning,
developing, directing, coordinating, and reporting on Service
information management programs and activities including automated data
processing and telecommunications. The Associate Commissioner for
Information Systems directly supervises:
(i) Records Systems Division,
(ii) Data Systems Division,
(iii) Office of Policy Directives and Instructions, and
(iv) Project Control and Integration Division
(3) Office of Examinations. Headed by the Associate Commissioner for
Examinations who is responsible for planning, developing, directing,
coordinating, and reporting on Service Examinations program activities,
and participating in formulating Service Examinations policies. The
Associate Commissioner for Examinations directly supervises:
(i) Adjudications Division.
(ii) Inspections Division,
(iii) Refugees, Asylum and Parole Division,
(iv) Office of Outreach Program,
(v) Administrative Appeals Unit, and
(vi) Legalization.
(vii) National Fines Office.
(d) Offices of the Regional Commissioners. Headed by regional
commissioners who are assisted by associate regional commissioners for
operations and associate regional commissioners for management, the
regional commissioners are responsible for the administration and
enforcement of all laws relating to immigration, nationality, and
naturalization within their assigned geographic areas of activity.
Regional commissioners are subject to the general supervision of the
Commissioner and the direction of the Deputy Commissioner. Regional
commissioners provide general guidance and supervision to:
(1) Service districts within their regions, and
(2) Border Patrol sectors within their regions.
(e) Service districts. Headed by district directors who may be
assisted by deputy district directors, the district directors are
responsible for the administration and enforcement of the Act and all
other laws relating to immigration and naturalization within their
assigned geographic areas of activity unless any such power and
authority is required to be exercised by higher authority or has been
exclusively delegated to another immigration official or class of
immigration officer. District directors are subject to the general
supervision and direction of their respective regional commissioners
except that district directors outside of the United States are subject
to the general supervision and direction of the Executive Associate
Commissioner.
(f) Border Patrol sectors. Headed by chief patrol agents who may be
assisted by deputy chief patrol agents, the chief patrol agents are
responsible for the enforcement of the Act and all other laws relating
to immigration and naturalization within their assigned geographic areas
of activity unless any such power and authority is required to be
exercised by higher authority or has been exclusively delegated to
another immigration official or class of immigration officer. Chief
patrol agents are subject to the general supervision and direction of
their respective regional commissioners.
(48 FR 13147, Mar. 30, 1983; 48 FR 17060, Apr. 21, 1983, as amended
at 49 FR 12189, Mar. 29, 1984; 49 FR 13135, Apr. 3, 1984; 49 FR 22768,
June 1, 1984; 49 FR 37371, Sept. 24, 1984; 51 FR 19824, June 3, 1986;
52 FR 16191, May 1, 1987; 54 FR 18649, May 2, 1989)
08 CFR 100.3 Places where, and methods whereby, information may be
secured or submittals or requests made.
Any person desiring information relative to a matter handled by the
Immigration and Naturalization Service, or any person desiring to make a
submittal or request in connection with such a matter should communicate
either orally or in writing with a district headquarters office or
suboffice of the Service. If the office receiving the communication
does not have jurisdiction to handle the matter, the communication, if
written, will be forwarded to the proper office of the Service or, if
oral, the person will be advised how to proceed. When the submittal or
request consists of a formal application for one of the documents,
privileges, or other benefits provided for in the laws administered by
the Service or the regulations implementing those laws, the instructions
on the form as to preparation and place of submission should be
followed. In such cases, the provisions of this chapter dealing with
the particular type of application may be consulted for regulatory
provisions.
08 CFR 100.4 Field Service.
The territory within which officials of the Immigration and
Naturalization Service are located is divided into regions, districts,
suboffices, and Border Patrol sectors as follows:
(a) The Eastern Regional Office, located in Burlington, Vermont, has
jurisdiction over districts 2, 3, 4, 5, 7, 21, 22, 25, and 27; Border
Patrol Sectors 1, 2, 3, 4; and the Regional Service Center in St.
Albans, Vermont. The Southern Regional Office, located in Dallas,
Texas, has jurisdiction over districts 6, 14, 15, 20, 26, 28, 38, and
40; Border Patrol Sectors 15, 16, 17, 18, 19, 20, 21; and the Regional
Service Center in Dallas, Texas. The Northern Regional Office, located
in Fort Snelling, Twin Cities, Minnesota, has jurisdiction over
districts 8, 9, 10, 11, 12, 19, 24, 29, 30, 31, and 32; Border Patrol
Sectors 5, 6, 7, 8, 9; and the Regional Service Center in Lincoln,
Nebraska. The Western Regional Office, located in San Pedro,
California, has jurisdiction over districts 13, 16, 17, 18, and 39;
Border Patrol Sectors 10, 11, 12, 13, 14; and the Regional Service
Center in San Ysidro, California.
(b) District offices. The following districts, which are designated
by numbers, have fixed headquarters and are divided as follows:
1. (Reserved)
2. Boston, Massachusetts. The district office in Boston,
Massachusetts has jurisdiction over the States of Connecticut, New
Hampshire (except the port of entry at Pittsburg, New Hampshire),
Massachusetts and Rhode Island.
3. New York City, New York. The district office in New York City,
New York, has jurisdiction over the following counties in the State of
New York: Bronx, Dutchess, Kings, Nassau, New York, Orange, Putnam,
Queens, Richmond, Rockland, Suffolk, Sullivan, Ulster, and Westchester;
also, over the United States immigration office located in Hamilton,
Bermuda.
4. Philadelphia, Pennsylvania. The district office in Philadelphia,
Pennsylvania, has jurisdiction over the States of Pennsylvania,
Delaware, and West Virginia.
5. Baltimore, Maryland. The district office in Baltimore, Maryland,
has jurisdiction over the State of Maryland.
6. Miami, Florida. The district office in Miami, Florida, has
jurisdiction over the State of Florida, and the United States
immigration offices located in Freeport and Nassau, Bahamas.
7. Buffalo, New York. The district office in Buffalo, New York, has
jurisdiction over the State of New York except that part within the
jurisdiction of District No. 3; also, over the United States
immigration office at Toronto, Ontario, Canada; and office located at
Montreal, Quebec, Canada.
8. Detroit, Michigan. The district office in Detroit, Michigan, has
jurisdiction over the State of Michigan.
9. Chicago, Illinois. The district office in Chicago, Illinois, has
jurisdiction over the States of Illinois, Indiana, and Wisconsin.
10. St. Paul, Minnesota. The district office in St. Paul,
Minnesota, has jurisdiction over the States of Minnesota, North Dakota,
and South Dakota; also, over the United States immigration office in
the Province of Manitoba, Canada.
11. Kansas City, Missouri. The district office in Kansas City,
Missouri, has jurisdiction over the States of Kansas and Missouri.
12. Seattle, Washington. The district office in Seattle, Washington,
has jurisdiction over the State of Washington and over, the following
counties in the State of Idaho: Benewah, Bonner, Boundary, Clearwater,
Idaho, Kootenai, Latah, Lewis, Nez Perce and Shoshone; also, over the
United States immigration offices located in the Province of British
Columbia, Canada.
13. San Francisco, California. The district office in San Francisco,
California has jurisdiction over the following counties in the State of
California: Alameda, Alpine, Amador, Butte, Calaveras, Colusa, Contra
Costa, Del Norte, El Dorado, Fresno, Glenn, Humboldt, Inyo, Kern, Kings,
Lake, Lassen, Madera, Marin, Mariposa, Mendocino, Merced, Modoc, Mono,
Monterey, Napa, Nevada, Placer, Plumas, Sacramento, San Benito, San
Francisco, San Joaquin, San Mateo, Santa Clara, Santa Cruz, Shasta,
Sierra, Siskiyou, Solano, Sonoma, Stanislaus, Sutter, Tehama, Trinity,
Tulare, Tuolumne, Yolo, and Yuba.
14. San Antonio, Texas. The district office in San Antonio, Texas
has jurisdiction over the following counties in the State of Texas:
Aransas, Atascosa, Bandera, Bastrop, Bee, Bell, Bexar, Blanco, Brazos,
Brown, Burleson, Burnet, Caldwell, Calhoun, Coke, Coleman, Comal,
Concho, Coryell, Crockett, De Witt, Dimmitt, Duval, Edwards, Falls,
Fayette, Frio, Gillespie, Glasscock, Goliad, Gonzales, Guadalupe, Hays,
Irion, Jackson, Jim Hogg, Jim Wells, Karnes, Kendall, Kerr, Kimble,
Kinney, Lampasas, La Salle, Lavaca, Lee, Live Oak, Llano, McCulloch,
McLennan, McMullen, Mason, Maverick, Medina, Menard, Milam, Mills,
Nueces, Reagan, Real, Refugio, Robertson, Runnels, San Patricio, San
Saba, Schleicher, Sterling, Sutton, Tom Green, Travis, Uvalde, Val
Verde, Victoria, Webb, Williamson, Wilson, Zapata, Zavala.
15. El Paso, Texas. The district office in El Paso, Texas, has
jurisdiction over the State of New Mexico, and the following counties in
Texas: Brewster, Crane, Culberson, Ector, El Paso, Hudspeth, Jeff
Davis, Loving, Midland, Pecos, Presidio, Reeves, Terrell, Upton, Ward,
and Winkler.
16. Los Angeles, California. The district office in Los Angeles,
California, has jurisdiction over the following counties in the State of
California: Los Angeles, Orange, Riverside, San Bernardino, San Luis
Obispo, Santa Barbara, and Ventura.
17. Honolulu, Hawaii. The district office in Honolulu, Hawaii, has
jurisdiction over the State of Hawaii and Guam, Mariana Islands.
18. Phoenix, Arizona. The district office in Phoenix, Arizona has
jurisdiction over the States of Arizona and Nevada.
19. Denver, Colorado. The district office in Denver, Colorado, has
jurisdiction over the States of Colorado, Utah, and Wyoming.
20. Dallas, Texas. The district office in Dallas, Texas, has
jurisdiction over the State of Oklahoma, and the following counties in
the State of Texas: Anderson, Andrews, Archer, Armstrong, Bailey,
Baylor, Borden, Bosque, Bowie, Briscoe, Callahan, Camp, Carson, Cass,
Castro, Cherokee, Childress, Clay, Cochran, Collingsworth, Comanche,
Cooke, Cottle, Crosby, Dallam, Dallas, Dawson, Deaf Smith, Delta,
Denton, Dickens, Donley, Eastland, Ellis, Erath, Fannin, Fisher, Floyd,
Foard, Franklin, Freestone, Gaines, Garza, Gray, Grayson, Gregg, Hale,
Hall, Hamilton, Hansford, Hardeman, Harison, Hartley, Haskell, Hemphill,
Henderson, Hill, Hockley, Hood, Hopkins, Houston, Howard, Hunt,
Hutchinson, Jack, Johnson, Jones, Kaufman, Kent, King, Knox, Lamar,
Lamb, Leon, Limestone, Lipscomb, Lubbock, Lynn, Marion, Martin,
Mitchell, Montague, Moore, Morris, Motley, Navarro, Nolan, Ochiltree,
Oldham, Palo Pinto, Panola, Parker, Parmer, Potter, Rains, Randall, Red
River, Roberts, Rockwall, Rusk, Scurry, Shackelford, Sherman, Smith,
Somervell, Stephens, Stonewall, Swisher, Tarrant, Taylor, Terry,
Throckmorton, Titus, Upshur, Van Zandt, Wheeler, Wichita, Willbarger,
Wise, Wood, Yoakum, and Young.
21. Newark, New Jersey. The district office in Newark, New Jersey,
has jurisdiction over the State of New Jersey.
22. Portland, Maine. The district office in Portland, Maine has
jursidiction over the States of Maine, Vermont, and the port of entry at
Pittsburg, New Hampshire.
23. (Reserved)
24. Cleveland, Ohio. The district office in Cleveland, Ohio, has
jurisdiction over the State of Ohio.
25. Washington, DC. The district office in Washington, DC, has
jurisdiction over the District of Columbia and the State of Virginia.
26. Atlanta, Georgia. The district office in Atlanta, Georgia, has
jurisdiction over the States of Georgia, North Carolina, South Carolina,
and Alabama.
27. San Juan, Puerto Rico. The district office in San Juan, Puerto
Rico, has jurisdiction over the Commonwealth of Puerto Rico, the Virgin
Islands of the United States and Great Britain, and the Dominican
Republic.
28. New Orleans, Louisiana. The district office in New Orleans,
Louisiana, has jurisdiction over the states of Louisiana, Arkansas,
Mississippi, Tennessee, and Kentucky.
29. Omaha, Nebraska. The district office in Omaha, Nebraska, has
jurisdiction over the States of Iowa and Nebraska.
30. Helena, Montana. The district office in Helena, Montana, has
jurisdiction over the State of Montana and all counties in Idaho, except
Benewah, Bonner, Boundary, Clearwater, Idaho, Kootenai, Latah, Lewis,
Nez Perce, and Shoshone; also, over the United States immigration
office located in Calgary, Alberta, Canada.
31. Portland, Oregon. The district office in Portland, Oregon, has
jurisdiction over the State of Oregon.
32. Anchorage, Alaska. The district office in Anchorage, Alaska, has
jurisdiction over the State of Alaska.
33. Bangkok, Thailand. The district office in Bangkok has
jurisdiction over Hong Hong, B.C.C. and adjacent islands, Formosa, the
Philippines, Australia, New Zealand; all of continental Asia lying to
the east of the western border of Afghanistan and eastern borders of
Pakistan and India; Japan, Korea, Okinawa, and all other countries in
the Pacific area.
34. (Reserved)
35. Mexico City, Mexico. The district office in Mexico City has
jurisdiction over Mexico, Central America, South America, and Caribbean
Islands except for those specifically delegated to the districts of
Miami, Florida and San Juan, Puerto Rico.
36. (Reserved)
37. Rome, Italy. The district office in Rome, Italy has jurisdiction
over Europe; Africa; the countries of Asia lying to the west and north
of the western and northern borders, respectively, of Afghanistan,
People's Republic of China and Mongolian People's Republic; plus the
countries of India and Pakistan.
38. Houston, Texas. The district office in Houston, Texas, has
jurisdiction over the following counties in the State of Texas:
Angelina, Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston,
Grimes, Hardin, Harris, Jasper, Jefferson, Liberty, Madison, Matagorda,
Montgomery, Nacogdoches, Newton, Orange, Polk, Sabine, San Augustine,
San Jacinto, Shelby, Trinity, Tyler, Walker, Waller, Washington, and
Wharton.
39. San Diego, California. The district office in San Diego,
California, has jurisdiction over the following counties in the State of
California: Imperial and San Diego.
40. Harlingen, Texas. The district office in Harlingen, Texas, has
jurisdiction over the following counties in the State of Texas: Brooks,
Cameron, Hidalgo, Kenedy, Kleberg, Starr and Willacy.
(c) Suboffices. The following offices, in addition to the facilities
maintained at Class A ports of entry listed in paragraph (c)(2) of this
section, indicated by asterisk, are designated as suboffices:
(1) Interior locations.
Albany, NY
Albuquerque, NM
Boise, ID
Charlotte, NC
Cincinnati, OH
Fairbanks, AK
Fresno, CA
Indianapolis, IN
Las Vegas, NV
Louisville, KY
Memphis, TN
Oklahoma City, OK
Pittsburgh, PA
Reno, NV
Sacramento, CA
Salt Lake City, UT
St. Louis, MO
Spokane, WA
Tucson, AZ
(2) Ports of entry for aliens arriving by vessel or by land
transportation. Subject to the limitations prescribed in this
paragraph, the following places are hereby designated as ports of entry
for aliens arriving by any means of travel other than aircraft. The
designation of such a port of entry may be withdrawn whenever, in the
judgment of the Commissioner, such action is warranted. The ports are
listed according to location by districts and are designated either
Class A, B, or C. Class A means that the port is a designated port of
entry for all aliens. Class B means that the port is a designated port
of entry for aliens who at the time of applying for admission are
lawfully in possession of valid alien registration receipt cards or
valid nonresident aliens' border-crossing identification cards or are
admissible without documents under the documentary waivers contained in
part 212 of this chapter. Class C means that the port is a designated
port of entry only for aliens who are arriving in the United States as
crewmen as that term is defined in section 101(a)(10) of the Act with
respect to vessels.
Boston, MA (the port of Boston includes, among others, the port
facilities at Beverly, Braintree, Chelsea, Everett, Hingham, Lynn,
Manchester, Marblehead, Milton, Quincy, Revere, Salem, Saugus, and
Weymouth, MA)
Gloucester, MA
Hartford, CT (the port of Hartford includes, among others, the port
facilities at Bridgeport, Groton, New Haven, and New London, CT)
Providence, RI, (the port of Providence includes, among others, the
port facilities at Davisville, Melville, Newport, Portsmouth, Quonset
Point, Saunderstown, Tiverton, and Warwick, RI; and at Fall River, New
Bedford, and Somerset, MA)
Newburyport, MA
Plymouth, MA
Provincetown, MA
Sandwich, MA
Woods Hole, MA
Portsmouth, NH
New York, NY (the port of New York includes, among others, the port
facilities at Poughkeepsie and Yonkers, NY)
Dover, DE
Erie, PA
Philadelphia, PA (the port of Philadelphia includes, among others,
the port facilities at Delaware City, Lewes, New Castle, and Wilmington,
DE; and at Chester, Essington, Fort Mifflin, Marcus Hook, and
Morrisville, PA)
Baltimore, MD
Piney Point, MD
Salisbury, MD
Boca Grande, FL
Fernandiana, FL
Fort Pierce, FL
*Jacksonville, FL
*Key West, FL
Miami, FL
Panama City, FL
Pensacola, FL
Port Canaveral, FL
*Port Everglades, FL
(Ft. Lauderdale)
St. Augustine, FL
St. Petersburg, FL
*Tampa, FL
*West Palm Beach, FL
Port St. Joe, FL
Albany, NY
Alexandria Bay, NY
Buffalo, NY
Cape Vincent, NY
*Champlain, NY
*Chateaugay, NY
Clayton, NY
*Fort Covington, NY
Lewiston, NY
*Massena, NY
*Mooers, NY
*Niagara Falls, NY
*Ogdensburg, NY
Oswego, NY
Rochester, NY
Rouses Point, NY
*Thousand Islands, Bridge, NY
*Trout River, NY
Youngstown, NY
Cannons Corner, NY
Churubusco, NY
Jamison's Line, NY
Sodus Point, NY
*Algonac, MI
Detroit, MI
Isle Royale, MI
*Marine City, MI
Marysville, MI
*Port Huron, MI
*Roberts Landing, MI
*Sault Ste. Marie, MI
Alpena, MI
Detour, MI
Mackinac Island, MI
Rogers City, MI
Alpena, MI
Baraga, MI
Bay City, MI
Cheboygan, MI
Detour, MI
Escanaba, MI
Grand Haven, MI
Holland, MI
Houghton, MI
Ludington, MI
Mackinac Island, MI
Manistee, MI
Marquette, MI
Menominee, MI
Monroe, MI
Munising, MI
Muskegon, MI
Port Dolomite, MI
Port Inland, MI
Rogers City (Calcite), MI
Saginaw, MI
South Haven, MI
hicago, IL
*Green Bay, WI
*Hammond, IN
*Milwaukee, WI
East Chicago, IL
Gary, IN
Michigan City, IN
Ashland, WI
Kenosha, WI
Manitowoc, WI
Marinette, WI
Racine, WI
Sheboygan, WI
Sturgeon Bay, WI
*Baudette, MN
*Duluth, MN (the
ort of Duluth
ncludes, among others,
he port facilities of
uperior, WI)
*Ely, MN
*Grand Portage, MN
*International Falls, MN
*Lancaster, MN
*Noyes, MN
*Pine Creek, MN
anier, MN
*Roseau, MN
*Warroad, MN
*Ambrose, ND
*Antler, ND
*Carbury, ND
*Dunseith, ND
*Fortuna, ND
*Hannah, ND
*Hansboro, ND
*Maida, ND
*Neche, ND
*Noonan, ND
*Northgate, ND
embina, ND
*Portal, ND
*St. John, ND
*Sarles, ND
*Sherwood, ND
*Walhalla, ND
*Westhope, ND
Crane Lake, MN
Oak Island, MN
Grand Marais, MN
Silver Bay, MN
Taconite Harbor, MN
Two Harbors, MN
*Aberdeen, WA (the port of Aberdeen includes, among others, the port
facilities at South Bend and Raymond, WA)
*Anacortes, WA
*Bellingham, WA
*Blaine, WA
*Boundary, WA
*Danville, WA
erry, WA
Friday Harbor, WA (the port of Friday Harbor includes, among others,
the port facilities at Roche Harbor, WA)
*Frontier, WA
*Laurier, WA
*Lynden, WA
*Metaline Falls, WA
eah Bay, WA
lympia, WA
*Oroville, WA
*Point Roberts, WA
*Port Angeles, WA
ort Townsend, WA
Seattle, WA (the port of Seattle includes, among others, the port
facilities at Bangor, Blake Island, Bremerton, Eagle Harbor, Edmonds,
Everett, Holmes Harbor, Houghton, Kennydale, Keyport, Kingston,
Manchester, Mukilteo, Orchard Point, Point Wells, Port Gamble, Port
Ludlow, Port Orchard, Poulsbo, Shuffleton, and Winslow, WA)
*Sumas, WA
*Tacoma, WA (the port of Tacoma includes, among others, the port
facilities at Dupont, WA)
Nighthawk, WA
San Francisco, CA
Eureka, CA
mistad Dam, TX
*Corpus Christi, TX (the port of Corpus Christi includes, among
others, the port facilities at Harbor Island, Ingleside, and Port
Lavaca-Point Comfort, TX)
*Del Rio, TX
*Eagle Pass, TX
*Laredo, TX
*Columbus, NM
0El Paso, TX
*Fabens, TX
*Fort Hancock, TX
*Presidio, TX
Antelope Wells, NM
Monument No. 67, near Cloverdale, NM
Boquillas, TX
Candelaria, TX
Castolon, TX
Chinati, TX
Heath Crossing, TX
Lajitas, TX
Polvo, TX
Porvenir, TX
Ruidosa, TX
San Vicente, TX
Stillwell Crossing, TX
os Angeles, CA (the port of Los Angeles includes, among others, the
port facilities at San Pedro, Long Beach, Port Hueneme, and Ventura, CA)
*San Luis Obispo, CA (the port of San Luis Obispo includes, among
others, the port facilities at Avila, Estero Bay, El Capitan, Elwood,
Gaviota, Morro Bay, and Santa Barbara, CA)
*Agana, Guam, M.I. (including the port facilities at Apra Harbor,
Guam)
onolulu, HI
Hilo, HI
Kahului, HI
Nawiliwilli, HI
Port Allen, HI
*Douglas, AZ
*Las Vegas, NV (the port of Las Vegas includes port facilities at
McCarren International Airport and Nellis Air Force Base, NV)
*Lukeville, AZ
*Mariposa, AZ
*Naco, AZ
*Nogales, AZ
*Sasabe, AZ
*San Luis, AZ
Camden, NJ (the port of Camden includes among others, the port
facilities at Artificial Island, Billingsport, Deepwater Point, Fisher's
Point, Gibbstown, Gloucester City, Paulsboro, and Trenton, NJ)
Newark, NJ (the port of Newark includes among others, the port
facilities at Bayonne, Carteret, Edgewater, Elizabeth, Hoboken, Jersey
City, Linden, Perth Amboy, Port Newark, Sewaren, and Weehawken, NJ)
*Alburg, VT
*Alburg Springs, VT
*Bangor, ME (the port of Bangor includes, among others, the port
facilities at Bar Harbor, Belfast, Brewer, Bucksport Harbor, Prospect
Harbor, Sandypoint, Seal Harbor, Searsport, and South West Harbor, ME)
*Beebe Plain, VT
*Beecher Falls, VT
*Bridgewater, ME
*Calais, ME (includes Ferry Point and Milltown Bridges)
*Canaan, VT
*Coburn Gore, ME
*Derby Line, VT
*Eastport, ME
*East Richford, VT
*Fort Fairfield, ME
*Fort Kent, ME
*Hamlin, ME
*Highgate Springs, VT
*Houlton, ME
*Jackman, ME
*Limestone, ME
Lubec, ME
*Madawaska, ME
Morses Line, VT
*Newport, VT
*North Troy, VT
*Norton, VT
Pittsburgh, NH
Portland, ME
*Richford, VT (includes the Pinnacle port of entry)
*St. Albans, VT
*Van Buren, ME
*Vanceboro, ME
*West Berkshire, VT
Daaquam, ME
Easton, ME
Eastcourt, ME
Forest City, ME
Knoxford Line Road (Mars Hill), ME
Monticello, ME
Orient, ME
Robbinston, ME
St. Aurelie, ME
St. Pamphile, ME
Bath, ME
Boothbay Harbor, ME
Kittery, ME
Rockland, ME
Wiscasset, ME
leveland, OH
*Sandusky, OH
*Toledo, OH
Ashtabula, OH
Conneaut, OH
Fairport, OH
Huron, OH
Lorain, OH
Marblehead, OH
*Norfolk, VA (includes the port facilities at Newport News and Fort
Monroe, VA)
Washington, DC (includes the port facilities at Alexandria, VA)
*Mobile, AL
runswick, GA
*Savannah, GA
orehead City, NC
*Wilmington, NC
*Charleston, SC
eorgetown, SC
Aguadilla, PR
Ensenada, PR
*Christiansted, St. Croix, VI
Federiksted, St. Croix, VI
Fajardo. PR
Humacao, PR
Jobos, PR
Mayaguez, PR
*Ponce, PR
San Juan, PR
*Cruz Bay, St. John, VI
*Charlotte Amalie, St. Thomas, VI
Red Hook, St. Thomas, VI
Coral Bay, St. John, VI
Baton Rouge, LA
Lake Charles, LA
New Orleans, LA (the port of New Orleans includes, among others, the
port facilities at Avondale, Bell Chasse, Braithwaite, Burnside,
Chalmette, Destrahan, Geismar, Gramercy, Gretna, Harvey, Marrero, Norco,
Port Sulphur, St. Rose, and Westwego, LA)
Gulfport, MS
Morgan City, LA
Pascagoula, MS
*Eastport, ID
*Porthill, ID
hief Mountain, MT
May-October)
el Bonita, MT
*Morgan, MT
*Opheim, MT
*Piegan, MT
*Raymond, MT
*Roosville, MT
*Scobey, MT
cobey, MT
*Sweetgrass, MT
*Turner, MT
*Whitetail, MT
*Wildhorse, MT
*Willow Creek, MT
Whitlash, MT
Astoria, OR (the port of Astoria includes, among others, the port
facilities at Bradwood, Pacific City, Taft, Tilliamook (including
Garibaldi and Bay City), Warrenton, Wauna, and Westport, OR)
Coos Bay, OR (the port of Coos Bay includes, among others, the port
facilities at Bandon, Brookings, Depoe Bay, Florence, Frankfort, Gold
Beach, Newport (including Toledo), Port Orford, Reedsport, Waldport, and
Yachats, OR)
Portland, OR (the port of Portland includes, among others, the port
facilities at Beaver, Columbia City, Prescott, Rainier, and St. Helens,
OR; and Kalama, Longview, and Vancouver, WA)
nchorage, AK
*Dalton's Cache, AK
uneau, AK
*Ketchikan, AK
kagway, AK
*Tok, AK
Eagle, AK
Hyder, AK
eaumont, TX
*Galveston, TX (the port of Galveston includes, among others, the
port facilities at Freeport, Port Bolivar, and Texas City, TX)
ouston, TX (the port of Houston includes, among others, the port
facilities at Baytown, TX)
*Port Arthur, TX (the port of Port Arthur includes, among others, the
port facilities at Orange and Sabine, TX)
*Andrade, CA
*Calexico, CA
*Otay Mesa, CA
*San Ysidro Port
f Entry, CA
*Tecate, CA
*Brownsville, TX
*Falcon Heights, TX
*Hidalgo, TX
*Los Ebanos, TX
*Port Isabel, TX
*Progreso, TX
*Rio Grande City, TX
*Roma, TX
(3) Ports of entry for aliens arriving by aircraft. In addition to
the following international airports which are hereby designated as
ports of entry for aliens arriving by aircraft, other places where
permission for certain aircraft to land officially has been given and
places where emergency or forced landings are made under part 239 of
this chapter shall be regarded as designated for the entry of aliens
arriving by such aircraft:
Manchester, NH, Grenier Airport
Charlestown, WV, Kanahwa Airport
Fort Lauderdale, FL, Fort Lauderdale-Hollywood Airport
Key West, FL, Key West International Airport
Miami, FL, Chalks Flying Service Seaplane Base
Miami, FL, Miami International Airport
Tampa, FL, Tampa International Airport
West Palm Beach, FL, Palm Beach International Airport
Albany, NY, Albany County Airport
Massena, NY, Richards Field
Ogdensburg, NY, Ogdensburg Harbor
Ogdensburg, NY, Ogdensburg Municipal Airport
Rochester, NY, Rochester-Monroe County Airport
Rouses Point, NY, Rouses Point Seaplane Base
Syracuse, NY, Hancock International Airport
Watertown, NY, Watertown Municipal Airport
Detroit, MI, Detroit-City Airport
Detroit, MI, Detroit Metropolitan Wayne County Airport
Port Huron, MI, St. Clair County Airport
Sault Ste. Marie, MI, Sault Ste. Marie Airport
Chicago, IL, Chicago Midway Airport
Baudette, MN, Baudette International Airport
Duluth, MN, Duluth International Airport
Duluth, MN, Sky Harbor Airport
International Falls, MN, Falls International Airport
Ranier, MN, International Seaplane Base
Grand Forks, ND, Grand Forks International Airport
Minot, ND, Minot International Airport
Pembina, ND, Port Pembina Airport
Portal, ND, Portal Airport
Williston, ND, Sioulin Field (Municipal)
Bellingham, WA, Bellingham Airport
Friday Harbor, WA, Friday Harbor
Oroville, WA, Dorothy Scott Municipal Airport
Oroville, WA, Dorothy Scott Seaplane Base
Port Townsend, WA, Jefferson County International Airport
Seattle, WA, Boeing Municipal Air Field
Seattle, WA, Lake Union
Spokane, WA, Felts Field
Del Rio, TX, Del Rio International Airport
Eagle Pass, TX, Eagle Pass Airport
Laredo, TX, Laredo International Airport
El Paso, TX, International Airport
Agana, Guam, Mariana Islands, Agana Field
Douglas, AZ, Bisbee-Douglas Airport
Nogales, AZ, Nogales International Airport
Tucson, AZ, Tucson International Airport
Yuma, AZ, Yuma International Airport
Burlington, VT, Burlington Municipal Airport
Caribou, ME, Caribou Municipal Airport
Highgate Springs, VT, Franklin County Regional Airport
Newport, VT, Newport State Airport
Akron, OH, Municipal Airport
Cleveland, OH, Cleveland Hopkins Airport
Sandusky, OH, John G. Hinde Airport
Cut Bank, MT., Cut Bank Airport
Glasgow, MT, Glasgow International Airport
Great Falls, MT, Great Falls International Airport
Havre, MT, Havre-Hill County Airport
Juneau, AK, Juneau Municipal Airport
Ketchikan, AK, Ketchikan Airport
Wrangell, AK, Wrangell Seaplane Base
Calexico, CA, Calexico International Airport, San Diego, CA, San
Diego Municipal Airport (Lindbergh Field)
Brownsville, TX, Rio Grande Valley International Airport at
Brownsville, TX
McAllen, TX, Miller International Airport
(4) Immigration offices in foreign countries:
Athens, Greece
Bangkok, Thailand
Calgary, Alberta, Canada
Frankfurt, Germany
Freeport, Bahamas
Guadalajara, Mexico
Hamilton, Bermuda
Hong Kong
Manila, Philippines
Mexico City, Mexico
Monterrey, Mexico
Montreal, Quebec, Canada
Nassau, Bahamas
New Delhi, India
Ottawa, Ontario, Canada
Panama City, Republic of Panama
Rome, Italy
Seoul, Korea
Singapore, Republic of Singapore
Toronto, Ontario, Canada
Vancouver, British Columbia, Canada
Victoria, British Columbia, Canada
Vienna, Austria
Winnipeg, Manitoba, Canada
(d) Border Patrol Sectors. Border Patrol sector headquarters and
stations are situated at the following locations:
Calais, ME
Fort Fairfield, ME
Houlton, ME
Jackman, ME (Rangeley, ME)
Van Buren, ME
Beecher Falls, VT
Derby Line, VT
Swanton, VT (Richford, VT)
Ogdensburg, NY
Malone, NY
Massena, NY
Rouses Point, NY
Buffalo, NY
Fulton, NY
Niagara Falls, NY
Watertown, NY
Detroit, MI
Port Huron, MI
Sault Ste. Marie, MI
Trenton, MI
Bottineau, ND
Grand Forks, ND
Duluth, MN (Grand Marais, MN)
International Falls, MN
Pembina, ND
Portal, ND
Warroad, MN
Havre, MT (Malta, MT)
Shelby, MT (Sweetgrass, MT).
Twin Falls, ID
Wolf Point, MT (Plentywood, MT).
Bonners Ferry, ID
Colville, WA
Oroville, WA
Spokane, WA
Whitefish, MT (Roosville, MT).
Bellingham, WA
Blaine, WA
Lynden, WA
Bakersfield, CA
Fresno, CA
Livermore, CA
Oxnard, CA
Sacramento, CA
Salinas, CA
San Luis Obispo, CA
Stockton, CA
Campo, CA (Jacumba, CA)
Chula Vista, CA (Julian, CA)
El Cajon, CA
Imperial Beach, CA
San Clemente, CA
Temecula, CA
Calexico, CA
El Centro, CA
Indio, CA
Riverside, CA
Blythe, CA
Tacna, AZ
Yuma, AZ
Ajo, AZ
Casa Grande, AZ
Douglas, AZ
Gila Bend, AZ
Naco, AZ
Nogales, AZ
Phoenix, AZ
Tucson, AZ
Willcox, AZ
Alamogordo, NM
Carlsbad, NM
Deming, NM
El Paso, TX
Fabens, TX
Fort Hancock, TX
Las Cruces, NM
Lordsburg, NM
Sierra Blanca, Tex.
Truth or Consequences, NM
Ysleta, TX
Alpine, TX
Amarillo, TX
Big Spring, TX
Fort Stockton, TX
Lubbock, TX
Marfa, TX
Pecos, TX (Midland/Odessa, TX)
Presidio, TX
Sanderson, TX
Van Horn, TX
Brackettville, TX
Carrizo Springs, TX
Comstock, TX
Del Rio, TX
Eagle Pass, TX
Ozona, TX
Sonora, TX
Uvalde, TX
Cotulla, TX
Freer, TX
Hebbronville, TX
Laredo, TX
Brownsville, TX
Falfurrias, TX
Harlingen, TX
Kingsville, TX
McAllen, TX
Mercedes, TX
Rio Grande City, TX
Baton Rouge, LA
Gulfport, MS
Lake Charles, LA
Little Rock, AR
Miami, OK
Mobile, AL (Pensacola, FL)
New Orleans, LA
JacksonviIle, FL
Miami, FL
Orlando, FL
Tampa, FL
West Palm Beach, FL
(e) Regional Service Centers are situated at the following locations.
St. Albans, Vermont
Dallas, Texas
Lincoln, Nebraska
San Ysidro, California
(f) District Legalization Offices are local offices of the
Immigration and Naturalization Service under the authority of the
district director in whose district such offices are located.
Legalization Offices have been opened specifically to accommodate
applicants for the Legalization and Special Agricultural Worker
programs. Legalization Offices may be opened and closed, at the
discretion of the Commissioner, as the need arises.
NEW -- Paterson, NJ (XPT)
NYC -- Manhattan, NY (XMA)
WAS -- Arlington, VA (XAR)
CHI -- Chicago, IL (XLS), Forest Park, IL (XLI)
DEN -- Denver, CO (XDE)
KS -- Wichita, KS (XWI)
DAL -- Arlington, TX (XDA), Lubbock, TX (XLU)
ELP -- El Paso, TX (XEL), Albuquerque, NM (XAL)
HLG -- Harlingen, TX (XHA)
HOU -- Houston, TX (XHU)
MIA -- (Miami) Hialeah, FL (XOP), Fort Lauderdale, FL (XWS)
SNA -- Austin, TX (XAU), Corpus Christi, TX (XCO), Laredo, TX (XLR),
San Antonio, TX (XSN)
LOS -- Anaheim, CA (XAH), El Monte, CA (XEM), Los Angeles, CA (XHO),
Huntington Park, CA (XHP), East Los Angeles, CA (XLA), Buena Park, CA
(XNK), North Long Beach, CA (XLB), Oxnard, CA (XOX), Pomona, CA (XPO),
Riverside, CA (XRV), Santa Ana, CA (XSA), San Fernando, CA (XSR),
Gardenia, CA (XTO), N. Hollywood, CA (XVN)
PHO -- Phoenix, AZ (XPH), Las Vegas, NV (XLV)
SND -- Escondido, CA (XES), San Diego, CA (XSD)
SFR -- Bakersfield, CA (XBA), Fresno, CA (XFR), San Francisco, CA
(XSF), Salinas, CA (XSI), San Jose, CA (XSO), Stockton, CA (XST)
(g) Asylum Offices. (1) Newark, New Jersey. The Asylum Office in
Newark has jurisdiction over the state of Pennsylvania excluding the
jurisdiction of the Pittsburgh suboffice, and the States of Maine, New
Hampshire, Vermont, New York, Connecticut, Massachusetts, Rhode Island,
New Jersey, and Delaware.
(2) Arlington, Virginia. The Asylum Office in Arlington has
jurisdiction over the District of Columbia, the western portion of the
state of Pennsylvania currently within the jurisdiction of the
Pittsburgh suboffice, and the States of Maryland, Virginia, West
Virginia, North Carolina, Georgia, Alabama, and South Carolina.
(3) Miami, Florida. The Asylum Office in Miami has jurisdiction over
the State of Florida, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(4) Houston, Texas. The Asylum Office in Houston has jurisdiction
over the States of Louisiana, Arkansas, Mississippi, Tennessee, Texas,
Oklahoma, New Mexico, Colorado, Utah, and Wyoming.
(5) Chicago, Illinois. The Asylum Office in Chicago has jurisdiction
over the States of Illinois, Indiana, Michigan, Wisconsin, Minnesota,
North Dakota, South Dakota, Kansas, Missouri, Ohio, Iowa, Nebraska,
Montana, Idaho, and Kentucky.
(6) Los Angeles, California. The Asylum Office in Los Angeles has
jurisdiction over the State of Arizona, the southern portion of
California as listed in 8 CFR 100.4(b)(16) and 100.4(b)(39), and that
southern portion of the state of Nevada currently within the
jurisdiction of the Las Vegas suboffice.
(7) San Francisco, California. The Asylum Office in San Francisco
has jurisdiction over the northern part of California as listed in 8 CFR
100.4(b)(13), the portion of Nevada currently under the jurisdiction of
the Reno suboffice, and the States or Oregon, Washington, Alaska, and
Hawaii and the Territory of Guam.
(38 FR 34183, Dec. 12, 1973)
Editorial Note: For Federal Register citations affecting 100.4, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
08 CFR 100.5 Regulations.
The regulations of the Immigration and Naturalization Service,
published as chapter I of title 8 of the Code of Federal Regulations,
contain information which under the provisions of section 552 of title 5
of the United States Code, is required to be published and is subdivided
into subchapter A (General Provisions, parts 1 through 3, inclusive),
subchapter B (Immigration Regulations, parts 100 through 299,
inclusive), and subchapter C (Nationality Regulations, parts 306 through
499, inclusive). Any person desiring information with respect to a
particular procedure (other than rule making) under the Immigration and
Nationality Act should examine the part or section in chapter I of title
8 of the Code of Federal Regulations dealing with such procedures as
well as the section of the Act implemented by such part or section.
08 CFR 100.6 Rule making.
Section 103(a) of the Immigration and Nationality Act requires the
Attorney General to establish such regulations as he deems necessary for
carrying out his authority under the provisions of that Act. The
Attorney General has delegated certain rule making authority to the
Commissioner of Immigration and Naturalization. The provisions of the
Federal Register Act (49 Stat. 500; 44 U.S.C. 301-314), as amended, and
of the regulations thereunder (1 CFR -- Administrative Committee of the
Federal Register) as well as the provisions of section 553 of title 5 of
the United States Code governing the issuance of regulations are
observed.
08 CFR 100.7 OMB control numbers assigned to information collections.
This section collects and displays the control numbers assigned to
information collection requirements of the Immigration and
Naturalization Service by the Office of Management and Budget (OMB)
pursuant to the Paperwork Reduction Act of 1980, Public Law 96-511. The
Service intends that this section comply with the requirements of
section 3507(f) of the Paperwork Reduction Act, which requires that
agencies display a current control number assigned by the Director of
the Office of Management and Budget for each agency information
collection requirement.
(48 FR 37201, Aug. 17, 1983)
08 CFR 100.7 PART 101 -- PRESUMPTION OF LAWFUL ADMISSION
Sec.
101.1 Presumption of lawful admission.
101.2 Presumption of lawful admission; entry under erroneous name or
other errors.
101.3 Creation of record of lawful permanent resident status for
person born under diplomatic status in the United States.
101.4 Registration procedure.
101.5 Special immigrant status for certain G-4 nonimmigrants.
101.6 Special immigrant status for certain aliens declared dependent
on a juvenile court (Special Immigrant Juvenile).
Authority: 8 U.S.C. 1103, 8 CFR part 2.
08 CFR 101.1 Presumption of lawful admission.
A member of the following classes shall be presumed to have been
lawfully admitted for permanent residence even though a record of his
admission cannot be found, except as otherwise provided in this section,
unless he abandoned his lawful permanent resident status or subsequently
lost that status by operation of law:
(a) Prior to June 30, 1906. An alien who establishes that he entered
the United States prior to June 30, 1906.
(b) United States land borders. An alien who establishes that, while
a citizen of Canada or Newfoundland, he entered the United States across
the Canadian border prior to October 1, 1906; an alien who establishes
that while a citizen of Mexico he entered the United States across the
Mexican border prior to July 1, 1908; an alien who establishes that,
while a citizen of Mexico, he entered the United States at the port of
Presidio, Texas, prior to October 21, 1918, and an alien for whom a
record of his actual admission to the United States does not exist but
who establishes that he gained admission to the United States prior to
July 1, 1924, pursuant to preexamination at a United States immigration
station in Canada and that a record of such preexamination exists.
(c) Virgin Islands. An alien who establishes that he entered the
Virgin Islands of the United States prior to July 1, 1938, even though a
record of his admission prior to that date exists as a non-immigrant
under the Immigration Act of 1924.
(d) Asiatic barred zone. An alien who establishes that he is of a
race indigenous to, and a native of a country within, the Asiatic zone
defined in section 3 of the Act of February 5, 1917, as amended, that he
was a member of a class of aliens exempted from exclusion by the
provisions of that section, and that he entered the United States prior
to July 1, 1924, provided that a record of his admission exists.
(e) Chinese and Japanese aliens -- (1) Prior to July 1, 1924. A
Chinese alien for whom there exists a record of his admission to the
United States prior to July 1, 1924, under the laws and regulations
formerly applicable to Chinese and who establishes that at the time of
his admission he was a merchant, teacher, or student, and his son or
daughter under 21 or wife accompanying or following to join him; a
traveler for curiosity or pleasure and his accompanying son or daughter
under 21 or accompanying wife; a wife of a United States citizen; a
returning laborer; and a person erroneously admitted as a United States
citizen under section 1993 of the Revised Statutes of the United States,
as amended, his father not having resided in the United States prior to
his birth.
(2) On or after July 1, 1924. A Chinese alien for whom there exists
a record of his admission to the United States as a member of one of the
following classes; an alien who establishes that he was readmitted
between July 1, 1924, and December 16, 1943, inclusive, as a returning
Chinese laborer who acquired lawful permanent residence prior to July 1,
1924; a person erroneously admitted between July 1, 1924, and June 6,
1927, inclusive, as a United States citizen under section 1993 of the
Revised Statutes of the United States, as amended, his father not having
resided in the United States prior to his birth; an alien admitted at
any time after June 30, 1924, under section 4 (b) or (d) of the
Immigration Act of 1924; an alien wife of a United States citizen
admitted between June 13, 1930, and December 16, 1943, inclusive, under
section 4(a) of the Immigration Act of 1924; an alien admitted on or
after December 17, 1943, under section 4(f) of the Immigration Act of
1924; an alien admitted on or after December 17, 1943, under section
317(c) of the Nationality Act of 1940, as amended; an alien admitted on
or after December 17, 1943, as a preference or nonpreference quota
immigrant pursuant to section 2 of that act; and a Chinese or Japanese
alien admitted to the United States between July 1, 1924, and December
23, 1952, both dates inclusive, as the wife or minor son or daughter of
a treaty merchant admitted before July 1, 1924, if the husband-father
was lawfully admitted to the United States as a treaty merchant before
July 1, 1924, or, while maintaining another status under which he was
admitted before that date, and his status changed to that of a treaty
merchant or treaty trader after that date, and was maintaining the
changed status at the time his wife or minor son or daughter entered the
United States.
(f) Citizens of the Philippine Islands -- (1) Entry prior to May 1,
1934. An alien who establishes that he entered the United States prior
to May 1, 1934, and that he was on the date of his entry a citizen of
the Philippine Islands, provided that for the purpose of petitioning for
naturalization he shall not be regarded as having been lawfully admitted
for permanent residence unless he was a citizen of the Commonwealth of
the Philippines on July 2, 1946.
(2) Entry between May 1, 1934, and July 3, 1946. An alien who
establishes that he entered Hawaii between May 1, 1934, and July 3,
1946, inclusive, under the provisions of the last sentence of section
8(a)(1) of the Act of March 24, 1934, as amended, that he was a citizen
of the Philippine Islands when he entered, and that a record of such
entry exists.
(g) Temporarily admitted aliens. The following aliens who when
admitted expressed an intention to remain in the United States
temporarily or to pass in transit through the United States, for whom
records of admission exist, but who remained in the United States: An
alien admitted prior to June 3, 1921, except if admitted temporarily
under the 9th proviso to section 3 of the Immigration Act of 1917, or as
an accredited official of a foreign government, his suite, family, or
guest, or as a seaman in pursuit of his calling; an alien admitted
under the Act of May 19, 1921, as amended, who was admissible for
permanent residence under that Act notwithstanding the quota
limitation's thereof and his accompanying wife or unmarried son or
daughter under 21 who was admissible for permanent residence under that
Act notwithstanding the quota limitations thereof; and an alien
admitted under the Act of May 19, 1921, as amended, who was charged
under that Act to the proper quota at the time of his admission or
subsequently and who remained so charged.
(h) Citizens of the Trust Territory of the Pacific Islands who
entered Guam prior to December 24, 1952. An alien who establishes that
while a citizen of the Trust Territory of the Pacific Islands he entered
Guam prior to December 24, 1952, by records, such as Service records
subsequent to June 15, 1952, records of the Guamanian Immigration
Service, records of the Navy or Air Force, or records of contractors of
those agencies, and was residing in Guam on December 24, 1952.
(i) Aliens admitted to Guam. An alien who establishes that he was
admitted to Guam prior to December 24, 1952, by records such as Service
records subsequent to June 15, 1952, records of the Guamanian
Immigration Service, records of the Navy or Air Force, or records of
contractors of those agencies; that he was not excludable under the Act
of February 5, 1917, as amended; and that he continued to reside in
Guam until December 24, 1952, and thereafter was not admitted or
readmitted into Guam as a nonimmigrant, provided that the provisions of
this paragraph shall not apply to an alien who was exempted from the
contract laborer provisions of section 3 of the Immigration Act of
February 5, 1917, as amended, through the exercise, expressly or
impliedly, of the 4th or 9th provisos to section 3 of that act.
(j) Erroneous admission as United States citizens or as children of
citizens. (1) (i) An alien for whom there exists a record of admission
prior to September 11, 1957, as a United States citizen who establishes
that at the time of such admission he was the child of a United States
citizen parent; he was erroneously issued a United States passport or
included in the United States passport of his citizen parent
accompanying him or to whom he was destined; no fraud or
misrepresentation was practiced by him in the issuance of the passport
or in gaining admission; he was otherwise admissible at the time of
entry except for failure to meet visa or passport requirements; and he
has maintained a residence in the United States since the date of
admission, or (ii) an alien who meets all of the foregoing requirements
except that if he were, in fact, a citizen of the United States a
passport would not have been required, or it had been individually
waived, and was erroneously admitted as a United States citizen by a
Service officer. For the purposes of all of the foregoing, the terms
child and parent shall be defined as in section 101(b) of the
Immigration and Nationality Act, as amended.
(2) An alien admitted to the United States before July 1, 1948, in
possession of a section 4(a) 1924 Act nonquota immigration visa issued
in accordance with State Department regulations, including a child of a
United States citizen after he reached the age of 21, in the absence of
fraud or misrepresentation; a member of a naturalized person's family
who was admitted to the United States as a United States citizen or as a
section 4(a) 1924 Act nonquota immigrant on the basis of that
naturalization, unless he knowingly participated in the unlawful
naturalization of the parent or spouse rendered void by cancellation, or
knew at any time prior to his admission to the United States of the
cancellation; and a member of a naturalized person's family who knew at
any time prior to his admission to the United States of the cancellation
of the naturalization of his parent or spouse but was admitted to the
United States as a United States citizen pursuant to a State Department
or Service determination based upon a then prevailing administrative
view, provided the State Department or Service knew of the cancellation.
(23 FR 9119, Nov. 26, 1958, as amended at 24 FR 2583, Apr. 3, 1959;
24 FR 6476, Aug. 12, 1959; 25 FR 581, Jan. 23, 1960; 31 FR 535, Jan.
15, 1966)
08 CFR 101.2 Presumption of lawful admission; entry under erroneous
name or other errors.
An alien who entered the United States as either an immigrant or
nonimmigrant under any of the following circumstances shall be regarded
as having been lawfully admitted in such status, except as otherwise
provided in this part: An alien otherwise admissible whose entry was
made and recorded under other than his full true and correct name or
whose entry record contains errors in recording sex, names of relatives,
or names of foreign places of birth or residence, provided that he
establishes by clear, unequivocal, and convincing evidence that the
record of the claimed admission relates to him, and, if entry occurred
on or after May 22, 1918, if under other than his full, true and correct
name that he also establishes that the name was not adopted for the
purpose of concealing his identity when obtaining a passport or visa, or
for the purpose of using the passport or visa of another person or
otherwise evading any provision of the immigration laws, and that the
name used at the time of entry was one by which he had been known for a
sufficient length of time prior to making application for a passport or
visa to have permitted the issuing authority or authorities to have made
any necessary investigation concerning him or that his true identity was
known to such officials.
(32 FR 9622, July 4, 1967)
08 CFR 101.3 Creation of record of lawful permanent resident status for
person born under diplomatic status in the United States.
(a) Person born to foreign diplomat. (1) Status of person. A person
born in the United States to a foreign diplomatic officer accredited to
the United States, as a matter of international law, is not subject to
the jurisdiction of the United States. That person is not a United
States citizen under the Fourteenth Amendment to the Constitution. Such
a person may be considered a lawful permanent resident at birth.
(2) Definition of foreign diplomatic officer. Foreign diplomatic
officer means a person listed in the State Department Diplomatic List,
also known as the Blue List. It includes ambassadors, ministers,
charge1s d'affaires, counselors, secretaries and attache1s of embassies
and legations as well as members of the Delegation of the Commission of
the European Communities. The term also includes individuals with
comparable diplomatic status and immunities who are accredited to the
United Nations or to the Organization of American States, and other
individuals who are also accorded comparable diplomatic status.
(b) Child born subject to the jurisdiction of the United States. A
child born in the United States is born subject to the jurisdiction of
the United States and is a United States citizen if the parent is not a
''foreign diplomatic officer'' as defined in paragraph (a)(2) of this
section. This includes, for example, a child born in the United States
to one of the following foreign government officials or employees:
(1) Employees of foreign diplomatic missions whose names appear in
the State Department list entitled ''Employees of Diplomatic Missions
Not Printed in the Diplomatic List,'' also known as the White List;
employees of foreign diplomatic missions accredited to the United
Nations or the Organization of American States; or foreign diplomats
accredited to other foreign states. The majority of these individuals
enjoy certain diplomatic immunities, but they are not ''foreign
diplomatic officers'' as defined in paragraph (a)(2) of this section.
The immunities, if any, of their family members are derived from the
status of the employees or diplomats.
(2) Foreign government employees with limited or no diplomatic
immunity such as consular officials named on the State Department list
entitled ''Foreign Consular Officers in the United States'' and their
staffs.
(c) Voluntary registration as lawful permanent resident of person
born to foreign diplomat. Since a person born in the United States to a
foreign diplomatic officer is not subject to the jurisdiction of the
United States, his/her registration as a lawful permanent resident of
the United States is voluntary. The provisions of section 262 of the
Act do not apply to such a person unless and until that person ceases to
have the rights, privileges, exemptions, or immunities which may be
claimed by a foreign diplomatic officer.
(d) Retention of lawful permanent residence. To be eligible for
lawful permanent resident status under paragraph (a) of this section, an
alien must establish that he/she has not abandoned his/her residence in
the United States. One of the tests for retention of lawful permanent
resident status is continuous residence, not continuous physical
presence, in the United States. Such a person will not be considered to
have abandoned his/her residence in the United States solely by having
been admitted to the United States in a nonimmigrant classification
under paragraph (15)(A) or (15)(G) of section 101(a) of the Act after a
temporary stay in a foreign country or countries on one or several
occasions.
(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality
Act, as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)
(47 FR 940, Jan. 8, 1982)
08 CFR 101.4 Registration procedure.
The procedure for an application for creation of a record of lawful
permanent residence and an Alien Registration Receipt Card, Form I-551,
for a person eligible for presumption of lawful admission for permanent
residence under 101.1 or 101.2 or for lawful permanent residence as a
person born in the United States to a foreign diplomatic officer under
101.3 is described in 264.2 of this chapter.
(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality
Act, as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)
(47 FR 941, Jan. 8, 1982)
08 CFR 101.5 Special immigrant status for certain G-4 nonimmigrants.
(a) Application. An application for adjustment to special immigrant
status under section 101(a)(27)(I) of the INA shall be made on Form
I-485. The application date of the I-485 shall be the date of
acceptance by the Service as properly filed. If the application date is
other than the fee receipt date it must be noted and initialed by a
Service officer. The date of application for adjustment of status is
the closing date for computing the residence and physical presence
requirement. The applicant must have complied with all requirements as
of the date of application.
(b) Documentation. All documents must be submitted in accordance
with 103.2(b) of this chapter. The application shall be accompanied by
documentary evidence establishing the aggregate residence and physical
presence required. Documentary evidence may include official employment
verification, records of official or personnel transactions or
recordings of events occurring during the period of claimed residence
and physical presence. Affidavits of credible witnesses may also be
accepted. Persons unable to furnish evidence in their own names may
furnish evidence in the names of parents or other persons with whom they
have been living, if affidavits of the parents or other persons are
submitted attesting to the claimed residence and physical presence. The
claimed family relationship to the principle G-4 international
organization officer or employee must be substantiated by the submission
of verifiable civil documents.
(c) Residence and physical presence requirements. All applicants
applying under sections 101(a)(27)(I) (i), (ii), and (iii) of the INA
must have resided and been physically present in the United States for a
designated period of time.
For purposes of this section only, an absence from the United States
to conduct official business on behalf of the employing organization, or
approved customary leave shall not be subtracted from the aggregated
period of required residence or physical presence for the current or
former G-4 officer or employee or the accompanying spouse and unmarried
sons or daughters of such officer or employee, provided residence in the
United States is maintained during such absences, and the duty station
of the principle G-4 nonimmigrant continues to be in the United States.
Absence from the United States by the G-4 spouse or unmarried son or
daughter without the principle G-4 shall not be subtracted from the
aggregate period of residence and physical presence if on customary
leave as recognized by the international organization employer. Absence
by the unmarried son or daughter while enrolled in a school outside the
United States will not be counted toward the physical presence
requirement.
(d) Maintenance of nonimmigrant status. Section 101(a)(27)(I) (i),
and (ii) requires the applicant to accrue the required period of
residence and physical presence in the United States while maintaining
status as a G-4 or N nonimmigrant. Section 101(a)(27)(I)(iii) requires
such time accrued only in G-4 nonimmigrant status.
Maintaining G-4 status for this purpose is defined as maintaining
qualified employment with a ''G'' international organization or
maintaining the qualifying family relationship with the G-4
international organization officer or employee. Maintaining status as
an N nonimmigrant for this purpose requires the qualifying family
relationship to remain in effect. Unauthorized employment will not
remove an otherwise eligible alien from G-4 status for residence and
physical presence requirements, provided the qualifying G-4 status is
maintained.
(54 FR 5927, Feb. 7, 1989)
08 CFR 101.6 Special immigrant status for certain aliens declared
dependent on a juvenile court (Special Immigrant Juvenile).
(a) Definitions.
Juvenile court means a court located in the United States having
jurisdiction under state law to make judicial determinations about the
custody and care of juveniles.
Long-term foster care means foster care that is of indefinite
duration. A child who is eligible for long-term foster care will
normally be expected to remain in foster care until reaching the age of
majority.
(b) Petition for Special Immigrant Juvenile. An alien may not be
classified as a special immigrant juvenile unless the alien is the
beneficiary of an approved petition to classify an alien as a special
immigrant under 101(a)(27)(J) of the Act. The petition must be filed on
Form I-360, Petition for Amerasian, Widow or Special Immigrant.
(1) Who may file. The alien juvenile, or any person acting on the
alien juvenile's behalf, may file the petition for special immigrant
juvenile status. The person filing the petition is not required to be a
citizen or lawful permanent resident of the United States.
(2) Where to file. The petition must be filed at the district office
of the Immigration and Naturalization Service having jurisdiction over
the juvenile's residence.
(c) Eligibility. An alien is eligible for classification as a
special immigrant under section 101(a)(27)(J) of the Act if the alien:
(1) Is a juvenile under the law of the state in which the juvenile
court upon which the alien has been declared dependent is located;
(2) Is unmarried;
(3) Has been declared dependent upon a juvenile court located in the
United States while the juvenile was in the United States and under the
jurisdiction of the court;
(4) Has been deemed eligible by the juvenile court for long-term
foster care;
(5) Continues to be dependent upon the juvenile court and eligible
for long-term foster care, such declaration, dependency or eligibility
not having been vacated, terminated or otherwise ended; and
(6) Has been the subject of administrative or judicial proceedings in
which it has been determined that it would not be in the alien's best
interest to be returned to the country of nationality or last habitual
residence of the beneficiary or his or her parent or parents.
(d) Documents which must be submitted in support of the petition. A
petition to classify an alien as a special immigrant under section
101(a)(27)(J) of the Act must be accompanied by:
(1) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the beneficiary to be dependent upon that court;
(2) A juvenile court order, issued by a court of competent
jurisdiction located in the United States, showing that the court has
found the beneficiary eligible for long-term foster care; and
(3) Evidence of a determination made in judicial or administrative
proceedings by a court or agency authorized by law to make such
decisions, that it would not be in the beneficiary's best interest to be
returned to the country of nationality or last habitual residence of the
beneficiary or his or her parent or parents.
(e) Decision. The petitioner will be notified of the director's
decision, and, if the petition is denied, of the reasons for the denial.
If the petition is denied, the petitioner will also be notified of the
petitioner's right to appeal the decision to the Associate Commissioner,
Examinations, in accordance with part 103 of this chapter.
(f) Revocation of approval. The approval of a petition for a
juvenile special immigrant is revoked as of the date of approval if the
Secretary of State terminates the beneficiary's registration pursuant to
section 203(e) of the Act prior to October 1, 1991 or pursuant to
section 203(g) of the Act on or after October 1, 1991, or if any of the
following circumstances occur before the beneficiary's journey to the
United States commences or, if the beneficiary is an applicant for
adjustment of status to that of a permanent resident, before the
decision on his or her application becomes final:
(1) The beneficiary ceases to be a juvenile under the laws of the
state of the juvenile's residence;
(2) The beneficiary marries;
(3) The beneficiary ceases to be dependent upon the juvenile court;
(4) The beneficiary ceases to be eligible for long-term foster care;
or
(5) It is determined in administrative or judicial proceedings that
it is in the beneficiary's best interest to be returned to the country
of nationality or last habitual residence of the beneficiary or his or
her parent or parents.
(56 FR 23208, May 21, 1991)
08 CFR 101.6 PART 103 -- POWERS AND DUTIES OF SERVICE OFFICERS;
AVAILABILITY OF SERVICE RECORDS
Sec.
103.1 Delegations of authority.
103.2 Applications, petitions, and other documents.
103.3 Denials, appeals and precedent decisions.
103.4 Certifications.
103.5 Reopening or reconsideration.
103.5a Service of notification, decisions, and other papers by the
Service.
103.6 Surety bonds.
103.7 Fees.
103.8 Definitions pertaining to availability of information under the
Freedom of Information Act.
103.9 Availability of decisions and interpretive material under the
Freedom of Information Act.
103.10 Requests for records under the Freedom of Information Act.
103.20 Purpose and scope.
103.21 Access by individuals to records maintained about them.
103.22 Records exempt in whole or in part.
103.23 Special access procedures.
103.24 Requests for accounting of record disclosure.
103.25 Notice of access decisions; time limits.
103.26 Fees for copies of records.
103.27 Appeals from denials of access.
103.28 Requests for correction of records.
103.29 Records not subject to correction.
103.30 Accounting for disclosures.
103.31 Notices of subpoenas and emergency disclosures.
103.32 Information forms.
103.33 Contracting record systems.
103.34 Security of records systems.
103.35 Use and collection of Social Security numbers.
103.36 Employee standards of conduct with regard to privacy.
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356; 47 FR 14874,
15557, 3 CFR, 1982 Comp., p 166; 8 CFR part 2.
Source: 40 FR 44481, Sept. 26, 1975, unless otherwise noted.
08 CFR 103.1 Delegations of authority.
(a) Deputy Commissioner. Without divesting the Commissioner of any
of the powers, duties, and privileges delegated by the Attorney General,
coextensive authority is delegated to the Deputy Commissioner. The
Deputy Commissioner is delegated responsibility for providing general
direction to and supervision of the Executive Associate Commissioner,
Associate Commissioner for Enforcement, Associate Commissioner for
Management, and the regional commissioners.
(b) Executive Associate Commissioner. Under the direction of the
Commissioner and Deputy Commissioner, the Executive Associate
Commissioner assists in all aspects of the administration of the
Immigration and Naturalization Service and is delegated the authority
and responsibility for providing general direction to and supervision of
the Associate Commissioner for Information Systems, Associate
Commissioner for Examinations, and the Director for Plans and Analysis,
and also to direct and support Service overseas operations.
(c) Associate Commissioner for Enforcement. Under the direction of
the Deputy Commissioner, the Associate Commissioner for Enforcement is
delegated authority and responsibility for program planning,
development, coordination, evaluation, counseling, and staff direction
of the Border Patrol, Investigations, Detention and Deportation,
Anti-Smuggling, and Intelligence programs, and general direction and
supervision of:
(1) Assistant Commissioner for Border Patrol,
(2) Assistant Commissioner for Investigations,
(3) Assistant Commissioner for Detention and Deportation,
(4) Assistant Commissioner for Anti-Smuggling, and
(5) Assistant Commissioner for Intelligence.
(d) Associate Commissioner for Management. Under the direction of
the Deputy Commissioner, the Associate Commissioner for Management is
delegated authority and responsibility for program planning,
development, coordination, counseling, and staff direction of the
Comptroller, Personnel and Training, Administration, Equal Employment
Opportunity programs and general direction to and supervision of:
(1) Comptroller,
(2) Assistant Commissioner for Personnel and Training,
(3) Assistant Commissioner for Administration, and
(4) Director for Equal Employment Opportunity.
(e) Associate Commissioner for Information Systems. Under the
direction of the Executive Associate Commissioner, the Associate
Commissioner for Information Systems is delegated authority and
responsibility for program planning, development, coordination,
evaluation, counseling, and staff direction of the Records Systems, Data
Systems, Policy Directives and Instructions, and Project Control and
Integration programs, and general direction to and supervision of:
(1) Assistant Commissioner for Records Systems
(2) Assistant Commissioner for Data Systems
(3) Director for Policy Directives and Instructions, and
(4) Assistant Commissioner for Project Control and Integration.
(f) Associate Commissioner for Examinations.
(1) Under the direction of the Executive Associate Commissioner, the
Associate Commissioner for Examinations is delegated authority and
responsibility for program planning, development, coordination,
counseling, and staff direction of Adjudication and Naturalization,
Inspections, Refugees, Asylum and Parole, and Outreach programs and
general direction to and supervision of:
(i) Assistant Commissioner for Adjudications.
(ii) Assistant Commissioner for Inspections.
(iii) Assistant Commissioner for Refugees, Asylum Parole.
(iv) Director for Outreach Program.
(v) Director, Administrative Appeals Unit, and
(vi) Assistant Commissioner, Legalization.
(2) In addition, the Associate Commissioner, Examinations exercises
appellate jurisdiction over decisions on:
(i) Breaching of bonds under 103.6(e) of this part;
(ii) Petitions for immigrant visa classification based on employment
or as a special immigrant or entrepreneur under 204. 5 and 204.6 of
this chapter except when the denial of the petition is based upon lack
of a certification by the Secretary of Labor under section 212(a)(5)(A)
of the Act;
(iii) Indochinese refugee applications for adjustment of status under
245.2 (a)(4) and (e) of this title;
(iv) Revoking approval of certain petitions under 205.2 of this
title;
(v) Applications for permission to reapply for admission to the
United States after deportation or removal under 212.2 of this title;
(vi) Applications for waiver of certain grounds of excludability
under 212.7(a) of this title;
(vii) Applications for waiver of the two-year foreign residence
requirement under 212.7(c) of this title;
(viii) Petitions for approval of schools under 214.3 of this title;
(ix) Decisions of district directors regarding withdrawal of approval
of schools for attendance by foreign students under 214.4 of this
chapter.
(x) Petitions for temporary workers or trainees and fiancees or
fiances of U.S. citizens under 214.2 of this title;
(xi) Applications for issuance of reentry permits under 223.1 of
this title;
(xii) Applications for refugee travel documents under 223a.4 of this
title;
(xiii) Applications for benefits of section 13 of the Act of
September 11, 1957, as amended, under 245.3 of this title;
(xiv) Adjustment of status of certain resident aliens to
nonimmigrants under 247.12(b) of this title;
(xv) Applications to preserve residence for naturalization purposes
under 316a.21(c) of this title;
(xvi) Applications for certificates of citizenship under 341.6 of
this title;
(xvii) Administration cancellation of certificates, documents, and
records under 342.8 of this title;
(xviii) Applications for certificates of naturalization or
repatriation under 343.1 of this title;
(xix) Applications for new naturalization or citizenship papers under
343a.1(c) of this title;
(xx) Applications for special certificates of naturalization under
343b.11(b) of this title;
(xxi) Applications by organizations to be listed on the Service
listing of free legal services program and removal therefrom under part
292a of this title;
(xxii) Petitions to classify Amerasians under Public Law 97-359 as
the children of United States citizens;
(xxiii) Revoking approval of certain petitions, as provided in 214.2
of this title;
(xxiv) Orphan petitions under 204.1(b) of this title; and
(xxv) Applications for advance processing of orphan petitions under
204.1(b)(3) of this title.
(xxvi) Invalidation of a temporary labor certification issued by the
Governor of Guam under 214.2(h)(3)(v) of this title.
(xxvii) Application for status as temporary or permanent resident
under 245a.2 or 245a.3 of this title;
(xxviii) Application for status as temporary resident under 210.2 of
this title;
(xxix) Termination of status as temporary resident under 210.4 of
this title;
(xxx) Termination of status as temporary resident under 245a.2 of
this title;
(xxxi) Application for waiver of grounds of excludability under parts
210, 210a, and 245a of this title;
(xxxii) Application for status as permanent resident under 245.6 of
this title;
(xxxiii) Petition for temporary or permanent resident status as a
Replenishment Agricultural Worker (RAW) under part 210a of this title;
(xxxiv) Application for Temporary Protected Status under part 240 of
this title;
(xxxv) Petition for special immigrant juvenile under 101.6 of this
title;
(xxxvi) Applications for adjustment of status under part 245 of this
title when denied solely because the applicant failed to establish
eligibility for the bona fide marriage exemption contained in section
245(e) of the Act; and
(xxxvii) Petition for Armed Forces Special Immigrant under 204.9 of
this chapter.
(3) The Associate Commissioner for Examinations is delegated the
authority to impose administration fines under provisions of the Act in
any case which is transmitted to the National Fines Office by a district
director. The Associate Commissioner for Examinations may redelegate
such authority to any other officer or employee of the Service.
(g) General Counsel. Under the direction of the Commissioner, the
General Counsel is delegated the responsibility of chief legal officer
for the Service and is assisted by a Deputy General Counsel and staff.
The General Counsel advises the Commissioner and staff on legal matters,
prepares legislative reports, assists in litigation, including preparing
briefs and other legal memoranda as necessary. Acting through the
regional counsels, the General Counsel is delegated the responsibility
for overseeing the professional activities of all Service attorneys
assigned to field offices, making recommendations to the Department of
Justice on all personnel matters involving Service attorneys, including
attorney discipline which requires final action or approval by the
Associate Attorney General or other designated Department of Justice
official. The General Counsel is delegated authority and the
responsibility to perform the functions conferred upon the Commissioner
with respect to production or disclosure in federal proceedings as
provided in 28 CFR 16.24(a).
(h) Director for Congressional and Public Affairs. Under the
direction of the Commissioner, and assisted by a Deputy Director for
Congressional and Public Affairs, the Director for Congressional and
Public Affairs is delegated responsibility for program planning,
development, coordination, and execution of programs relating to
Congressional and public affairs of the Service, including Public
Information Program activities.
(i) Director for Professional Responsibility. Under the direction of
the Commissioner, the Director for Professional Responsibility is
delegated authority, and responsibility for program planning,
coordinating, evaluating, reporting, and counseling relating to the
Professional Responsibility Program. The Director for Professional
Responsibility reports directly to the Commissioner and to a designated
Department of Justice official in matters relating to the Professional
Responsibility Program.
(j) Director for Program Inspection. Under the direction of the
Commissioner, the Director for Program Inspection is delegated the
responsibility for program planning, development, coordination, and
execution of field inspections and program audits; program evaluation
and productivity improvements; the decision memo process; and
executive video reports. The Director reports to the Commissioner, in a
timely manner, the results and recommendations of all completed studies
and reports.
(k) (Reserved)
(l) Regional Commissioners. Under the general supervision of the
Commissioner and direction of the Deputy Commissioner, regional
commissioners are delegated the authority and responsibility for the
activities of the Service within their respective regional areas
including authority to:
(1) Settle tort claims of $5,000 or less under 28 U.S.C. 2672; and
(2) Compromise, suspend, or terminate collection of claims of the
United States not exceeding $20,000 exclusive of interest under 31
U.S.C. 951 and 952.
(m) Regional Counsels. In addition to other legal activities
performed under the executive direction of the General Counsel, regional
counsels are delegated authority within their respective regional areas,
concurrent with that of the General Counsel, to approve production or
disclosure in federal proceedings as provided in 28 CFR 16.24(a).
(n)(1) District Directors. District directors within the United
States are under the direction of their respective regional
commissioners. District directors who are assigned overseas are under
the direction of the Executive Associate Commissioner. District
directors are delegated the authority and responsibility to grant or
deny any application or petition submitted to the Service, except for
matters delegated to asylum officers pursuant to part 208 and 253.1(f)
of this chapter, to initiate any authorized proceeding in their
respective districts, and to exercise the authorities under 242.1(a),
242.2(a) and 242.7 of this chapter without regard to geographical
limitations. District directors, acting district directors, and deputy
district directors are delegated authority to conduct the proceeding
provided for in 252.2 of this title.
(2) Applications filed for Special Agricultural Worker or
Legalization status pursuant to sections 210 and 245A, respectively, may
be approved by the district director having jurisdiction of the
legalization office where a second interview is required by the regional
processing facility, if the alien in the second interview can establish
eligibility for approval. District directors may deny applications for
Special Agricultural Worker or Legalization status at legalization
offices under their jurisdiction.
(3) Applications for permanent residence filed by legalization
applicants pursuant to section 245A may be adjudicated by the district
director having jurisdiction over the applicant's residence.
(4) Petitions and waivers filed incident to section 210A of the Act
shall be approved by the district director having jurisdiction over the
office where a petition or waiver is filed, when an alien meets the
requirements of part 210a of this title. District directors shall deny
petitions and waivers incident to section 210A of the Act where the
alien fails to meet the requirements of part 210a of this title.
(o) Officers in Charge -- (1) General. Officers in charge have
program and administrative supervisory responsibility for all personnel
assigned to their office. Officers in charge have responsibility for
the supervision of inspection at ports of entry and the authorization of
extensions of nonimmigrant admission periods and of voluntary departure
prior to the commencement of deportation hearings. Officers in charge
in Districts 33, 35, and 37 have the same powers with respect to
petitions and applications submitted by citizens or aliens residing in
their respective areas as are conferred on district directors in the
United States. The officers in charge in the places enumerated in
212.1(i) of this chapter have the authority to act on requests for
waiver of visa and passport requirements under the provisions of section
212(d)(4)(A) of the Act.
(2) The officers in charge of the offices located in Frankfurt,
Germany; Athens, Greece; Rome, Italy; New Delhi, India; Vienna,
Austria; Manila, Philippines; Seoul, Korea; Singapore, Republic of
Singapore; Bangkok, Thailand; Hong Kong; Mexico City, Mexico;
Guadalajara, Mexico; Monterrey, Mexico; and Panama City, Republic of
Panama, are authorized to perform the following functions: Authorize
waivers of grounds of excludability under sections 212 (h) and (i) of
the Act; adjudicate applications for permission to reapply for
admission to the United States after deportation or removal if filed by
an applicant for an immigrant visa in conjunction with an application
for waiver of grounds of excludability under section 212 (h) or (i) of
the Act, or if filed by an applicant for a nonimmigrant visa under
section 101(a)(15)(K) of the Act; approve visa petitions of any
immediate relative or preference status except third and sixth
preference; in cases in which the Department of State had delegated
recommending power to the consular officers, approve recommendations
made by consular officers for waiver of grounds of excludability in
behalf of nonimmigrant visa applicants under section 212(d)(3) of the
Act and concur in proposed waivers by consular officers of the
requirement of visa or passport by a nonimmigrant on the basis of
unforeseen emergency; exercise discretion to grant applications for the
benefits of sections 211 and 212(c) of the Act; process Form I-90
applications and deliver duplicate Forms I-551; and process Form N-565
applications and deliver certificates issued thereunder; and may
consider applications of aliens seeking classification as refugees under
section 207 of the Act.
(3) The officers in charge of the offices located in the following
places are authorized to perform the function of preinspection of
passengers and crews on aircraft and surface vessels departing directly
to the U.S. mainland: Hamilton, Bermuda; Freeport, Bahamas; Nassau,
Bahamas and Calgary, Alberta, Canada.
(4) The Officer in Charge of the office in Montreal, Canada is
authorized to perform preinspection of passengers and crew of aircraft
departing directly to the United States mainland and to authorize or
deny waivers of grounds of excludability under section 212 (h) and (i);
also, to approve or deny applications for permission to reapply for
admission to the United States after deportation or removal, when filed
in conjunction with an application for waiver of grounds of
excludability under sections 212 (h) or (i) of the Act.
(p) Chief Patrol Agents. Under the direction of their respective
regional commissioners, chief patrol agents are delegated authority and
responsibility for the Border Patrol activities of the Service within
their respective sectors, including exercising the authority in section
242(b) of the Act to permit aliens to depart voluntarily from the United
States prior to commencement of hearing.
(q) Immigration Officer. Any immigration inspector, immigration
examiner, border patrol agent, aircraft pilot, airplane pilot,
helicopter pilot, deportation officer, detention enforcement officer,
detention guard, investigator, special agent, investigative assistant,
intelligence officer, intelligence agent, general attorney, applications
adjudicator, contact representative, Chief Legalization Officer,
Supervisory Legalization Officer, Legalization Adjudicator, Legalization
Officer and Legalization Assistant, asylum officer or senior or
supervisory officer of such employees is hereby designated as an
immigration officer authorized to exercise the powers and duties of such
officer as specified by the Act and this chapter.
(r) Special Representative of the Commissioner. The Special
Representative of the Commissioner, as ranking Immigration and
Naturalization Service official in the Rome district, will exercise the
full powers and authorities of the position of District Director as
outlined in paragraph (n) of this section.
(s) Regional Service Center Directors. Under the direction of their
respective regional commissioners, Regional Service Center directors
have program, administrative, and supervisory responsibility for all
personnel assigned to their centers. Regional Service Center directors
are delegated the authority and responsibility to approve or deny any
application or petition filed or sent to their centers; and to exercise
the authorities under 242.1(a), 242.7, and 287.4 of this chapter
without regard to geographical limitations.
(t) Regional Processing Facility Directors. Under the direction of
their respective regional commissioners, regional processing facility
directors have program, administrative and supervisory responsibility
for all personnel assigned to their facilities. Regional processing
facility directors are delegated the authority and responsibility to
approve or deny applications or petitions for adjustment of status and
for waivers of grounds of excludability or other regulatory requirements
under sections 210, 210A, and 245A of the Act.
(u) Director for the National Fines Office. Under the direction of
the Associate Commissioner for Examinations, the Director for the
National Fines Office has program, administrative, and supervisory
responsibility for all personnel assigned to the National Fines Office.
In any case transmitted for handling to the National Fines Office, the
Director for the National Fines Office is delegated the authority by the
Associate Commissioner for Examinations to impose administrative fines
under sections 231, 233, 237, 239, 243, 251, 252, 254, 255, 256, 271,
272, and 273 of the Act, including but not necessarily limited to
causing a Notice of Intent to Fine, Form I-79, to be served, conducting
personal interviews requested by any person upon whom a Notice of Intent
to Fine is served, and entering orders or decisions.
(v) Asylum Officers. Asylum officers serve under the general
supervision and direction of the Assistant Commissioner for Refugees,
Asylum and Parole, and shall be especially trained as required in
208.1(b) of this chapter. Asylum officers are delegated the authority
to hear and adjudicate applications for asylum and for withholding of
deportation, as provided under part 208 and 253.1(f) of this chapter.
(40 FR 30468, July 21, 1975)
Editorial Note: For Federal Register citations affecting 103.1, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
08 CFR 103.2 Applications, petitions, and other documents.
(a) General. Every application, petition, or other document
submitted on a form prescribed by this chapter shall be executed and
filed in accordance with the instructions contained on the form, such
instructions being hereby incorporated into the particular section of
the regulations requiring its submission. The native form of a name may
also be required if such a document has been executed in an anglicized
version thereof. A parent, guardian, or other adult having a legitimate
interest in a person who is under 14 years of age may file on such a
person's behalf, and a guardian of a mentally incompetent person may
file on such a person's behalf. Any required oath may be administered
by an immigration officer or person generally authorized to administer
oaths, including persons so authorized by Article 136 of the Uniform
Code of Military Justice. Applications or petitions received in any
Service office shall be stamped to show the time and date of their
actual receipt and, unless otherwise specified in parts 204 or 245 of
this chapter or returned because they are improperly executed, shall be
regarded as filed when so stamped. An application or petition which is
presented at an office of this Service by a travel agent, a notary
public, or by any individual other than the applicant, petitioner, or an
attorney or representative authorized and qualified to represent the
applicant or petitioner pursuant to 292.1 of this chapter, shall be
disposed of in the same manner as an application or petition received
through the mail. The person submitting the application or petition
shall be advised that, since he is not regarded as the authorized
representative of the applicant or petitioner, the applicant or
petitioner will be notified directly regarding the action taken.
(b) Evidence -- (1) Requirements. Each application or petition must
be accompanied by the documents required by the particular section of
the regulations under which submitted. Form I-134 may be used if an
affidavit of support would be helpful in resolving any public charge
aspect. All accompanying documents, other than certificates of
naturalization or certificates of citizenship, must be submitted in the
original and be accompanied by a copy. Except as provided in
204.2(j), 212.8(b)(4), 214.2(h)(5), 214.2(k) and 214.2(1)(2) of this
chapter, a copy unaccompanied by an original will be accepted only if
the accuracy of the copy has been certified by an immigration or
consular officer who has examined the original. A foreign document must
be accompanied by an English translation in accordance with the
instructions on the application or petition form. The translator must
certify the he/she is competent to translate, and that the translation
is accurate. If any required document is unavailable, church or school
records, or other evidence pertinent to the facts in issue, may be
submitted. If such documents are unavailable, affidavits may be
submitted. The Service may require proof of unsuccessful efforts to
obtain documents claimed to be unavailable. The Service may also
require the submission of additional evidence, including blood tests,
may require the taking of testimony, and may direct any necessary
investigation. When any statement is taken from and signed by a person,
he/she shall be furnished a copy thereof, on request, without fee. Any
allegations made in addition to, or in substitution for, those
originally made shall be under oath and filed in the same manner as the
original application, petition, or other document or noted on the
original application, petition, or document and acknowledged under oath
thereon. The status of an applicant or petitioner who claims that
he/she is a lawful permanent resident alien of the United States will be
verified from official records of the Service. Under the conditions
hereinafter prescribed, the term ''official records,'' as used herein,
includes Service files, arrival manifests, arrival records, Service
index cards, Immigrant Identification Cards, Certificates of Registry,
Declarations of Intention issued after July 1, 1929, Alien Registration
Receipt Cards (Form AR-3, AR-103, I-151, or I-551), passports, and
reentry permits. To constitute an ''official record'' the Service index
card must bear a designated immigrant visa symbol and have been prepared
in processing immigrant admissions or adjustments to permanent resident
status. The other cards, certificates, declarations, permits, and
passports must have been issued or have been endorsed by the Service to
show admission for permanent residence. Except as otherwise provided in
part 101 of this chapter, and in the absence of countervailing evidence,
such official records shall be regarded as establishing lawful admission
for permanent residence.
(2) Adjudication of application or petition. A district director may
authorize withholding adjudication of a visa petition or other
application if the district director determines that an investigation
has been undertaken involving a matter relating to eligibility or the
exercise of discretion, where applicable, in connection with the
application or petition, and that the disclosure of information to the
applicant or petitioner in connection with the adjudication of the
application or petition would prejudice the ongoing investigation. If
an investigation has been undertaken and has not been completed within
one year of its inception, the district director shall review the matter
and determine whether adjudication of the petition or application should
be held in abeyance for six months or until the investigation is
completed, whichever comes sooner. If, after six months of the district
director's determination, the investigation has not been completed, the
matter shall be reviewed again by the district director and, if he/she
concludes that more time is needed to complete the investigation,
adjudication may be held in abeyance for up to another six months. If
the investigation is not completed at the end of that time, the matter
shall be referred to the regional commissioner, who may authorize that
adjudication be held in abeyance for another six months. Thereafter, if
the Associate Commissioner, Examinations, with the concurrence of the
Associate Commissioner, Enforcement, determines it is necessary to
continue to withhold adjudication pending completion of the
investigation, he/she shall review that determination every six months.
(3) Inspection of evidence. An applicant or petitioner shall be
permitted to inspect the record of proceeding which constitutes the
basis for the decision, except as provided in the following paragraphs.
(i) Derogatory information unknown to petitioner or applicant. If
the decision will be adverse to the applicant or petitioner and is based
on derogatory information considered by the Service and of which the
applicant or petitioner is unaware, he/she shall be advised of this fact
and offered an opportunity to rebut the information and present
information in his/her own behalf before the decision is rendered,
except as provided in paragraphs (b)(3)(ii), (iii), and (iv) of this
section. Any explanation, rebuttal, or information presented by or in
behalf of the applicant or petitioner shall be included in the record of
proceeding.
(ii) Determination of statutory eligibility. A determination of
statutory eligibility shall be based only on information contained in
the record of proceeding which is disclosed to the applicant or
petitioner, except as provided in paragraph (b)(3)(iv) of this section.
(iii) Discretionary determination. Where an application may be
granted or denied in the exercise of discretion, the decision to
exercise discretion favorably or unfavorably may be based in whole or in
part on classified information not contained in the record and not made
available to the applicant, provided the regional commissioner has
determined that such information is relevant and is classified under
Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring
protection from unauthorized disclosure in the interest of national
security.
(iv) Classified information. An applicant or petitioner shall not be
provided any information contained in the record or outside the record
which is classified under Executive Order No. 12356 (47 FR 14874;
April 6, 1982) as requiring protection from unauthorized disclosure in
the interest of national security, unless the classifying authority has
agreed in writing to such disclosure. Whenever he/she believes he/she
can do so consistently with safeguarding both the information and its
source, the regional commissioner should direct that the applicant or
petitioner be given notice of the general nature of the information and
an opportunity to offer opposing evidence. The regional commissioner's
authorization to use such classified information shall be made a part of
the record. A decision based in whole or in part on such classified
information shall state that the information is material to the
decision.
(c) Filing of applications for adjustment of status under sections
210 and 245A of the Act, as amended. (1) The filing of an application
for temporary resident status under section 245A(a) of the Act must
conform to the provisions of 245a.2 of this chapter. The filing of an
application for permanent resident status under section 245A(b)(1) of
the Act must conform to the provisions of 245a.3 of this chapter. The
filing of an application for adjustment of status to that of a temporary
resident under section 210(a) of the Act must conform to the provisions
of 210.2 of this chapter.
(2) An application for adjustment to temporary or permanent resident
status pursuant to section 245A (a) or (b)(1) or section 210(a) of the
Act may be accepted on behalf of the Attorney General by designated
state, local and community organizations as well as designated voluntary
organizations and persons. Each such application shall contain a
certification signed by both the alien and the preparing member of the
designated organization or entity, that the applicant has approved
transmittal of the application to the Service for adjudication.
(3) An application accepted by any of the designated entities shall
be stamped with an endorsement as to the date of preparation and
authorization for transmittal, and may be brought to the legalization
office with the applicant as an application ready for adjudication.
However, such application shall not be considered as complete until
accepted for adjudication by and until the appropriate fee has been paid
to the Immigration and Naturalization Service.
(d) Filing of petitions for adjustment of status under section 210A
of the Act, as amended. (1) The filing of a petition for temporary
resident status as a Replenishment Agricultural Worker, and waivers
incident to such filing, under section 210A of the Act must conform to
the provisions of part 210a of this title.
(2) A petition for adjustment to temporary resident status pursuant
to section 210A of the Act shall be accepted only by the Service, or by
personnel employed under contract to the Service, who are under Service
supervision, and are specifically designated responsibility for the
initial processing of petitions and waivers. Only Service officers may
make decisions with respect to the granting or denial of petitions and
waivers filed under section 210A of the Act and part 210a of this title.
(3) Petitions and waivers filed with the Service pursuant to part
210a of this title shall not be considered as complete until accepted
for adjudication by and until the appropriate fee has been paid to the
Immigration and Naturalization Service.
(29 FR 11956, Aug. 21, 1964, as amended at 30 FR 14772, Nov. 30,
1965; 32 FR 9622, July 4, 1967; 33 FR 11644, Aug. 16, 1968; 39 FR
43055, Dec. 10, 1974; 44 FR 52169, Sept. 7, 1979; 47 FR 44990, Oct.
13, 1982; 50 FR 11841, Mar. 26, 1985; 52 FR 16192, May 1, 1987; 53 FR
26034, July 11, 1988; 54 FR 29881, July 17, 1989; 56 FR 624, Jan. 7,
1991)
08 CFR 103.3 Denials, appeals, and precedent decisions.
(a) Denials and appeals -- (1) General -- (i) Denial of application
or petition. When a Service officer denies an application or petition
filed under 103.2 of this part, the officer shall explain in writing
the specific reasons for denial. If Form I-292 (a denial form including
notification of the right of appeal) is used to notify the applicant or
petitioner, the duplicate of Form I-292 constitutes the denial order.
(ii) Appealable decisions. Certain unfavorable decisions on
applications, petitions, and other types of cases may be appealed.
Decisions under the appellate jurisdiction of the Board of Immigration
Appeals (Board) are listed in 3.1(b) of this chapter. Decisions under
the appellate jurisdiction of the Associate Commissioner, Examinations,
are listed in 103.1(f)(2) of this part.
(iii) Appeal -- (A) Jurisdiction. When an unfavorable decision may
be appealed, the official making the decision shall state the appellate
jurisdiction and shall furnish the appropriate appeal form.
(B) Meaning of affected party. For purposes of this section and
103.4 and 103.5 of this part, affected party (in addition to the
Service) means the person or entity with legal standing in a proceeding.
It does not include the beneficiary of a visa petition. An affected
party may be represented by an attorney or representative in accordance
with part 292 of this chapter.
(C) Record of proceeding. An appeal and any cross-appeal or briefs
become part of the record of proceeding.
(D) Appeal filed by Service officer in case within jurisdiction of
Board. If an appeal is filed by a Service officer, a copy must be
served on the affected party.
(iv) Function of Administrative Appeals Unit (AAU). The AAU is the
appellate body which considers cases under the appellate jurisdiction of
the Associate Commissioner, Examinations.
(v) Summary dismissal. An officer to whom an appeal is taken shall
summarily dismiss any appeal when the party concerned fails to identify
specifically any erroneous conclusion of law or statement of fact for
the appeal. The filing by an attorney or representative accredited
under 8 CFR 292.2(d) of an appeal which is summarily dismissed under
this section may constitute frivolous behavior as defined in 8 CFR
292.3(a)(15). Summary dismissal of an appeal under 103.3(a)(1)(v) in no
way limits the other grounds and procedures for disciplinary action
against attorneys or representatives provided in 8 CFR 292.2 or in any
other statute or regulation.
(2) AAU appeals in other than special agricultural worker and
legalization cases -- (i) Filing appeal. The affected party shall file
an appeal on Form I-290B. Except as otherwise provided in this chapter,
the affected party must pay the fee required by 103.7 of this part.
The affected party shall file the complete appeal including any
supporting brief with the office where the unfavorable decision was made
within 30 days after service of the decision.
(ii) Reviewing official. The official who made the unfavorable
decision being appealed shall review the appeal unless the affected
party moves to a new jurisdiction. In that instance, the official who
has jurisdiction over such a proceeding in that geographic location
shall review it.
(iii) Favorable action instead of forwarding appeal to AAU. The
reviewing official shall decide whether or not favorable action is
warranted. Within 45 days of receipt of the appeal, the reviewing
official may treat the appeal as a motion to reopen or reconsider and
take favorable action. However, that official is not precluded from
reopening a proceeding or reconsidering a decision on his or her own
motion under 103.5(a)(5)(i) of this part in order to make a new
decision favorable to the affected party after 45 days of receipt of the
appeal.
(iv) Forwarding appeal to AAU. If the reviewing official will not be
taking favorable action or decides favorable action is not warranted,
that official shall promptly forward the appeal and the related record
of proceeding to the AAU in Washington, DC.
(v) Improperly filed appeal -- (A) Appeal filed by person or entity
not entitled to file it -- (1) Rejection without refund of filing fee.
An appeal filed by a person or entity not entitled to file it must be
rejected as improperly filed. In such a case, any filing fee the
Service has accepted will not be refunded.
(2) Appeal by attorney or representative without proper Form G-28 --
(i) General. If an appeal is filed by an attorney or representative
without a properly executed Notice of Entry of Appearance as Attorney or
Representative (Form G-28) entitling that person to file the appeal, the
appeal is considered improperly filed. In such a case, any filing fee
the Service has accepted will not be refunded regardless of the action
taken.
(ii) When favorable action warranted. If the reviewing official
decides favorable action is warranted with respect to an otherwise
properly filed appeal, that official shall ask the attorney or
representative to submit Form G-28 to the official's office within 15
days of the request. If Form G-28 is not submitted within the time
allowed, the official may, on his or her own motion, under
103.5(a)(5)(i) of this part, make a new decision favorable to the
affected party without notifying the attorney or representative.
(iii) When favorable action not warranted. If the reviewing official
decides favorable action is not warranted with respect to an otherwise
properly filed appeal, that official shall ask the attorney or
representative to submit Form G-28 directly to the AAU. The official
shall also forward the appeal and the relating record of proceeding to
the AAU. The appeal may be considered properly filed as of its original
filing date if the attorney or representative submits a properly
executed Form G-28 entitling that person to file the appeal.
(B) Untimely appeal -- (1) Rejection without refund of filing fee.
An appeal which is not filed within the time allowed must be rejected as
improperly filed. In such a case, any filing fee the Service has
accepted will not be refunded.
(2) Untimely appeal treated as motion. If an untimely appeal meets
the requirements of a motion to reopen as described in 103.5(a)(2) of
this part or a motion to reconsider as described in 103.5(a)(3) of this
part, the appeal must be treated as a motion, and a decision must be
made on the merits of the case.
(vi) Brief. The affected party may submit a brief with Form I-290B.
(vii) Additional time to submit a brief. The affected party may make
a written request to the AAU for additional time to submit a brief. The
AAU may, for good cause shown, allow the affected party additional time
to submit one.
(viii) Where to submit supporting brief if additional time is
granted. If the AAU grants additional time, the affected party shall
submit the brief directly to the AAU.
(ix) Withdrawal of appeal. The affected party may withdraw the
appeal, in writing, before a decision is made.
(x) Decision on appeal. The decision must be in writing. A copy of
the decision must be served on the affected party and the attorney or
representative of record, if any.
(3) Denials and appeals of special agricultural worker and
legalization applications and termination of lawful temporary resident
status under sections 210 and 245A. (i) Whenever an application for
legalization or special agricultural worker status is denied or the
status of a lawful temporary resident is terminated, the alien shall be
given written notice setting forth the specific reasons for the denial
on Form I-692, Notice of Denial. Form I-692 shall also contain advice
to the applicant that he or she may appeal the decision and that such
appeal must be taken within 30 days after service of the notification of
decision accompanied by any additional new evidence, and a supporting
brief if desired. The Form I-692 shall additionally provide a notice to
the alien that if he or she fails to file an appeal from the decision,
the Form I-692 will serve as a final notice of ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to
file the appeal, and must be accompanied by the appropriate fee. Form
I-694 shall be furnished with the notice of denial at the time of
service on the alien.
(iii) Upon receipt of an appeal, the administrative record will be
forwarded to the Administrative Appeals Unit as provided by 103.1(f)(2)
of this part for review and decision. The decision on the appeal shall
be in writing, and if the appeal is dismissed, shall include a final
notice of ineligibility. A copy of the decision shall be served upon
the applicant and his or her attorney or representative of record. No
further administrative appeal shall lie from this decision, nor may the
application be filed or reopened before an immigration judge or the
Board of Immigration Appeals during exclusion or deportation
proceedings.
(iv) Any appeal which is filed that:
(A) Fails to state the reason for appeal;
(B) Is filed solely on the basis of a denial for failure to file the
application for adjustment of status under section 210 or 245A in a
timely manner; or
(C) Is patently frivolous; will be summarily dismissed. An appeal
received after the thirty (30) day period has tolled will not be
accepted for processing.
(4) Denials and appeal of Replenishment Agricultural Worker petitions
and waivers and termination of lawful temporary resident status under
section 210A. (i) Whenever a petition for Replenishment Agricultural
Worker status, or a request for a waiver incident to such filing, is
denied in accordance with the provisions of part 210a of this title, the
alien shall be given written notice setting forth the specific reasons
for the denial on Form I-692, Notice of Denial. Form I-692 shall also
contain advice to the alien that he or she may appeal the decision and
that such appeal must be taken within thirty (30) days after service of
the notification of decision accompanied by any additional new evidence,
and a supporting brief if desired. The Form I-692 shall additionally
provide a notice to the alien that if he or she fails to file an appeal
from the decision, the Form I-692 shall serve as a final notice of
ineligibility.
(ii) Form I-694, Notice of Appeal, in triplicate, shall be used to
file the appeal, and must be accompanied by the appropriate fee. Form
I-694 shall be furnished with the notice of denial at the time of
service on the alien.
(iii) Upon receipt of an appeal, the administrative record will be
forwarded to the Administrative Appeals Unit as provided by 103.1(f)(2)
of this part for review and decision. The decision on the appeal shall
be in writing, and if the appeal is dismissed, shall include a final
notice of ineligibility. A copy of the decision shall be served upon
the petitioner and his or her attorney or representative of record. No
further administrative appeal shall lie from this decision, nor may the
petition be filed or reopened before an immigration judge or the Board
of Immigration Appeals during exclusion or deportation proceedings.
(iv) Any appeal which is filed that: Fails to state the reason for
the appeal; is filed solely on the basis of a denial for failure to
file the petition for adjustment of status under part 210a of this title
in a timely manner; or is patently frivolous, will be summarily
dismissed. An appeal received after the thirty (30) day period has
tolled will not be accepted for processing.
(b) Oral argument regarding appeal before AAU. -- (1) Request. If
the affected party desires oral argument, the affected party must
explain in writing specifically why oral argument is necessary. For
such a request to be considered, it must be submitted within the time
allowed for meeting other requirements.
(2) Decision about oral argument. The Service has sole authority to
grant or deny a request for oral argument. Upon approval of a request
for oral argument, the AAU shall set the time, date, place, and
conditions of oral argument.
(c) Service precedent decisions. In addition to Attorney General and
Board decisions referred to in 3.1(g) of this chapter, designated
Service decisions are to serve as precedents in all proceedings
involving the same issue(s). Except as these decisions may be modified
or overruled by later precedent decisions, they are binding on all
Service employees in the administration of the Act. Precedent decisions
must be published and made available to the public as described in
103.9(a) of this part.
(31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972;
48 FR 36441, Aug. 11, 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192,
May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21,
1990; 55 FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992)
08 CFR 103.4 Certifications.
(a) Certification of other than special agricultural worker and
legalization cases -- (1) General. The Commissioner or the
Commissioner's delegate may direct that any case or class of cases be
certified to another Service official for decision. In addition,
regional commissioners, regional service center directors, district
directors, officers in charge in districts 33 (Bangkok, Thailand), 35
(Mexico City, Mexico), and 37 (Rome, Italy), and the Director, National
Fines Office, may certify their decisions to the appropriate appellate
authority (as designated in this chapter) when the case involves an
unusually complex or novel issue of law or fact.
(2) Notice to affected party. When a case is certified to a Service
officer, the official certifying the case shall notify the affected
party using a Notice of Certification (Form I-290C). The affected party
may submit a brief to the officer to whom the case is certified within
30 days after service of the notice. If the affected party does not
wish to submit a brief, the affected party may waive the 30-day period.
(3) Favorable action. The Service officer to whom a case is
certified may suspend the 30-day period for submission of a brief if
that officer takes action favorable to the affected party.
(4) Initial decision. A case within the appellate jurisdiction of
the Associate Commissioner, Examinations, or for which there is no
appeal procedure may be certified only after an initial decision is
made.
(5) Certification to AAU. A case described in paragraph (a)(4) of
this section may be certified to the AAU.
(6) Appeal to Board. In a case within the Board's appellate
jurisdiction, an unfavorable decision of the Service official to whom
the case is certified (whether made initially or upon review) is the
decision which may be appealed to the Board under 3.1(b) of this
chapter.
(7) Other applicable provisions. The provisions of 103.3(a)(2)(x)
of this part also apply to decisions on certified cases. The provisions
of 103.3(b) of this part also apply to requests for oral argument
regarding certified cases considered by the AAU.
(b) Certification of denials of special agricultural worker and
legalization applications. The Regional Processing Facility director or
the district director may, in accordance with paragraph (a) of this
section, certify a decision to the Associate Commissioner, Examinations
(Administrative Appeals Unit) (the appellate authority designated in
103.1(f)(2)) of this part, when the case involves an unusually complex
or novel question of law or fact.
(52 FR 661, Jan. 8, 1987, as amended at 53 FR 43985, Oct. 31, 1988;
55 FR 20770, May 21, 1990)
08 CFR 103.5 Reopening or reconsideration.
(a) Motions to reopen or reconsider in other than special
agricultural worker and legalization cases -- (1) When filed by affected
party -- (i) General. Except where the Board has jurisdiction and as
otherwise provided in part 242 of this chapter, when the affected party
files a motion, the official having jurisdiction may, for proper cause
shown, reopen the proceeding or reconsider the prior decision. Motions
to reopen or reconsider are not applicable to proceedings described in
274a.9 of this chapter.
(ii) Jurisdiction. The official having jurisdiction is the official
who made the latest decision in the proceeding unless the affected party
moves to a new jurisdiction. In that instance, the new official having
jurisdiction is the official over such a proceeding in the new
geographical locations.
(iii) Filing Requirements -- A motion may be accompanied by a brief.
It must be --
(A) In writing and signed by the affected party or the attorney or
representative of record, if any;
(B) In triplicate if addressed to the Board, in duplicate if
addressed to an immigration judge, without any copies if addressed to a
Service officer;
(C) Accompanied by the fee required by 103.7 of this part;
(D) Accompanied by a statement about whether or not the validity of
the unfavorable decision has been or is the subject of any judicial
proceeding and, if so, the court, nature, date, and status or result of
the proceeding;
(E) Addressed to the official having jurisdiction; and
(F) Submitted to the office maintaining the record upon which the
unfavorable decision was made for forwarding to the official having
jurisdiction.
(iv) Effect of motion or subsequent application or petition. Unless
the Service directs otherwise, the filing of a motion to reopen or
reconsider or of a subsequent application or petition does not stay the
execution of any decision in a case or extend a previously set departure
date.
(2) Requirements for motion to reopen. A motion to reopen must --
(i) State the new facts to be proved at the reopened proceeding; and
(ii) Be supported by affidavits or other documentary evidence.
(3) Requirements for motion to reconsider: A motion to reconsider
must --
(i) State the reasons for reconsideration; and
(ii) Be supported by any pertinent precedent decisions.
(4) Deficient motion in Service case --
(i) Motion to reopen. A Service officer considering a motion to
reopen shall reject a motion as deficient and not refund any filing fee
the Service has accepted when the motion does not state new facts to be
proved or when it is not supported by affidavits or other documentary
evidence.
(ii) Motion to reconsider. A Service officer considering a motion to
reconsider shall reject a motion as deficient and not refund any filing
fee the Service has accepted when the motion does not state the reasons
for reconsideration.
(iii) Correction of deficient motion. If the affected party corrects
the deficiency within 60 days of rejection of a motion, the Service
officer having jurisdiction shall act upon the original motion and make
a decision on the merits of the case. There is no fee for correction of
a deficient motion within 60 days of its rejection as long as the filing
fee has already been paid and accepted by the Service.
(5) Motion by Service officer --
(i) Service motion with decision favorable to affected party. When a
Service officer, on his or her own motion, reopens a Service proceeding
or reconsiders a Service decision in order to make a new decision
favorable to the affected party, the Service officer shall combine the
motion and the favorable decision in one action.
(ii) Service motion with decision that may be unfavorable to affected
party. When a Service officer, on his or her own motion, reopens a
Service proceeding or reconsiders a Service decision, and the new
decision may be unfavorable to the affected party, the officer shall
give the affected party 30 days after service of the motion to submit a
brief. The officer may extend the time period for good cause shown. If
the affected party does not wish to submit a brief, the affected party
may waive the 30-day period.
(iii) Proceeding before Board or immigration judge. When a Service
officer is the moving party in a proceeding before the Board or an
immigration judge, a copy of the motion must be served on the affected
party. The motion and proof of service must be filed with the official
having jurisdiction. The affected party has 10 days from the date of
service to submit a brief. This time period may be extended as provided
in 3.8(c) and 3.22(b) of this chapter.
(6) Appeal to AAU from Service decision made as a result of a motion.
A field office decision made as a result of a motion may be applied to
the AAU only if the original decision was appealable to the AAU.
(7) Other applicable provisions. The provisions of 103.3(a)(2)(x)
of this part also apply to decisions on motions. The provisions of
103.3(b) of this part also apply to requests for oral argument regarding
motions considered by the AAU.
(b) Motions to reopen or reconsider denials of special agricultural
worker and legalization applications. Upon the filing of an appeal to
the Associate Commissioner, Examinations (Administrative Appeals Unit),
the Director of a Regional Processing Facility or the consular officer
at an Overseas Processing Office may sua sponte reopen any proceeding
under his or her jurisdiction opened under part 210 or 245a of this
chapter and may reconsider any decision rendered in such proceeding.
The new decision must be served on the appellant within 45 days of
receipt of any brief and/or new evidence, or upon expiration of the time
allowed for the submission of a brief. The Associate Commissioner,
Examinations, or the Chief of the Administrative Appeals Unit may sua
sponte reopen any proceeding conducted by that Unit under part 210 or
245a of this chapter and reconsider any decision rendered in such
proceeding. Motions to reopen a proceeding or reconsider a decision
under part 210 or 245a of this chapter shall not be considered.
(c) Motions to reopen or reconsider decisions on replenishment
agricultural worker petitions. (1) The director of a regional
processing facility may sua sponte reopen any proceeding under part 210a
of this title which is within his or her jurisdiction and may render a
new decision. This decision may reverse a prior favorable decision when
it is determined that there was fraud during the registration or
petition processes and the petitioner was not entitled to the status
granted. The petitioner must be given an opportunity to offer evidence
in support of the petition and in opposition to the grounds for
reopening the petition before a new decision is rendered.
(2) The Associate Commissioner, Examinations or the Chief of the
Administrative Appeals Unit may sua sponte reopen any proceeding
conducted by that unit under part 210a of this title and reconsider any
decision rendered in such proceeding.
(3) Motions to reopen a proceeding or reconsider a decision under
part 210a of this title shall not be considered.
(27 FR 7562, Aug. 1, 1962, as amended at 30 FR 12772, Oct. 7, 1965;
32 FR 271, Jan. 11, 1967; 52 FR 16193, May 1, 1987; 54 FR 29881, July
17, 1989; 55 FR 20770, 20775, May 21, 1990; 55 FR 25931, June 25,
1990; 56 FR 41782, Aug. 23, 1991)
08 CFR 103.5a Service of notification, decisions, and other papers by
the Service.
This section states authorized means of service by the Service on
parties and on attorneys and other interested persons of notices,
decisions, and other papers (except warrants and subpoenas) in
administrative proceedings before Service officers as provided in this
chapter.
(a) Definitions -- (1) Routine service. Routine service consists of
mailing a copy by ordinary mail addressed to a person at his last known
address.
(2) Personal service. Personal service, which shall be performed by
a Government employee, consists of any of the following, without
priority or preference:
(i) Delivery of a copy personally;
(ii) Delivery of a copy at a person's dwelling house or usual place
of abode by leaving it with some person of suitable age and discretion;
(iii) Delivery of a copy at the office of an attorney or other
person, including a corporation, by leaving it with a person in charge;
(iv) Mailing a copy by certified or registered mail, return receipt
requested, addressed to a person at his last known address.
(b) Effect of service by mail. Whenever a person has the right or is
required to do some act within a prescribed period after the service of
a notice upon him and the notice is served by mail, 3 days shall be
added to the prescribed period. Service by mail is complete upon
mailing.
(c) When personal service required -- (1) Generally. In any
proceeding which is initiated by the Service, with proposed adverse
effect, service of the initiating notice and of notice of any decision
by a Service officer shall be accomplished by personal service, except
as provided in 242.1(c) of this chapter.
(2) Persons confined, minors, and incompetents -- (i) Persons
confined. If a person is confined in a penal or mental institution or
hospital and is competent to understand the nature of the proceedings
initiated against him, service shall be made both upon him and upon the
person in charge of the institution or the hospital. If the confined
person is not competent to understand, service shall be made only on the
person in charge of the institution or hospital in which he is confined,
such service being deemed service on the confined person.
(ii) Incompetents and minors. In case of mental incompetency,
whether or not confined in an institution, and in the case of a minor
under 14 years of age, service shall be made upon the person with whom
the incompetent or the minor resides; whenever possible, service shall
also be made on the near relative, guardian, committee, or friend.
(d) When personal service not required. Service of other types of
papers in proceedings described in paragraph (c) of this section, and
service of any type of papers in any other proceedings, may be
accomplished either by routine service or by personal service.
(37 FR 11470, June 8, 1972, as amended at 39 FR 23247, June 27, 1974)
08 CFR 103.6 Surety bonds.
(a) Posting of surety bonds -- (1) Extension agreements; consent of
surety; collateral security. All surety bonds posted in immigration
cases shall be executed on Form I-352, a copy of which, and any rider
attached thereto, shall be furnished the obligor. A district director
is authorized to approve a bond, a formal agreement to extension of
liability of surety, a request for delivery of collateral security to a
duly appointed and undischarged administrator or executor of the estate
of a deceased depositor, and a power of attorney executed on Form I-312.
All other matters relating to bonds, including a power of attorney not
executed on Form I-312 and a request for delivery of collateral security
to other than the depositor or his approved attorney in fact, shall be
forwarded to the regional commissioner for approval.
(2) Bond riders -- (i) General. Bond riders shall be prepared on
Form I-351 and attached to Form I-352. If a condition to be included in
a bond is not on Form I-351, a rider containing the condition shall be
executed.
(ii) Condition against unauthorized employment. A condition barring
employment shall be included in an appearance and delivery bond in
connection with a deportation proceeding or bond posted for the release
of an alien in exclusion proceedings, unless the District Director
determines that employment is appropriate.
(iii) Factors to be considered. Only those aliens who upon
application under 109.1(b) of this chapter establish compelling reasons
for granting employment authorization may be authorized to accept
employment. Among the factors which may be considered when an
application is made, are the following:
(A) Safeguarding employment opportunities for United States citizens
and lawful permanent resident aliens;
(B) Prior immigration violations by the alien;
(C) Whether there is a reasonable basis for considering discretionary
relief; and
(D) Whether a United States citizen or lawful permanent resident
spouse or children are dependent upon the alien for support, or other
equities exist.
(b) Acceptable sureties. Either a company holding a certificate from
the Secretary of the Treasury under 6 U.S.C. 6-13 as an acceptable
surety on Federal bonds, or a surety who deposits cash or U.S. bonds or
notes of the class described in 6 U.S.C. 15 and Treasury Department
regulations issued pursuant thereto and which are not redeemable within
1 year from the date they are offered for deposit is an acceptable
surety.
(c) Cancellation -- (1) Public charge bonds. A public charge bond
posted for an immigrant shall be cancelled when the alien dies, departs
permanently from the United States or is naturalized, provided the
immigrant did not become a public charge prior to death, departure, or
naturalization. The district director may cancel a public charge bond
at any time if he/she finds that the immigrant is not likely to become a
public charge. A bond may also be cancelled in order to allow
substitution of another bond. A public charge bond shall be cancelled
by the district director upon review following the fifth anniversity of
the admission of the immigrant, provided that the alien has filed Form
I-356, Request for Cancellation of Public Charge Bond, and the district
director finds that the immigrant did not become a public charge prior
to the fifth anniversary. If Form I-356 is not filed, the bond shall
remain in effect until the form is filed and the district director
reviews the evidence supporting the form and renders a decision to
breach or cancel the bond.
(2) Maintenance of status and departure bonds. When the status of a
nonimmigrant who has violated the conditions of his admission has been
adjusted as a result of administrative or legislative action to that of
a permanent resident retroactively to a date prior to the violation, any
outstanding maintenance of status and departure bond shall be canceled.
If an application for adjustment of status is made by a nonimmigrant
while he is in lawful temporary status, the bond shall be canceled if
his status is adjusted to that of a lawful permanent resident or if he
voluntarily departs within any period granted to him. As used in this
paragraph, the term lawful temporary status means that there must not
have been a violation of any of the conditions of the alien's
nonimmigrant classification by acceptance of unauthorized employment or
otherwise during the time he has been accorded such classification, and
that from the date of admission to the date of departure or adjustment
of status he must have had uninterrupted Service approval of his
presence in the United States in the form of regular extensions of stay
or dates set by which departure is to occur, or a combination of both.
An alien admitted as a nonimmigrant shall not be regarded as having
violated his nonimmigrant status by engaging in employment subsequent to
his proper filing of an application for adjustment of status under
section 245 of the Act and part 245 of this chapter. A maintenance of
status and departure bond posted at the request of an American consular
officer abroad in behalf of an alien who did not travel to the United
States shall be canceled upon receipt of notice from an American
consular officer that the alien is outside the United States and the
nonimmigrant visa issued pursuant to the posting of the bond has been
canceled or has expired.
(3) Substantial performance. Substantial performance of all
conditions imposed by the terms of a bond shall release the obligor from
liability.
(d) Bond schedules -- (1) Blanketbonds for departure of visitors and
transits. The amount of bond required for various numbers of
nonimmigrant visitors or transits admitted under bond on Forms I-352
shall be in accordance with the following schedule:
T3Aliens
1 to 4 -- $500 each.
5 to 9 -- $2,500 total bond.
10 to 24 -- $3,500 total bond.
25 to 49 -- $5,000 total bond.
50 to 74 -- $6,000 total bond.
75 to 99 -- $7,000 total bond.
100 to 124 -- $8,000 total bond.
125 to 149 -- $9,000 total bond.
150 to 199 -- $10,000 total bond.
200 or more -- $10,000 plus $50 for each alien over 200.
(2) Blanket bonds for importation of workers classified as
nonimmigrants under section 101(a)(15)(H). The following schedule shall
be employed by district directors when requiring employers or their
agents or representatives to post bond as a condition to importing alien
laborers into the United States from the West Indies, the British Virgin
Islands, or from Canada:
Less than 500 workers -- $15 each
500 to 1,000 workers -- $10 each
1,000 or more workers -- $5 each
A bond shall not be posted for less than $1,000 or for more than
$12,000 irrespective of the number of workers involved. Failure to
comply with conditions of the bond will result in the employer's
liability in the amount of $200 as liquidated damages for each alien
involved.
(e) Breach of bond. A bond is breached when there has been a
substantial violation of the stipulated conditions. A final
determination that a bond has been breached creates a claim in favor of
the United States which may not be released or discharged by a Service
officer. The district director having custody of the file containing
the immigration bond executed on Form I-352 shall determine whether the
bond shall be declared breached or cancelled, and shall notify the
obligor on Form I-323 or Form I-391 of the decision, and, if declared
breached, of the reasons therefor, and of the right to appeal in
accordance with the provisions of this part.
(31 FR 11713, Sept. 7, 1966, as amended at 32 FR 9622, July 4, 1967;
33 FR 5255, Apr. 2, 1968; 33 FR 10504, July 24, 1968; 34 FR 1008, Jan.
23, 1969; 34 FR 14760, Sept. 25, 1969; 39 FR 12334, Apr. 5, 1974; 40
FR 42852, Sept. 17, 1975; 48 FR 51144, Nov. 7, 1983; 49 FR 24011, June
11, 1984)
08 CFR 103.7 Fees.
(a) Remittances. Fees prescribed within the framework of 31 U.S.C.
483a shall be submitted with any formal application or petition
prescribed in this chapter and shall be in the amount prescribed by law
or regulation. Any fee relating to any Executive Office for Immigration
Review proceeding shall be paid to, and accepted by, any Service office
authorized to accept fees. Payment of any fee under this section does
not constitute filing of the document with the Office of the Immigration
Judge. The Service shall return to the payer at the time of payment
both the receipt for any fee paid and any documents submitted with the
fee. A charge of $5.00 will be imposed if a check in payment of a fee
is not honored by the bank on which it is drawn. A receipt issued by a
Service officer for any such remittance shall not be binding if the
remittance is found uncollectible. Remittances must be drawn on a bank
or other institution located in the United States and be payable in
United States currency. Fees in the form of postage stamps shall not be
accepted. Remittances shall be made payable to the ''Immigration and
Naturalization Service,'' except that in case of applicants residing in
the Virgin Islands of the United States, the remittances shall be made
payable to the ''Commissioner of Finance of the Virgin Islands,'' and,
in the case of applicants residing in Guam, the remittances shall be
made payable to the ''Treasurer, Guam.'' If application is submitted
from outside the United States, remittance may be made by bank
international money order or foreign draft drawn on a financial
institution in the United States and payable to the Immigration and
Naturalization Service in United States currency.
(b) Amounts of fees -- (1) The following fees and charges are
prescribed:
For certification of true copies, each -- $2.00
For attestation under seal -- $2.00
Form I-17. For filing application for school approval, except in the
case of a school or school system owned or operated as a public
educational institution or system by the United States or a state or
political subdivision thereof -- $130.00.
Form I-90. For filing application for Alien Registration Receipt Card
(Form I-551) in lieu of an obsolete card or in lieu of one lost,
mutilated or destroyed, or in a changed name -- $70.00.
Form I-102. For filing application (Form I-102) for Arrival-Departure
Record (Form I-94) or Crewman's Landing Permit (Form I-95), in lieu of
one lost, mutilated, or destroyed -- $50.00.
Form I-104. For filing Alien Address Report Card as an application
for Temporary Protected Status under Section 244A of the Act, as amended
by the Immigration Act of 1990, to be remitted in the form of a
cashier's check, certified bank check or a money order. Each
application shall be submitted with, for applicants who are nationals of
El Salvador, a fee of seventy-five dollars ($75.00); for applicants who
are nationals of another state, the fee, not to exceed fifty dollars
($50.00), determined in the Attorney General's designation of such other
state. The maximum amount that will be charged a family (husband, wife,
and any unmarried children under 21 years of age) applying for Temporary
Protected Status as nationals of El Salvador shall be two hundred
twenty-five dollars ($225.00).
Form I-129. For filing a petition for a nonimmigrant worker -- $70.00
plus:
-- $10.00 per worker if you are requesting consulate or Port of
Entry (POE) notification for visa issuance or admission; or
-- $80.00 per worker if requesting a change of status; or --
$50.00 per worker if requesting an extension of stay.
Form I-129F. For filing petition to classify nonimmigrant as fiancee
or fiance under section 214(d) of the Act -- $75.00.
Form I-129H. For filing a petition to classify nonimmigrant as
temporary worker or trainee under section 214(c) of the Act -- $80.00.
Form I-129L. Petition to employ intracompany transferee -- $80.00.
Form I-130. For filing petition to classify status of alien relative
for issuance of immigrant visa under section 204(a) of the Act --
$75.00.
Form I-131. For filing application for issuance of reentry permit --
$65.00.
Form I-140. For filing petition to classify preference status of an
alien on basis of profession or occupation under section 204(a) of the
Act -- $70.00.
Form I-191. For filing application for discretionary relief under
section 212(c) of the Act -- $90.00.
Form I-192. For filing application for discretionary relief under
section 212(d)(3) of the Act, except, in an emergency case, or where the
approval of the application is in the interest of the United States
Government -- $85.00.
Form I-193. For filing application for waiver of passport and/or visa
-- $90.00.
Form I-212. For filing application for permission to reapply for an
excluded or deported alien, an alien who has fallen into distress and
has been removed as an alien enemy, or an alien who has been removed at
Government expense in lieu of deportation -- $90.00.
Form I-246. For filing application for stay of deportation under part
243 of this chapter -- $155.00
Form I-256A. For filing application for suspension of deportation
under section 244 of the Act -- $100.00. (A single fee of $100.00 will
be charged whenever suspension of deportation applications are filed by
two or more aliens in the same proceeding.)
Form I-290A. For filing appeal from any decision under the
immigration laws in any type of proceedings (except a bond decision)
over which the Board of Immigration Appeals has appellate jurisdiction
in accordance with 3.1(b) of this chapter. (The fee of $110 will be
charged whenever an appeal is filed by or on behalf of two or more
aliens and the aliens are covered by one decision) -- $110.00
Form I-290B. For filing an appeal from any decision under the
immigration laws in any type of proceeding over which the Board of
Immigration Appeals does not have appellate jurisdiction. (The fee of
$50 will be charged whenever an appeal is filed by or on behalf of two
or more aliens and the aliens are covered by one decision) -- $110.00
Form I-360. For filing a petition for an Amerasian, Widow(er), or
Special Immigrant -- $75.00, except that there is no fee for a petition
seeking classification as an Amerasian.
Form I-485. For filing application for permanent residence status or
creation of a record of lawful permanent residence -- $120.00 for an
applicant 14 years of age or older; $95.00 for an applicant under the
age of 14 years.
Form I-485A. For filing application by Cuban refugee for permanent
residence -- $120.00 for an applicant 14 years of age or older; $95.00
for an applicant under the age of 14 years.
Form I-506. For filing application for change of nonimmigrant
classification under section 248 of the Act -- $70.00.
Form I-526. For filing a petition for an alien entrepreneur --
$140.00.
Form I-538. For filing application by a nonimmigrant student (F-1)
for an extension of stay, a school transfer or permission to accept or
continue employment or practical training -- $70.00.
Form I-539. For filing an application to extend or change
nonimmigrant status -- $70.00 plus $10.00 per co-applicant.
Form I-570. For filing application for issuance or extension of
refugee travel document -- $45.00
Form I-600. For filing petition to classify orphan as an immediate
relative for issuance of immigrant visa under section 204(a) of the Act.
(When more than one petition is submitted by the same petitioner on
behalf of orphans who are brothers or sisters, only one fee will be
required -- $140.00.
Form I-600A. For filing application for advance processing of orphan
petition. (When more than one petition is submitted by the same
petitioner on behalf of orphans who are brothers or sisters, only one
fee will be required) -- $140.00.
Form I-601. For filing application for waiver of ground of
excludability under section 212(h) or (i) of the Act. (Only a single
application and fee shall be required when the alien is applying
simultaneously for a waiver under both those sub-sections -- $90.00.
Form I-612. For filing application for waiver of the
foreign-residence requirement under section 212(e) of the Act -- $90.00.
Form I-687. For filing application for status as a temporary resident
under section 245A (a) of the Immigration and Nationality Act as amended
-- to be remitted in the form of a cashier's check, certified bank check
or money order. A fee of one hundred and eighty-five dollars ($185.00)
for each application or fifty dollars ($50.00) for each application for
a minor child (under 18 years of age) is required at the time of filing
with the Immigration and Naturalization Service. The maximum amount
payable by a family (husband, wife, and any minor children) shall be
four hundred and twenty dollars ($420.00).
Form I-690. For filing application for waiver for ground of
excludability under section 212(a) of the Act as amended, in conjunction
with the application under sections 210 or 245A of the Act, or a
petition under 210A. A fee of thirty-five dollars ($35.00) is to be
remitted in the form of a cashier's check, certified bank check or money
order.
Form I-694. For appealing the denial of application under sections
210 or 245A of the Act, or a petition under 210A. A fee of fifty
dollars ($50.00) is to be remitted in the form of a cashier's check,
certified bank check or money order.
Form I-695. For filing application for replacement of temporary
resident card (Form I-688) to be remitted in the form of a cashier's
check, certified bank check or a money order -- $15.00
Form I-698. For filing application for adjustment from temporary
resident status to that of lawful permanent resident under section
245A(b)(1) of the Act, as amended -- to be remitted in the form of a
cashier's check, certified bank check or money order. For applicants
filing within thirty-one months from the date of adjustment to temporary
resident status, a fee of eighty dollars ($80.00) for each application
is required at the time of filing with the Immigration and
Naturalization Service. The maximum amount payable by a family
(husband, wife, and any minor children (under 18 years of age living at
home)) shall be two hundred and forty dollars -- ($240.00). For
applicants filing after thirty-one months from the date of approval of
temporary resident status, who file their applications on or after July
9, 1991, a fee of $120.00 (a maximum of $360.00 per family) is required.
The adjustment date is the date of filing of the application for
permanent residence or the applicant's eligibility date, whichever is
later.
Form I-700. For filing application for status as a temporary resident
under section 210(a)(1) of the Act, as amended -- to be remitted in the
form of a cashier's check, certified bank check or a money order. A fee
of one hundred and eighty-five dollars ($185.00) for each application or
fifty dollars ($50.00) for each application for a minor child (under 18
years of age) is required at the time of filing with the Immigration and
Naturalization Service. The maximum amount payable by a family
(husband, wife, and any minor children) shall be four hundred and twenty
dollars ($420.00).
Form I-751. For filing an application to remove the conditions on
residence which is based on marriage -- $75.00.
Form I-752. For filing application for waiver of requirement to file
joint petition for removal of conditional basis of residency under
section 216 of the Act -- $85.00.
Form I-765. For filing application for employment authorization
pursuant to 8 CFR 274a.13. Applicants must pay a fee of sixty dollars
($60.00) to be remitted in the form of cash, check, or money order,
except that an applicant who is a national of El Salvador in temporary
protected status must pay a fee of twenty dollars ($20.00), to be
remitted in the form of cash, check, or money order, for the employment
authorization for which application is made at the time of the
applicant's final reregistration for temporary protected status on or
before June 30, 1992.
Form I-805. For filing a petition for status as a temporary resident
under 210A. A fee of one hundred and seventy-five dollars ($175.00)
for each petition, is to be remitted in the form of a cashier's check,
certified bank check or money order at the time of filing with the
Immigration and Naturalization Service.
Form I-807. For filing a request for consideration as a replenishment
agricultural worker (RAW) during an announced period of registration
under 8 CFR 210a.3. A fee of ten dollars ($10.00) is to be remitted in
the form of a cashier's check, certified bank check or money order at
the time of mailing to the Immigration and Naturalization Service.
Form I-817. For filing application for voluntary departure under the
Family Unity Program -- $75.00. The maximum amount payable by the
members of a family filing their applications concurrently shall be
$225.00.
Form I-823. For participation in a dedicated commuter lane program
under section 286 of this chapter -- $25.00
Form I-824. For filing for action on an approved application or
petition -- $30.00.
Form N-300. For filing application for declaration of intention --
$70.00
Form N-336. For filing request for hearing on a decision in
naturalization proceedings under section 336 of the Act -- $110.00
Form N-400. For filing application for naturalization -- $90.00
Form N-410. For filing motion for amendment of petition for
naturalization when motion is for the convenience of the petitioner --
$50.00
Form N-455. For filing application for transfer of petition for
naturalization under section 335(i) of the Act, except when transfer is
of a petition for naturalization filed under the Act of October 24,
1968, Pub. L. 90-633 -- $90.00.
Form N-470. For filing application for sections 316(b) or 317 of the
Act benefits -- $90.00.
Form N-565. For filing application for a certificate of
naturalization or declaration of intention in lieu of a certificate or
declaration alleged to have been lost, mutilated or destroyed; for a
certificate of citizenship in a changed name under section 343 (b) or
(d) of the Act; or for a special certificate of naturalization to
obtain recognition as a citizen of the United States by a foreign state
under section 343(c) of the Act -- $50.00
Form N-600. For filing application for certificate of citizenship
under sections 309(c) or 341 of the Act -- $90.00.
Form N-643. For filing an application for a certificate of
citizenship on behalf of an adopted child -- $85.00.
Form N-644. For filing application for posthumous citizenship --
$60.00.
Motion. For filing a motion to reopen or reconsider any decision
under the immigration laws in any type of proceeding over which the
Board of Immigration Appeals has appellate jurisdiction. No fee shall
be charged for a motion to reopen or reconsider a decision on an
application for which no fee is chargeable. (The fee of $110 shall be
charged whenever an appeal or motion is filed by or on behalf of two or
more aliens and all such aliens are covered by one decision) $110.00
Motion. For filing a motion to reopen or reconsider any decision
under the immigration laws in any type of proceeding over which the
Board of Immigration Appeals does not have appellate jurisdiction. No
fee shall be charged for a motion to reopen or reconsider a decision on
an application for which no fee is chargeable. (The fee of $110 shall
be charged whenever an appeal or motion is filed by or on behalf of two
or more aliens and all such aliens are covered by one decision) $110
Request. For special statistical tabulations a charge will be made to
cover the cost of the work involved -- Cost
Request. For set of monthly, semiannual, or annual tables entitled
''Passenger Travel Reports via Sea and Air'' /1/ -- $7.00
Request. For classification of a citizen of Canada to be engaged in
business activities at professional level pursuant to section 214(e) of
the Act (Chapter 15 of the United States-Canada Free-Trade Agreement) --
$50.00
Request. For requesting authorization for parole of an alien into the
United States -- $65.00.
(2) Fees for production or disclosure of records under 5 U.S.C. 552
shall be charged in accordance with the regulations of the Department of
Justice, 28 CFR 16.9.
(c) Waiver of fees. (1) Except as otherwise provided in this
paragraph and in 3.3(b) of this chapter, any of the fees prescribed in
paragraph (b) of this section relating to applications, petitions,
appeals, motions, or requests may be waived by the Immigration Judge in
any case under his/her jurisdiction in which the alien or other party
affected is able to substantiate that he or she is unable to pay the
prescribed fee. The person seeking a fee waiver must file his or her
affidavit, or unsworn declaration made pursuant to 28 U.S.C. 1746,
asking for permission to prosecute without payment of fee of the
applicant, petition, appeal, motion, or request, and stating his or her
belief that he or she is entitled to or deserving of the benefit
requested and the reasons for his or her inability to pay. The officer
of the Service having jurisdiction to render a decision on the
application, petition, appeal, motion, or request may, in his
discretion, grant the waiver of fee. Fees for ''Passenger Travel
Reports via Sea and Air'' and for special statistical tabulations may
not be waived.
(2) Fees under the Freedom of Information Act, as amended, may be
waived or reduced where the Service determines such action would be in
the public interest because furnishing the information can be considered
as primarily benefiting the general public.
(3) When the prescribed fee is for services to be performed by the
clerk of court under section 344(a) of the Act, the affidavit for waiver
of the fee shall be filed with the district director or officer in
charge of the Service having administrative jurisdiction over the place
in which the court is located at least 7 days prior to the date the fee
is required to be paid. If the waiver is granted, there shall be
delivered to the clerk of court by a Service representative on or before
the date the fee is required to be paid, a notice prepared on Service
letterhead and signed by the officer granting the waiver, that the fee
has been waived pursuant to this paragraph.
(4) Fees for applications for Temporary Protected Status may be
waived pursuant to 8 CFR 240.20.
(d) Authority to certify records. Whenever authorized under 5 U.S.C.
552 or any other law to furnish information from records to persons
entitled thereto, the following officials, or their designees authorized
in writing as specified below, have authority to make certification, as
follows:
(1) The Associate Commissioner, Information Systems, the Assistant
Commissioner, Records Systems Division, the Director, Records Management
Branch, or their designee, authorized in writing to make certification
in their absence -- copies of files, documents, and records in the
custody of the Central Office.
(2) A regional commissioner, or district director, or the designee of
either, authorized in writing to make certification in his absence --
copies of files, documents, and records in the custody of his office.
(3) The Immigration and Naturalization Service Program Coordinator,
El Paso Intelligence Center, or the designee, authorized in writing to
make certification in event of the Program Coordinator's absence --
copies of files, documents, and records of the Immigration and
Naturalization Service in the custody of that office.
(4) The Assistant Commissioner, Records Systems Division, the
Director, Records Management Branch, or the Chief, Records Operations
Section, Central Office, or their designee, authorized in writing to
make certification in their absence -- the non-existence of an official
Service records.
(38 FR 35296, Dec. 27, 1973)
Editorial Note: For Federal Register citations affecting 103.7, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
/1/ Available from Immigration & Naturalization Service for years
1975 and before. Later editions are available from the United States
Department of Transportation, contact: United States Department of
Transportation, Transportation Systems Center, Kendall Sqaure,
Cambridge, MA. 02142.
08 CFR 103.8 Definitions pertaining to availability of information
under the Freedom of Information Act.
Sections 103.8, 103.9, and 103.10 of this part comprise the Service
regulations under the Freedom of Information Act, 5 U.S.C. 552. These
regulations supplement those of the Department of Justice, 28 CFR part
16, subpart A. As used in this part the following definitions shall
apply:
(a) The term decision means a final written determination in a
proceeding under the Act accompanied by a statement of reasons. Orders
made by check marks, stamps, or brief endorsements which are not
supported by a reasoned explanation, or those incorporating preprinted
language on Service forms are not decisions.
(b) The term records includes records of proceedings, documents,
reports, and other papers maintained by the Service.
(c) The term record of proceeding is the official history of any
hearing, examination, or proceeding before the Service, and in addition
to the application, petition or other initiating document, includes the
transcript of hearing or interview, exhibits, and any other evidence
relied upon in the adjudication; papers filed in connection with the
proceedings, including motions and briefs; the Service officer's
determination; notice of appeal or certification; the Board or other
appellate determination; motions to reconsider or reopen; and
documents submitted in support of appeals, certifications, or motions.
(32 FR 9623, July 4, 1967, as amended at 40 FR 7236, Feb. 19, 1975;
52 FR 2942, Jan. 29, 1987)
08 CFR 103.9 Availability of decisions and interpretive material under
the Freedom of Information Act.
(a) Precedent decisions. There may be purchased from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, bound volumes of designated precedent decisions
entitled ''Administrative Decisions Under Immigration and Nationality
Laws of the United States,'' each containing a cumulative index. Prior
to publication in volume from current precedent decisions, known as
interim decisions, are obtainable from the Superintendent of Documents
on a single copy or yearly subscription basis. Bound volumes and
current precedent decisions may be read at principal Service offices.
(b) Unpublished decisions. Each district director in the United
States will maintain copies of unpublished Service and Board decisions
relating to proceedings in which the initial decision was made in his
district. Each regional commissioner will maintain copies of
unpublished decisions made by him. The Central Office will maintain
copies on a national basis of unpublished Service decisions.
(c) Deletion of identifying details. To the extent that information
in decisions is exempt from disclosure under the Freedom of Information
Act (5 U.S.C. 552), the deciding officer shall provide for deletion of
identifying details, as appropriate, from copies of decisions made
available to the public.
(d) Statements of policy, interpretations, manuals, instructions to
staff. Statements of policy, interpretations, and those manuals and
instructions to staff (or portions thereof), affecting the public, will
be made available at district offices in the United States and at the
Central Office with an accompanying index of any material which is
issued on or after July 4, 1967.
(e) Public reading rooms. The Central Office and each district
office in the United States will provide a reading room or reading area
where the material described in this section will be made available to
the public. Additional material will be made available in the public
reading rooms, including the immigration and nationality laws, title 8
of the United States Code Annotated, title 8 of the Code of Federal
Regulations -- Chapter I, a complete set of the forms listed in parts
299 and 499 of this chapter, and the Department of State Foreign Affairs
Manual, Volume 9 -- Visas. Fees will not be charged for providing
access to any of these materials, but fees in accordance with 103.7(b)
will be charged for furnishing copies.
(32 FR 9623, July 4, 1967, as amended at 36 FR 20151, Oct. 16, 1971;
40 FR 7237, Feb. 19, 1975; 48 FR 49652, Oct. 27, 1983)
08 CFR 103.10 Requests for records under the Freedom of Information
Act.
(a) Place and manner of requesting records -- (1) Place. Records
shall be made available in the Central Office, each regional office, any
district office, and the following offices: Agana, Guam; Albany, NY;
Charlotte, NC; Cincinnati, OH; Hammond, IN; Las Vegas, NV; Memphis,
TN; Milwaukee, WI; Norfolk, VA; Pittsburgh, PA; Providence, RI;
Reno, NV; St. Louis, MO; Salt Lake City, UT; Spokane, WA;
additionally, in particular cases, a district director may designate any
other Service office. Active alien records are maintained in the
district or suboffice listed above where the subject of the record
resides. For locations of regional and district offices, see 8 CFR
100.4.
(2) Manner of requesting records. All Freedom of Information Act
requests must be in writing. Requests may be submitted in person or by
mail. If a request is made by mail, both the envelope and its contents
must be clearly marked: ''FREEDOM OF INFORMATION REQUEST'' or
''INFORMATION REQUEST.'' Any request for information not marked and
addressed as specified will be so marked by Service personnel as soon as
it is properly identified and shall be forwarded immediately to the
appropriate office designated to control Freedom of Information Act
requests. A request will not be deemed to have been received for
purposes of the time period under 5 U.S.C. 552(a)(6) until the request
has been received by the appropriate office, or would have been received
with the exercise of due diligence by Service personnel. Service Form
G-639, Freedom of Information/Privacy Act Request, may be used for rapid
identification as a Freedom of Information matter and to ensure
expeditous handling; however, a request may be submitted in any written
form. Each request made under this section pertaining to the
availability of a record must describe the record with sufficient
specificity with respect to names, dates, subject matter and location to
permit it to be identified and located. A request for all records
falling within a reasonably specific category shall be regarded as
reasonably described if the description enables the records to be
identified by any process not unreasonably burdensome. If it is
determined that the request does not reasonably describe the records
sought, the response rejecting the request on that ground shall specify
the reason why the request failed to meet requirements and shall extend
to the requester an opportunity to confer with Service personnel to
reformulate the request.
(b) Authority to grant and deny requests -- (1) Grants. The
Associate Commissioner, Information Systems, regional commissioners,
district directors, and their designees may grant any type of request
not prohibited by law or Executive Order. The head of any office
specified in paragraph (a)(1) of this section may grant the following
types of requests:
(i) Requests for information and records which officers and employees
of the Service prior to the enactment of 5 U.S.C. 552 customariIy
furnished to the public in the regular performance of their duties;
(ii) Requests for records of proceedings in naturalization
examinations and hearings;
(iii) Requests for records of proceedings in any other proceedings
before the Service which were open to the public;
(iv) Requests for records of proceedings in administrative fine
cases; and
(v) Requests for any other records of the Service, including portions
of records, which clearly are not within the exemptions from disclosure
enumerated in 5 U.S.C. 552(b).
(2) Denials. The Associate Commissioner, Information Systems,
regional commissioners, district directors, and their designees are
authorized to deny a request under exemptions provided in 5 U.S.C.
552(b).
(3) Authority to state that a record cannot be located or does not
exist. The head of any office specified in paragraph (a)(1) of this
section has authority to notify a requester that a record cannot be
located from the information supplied, or is known to have been
destroyed or otherwise disposed of.
(c) Prompt response -- (1) Response within 10 days. Within 10 days
(excluding Saturdays, Sundays, and legal holidays) of the receipt of a
request by the Service (or in the case of an improperly addressed
request, of its receipt by the appropriate office as specified in
paragraph (a) of this section), the authorized Service official shall
either comply with or deny the request unless an extension of time is
requested as required under 28 CFR 16.5(c). A request improperly
addressed will not be deemed to have been received for purposes of 5
U.S.C 552 (a)(6) until it has been or would have been received by the
appropriate office with the exercise of due diligence by Service
personnel.
(2) Treatment of delay as a denial. If no substantive reply is
forthcoming at the end of the 10-day period, or the last extension
thereof under 28 CFR 16.5(c), the requester may deem his request denied,
and exercise a right of appeal in accordance with 28 CFR 16.7. When no
substantive reply can be made within the applicable time limit, the
responsible Service office shall nevertheless continue to process the
request; it shall inform the requester upon expiration of the time
limit of the reason for the delay, of the date on which a determination
may be expected to be dispatched, and of his right to treat the delay as
a denial and appeal to the Attorney General in accordance with 28 CFR
16.7; and it may ask the requester to forego appeal until a
determination is made.
(d) Disposition of requests -- (1) Form of grant. When a requested
record is available, the responsible office shall notify the requester
when and where the record is available or copies will be available. The
notification shall also advise the requester of any applicable fees
under 28 CFR 16.9.
(2) Form of denial. A reply denying a written request for a record
in whole or in part shall be in writing, signed by the Associate
Commissioner, Information Systems, by a regional commissioner, by a
district director, or by one of their designees. The reply shall
include a reference to the specific exemption under the Freedom of
Information Act authorizing withholding of the records. The notice of
denial shall contain a brief explanation of how the exemption applies to
the record withheld and, if the deciding official considers it
appropriate, a statement of why the exempt record is being withheld.
The notice of denial shall include a statement of the right of appeal to
the Attorney General under 28 CFR 16.7, and that judicial review will
thereafter be available in the district in which the requester resides
or has a principle place of business, or the district in which the
agency records are situated, or the District of Columbia.
(3) Right of appeal. When a request for records has been denied in
whole or in part, the requester may, within 30 days of its receipt,
appeal the denial to the Assistant Attorney General, Office of Legal
Policy, (Attention: Office of Information and Privacy), Department of
Justice, Washington, DC 20530. Both the envelope and letter must be
clearly marked: ''FREEDOM OF INFORMATION APPEAL'' or ''INFORMATION
APPEAL.''
(e) Copies of responses to Deputy Attorney General. A copy of each
notification to a requester of a delay, notice of extension, denial or
of inability to locate a requested record shall be furnished to the
Deputy Attorney General.
(f) Verification of information from Service records. When a
requester desires, not a copy of a record, but a formal statement by the
Service verifying particular information based on Service records, his
request is not being made pursuant to the Freedom of Information Act and
shall be submitted on Form G-641 to the Service office having
jurisdiction over his place of residence.
(40 FR 7237, Feb. 19, 1975, as amended at 41 FR 34938, Aug. 18, 1976;
42 FR 15408, March 22, 1977; 43 FR 22332, May 25, 1978; 44 FR 23514,
Apr. 20, 1979; 48 FR 49652, Oct. 27, 1983; 48 FR 51430, Nov. 9, 1983;
52 FR 2942, Jan. 29, 1987)
08 CFR 103.20 Purpose and scope.
(a) Sections 103.20 through 103.36 comprise the regulations of the
Service implementing the Privacy Act of 1974, Public Law 93-597. The
regulations apply to all records contained in systems of records
maintained by the Service which are identifiable by individual name or
identifier and which are retrieved by individual name or identifier,
except those personnel records governed by Civil Service Commission
regulations. The regulations set forth the procedures by which
individuals may seek access to records pertaining to themselves and
request correction of those records. The regulations also set forth the
requirements applicable to Service employees maintaining, collecting,
using or disseminating such records.
(b) The Associate Commissioner, Information Systems, shall ensure
that the provisions of 103.20 through 103.36 of this title and 28 CFR
16.40 through 16.56, and any revisions, are brought to the attention of
and made available to:
(1) Each employee at the time of issuance of the regulations and at
the time of any amendments; and
(2) Each new employee at the time of employment.
(c) The Associate Commissioner, Information Systems, shall be
responsible for ensuring that employees of the Service are trained in
the obligations imposed by the Privacy Act of 1974 (5 U.S.C 522a) and by
these regulations.
(40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49652, Oct. 27,
1983)
08 CFR 103.21 Access by individuals to records maintained about them.
(a) Access to available records. Any individual who seeks access to
records about himself in a system of records, which have not been
exempted from access under the Privacy Act of 1974 (5 U.S.C. 552a), must
submit a written request in person or by mail to the manager of the
particular system of records to which access is sought. Systems
managers are identified in the ''Notice of Systems of Records''
published by the National Archives and Records Service, General Services
Administration. A request for access to records in multiple systems of
records may be addressed to the Office of the Associate Commissioner,
Information Systems which shall assist the requester in identifying the
request more precisely and shall be responsible for forwarding the
request to the appropriate systems managers. Use of Form G-639, Freedom
of Information/Privacy Act Request, is recommended for rapid
identification and to ensure expeditious handling of the request.
(b) Verification of identity. The following standards are applicable
to any individual who requests records concerning himself, unless other
provisions for identity verification are specified in the published
notice pertaining to the particular system of records.
(1) An individual seeking access to records about himself in person
shall establish his identity by the presentation of a single document
bearing a photograph (such as a passport, alien registration receipt
card or identification badge) or by the presentation of two items of
identification which do not bear a photograph but do bear both a name
and address (such as a driver's license, or credit card).
(2) An individual seeking access to records about himself by mail
shall establish his identity by a signature, address, date of birth,
place of birth, alien or employee identification number, if any, and one
other identifier such as a photocopy of an identifying document.
(3) An individual seeking access to records about himself by mail or
in person who cannot provide the necessary documentation of
identification may provide a notarized statement swearing or affirming
to his identity and to the fact that he understands the penalties for
false statements pursuant to 18 U.S.C. 1001. Form G-652, affidavit of
Identity, may be obtained on request from the office of the system
manager of a system of records at a system location listed in the
''Notice of Systems of Records'' published in the Federal Register.
(c) Verification of guardianship. The parent or guardian of a child
or of a person judicially determined to be incompetent and seeking to
act on behalf of such child or incompetent, shall, in addition to
establishing his own identity, establish the identity of the child or
other person he represents as required in paragraph (b) of this section,
and establish his own parentage or guardianship of the subject of the
record by furnishing either a copy of a birth certificate showing
parentage or a court order establishing the guardianship.
(d) Accompanying persons. An individual seeking to review records
pertaining to himself may be accompanied by another individual of his
own choosing. Both the individual seeking access and the individual
accompanying him shall be required to sign the required form indicating
that the Service is authorized to discuss the contents of the subject
record in the presence of both individuals.
(e) Specification of records sought. Requests for access to records,
either in person or by mail, shall describe the nature of the records
sought, the approximate dates covered by the record, the system in which
it is thought to be included as described in the ''Notice of Systems of
Records'' published in the Federal Register, and the identity of the
individual or office of the Service having custody of the system of
records. In addition, the published ''Notice of Systems of Records''
for individual systems may include further requirements of
specification, where necessary, to retrieve the individual record from
the system.
(40 FR 44481, Sept. 26, 1975; 40 FR 46092, Oct. 6, 1975, as amended
at 42 FR 33025, June 29, 1977; 48 FR 49653, Oct. 27, 1983)
08 CFR 103.22 Records exempt in whole or in part.
(a) When an individual requests records about himself which have been
exempted from individual access pursuant to 5 U.S.C. 552a(j) or (k)(3)
or (k)(4) or which have been compiled in reasonable anticipation of a
civil action or proceeding either in a court or before an administrative
tribunal, the Service will neither confirm nor deny the existence of the
record but shall advise the individual only that there is no record
which is available to him pursuant to the Privacy Act of 1974.
(b) Individual requests for access to records which have been
exempted from access pursuant to 5 U.S.C. 552a(k) shall be processed as
follows:
(1) A request for information classified by the Service under
Executive Order 12356 on National Security Information requires the
Service to review the information to determine whether it continues to
warrant classification under the criteria of the Executive Order.
Information which no longer warrants classification shall be
declassified and made available to the individual, if not otherwise
exempt. If the information continues to warrant classification, the
individual shall be advised that the information sought is classified;
that it has been reviewed and continues to warrant classification; and
that it has been exempted from access under 5 U.S.C. 552a(k)(1).
Information which has been exempted under 5 U.S.C. 552a(j) and which is
also classified, shall be reviewed as required by this paragraph but the
response to the individual shall be in the form prescribed by paragraph
(a) of this section.
(2) Requests for information which has been exempted from disclosure
pursuant to 5 U.S.C. 552a(k)(2) shall be responded to in the manner
provided in paragraph (a) of this section unless a review of the
information indicates that the information has been used or is being
used to deny the individual any right, privilege or benefit for which he
is eligible or to which he would otherwise be entitled under Federal
law. In that event, the individual shall be advised of the existence of
the record and shall be provided the information except to the extent it
would identify a confidential source. If and only if information
identifying a confidential source can be deleted or the pertinent parts
of the record summarized in a manner which protects the identity of the
confidential source, the document with deletions made or the summary
shall be furnished to the requester.
(3) Information compiled as part of an employee background
investigation which has been exempted pursuant to 5 U.S.C. 552a(k)(5)
shall be made available to an individual upon request except to the
extent that it identifies a confidential source. If and only if
information identifying a confidential source can be deleted or the
pertinent parts of the record summarized in a manner which protects the
identity of the confidential source, the document with deletions made or
the summary shall be furnished to the requester.
(4) Testing or examination material which has been exempted pursuant
to 5 U.S.C. 552a(k)(6) shall not be made available to an individual if
disclosure would compromise the objectivity or fairness of the testing
or examination process but shall be made available if no such compromise
possibility exists.
(5) The Service records which are exempted and the reasons for the
exemptions are enumerated in 28 CFR 16.99.
(40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27,
1983)
08 CFR 103.23 Special access procedures.
(a) Records of other agencies. When information sought from a system
of records of the Service includes information:
(1) That has been classified under Executive Order 12356, the request
shall be referred to the appropriate classifying authority under 28 CFR
17.61 and the individual requesting the record shall be so advised
unless the record is also exempt from disclosure under 5 U.S.C. 552a(j)
or (k);
(2) That has been furnished by another component of the Department of
Justice, the request shall be referred to the component originating the
information for a decision as to access or correction;
(3) That has been furnished by another agency, the Service shall
consult the other agency before granting access or making a correction
and may refer the request to the other agency if referral will provide
more expeditious access or correction, but the requester shall be
notified of the referral.
(b) Medical records. When an individual requests medical records
concerning himself, which are not otherwise exempt from disclosure, the
system manager shall, if deemed necessary, advise the individual that
records will be provided only to a physician designated in writing by
the individual. Upon receipt of the designation, the system manager
will permit the physician to review the records or to receive copies of
the records by mail, upon proper verification of identity. The
determination of which records should be made available directly to the
individual and which records should not be disclosed because of possible
harm to the individual shall be made by the physician.
(40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27,
1983)
08 CFR 103.24 Requests for accounting of record disclosure.
At the time of his request for access or correction or at any other
time, an individual may request an accounting of disclosures made of his
record outside the Department of Justice. Requests for accounting shall
be directed to the appropriate system manager listed in the ''Notice of
Systems of Records''. Any available accounting, whether kept in
accordance with the requirements of the Privacy Act or under procedures
established prior to September 27, 1975, shall be made available to the
individual except that an accounting need not be made available if it
relates to: (a) A disclosure with respect to which no accounting need
be kept (see 103.30(c) of this part); (b) A disclosure made to a law
enforcement agency pursuant to 5 U.S.C. 552a(b)(7); (c) An accounting
which has been exempted from disclosure pursuant to 5 U.S.C. 552a (j) or
(k).
08 CFR 103.25 Notice of access decisions; time limits.
(a) Responsibility for notice. The system manager of the system from
which information is sought or his delegate has responsibility for
determining whether access to records is available under the Privacy Act
and for notifying the individual of that determination in accordance
with these regulations. If access is denied because of an exemption,
the responsible person shall notify the individual that he may appeal
that determination to the Deputy Attorney General within thirty working
days of the receipt of the determination.
(b) Time limits for access determinations. The time limits provided
by 28 CFR 16.45 shall be applicable to requests for access to
information pursuant to the Privacy Act of 1974.
08 CFR 103.26 Fees for copies of records.
The fees charged by the Service under the Privacy Act shall be those
specified in 28 CFR 16.46. Remittances shall be made in accordance with
103.7(a) of this part.
08 CFR 103.27 Appeals from denials of access.
An individual who has been denied access by the Service to the
records concerning him may appeal that decision in the manner prescribed
in 28 CFR 16.47.
08 CFR 103.28 Requests for correction of records.
(a) How made. Unless a record is exempted from corrections, a
request for amendments or corrections is made by the individual
concerned, either in person or by mail, by addressing the written
request to the manager of the system in which the record is maintained.
The requester's identity must be established as provided in 103.21. The
request must indicate the particular record involved, the nature of the
correction sought, and the justification. A request made by mail should
be addressed to the system manager at the address specified in the
''Notice of Systems of Records'' published by the General Services
Administration and the request and envelope must be clearly marked
''Privacy Correction Request.'' Where the requester cannot determine the
precise system manager or believes that the same record appears in more
than one system, the request may be addressed to the Office of the
Associate Commissioner, Information Systems, Immigration and
Naturalization Service, 425 I Street, NW., Washington, DC 20536. This
office shall assist the requester in identifying the location of the
record.
(b) Initial determination. Within 10 working days of the receipt of
the request, the appropriate Service official shall advise the requester
that the request has been received. If the record is to be amended or
corrected, the system manager may so advise the requester but if
correction is refused, in whole or in part, the referral must be by the
head of the component in which the record is located, or his designee.
If a correction is to be made, the requester shall be advised of the
right to obtain a copy of the corrected record upon payment of the
standard fee, established in 28 CFR 16.46. If a correction or amendment
is refused, in whole or in part, the requester shall be given the
reasons and advised of the right to appeal to the Assistant Attorney
General under 28 CFR 16.48.
(c) Appeals. A refusal, in whole or in part, to amend or correct a
record may be appealed as provided in 28 CFR 16.48.
(d) Appeal determinations. 28 CFR 16.48 provides for appeal
determinations.
(e) Statements of disagreement. Statements of disagreement may be
furnished by the individual in the manner prescribed in 28 CFR 16.48.
(f) Notices of correction or disagreement. When a record has been
corrected, the system manager shall, within thirty working days thereof,
advise all prior recipients of the record whose identity can be
determined pursuant to the accounting required by the Privacy Act or any
other accounting previously made, of the correction. Any dissemination
of a record after the filing of a statement of disagreement shall be
accompanied by a copy of that statement. Any statement of the Service
giving reasons for refusing to correct shall be included in the file.
(40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27,
1983; 48 FR 51431, Nov. 9, 1983)
08 CFR 103.29 Records not subject to correction.
The following records are not subject to correction or amendment by
individuals:
(a) Transcripts or written statements made under oath;
(b) Transcripts of Grand Jury Proceedings, judicial or quasi-judicial
proceedings which form the official record of those proceedings;
(c) Pre-sentence reports comprising the property of the courts but
maintained in Service files; and
(d) Records duly exempted from correction by notice published in the
Federal Register.
08 CFR 103.30 Accounting for disclosures.
(a) An accounting of each disclosure of information for which
accounting is required (see 103.24 of this part) shall be attached to
the relating record. A copy of Form G-658, Record of Information
Disclosure (Privacy Act), or other disclosure document shall be used for
this accounting. The system manager shall advise the requester,
promptly upon request as described in 103.24, of the persons or
agencies outside the Department of Justice to which records concerning
the requester have been disclosed.
(b) Accounting records, at a minimum, shall include the
identification of the particular record disclosed, the name and address
of the person or agency to which disclosed, and the date of the
disclosure. Accounting records shall be maintained for at least 5
years, or until the record is destroyed or transferred to the Archives,
whichever is later.
(c) Accounting is not required to be kept for disclosures made within
the Department of Justice or disclosures made pursuant to the Freedom of
Information Act.
(40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27,
1983)
08 CFR 103.31 Notices of subpoenas and emergency disclosures.
(a) Subpoenas. When records concerning an individual are subpoenaed
by a Grand Jury, court, or a quasijudicial agency, the official served
with the subpoena shall be responsible for assuring that notice of its
issuance is provided to the individual. Notice shall be provided within
10 days of the service of the subpoena or, in the case of a Grand Jury
subpoena, within 10 days of its becoming a matter of public record.
Notice shall be mailed to the last known address of the individual and
shall contain the following information: The date the subpoena is
returnable, the court in which it is returnable, the name and number of
the case or proceeding, and the nature of the information sought.
Notice of the issuance of subpoenas is not required if the system of
records has been exempted from the notice requirement pursuant to 5
U.S.C. 552a(j), by a Notice of Exemption published in the Federal
Register.
(b) Emergency disclosures. If information concerning an individual
has been disclosed to any person under compelling circumstances
affecting health or safety, the individual shall be notified at his last
known address within 10 working days of the disclosure. Notification
shall include the following information: The nature of the information
disclosed, the person or agency to whom it was disclosed, the date of
the disclosure, and the compelling circumstances justifying the
disclosure. Notification shall be given by the officer who made or
authorized the disclosure.
08 CFR 103.32 Information forms.
(a) Review of forms. The Service shall be responsible for the review
of forms it uses to collect information from and about individuals.
(b) Scope of review. The Service Forms Control Unit shall review
each form to assure that it complies with the requirements of 28 CFR
16.52.
08 CFR 103.33 Contracting record systems.
Any contract by the Service for the operation of a record system
shall be in compliance with 28 CFR 16.53.
08 CFR 103.34 Security of records systems.
The security of records systems shall be in accordance with 28 CFR
16.54.
08 CFR 103.35 Use and collection of Social Security numbers.
The use and collection of Social Security numbers shall be in
accordance with 28 CFR 16.55.
08 CFR 103.36 Employee standards of conduct with regard to privacy.
Service employee standards of conduct with regard to privacy shall be
in compliance with 28 CFR 16.56.
08 CFR 103.36 PART 109 -- (RESERVED)
08 CFR 103.36 PART 204 -- IMMIGRANT PETITIONS
Sec.
204.1 General information about relative petitions.
204.2 Relative petitions.
204.3 Orphans.
204.4 Amerasian child of a United States citizen.
204.5 Petitions for employment-based immigrants.
204.6 Petitions for employment creation aliens.
204.7 Preservation of benefits contained in savings clause of
Immigration and Nationality Act Amendments of 1976.
204.8 Petitions for employees of certain United States businesses
operating in Hong Kong.
204.9 Special immigrant status for certain aliens who have served
honorably (or are enlisted to serve) in the Armed Forces of the United
States for at least 12 years.
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186A, 1255;
8 CFR part 2.
08 CFR 204.1 General information about relative petitions.
(a) Types of relative petitions. A petitioner seeking to accord a
classification as an immediate relative under section 201(b) of the Act
or a classification as a preference immigrant under section 203(a) of
the Act on behalf of a qualifying relative must file a Form I-30,
Petition for Alien Relative. A widow or widow seeking classification as
an immediate relative must file a Form I-360, Petition for Amerasian,
Widow, or Special Immigrant. A petitioner seeking classification on
behalf of an orphan as defined in 101(b)(1)(F) of the Act must file
either Form I-600 or Form I-600A. A petitioner seeking classification
as, or on behalf of, an Amerasian under Public Law 97-359 must file a
Form I-360, Petition for Amerasian, Widow, or Special Immigrant. The
Form I-130 and Form I-360 petitions are described in 204.2; orphan
petitions are described in 204.3; and Amerasian petitions are
described in 204.4.
(b) Filing fee. Forms I-130 and I-360 must be accompanied by the
appropriate fee under 8 CFR 103.7(b)(1).
(c) Filing date. The filing date of a petition shall be the date it
is properly filed under paragraph (d) of this section and shall
constitute the priority date.
(d) Proper filing. A petition shall be considered properly filed if:
(1) It is signed by the petitioner, and
(2) A fee has been received by the Service office or United States
Consular office having jurisdiction.
(3) If, during normal processing, a delay results from deficiencies
in the initial filing, the priority date will be established only when
the petition is properly signed by the petitioner and the fee has been
collected by the Service. If questions arise concerning the filing of
the petition which cannot be resolved through a check of the Service fee
receipting system (FARES) or other fee collection system, then the
director may consider the date of receipt of the petition to be the
priority date.
(e) Jurisdiction -- (1) Petitioner residing in the United States.
The petition must be filed with the Service office having jurisdiction
over the place where the petitioner is residing. When the petition is
accompanied by an application for adjustment of status, the petition may
be filed with the Service office having jurisdiction over the
beneficiary's place of residence.
(2) Petitioner residing in certain countries abroad. The Service has
overseas offices located in Vienna, Austria; Frankfurt, Germany;
Athens, Greece; Hong Kong; New Delhi, India; Rome, Italy; Nairobi,
Kenya; Seoul, Korea; Ciudad Juarez, Mexico City, Monterrey,
Guadalajara, and Tijuana, Mexico; Manila, the Philippines; Singapore;
Bangkok, Thailand; and London, the United Kingdom of Great Britain and
Northern Ireland. If the petitioner resides in one of these countries,
the petition must be filed with the Service office located in that
country. The beneficiary does not have to reside in the same
jurisdiction as the petitioner for the Service to accept the petition.
The overseas Service officer may accept and adjudicate a petition filed
by a petitioner who does not reside within the office's jurisdiction
when it is established that emergent or humanitarian reasons for
acceptance exist or when it is in the national interest.
(3) Jurisdiction assumed by United States consular officer. United
States consular officers assigned to visa-issuing posts abroad, except
those in countries listed in paragraph (e)(2) of this section, are
authorized to accept and approve a relative petition or a petition filed
by a widow or widower if the petitioner resides in the area over which
the post has jurisdiction, regardless of the beneficiary's residence or
physical presence at the time of filing. In emergent or humanitarian
cases and cases in the national interest, the United States consular
officer may accept a petition filed by a petitioner who does not reside
within the consulate's jurisdiction. While consular officers are
authorized to approve petitions, they must refer any petition which is
not clearly approvable to the appropriate Service office. Consular
officers may consult with the appropriate Service office abroad prior to
stateside referral, if they deem it necessary.
(f) Supporting documentation. (1) Documentary evidence consists of
those documents which establish the United States citizenship or lawful
permanent resident status of the petitioner and the claimed relationship
of the petitioner to the beneficiary. They must be in the form of
primary evidence, if available. When it is established that primary
evidence is not available, secondary evidence may be accepted. To
determine the availability of primary documents, the Service will refer
to the Department of State's Foreign Affairs Manual (FAM). When the FAM
shows that primary documents are generally available in the country of
issue but the petitioner claims that his or her document is unavailable,
a letter from the appropriate registrar stating that the document is not
available will not be required before the Service will accept secondary
evidence.
(2) Original documents or legible, true copies of original documents
are acceptable. The Service reserves the right to require submission of
original documents when deemed necessary. Documents submitted with the
petition will not be returned to the petitioner, except when originals
are requested by the Service. If original documents are requested by
the Service, they will be returned to the petitioner after a decision on
the petition has been rendered, unless their validity or authenticity is
in question. When an interview is required, all original documents must
be presented for examination at the interview.
(3) Foreign language documents must be accompanied by an English
translation which has been certified by a competent translator.
(g) Evidence of petitioner's United States citizenship or lawful
permanent residence -- (1) Primary evidence. A petition must be
accompanied by one of the following:
(i) A birth certificate that was issued by a civil authority and that
establishes the petitioner's birth in the United States;
(ii) An unexpired United States passport issued initially for a full
ten-year period to a petitioner over the age of eighteen years as a
citizen of the United States (and not merely as a noncitizen national);
(iii) An unexpired United States passport issued initially for a full
five-year period to the petitioner under the age of eighteen years as a
citizen of the United States (and not merely as a noncitizen national);
(iv) A statement executed by a United States consular officer
certifying the petitioner to be a United States citizen and the bearer
of a currently valid United States passport;
(v) The petitioner's Certificate of Naturalization or Certificate of
Citizenship;
(vi) Department of State Form FS-240, Report of Birth Abroad of a
Citizen of the United States, relating to the petitioner;
(vii) The petitioner's Form I-151 or I-551 Alien Registration Receipt
Card, or other proof given by the Service as evidence of lawful
permanent residence. The Service will accept copies of Forms I-151 or
I-551, Certificate of Naturalization, or Certificate of Citizenship when
submitted as evidence of United States citizenship or lawful permanent
residence.
(2) Secondary evidence. If primary evidence is unavailable, the
petitioner must present secondary evidence. Any evidence submitted as
secondary evidence will be evaluated for authenticity and credibility.
Secondary evidence may include, but is not limited to, one or more of
the following documents:
(i) A baptismal certificate with the seal of the church, showing the
date and place of birth in the United States and the date of baptism;
(ii) Affidavits sworn to by persons who were living at the time and
who have personal knowledge of the event to which they attest. The
affidavits must contain the affiant's full name and address, date and
place of birth, relationship to the parties, if any, and complete
details concerning how the affiant acquired knowledge of the event;
(iii) Early school records (preferably from the first school) showing
the date of admission to the school, the child's date and place of
birth, and the name(s) and place(s) of birth of the parent(s);
(iv) Census records showing the name, place of birth, and date of
birth or age of the petitioner; or
(v) If it is determined that it would cause unusual delay or hardship
to obtain documentary proof of birth in the United States, a United
States citizen petitioner who is a member of the Armed Forces of the
United States and who is serving outside the United States may submit a
statement from the appropriate authority of the Armed Forces. The
statement should attest to the fact that the personnel records of the
Armed Forces show that the petitioner was born in the United States on a
certain date.
(h) Requests for additional documentation. When the Service
determines that the evidence is not sufficient, an explanation of the
deficiency will be provided and additional evidence will be requested.
The petitioner will be given 60 days to present additional evidence, to
withdraw the petition, to request a decision based on the evidence
submitted, or to request additional time to respond. If the director
determines that the initial 60-day period is insufficient to permit the
presentation of additional documents, the director may provide an
additional 60 days for the submission. The total time shall not exceed
120 days, unless unusual circumstances exist. Failure to respond to a
request for additional evidence will result in a decision based on the
evidence previously submitted.
(57 FR 41056, Sept. 9, 1992)
08 CFR 204.2 Relative petitions.
(a) Petition for a spouse -- (1) Eligibility. A United States
citizen or alien admitted for lawful permanent residence may file a
petition on behalf of a spouse.
(i) Marriage within five years of petitioner's obtaining lawful
permanent resident status. (A) A visa petition filed on behalf of an
alien by a lawful permanent resident spouse may not be approved if the
marriage occurred within five years of the petitioner being accorded the
status of lawful permanent resident based upon a prior marriage to a
United States citizen or alien lawfully admitted for permanent
residence, unless:
(1) The petitioner establishes by clear and convincing evidence that
the marriage through which the petitioner gained permanent residence was
not entered into for the purposes of evading the immigration laws; or
(2) The marriage through which the petitioner obtained permanent
residence was terminated through death.
(B) Documentation. The petitioner should submit documents which
cover the period of the prior marriage. The types of documents which
may establish that the prior marriage was not entered into for the
purpose of evading the immigration laws include, but are not limited to:
(1) Documentation showing joint ownership of property;
(2) A lease showing joint tenancy of a common residence;
(3) Documentation showing commingling of financial resources;
(4) Birth certificate(s) of child(ren) born to the petitioner and
prior spouse;
(5) Affidavits sworn to or affirmed by third parties having personal
knowledge of the bona fides of the prior marital relationship. (Each
affidavit must contain the full name and address, date and place of
birth of the person making the affidavit; his or her relationship, if
any, to the petitioner, beneficiary or prior spouse; and complete
information and details explaining how the person acquired his or her
knowledge of the prior marriage. The affiant may be required to testify
before an immigration officer about the information contained in the
affidavit. Affidavits should be supported, if possible, by one or more
types of documentary evidence listed in this paragraph.); or
(6) Any other documentation which is relevant to establish that the
prior marriage was not entered into in order to evade the immigration
laws of the United States.
(C) The petitioner must establish by clear and convincing evidence
that the prior marriage was not entered into for the purpose of evading
the immigration laws. Failure to meet the ''clear and convincing
evidence'' standard will result in the denial of the petition. Such a
denial shall be without prejudice to the filing of a new petition once
the petitioner has acquired five years of lawful permanent residence.
The director may choose to initiate deportation proceedings based upon
information gained through the adjudication of the petition; however,
failure to initiate such proceedings shall not establish that the
petitioner's prior marriage was not entered into for the purpose of
evading the immigration laws. Unless the petition is approved, the
beneficiary shall not be accorded a filing date within the meaning of
section 203(c) of the Act based upon any spousal second preference
petition.
(ii) Fraudulent marriage prohibition. Section 204(c) of the Act
prohibits the approval of a visa petition filed on behalf of an alien
who has attempted or conspired to enter into a marriage for the purpose
of evading the immigration laws. The director will deny a petition for
immigrant visa classification filed on behalf of any alien for whom
there is substantial and probative evidence of such an attempt or
conspiracy, regardless of whether that alien received a benefit through
the attempt or conspiracy. Although it is not necessary that the alien
have been convicted of, or even prosecuted for, the attempt or
conspiracy, the evidence of the attempt or conspiracy must be contained
in the alien's file.
(iii) Marriage during proceedings -- general prohibition against
approval of visa petition. A visa petition filed on behalf of an alien
by a United States citizen or lawful permanent resident spouse shall not
be approved if the marriage creating the relationship occurred on or
after November 10, 1986, and while the alien was in deportation or
exclusion proceedings, or judicial proceedings relating thereto.
(A) Commencement of proceedings. The period during which the alien
is in deportation or exclusion proceedings, or judicial proceedings
relating thereto, commences:
(1) With the issuance of the Order to Show Cause and Notice of
Hearing (Form I-221) prior to June 20, 1991;
(2) With the filing of an Order to Show Cause and Notice of Hearing
(Form I-221), issued on or after June 20, 1991, with the Office of the
Immigration Judge; or
(3) With the issuance of the Notice to Applicant for Admission
Detained for Hearing before Immigration Judge (Form I-122).
(B) Termination of proceedings. The period during which the alien is
in deportation or exclusion proceedings, or judicial proceedings
relating thereto, terminates:
(1) When the alien departs from the United States while an order of
deportation is outstanding or before the expiration of the voluntary
departure time granted in connection with an alternate order of
deportation under 8 CFR 243.5;
(2) When the alien departs from the United States pursuant to an
order of exclusion;
(3) When the alien is found not to be excludable or deportable from
the United States;
(4) When the Order to Show Cause is canceled pursuant to 8 CFR
242.7(a);
(5) When proceedings are terminated by the immigration judge or the
Board of Immigration Appeals; or
(6) When a petition for review or an action for habeas corpus is
granted by a Federal Court on judicial review.
(C) Exemptions. This prohibition shall no longer apply if:
(1) The alien is found not to be excludable or deportable from the
United States;
(2) The Order to Show Cause is canceled pursuant to 8 CFR 242.7(a);
(3) Proceedings are terminated by the immigration judge or the Board
of Immigration Appeals;
(4) A petition for review or an action for habeas corpus is granted
by a Federal Court on judicial review;
(5) The alien has resided outside the United States for two or more
years following the marriage; or
(6) The petitioner establishes eligibility for the bona fide marriage
exemption under section 204(g) of the Act by providing clear and
convincing evidence that the marriage was entered into in good faith and
in accordance with the laws of the place where the marriage took place,
was not entered into for the purpose of procuring the alien's entry as
an immigrant, and no fee or other consideration was given (other than to
an attorney for assistance in preparation of a lawful petition) for the
filing of the petition.
(D) Request for exemption. No application or fee is required to
request an exemption. The request must be made in writing and submitted
with the Form I-130. The request must state the reason for seeking the
exemption and must be supported by documentary evidence establishing
eligibility for the exemption.
(E) Evidence to establish eligibility for the bona fide marriage
exemption. The petitioner should submit documents which establish that
the marriage was entered into in good faith and not entered into for the
purpose of procuring the alien's entry as an immigrant. The types of
documents the petitioner may submit include, but are not limited to:
(1) Documentation showing joint ownership of property;
(2) Lease showing joint tenancy of a common residence;
(3) Documentation showing commingling of financial resources;
(4) Birth certificate(s) of child(ren) born to the petitioner and
beneficiary;
(5) Affidavits of third parties having knowledge of the bona fides of
the marital relationship (Such persons may be required to testify before
an immigration officer as to the information contained in the affidavit.
Affidavits must be sworn to or affirmed by people who have personal
knowledge of the marital relationship. Each affidavit must contain the
full name and address, date and place of birth of the person making the
affidavit and his or her relationship to the spouses, if any. The
affidavit must contain complete information and details explaining how
the person acquired his or her knowledge of the marriage. Affidavits
should be supported, if possible, by one or more types of documentary
evidence listed in this paragraph); or
(6) Any other documentation which is relevant to establish that the
marriage was not entered into in order to evade the immigration laws of
the United States.
(F) Decision. Any petition filed during the prohibited period shall
be denied, unless the petitioner establishes eligibility for an
exemption from the general prohibition. The petitioner shall be
notified in writing of the decision of the director.
(G) Denials. The denial of a petition because the marriage took
place during the prohibited period shall be without prejudice to the
filing of a new petition after the beneficiary has resided outside the
United States for the required period of two years following the
marriage. The denial shall also be without prejudice to the
consideration of a new petition or a motion to reopen the visa petition
proceedings if deportation or exclusion proceedings are terminated after
the denial other than by the beneficiary's departure from the United
States. Furthermore, the denial shall be without prejudice to the
consideration of a new petition or motion to reopen the visa petition
proceedings, if the petitioner establishes eligibility for the bona fide
marriage exemption contained in this part: Provided, That no motion to
reopen visa petition proceedings may be accepted if the approval of the
motion would result in the beneficiary being accorded a priority date
within the meaning of section 203(c) of the Act earlier than November
29, 1990.
(H) Appeals. The decision of the Board of Immigration Appeals
concerning the denial of a relative visa petition because the petitioner
failed to establish eligibility for the bona fide marriage exemption
contained in this part will constitute the single level of appellate
review established by statute.
(I) Priority date. A preference beneficiary shall not be accorded a
priority date within the meaning of section 203(c) of the Act based upon
any relative petition filed during the prohibited period, unless an
exemption contained in this part has been granted. Furthermore, a
preference beneficiary shall not be accorded a priority date prior to
November 29, 1990, based upon the approval of a request for
consideration for the bona fide marriage exemption contained in this
part.
(2) Evidence for petition for a spouse. In addition to evidence of
United States citizenship or lawful permanent residence, the petitioner
must also provide evidence of the claimed relationship. A petition
submitted on behalf of a spouse must be accompanied by a recent
ADIT-style photograph of the petitioner, a recent ADIT-style photograph
of the beneficiary, a certificate of marriage issued by civil
authorities, and proof of the legal termination of all previous
marriages of both the petitioner and the beneficiary. However,
non-ADIT-style photographs may be accepted by the district director when
the petitioner or beneficiary reside(s) in a country where such
photographs are unavailable or cost prohibitive.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If
the beneficiary is in the United States and is eligible for adjustment
of status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. No alien may be classified as an
immediate relative as defined in section 201(b) of the Act unless he or
she is the direct beneficiary of an approved petition for that
classification. Therefore, a child of an alien approved for
classification as an immediate relative spouse is not eligible for
derivative classification and must have a separate petition filed on his
or her behalf. A child accompanying or following to join a principal
alien under section 203(a)(2) of the Act may be included in the
principal alien's second preference visa petition. The child will be
accorded second preference classification and the same priority date as
the principal alien. However, if the child reaches the age of
twenty-one prior to the issuance of a visa to the principal alien
parent, a separate petition will be required. In such a case, the
original priority date will be retained if the subsequent petition is
filed by the same petitioner. Such retention of priority date will be
accorded only to a son or daughter previously eligible as a derivative
beneficiary under a second preference spousal petition.
(b) Petition by widow or widower of a United States citizen -- (1)
Eligibility. A widow or widower of a United States citizen may file a
petition and be classified as an immediate relative under section 201(b)
of the Act if:
(i) He or she had been married for at least two years to a United
States citizen.
(Note: The United States citizen is not required to have had the
status of United States citizen for the entire two year period, but must
have been a United States citizen at the time of death.)
(ii) The petition is filed within two years of the death of the
citizen spouse or before November 29, 1992, if the citizen spouse died
before November 29, 1990;
(iii) The alien petitioner and the citizen spouse were not legally
separated at the time of the citizen's death; and
(iv) The alien spouse has not remarried.
(2) Evidence for petition of widow or widower. If a petition is
submitted by the widow or widower of a deceased United States citizen,
it must be accompanied by evidence of citizenship of the United States
citizen and primary evidence, if available, of the relationship in the
form of a marriage certificate issued by civil authorities, proof of the
termination of all prior marriages of both husband and wife, and the
United States citizen's death certificate issued by civil authorities.
To determine the availability of primary documents, the Service will
refer to the Department of State's Foreign Affairs Manual (FAM). When
the FAM shows that primary documents are generally available in the
country at issue but the petitioner claims that his or her document is
unavailable, a letter from the appropriate registrar stating that the
document is not available will be required before the Service will
accept secondary evidence. Secondary evidence will be evaluated for its
authenticity and credibility. Secondary evidence may include:
(i) Such evidence of the marriage and termination of prior marriages
as religious documents, tribal records, census records, or affidavits;
and
(ii) Such evidence of the United States citizen's death as religious
documents, funeral service records, obituaries, or affidavits.
Affidavits submitted as secondary evidence pursuant to paragraphs
(b)(2)(i) and (b)(2)(ii) of this section must be sworn to or affirmed by
people who have personal knowledge of the event to which they attest.
Each affidavit should contain the full name and address, date and place
of birth of the person making the affidavit and his or her relationship,
if any, to the widow or widower. Any such affidavit must contain
complete information and details explaining how knowledge of the event
was acquired.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If
the widow or widower is in the United States and is eligible for
adjustment of status under section 245 of the Act, the approved petition
will be retained by the Service. If the petition is denied, the widow
or widower will be notified of the reasons for the denial and of the
right to appeal in accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A child or unmarried son or daughter
of an alien widow or widower classified as an immediate relative is not
eligible for derivative classification as an immediate relative and must
have a petition filed on his or her behalf if seeking immigrant
classification.
(c) Petition for a child or son or daughter -- (1) Eligibility. A
United States citizen may file a petition on behalf of an unmarried
child under twenty-one years of age for immediate relative
classification under section 201(b) of the Act. A United States citizen
may file a petition on behalf of an unmarried son or daughter over
twenty-one years of age under section 203(a)(1) or for a married son or
daughter for preference classification under section 203(a)(3) of the
Act. An alien lawfully admitted for permanent residence may file a
petition on behalf of a child or an unmarried son or daughter for
preference classification under section 203(a)(2) of the Act.
(2) Evidence to support petition for child or son or daughter. In
addition to evidence of United States citizenship or lawful permanent
resident, the petitioner must also provide evidence of the claimed
relationship.
(i) Primary evidence for a legitimate child or son or daughter. If a
petition is submitted by the mother, the birth certificate of the child
showing the mother's name must accompany the petition. If the mother's
name on the birth certificate is different from her name on the
petition, evidence of the name change must also be submitted. If a
petition is submitted by the father, the birth certificate of the child,
a marriage certificate of the parents, and proof of legal termination of
the parents' prior marriages, if any, issued by civil authorities must
accompany the petition. If the father's name has been legally changed,
evidence of the name change must also accompany the petition.
(ii) Primary evidence for a legitimated child or son or daughter. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If the
legitimation is based on the laws of the country or state of the
father's residence or domicile, the father must have resided -- while
the child was under eighteen years of age -- in the country or state
under whose laws the child has been legitimated. Primary evidence of
the relationship should consist of the beneficiary's birth certificate
and the parents' marriage certificate or other evidence of legitimation
issued by civil authorities.
(iii) Primary evidence for an illegitimate child or son or daughter.
If a petition is submitted by the mother, the child's birth certificate,
issued by civil authorities and showing the mother's name, must
accompany the petition. If the mother's name on the birth certificate
is different from her name as reflected in the petition, evidence of the
name change must also be submitted. If the petition is submitted by the
purported father of a child or son or daughter born out of wedlock, the
father must show that he is the natural father and that a bona fide
parent-child relationship was established when the child or son or
daughter was unmarried and under twenty-one years of age. Such a
relationship will be deemed to exist or to have existed where the father
demonstrates or has demonstrated an active concern for the child's
support, instruction, and general welfare. Primary evidence to
establish that the petitioner is the child's natural father is the
beneficiary's birth certificate, issued by civil authorities and showing
the father's name. If the father's name has been legally changed,
evidence of the name change must accompany the petition. Evidence of a
parent/child relationship should establish more than merely a biological
relationship. Emotional and/or financial ties or a genuine concern and
interest by the father for the child's support, instruction, and general
welfare must be shown. There should be evidence that the father and
child actually lived together or that the father held the child out as
being his own, that he provided for some or all of the child's needs, or
that in general the father's behavior evidenced a genuine concern for
the child. The most persuasive evidence for establishing a bona fide
parent/child relationship and financial responsibility by the father is
documentary evidence which was contemporaneous with the events in
question. Such evidence may include, but is not limited to: money
order receipts or cancelled checks showing the father's financial
support of the beneficiary; the father's income tax returns; the
father's medical or insurance records which include the beneficiary as a
dependent; school records for the beneficiary; correspondence between
the parties; or notarized affidavits of friends, neighbors, school
officials, or other associates knowledgeable about the relationship.
(iv) Primary evidence for a stepchild. If a petition is submitted by
a stepparent on behalf of a stepchild or stepson or stepdaughter, the
petition must be supported by the stepchild's or stepson's or
stepdaughter's birth certificate, issued by civil authorities and
showing the name of the beneficiary's parent to whom the petitioner is
married, a marriage certificate issued by civil authorities which shows
that the petitioner and the child's natural parent were married before
the stepchild or stepson or stepdaughter reached the age of eighteen;
and evidence of the termination of any prior marriages of the petitioner
and the natural parent of the stepchild or stepson or stepdaughter.
(v) Secondary evidence. When it is established that primary evidence
is not available, secondary evidence may be accepted. To determine the
availability of primary documents, the Service will refer to the
Department of State's Foreign Affairs Manual (FAM). When the FAM shows
that primary documents are generally available in the country at issue
but the petitioner claims that his or her document is unavailable, a
letter from the appropriate registrar stating that the document is not
available will be required before the Service will accept secondary
evidence. Secondary evidence will be evaluated for its authenticity and
credibility. Secondary evidence may take the form of historical
evidence; such evidence must have been issued contemporaneously with
the event which it documents any may include, but is not limited to,
medical records, school records, and religious documents. Affidavits
may also by accepted. When affidavits are submitted, they must be sworn
to by persons who were born at the time of and who have personal
knowledge of the event to which they attest. Any affidavit must contain
the affiant's full name and address, date and place of birth,
relationship to the party, if any, and complete details concerning how
the affiant acquired knowledge of the event.
(vi) Blood tests. The director may require that a specific Blood
Group Antigen Test be conducted of the beneficiary and the beneficiary's
father and mother. In general, blood tests will be required only after
other forms of evidence have proven inconclusive. If the specific Blood
Group Antigen Test is also found not to be conclusive and the director
determines that additional evidence is needed, a Human Leucocyte Antigen
(HLA) test may be requested. Tests will be conducted, at the expense of
the petitioner or beneficiary, by the United States Public Health
Service physician who is authorized overseas or by a qualified medical
specialist designated by the district director. The results of the test
should be reported on Form G-620. Refusal to submit to a Specific Blood
Group Antigen or HLA test when requested may constitute a basis for
denial of the petition, unless a legitimate religious objection has been
established. When a legitimate religious objection is established,
alternate forms of evidence may be considered based upon documentation
already submitted.
(vii) Primary evidence for an adopted child or son or daughter. A
petition may be submitted on behalf of an adopted child or son or
daughter by a United States citizen or lawful permanent resident if the
adoption took place before the beneficiary's sixteenth birthday, and if
the child has been in the legal custody of the adopting parent or
parents and has resided with the adopting parent or parents for at least
two years. A copy of the adoption decree, issued by the civil
authorities, must accompany the petition.
(A) Legal custody means the assumption of responsibility for a minor
by an adult under the laws of the state and under the order or approval
of a court of law or other appropriate government entity. This
provision requires that a legal process involving the courts or other
recognized government entity take place. If the adopting parent was
granted legal custody by the court or recognized governmental entity
prior to the adoption, that period may be counted toward fulfillment of
the two-year legal custody requirement. However, if custody was not
granted prior to the adoption, the adoption decree shall be deemed to
mark the commencement of legal custody. An informal custodial or
guardianship document, such as a sworn affidavit signed before a notary
public, is insufficient for this purpose.
(B) Evidence must also be submitted to show that the beneficiary
resided with the petitioner for at least two years. Generally, such
documentation must establish that the petitioner and the beneficiary
resided together in a familial relationship. Evidence of parental
control may include, but is not limited to, evidence that the adoptive
parent owns or maintains the property where the child resides and
provides financial support and day-to-day supervision. The evidence
must clearly indicate the physical living arrangements of the adopted
child, the adoptive parent(s), and the natural parent(s) for the period
of time during which the adoptive parent claims to have met the
residence requirement. When the adopted child continued to reside in
the same household as a natural parent(s) during the period in which the
adoptive parent petitioner seeks to establish his or her compliance with
this requirement, the petitioner has the burden of establishing that he
or she exercised primary parental control during that period of
residence.
(C) Legal custody and residence occurring prior to or after the
adoption will satisfy both requirements. Legal custody, like residence,
is accounted for in the aggregate. Therefore, a break in legal custody
or residence will not affect the time already fulfilled. To meet the
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of
the Act, the child must have been under 16 years of age when the
adoption is finalized.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If
the beneficiary is in the United States and is eligible for adjustment
of status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A spouse or child accompanying or
following to join a principal alien as used in this section may be
accorded the same preference and priority date as the principal alien
without the necessity of a separate petition. However, a child of an
alien who is approved for classification as an immediate relative is not
eligible for derivative classification and must have a separate petition
approved on his or her behalf.
(5) Name change. When the petitioner's name does not appear on the
child's birth certificate, evidence of the name change (such as the
petitioner's marriage certificate, legal document showing name change,
or other similar evidence) must accompany the petition. If the
beneficiary's name has been legally changed, evidence of the name change
must also accompany the petition.
(d) Relatives of legalized aliens. A second preference petition
which is filed to accord an alien immigrant classification under section
203(a)(2) of the Act will also be considered for immigrant visa numbers
which will be issued during fiscal years 1992, 1993, and 1994 for
spouses and children of legalized aliens in accordance with section 112
of the Immigration Act of 1990. To be eligible, the lawful permanent
resident alien petitioner must have obtained permanent resident status
through legalization under section 245A or section 210 of the Act or
section 202 of the Immigration Reform and Control Act of 1986. The
relationship may have been created either before or after the date that
the petitioner was admitted to the United States as a lawful permanent
resident, as long as it existed prior to the filing of a relative
petition.
(e) Petition for a parent -- (1) Eligibility. Only a United States
citizen who is twenty-one years of age or older may file a petition on
behalf of a parent for classification under section 201(b) of the Act.
(2) Evidence to support a petition for a parent. In addition to
evidence of United States citizenship as listed in 204.1(g) of this
part, the petitioner must also provide evidence of the claimed
relationship.
(i) Primary evidence if petitioner is a legitimate son or daughter.
If a petition is submitted on behalf of the mother, the birth
certificate of the petitioner showing the mother's name must accompany
the petition. If the mother's name on the birth certificate is
different from her name as reflected in the petition, evidence of the
name change must also be submitted. If a petition is submitted on
behalf of the father, the birth certificate of the petitioner, a
marriage certificate of the parents, and proof of legal termination of
the parents' prior marriages, if any, issued by civil authorities must
accompany the petition. If the father's name on the birth certificate
has been legally changed, evidence of the name change must also
accompany the petition.
(ii) Primary evidence if petitioner is a legitimated son or daughter.
A child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parent's marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If the
legitimation is based on the laws of the country or state of the
father's residence or domicile, the father must have resided -- while
the child was under eighteen years of age -- in the country or state
under whose laws the child has been legitimated. Primary evidence of
the relationship should consist of petitioner's birth certificate and
the parents' marriage certificate or other evidence of legitimation
issued by civil authorities.
(iii) Primary evidence if the petitioner is an illegitimate son or
daughter. If a petition is submitted on behalf of the mother, the
petitioner's birth certificate, issued by civil authorities and showing
the mother's name, must accompany the petition. If the mother's name on
the birth certificate is different from her name as reflected in the
petition, evidence of the name change must also be submitted. If the
petition is submitted on behalf of the purported father of the
petitioner, the petitioner must show that the beneficiary is his or her
natural father and that a bona fide parent-child relationship was
established when the petitioner was unmarried and under twenty-one years
of age. Such a relationship will be deemed to exist or to have existed
where the father demonstrates or has demonstrated an active concern for
the child's support, instruction, and general welfare. Primary evidence
to establish that the beneficiary is the petitioner's natural father is
the petitioner's birth certificate, issued by civil authorities and
showing the father's name. If the father's name has been legally
changed, evidence of the name change must accompany the petition.
Evidence of a parent/child relationship should establish more than
merely a biological relationship. Emotional and/or financial ties or a
genuine concern and interest by the father for the child's support,
instruction, and general welfare must be shown. There should be
evidence that the father and child actually lived together or that the
father held the child out as being his own, that he provided for some or
all of the child's needs, or that in general the father's behavior
evidenced a genuine concern for the child. The most persuasive evidence
for establishing a bona fide parent/child relationship is documentary
evidence which was contemporaneous with the events in question. Such
evidence may include, but is not limited to: money order receipts or
cancelled checks showing the father's financial support of the
beneficiary; the father's income tax returns; the father's medical or
insurance records which include the petitioner as a dependent; school
records for the petitioner; correspondence between the parties; or
notarized affidavits of friends, neighbors, school officials, or other
associates knowledgeable as to the relationship.
(iv) Primary evidence if petitioner is an adopted son or daughter. A
petition may be submitted for an adoptive parent by a United States
citizen who is twenty-one years of age or older if the adoption took
place before the petitioner's sixteenth birthday and if the two year
legal custody and residence requirements have been met. A copy of the
adoption decree, issued by the civil authorities, must accompany the
petition.
(A) Legal custody means the assumption of responsibility for a minor
by an adult under the laws of the state and under the order or approval
of a court of law or other appropriate government entity. This
provision requires that a legal process involving the courts or other
recognized government entity take place. If the adopting parent was
granted legal custody by the court or recognized governmental entity
prior to the adoption, that period may be counted toward fulfillment of
the two-year legal custody requirement. However, if custody was not
granted prior to the adoption, the adoption decree shall be deemed to
mark the commencement of legal custody. An informal custodial or
guardianship document, such as a sworn affidavit signed before a notary
public, is insufficient for this purpose.
(B) Evidence must also be submitted to show that the beneficiary
resided with the petitioner for at least two years. Generally, such
documentation must establish that the petitioner and the beneficiary
resided together in a parental relationship. The evidence must clearly
indicate the physical living arrangements of the adopted child, the
adoptive parent(s), and the natural parent(s) for the period of time
during which the adoptive parent claims to have met the residence
requirement.
(C) Legal custody and residence occurring prior to or after the
adoption will satisfy both requirements. Legal custody, like residence,
is accounted for in the aggregate. Therefore, a break in legal custody
or residence will not affect the time already fulfilled. To meet the
definition of child contained in sections 101(b)(1)(E) and 101(b)(2) of
the Act, the child must have been under 16 years of age when the
adoption is finalized.
(v) Name change. When the petition is filed by a child for the
child's parent, and the parent's name is not on the child's birth
certificate, evidence of the name change (such as the parent's marriage
certificate, a legal document showing the parent's name change, or other
similar evidence) must accompany the petition. If the petitioner's name
has been legally changed, evidence of the name change must also
accompany the petition.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If
the beneficiary is in the United States and is eligible for adjustment
of status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A child or a spouse of a principal
alien who is approved for classification as an immediate relative is not
eligible for derivative classification and must have a separate petition
approved on his or her behalf.
(f) Petition for a brother or sister -- (1) Eligibility. Only a
United States citizen who is twenty-one years of age or older may file a
petition of a brother or sister for classification under section
203(a)(4) of the Act.
(2) Evidence to support a petition for brother or sister. In
addition to evidence of United States citizenship, the petitioner must
also provide evidence of the claimed relationship.
(i) Primary evidence if the siblings share a common mother or are
both legitimate children of a common father. If a sibling relationship
is claimed through a common mother, the petition must be supported by a
birth certificate of the petitioner and a birth certificate of the
beneficiary showing a common mother. If the mother's name on one birth
certificate is different from her name as reflected on the other birth
certificate or in the petition, evidence of the name change must also be
submitted. If a sibling relationship is claimed through a common
father, the birth certificates of the beneficiary and petitioner, a
marriage certificate of the parents' and proof of legal termination of
the parents, prior marriage(s), if any, issued by civil authorities must
accompany the petition. If the father's name has been legally changed,
evidence of the name change must also accompany the petition.
(ii) Primary evidence if either or both siblings are legitimated. A
child can be legitimated through the marriage of his or her natural
parents, by the laws of the country or state of the child's residence or
domicile, or by the laws of the country or state of the father's
residence or domicile. If the legitimation is based on the natural
parents' marriage, such marriage must have taken place while the child
was under the age of eighteen. If the legitimation is based on the laws
of the country or state of the child's residence or domicile, the law
must have taken effect before the child's eighteenth birthday. If based
on the laws of the country or state of the father's residence or
domicile, the father must have resided -- while the child was under
eighteen years of age -- in the country or state under whose laws the
child has been legitimated. Primary evidence of the relationship should
consist of the petitioner's birth certificate, the beneficiary's birth
certificate, and the parents' marriage certificate or other evidence of
legitimation issued by civil authorities.
(iii) Primary evidence if either sibling is illegitimate. If one or
both of the siblings is (are) the illegitimate child(ren) of a common
father, the petitioner must show that they are the natural children of
the father and that a bona fide parent-child relationship was
established when the illegitimate child(ren) was (were) unmarried and
under twenty-one years of age. Such a relationship will be deemed to
exist or to have existed where the father demonstrates or has
demonstrated an active concern for the child's support, instruction, and
general welfare. Primary evidence is the petitioner's and beneficiary's
birth certificates, issued by civil authorities and showing the father's
name, and evidence that the siblings have or had a bona fide
parent/child relationship with the natural father. If the father's name
has been legally changed, evidence of the name change must accompany the
petition. Evidence of a parent/child relationship should establish more
than merely a biological relationship. Emotional and/or financial ties
or a genuine concern and interest by the father for the child's support,
instruction, and general welfare must be shown. There should be
evidence that the father and child actually lived together or that the
father held the child out as being his own, that he provided for some or
all of the child's needs, or that in general the father's behavior
evidenced a genuine concern for the child. The most persuasive evidence
for establishing a bona fide parent/child relationship is documentary
evidence which was contemporaneous with the events in question. Such
evidence may include, but is not limited to: money order receipts or
canceled checks showing the father's financial support of the
beneficiary; the father's income tax returns; the father's medical or
insurance records which include the beneficiary as a dependent; school
records for the beneficiary; correspondence between the parties; or
notarized affidavits of friends, neighbors, school officials, or other
associates knowledgeable about the relationship.
(iv) Primary evidence for stepsiblings. If the petition is submitted
on behalf of a brother or sister having a common father, the
relationship of both the petitioner and the beneficiary to the father
must be established as required in paragraphs (f)(2)(ii) and (f)(2)(iii)
of this section. If the petitioner and beneficiary are stepsiblings
through the marriages of their common father to different mothers, the
marriage certificates of the parents and evidence of the termination of
any prior marriages of the parents must be submitted.
(3) Decision on and disposition of petition. The approved petition
will be forwarded to the Department of State's Processing Center. If
the beneficiary is in the United States and is eligible for adjustment
of status under section 245 of the Act, the approved petition will be
retained by the Service. If the petition is denied, the petitioner will
be notified of the reasons for the denial and of the right to appeal in
accordance with the provisions of 8 CFR 3.3.
(4) Derivative beneficiaries. A spouse or a child accompanying or
following to join a principal alien beneficiary under this section may
be accorded the same preference and priority date as the principal alien
without the necessity of a separate petition.
(5) Name change. If the name of the petitioner, the beneficiary, or
both has been legally changed, evidence showing the name change (such as
a marriage certificate, a legal document showing the name change, or
other similar evidence) must accompany the petition.
(g) Validity of approved petitions -- (1) General. Unless terminated
pursuant to section 203(g) of the Act or revoked pursuant to part 205 of
this chapter, the approval of a petition to classify an alien as a
preference immigrant under paragraphs (a)(1), (a)(2), (a)(3), or (a)(4)
of section 203 of the Act, or as an immediate relative under section
201(b) of the Act, shall remain valid for the duration of the
relationship to the petitioner and of the petitioner's status as
established in the petition.
(2) Subsequent petition by same petitioner for same beneficiary.
When a visa petition has been approved, and subsequently a new petition
by the same petitioner is approved for the same preference
classification on behalf of the same beneficiary, the latter approval
shall be regarded as a reaffirmation or reinstatement of the validity of
the original petition, except when the original petition has been
terminated pursuant to section 203(g) of the Act or revoked pursuant to
part 205 of this chapter, or when an immigrant visa has been issued to
the beneficiary as a result of the petition approval.
(h) Automatic conversion of preference classification -- (1) By
change in beneficiary's marital status. (i) A currently valid petition
previously approved to classify the beneficiary as the unmarried son or
daughter of a United States citizen under section 203(a)(1) of the Act
shall be regarded as having been approved for preference status under
section 203(a)(3) of the Act as of the date the beneficiary marries.
The beneficiary's priority date is the same as the date the petition for
classification under section 203(a)(1) of the Act was properly filed.
(ii) A currently valid petition previously approved to classify a
child of a United States citizen as an immediate relative under section
201(b) of the Act shall be regarded as having been approved for
preference status under section 203(a)(3) of the Act as of the date the
beneficiary marries. The beneficiary's priority date is the same as the
date the petition for 201(b) classification was properly filed.
(iii) A currently valid petition classifying the married son or
married daughter of a United States citizen for preference status under
section 203(a)(3) of the Act shall, upon legal termination of the
beneficiary's marriage, be regarded as having been approved under
section 203(a)(1) of the Act if the beneficiary is over twenty-one years
of age. The beneficiary's priority date is the same as the date the
petition for classification under section 203(a)(3) of the Act was
properly filed. If the beneficiary is under twenty-one years of age,
the petition shall be regarded as having been approved for
classification as an immediate relative under section 201(b) of the Act
as of the date the petition for classification under section 203(a)(3)
of the Act was properly filed.
(2) By the beneficiary's attainment of the age of twenty-one years.
A currently valid petition classifying the child of a United States
citizen as an immediate relative under section 201(b) of the Act shall
be regarded as having been approved for preference status under section
203(a)(1) of the Act as of the beneficiary's twenty-first birthday. The
beneficiary's priority date is the same as the date the petition for
section 201(b) classification was filed.
(3) By the petitioner's naturalization. Effective upon the date of
naturalization of a petitioner who had been lawfully admitted for
permanent residence, a currently valid petition according preference
status under section 203(a)(2) of the Act to the petitioner's spouse and
unmarried children under twenty-one years of age shall be regarded as
having been approved for immediate relative status under section 201(b)
of the Act. Similarly, a currently valid petition according preference
status under section 203(a)(2) of the Act for the unmarried son or
daughter over twenty-one years of age shall be regarded as having been
approved under section 203(a)(1) of the Act. In any case of conversion
to classification under section 203(a)(1) of the Act, the beneficiary's
priority date is the same as the date the petition for classification
under section 203(a)(2) of the Act was properly filed.
(57 FR 41057, Sept. 9, 1992)
08 CFR 204.3 Orphans.
(a) Eligibility. An alien is eligible for classification under
section 201(b) of the Act as an orphan if he or she meets the definition
of ''child'' contained in section 101(b)(1)(F) of the Act. To obtain
immigration benefits on behalf of an orphan, the United States citizen
and spouse, if married, must file a Form I-600, Petition to Classify
Orphan as an Immediate Relative. In some cases, it may be advantageous
for the petitioner(s) to file a Form I-600A, Application for Advance
Processing of Orphan Petition, prior to filing the petition.
(b) Advance processing. (1) The prospective petitioner(s) may file a
Form I-600A, Application for Advance Processing of Orphan Petition,
when:
(i) A prospective adoptive child has not been located and identified;
(ii) The prospective petitioner, and/or spouse if married, is
traveling abroad to locate a child for adoption in the United States or
to adopt while abroad; or
(iii) The prospective petitioner, and/or spouse if married, is
traveling abroad to a country with no Service office to adopt a known
child while abroad, or to facilitate the adoption of a known child in
the United States, and wants to file a petition, Form I-600, at the
American consulate or embassy having jurisdiction over the child's place
of residence.
(2) Filing the application for advance processing. A United States
citizen and spouse, if married, may file Form I-600A. The prospective
petitioner(s) must complete the certification required on the form. The
form must be accompanied by the fee specified in 8 CFR 103.7(b)(1). If
the petitioner is married, the petitioner's spouse shall also sign the
Form I-600A. If unmarried, the petitioner must be at least twenty-four
years of age at the time of filing Form I-600A and at least twenty-five
years of age at the time of the child's adoption and the filing of a
petition, Form I-600, on behalf of the child.
(3) Evidence to be furnished with application for advance processing
of orphan petition. An Application for Advance Processing of Orphan
Petition, Form I-600A, must be accompanied by:
(i) Two sets of fingerprints on Form FD-258 for the United States
citizen petitioner and two sets for the spouse, if the petitioner is
married;
(ii) Proof of the petitioner's United States citizenship and age;
(iii) Proof of marriage, if the petitioner is married;
(iv) Proof of the termination of any prior marriages; and
(v) A valid home study as described in paragraph (c)(2)(iii) of this
section, if available. If not available, the home study must be
submitted within one year from the date of submission of the advance
processing application or the application will be considered to have
been abandoned.
(4) Decision and disposition of application for advance processing --
(i) Favorable determination. If the district director or officer in
charge makes a favorable determination concerning the ability of the
adoptive parent of parents to furnish proper care to a beneficiary
orphan if admitted to the United States, the district director of
officer in charge shall advise the petitioner of that determination.
The district director or officer in charge shall also advise the
petitioner that the advance processing application will be retained for
one year from the date of completion of all advance processing; that,
if a child is not identified to the Service within that year, the
application will be considered to have been abandoned; and that any
further proceedings will require the filing of a new advance processing
application or an orphan petition.
(ii) Unfavorable determination on completed advance processing
application. When information about the prospective adoptive parent or
parents indicates that an orphan petition should not be approved because
the prospective adoptive parent or parents would be unable to furnish
proper care to a beneficiary orphan, the district director or officer in
charge shall render an unfavorable determination concerning the advance
processing application. The district director or officer in charge
shall advise the petitioner(s) of the reasons for the unfavorable
determination and of the right to appeal in accordance with the
provisions of part 103 of this chapter. When an unfavorable
determination is made concerning an advance processing application, the
fee will not be refunded.
(5) When a child is identified -- (i) Pending advance processing.
When a child is identified while an advance processing application is
pending, the petitioner(s) shall submit a completed Form I-600 with all
documentary evidence relating to the child. A new fee is not required.
(ii) After advance processing has been completed. When a child has
been identified after a favorable determination concerning an advance
processing application, the petitioner(s) shall submit a completed Form
I-600 with all documentary evidence relating to the child. A new fee is
not required if the petitioner submits the Form I-600 within one year
from the date of completion of all advance processing.
(c) Petition for orphan -- (1) Filing. A petition for an orphan as
defined in section 101(b)(1)(F) of the Act must be filed on a Form I-600
by a United States citizen and spouse, if the petitioner is married.
The petition must identify the child and must be accompanied by the fee
required under 8 CFR 103.7(b)(1). If the petitioner is married, the Form
I-600 must also be signed by the petitioner's spouse. If unmarried, the
petitioner must be at least twenty-five years of age at the time of the
adoption and when the petition is filed.
(2) Evidence to support a petition for an orphan -- (i) General. As
used in this part, the term ''agency'' includes both organizations and
individuals, and the term ''responsible state agency'' means the public
adoption agency in any state in the United States authorized by statute
or license to perform home studies. A petition filed on behalf of an
orphan under 204.1(b) must be accompanied by:
(A) A valid home study which has been favorably recommended by an
agency of the state of the child's proposed residence, by an agency
authorized by that state to conduct such a study, or, in the case of a
child adopted abroad, by an appropriate public or a private adoption
agency licensed in the United States;
(B) Fingerprints on Form FD-258 of the United States citizen
petitioner, and of the spouse, if the petitioner is married;
(C) Evidence of the age and the United States citizenship of the
petitioner;
(D) A marriage certificate for the petitioner and spouse, if the
petitioner is married, and evidence of the termination of any previous
marriages;
(E) The child's birth certificate or, if a certificate is not
available, other proof of age;
(F) If the child has only one parent, evidence that the sole or
surviving parent is incapable of providing for the orphan's care and has
irrevocably released the orphan for emigration and adoption;
(G) Death certificate(s) of the child's parent(s), if applicable;
and
(H) A legible, true copy of the adoption decree together with a copy
of a certified translation if the child has been adopted abroad.
(ii) A child shall be considered as having a sole maternal parent
when it is established that the child is illegitimate and has not
acquired a stepparent within the contemplation of section 101(b)(2) of
the Act. A child shall be considered as having a surviving parent when
it is established that one of the child's parents is living while one is
deceased and the child has not acquired a stepparent within the meaning
of section 101(b)(2) of the Act. When a child who has a sole or
surviving parent has been adopted abroad, the requirement for an
irrevocable release in writing for the child's emigration and adoption
shall be considered to have been met if the adoption decree clearly sets
forth that the adoptive petitioner and spouse, if married, reside in the
United States and that the child's only parent has agreed to release the
child for adoption. A child who has been unconditionally abandoned to
an orphanage shall be considered as having no parents. However, a child
who has been placed temporarily in an orphanage shall not be considered
as having been abandoned when the parent or parents intend to retrieve
the child; the parent or parents are contributing or attempting to
contribute to the child's support; or the parent or parents otherwise
exhibit that they have not terminated their parental obligations to the
child. If the child was adopted abroad by an unmarried United States
citizen, the latter must have been at least twenty-five years of age at
the time the child was adopted. It the child was adopted abroad by a
married United States citizen, the decree shall show that the adoption
was undertaken jointly by both husband and wife.
(iii)Valid home study -- (A) Child coming to the United States for
adoption. A home study for a child to be adopted in the United States
is considered to be valid if it contains the following:
(1) A factual evaluation of the financial, physical, mental, and
moral capabilities of the prospective parent or parents to rear and
educate the child properly;
(2) A detailed description of the living accommodations where the
prospective parent or parents currently reside;
(3) A detailed description of the living accommodations in the United
States where the child will reside, if known; and
(4) A statement or attachment recommending the proposed adoption and
signed by an official of the responsible state agency in the state of
the child's proposed residence, or signed by an official of an agency
authorized by that state. When a home study contains a favorable
recommendation by an agency claiming to be authorized by the state of
the child's proposed residence, it will not be accepted as valid unless
the district director is satisfied that the recommending agency is
authorized to conduct the home study. If the recommending agency is a
licensed adoption agency, the recommendation shall indicate that fact as
well as the state in which it is licensed, its license number, if any,
and the period of validity of its license. The district director may
require such proof of licensure as is deemed necessary. The authorized
agency need not be located in the state of the child's proposed
residence or anywhere in the United States.
(B) Child adopted abroad. A home study for a child adopted abroad is
considered to be valid if it contains the following:
(1) A factual evaluation of the financial, physical, mental, and
moral capabilities of the adoptive parent or parents to rear and educate
the child properly;
(2) A detailed description of the living accommodations where the
adoptive parent or parents currently reside;
(3) A detailed description of the living accommodations in the United
States where the child will reside, if known; and,
(4) A statement or attachment recommending or approving the adoption
signed by an official of an appropriate public or private adoption
agency which is licensed in any state in the United States. For
purposes of this part, the responsible state agency in any state of the
United States shall be considered to be an appropriate public agency
which is licensed in the United States. The home study of any agency
other than a responsible state agency will not be considered valid
unless the district director is satisfied that the agency is licensed by
a state in the United States. The recommendation from such licensed
agency shall indicate the fact that it is licensed as well as the state
in which it is licensed, its license number, if any, and the period of
validity of its license. The district director may require such proof
of licensure as is deemed necessary. The licensed agency need not be
located in the United States.
(C) Research and preparation of home study. Research, including
interviewing, and the preparation of the home study may be performed by
an individual or group, in the United States or abroad, approved or
authorized by the agency which makes the determination that the home
study supports a favorable recommendation.
(3) Preadoption requirements. If the orphan is to be adopted in the
United States, the petitioner(s) must submit evidence of compliance with
the preadoption requirements, if any, of the state of the orphan's
proposed residence, except for any such requirements that cannot be
complied with prior to the child's arrival in the United States. If the
child is to be adopted in the United States by an unmarried United
States citizen, the petitioner must also establish that adoption by an
unmarried person is permitted in the state of the child's proposed
residence.
(4) Beneficiary whose adoption abroad is not deemed valid or who is
adopted abroad without having been seen and observed. An orphan whose
adoption abroad is determined by the Service to be invalid for the
purposes of granting benefits under the immigration or nationality laws,
or who is adopted abroad without having been personally seen and
observed by the petitioner (and by the spouse, if the petitioner is
married) prior to or during the adoption proceedings, shall be processed
as a child coming to the United States for adoption. Before a petition
on behalf of such a child is approved, the petitioner (and spouse, if
the petitioner is married) must submit a statement indicating the
petitioner's (and, if the petitioner is married, the spouse's)
willingness and intent to readopt the child in the United States.
Unless the Service has already ascertained from the appropriate state
authority that readoption is permissible in that state, the petitioner
shall be required to submit a statement from the court having
jurisdiction over adoption, the state department of welfare, or the
attorney general of the state indicating that readoption is permissible.
As in the case of a petition for any other orphan coming to the United
States for adoption, evidence of compliance with the preadoption
requirements, if any, of the state of proposed residence must be
submitted. If the child is to be readopted in the United States by an
unmarried United States citizen, the petitioner must also establish that
adoption by an unmarried person is permitted in the state of the child's
proposed residence.
(5) Preliminary processing of orphan petition without full
documentation or home study. When a child has been identified but the
documentary evidence relating to the child or the home study is not yet
available, an orphan petition may be filed without such evidence or home
study. All other evidence required in paragraph (c)(2) of this section,
including fingerprints, must be submitted. The petition will not be
considered properly filed until complete documentary evidence relating
to the child and the home study are furnished. If the necessary
evidence and home study are not submitted within one year from the date
of submission of the petition, the petition will be considered as having
been abandoned and the fee will not be refunded. Any further
proceedings will require the filing of a new petition.
(6) Decision and disposition of petition -- (i) Favorable
determination. If the district director or officer in charge makes a
favorable determination concerning the ability of the adoptive parent or
parents to furnish proper care to a beneficiary orphan if admitted to
the United States, the district director or officer in charge shall
advise the petitioner of that determination.
(ii) Unfavorable determination. If the petitioner submits a
petition, Form I-600, on behalf of a child when there has been an
unfavorable determination concerning an advance processing application,
the fee specified in 8 CFR 103.7(b)(1) must be submitted. If the
grounds for the unfavorable determination have not been overcome, the
district director shall deny the petition.
(d) Jurisdiction -- (1) Petitioner residing in the United States. A
petitioner residing in the United States shall file a petition on behalf
of a child defined in section 101(b)(1)(F) of the Act or an application
for advance processing with the Service office having jurisdiction over
the place where the petitioner resides.
(2) Petitioner residing abroad -- (i) General. A petitioner residing
outside of the United States shall file an orphan petition or an
application for advanced processing with the overseas or stateside
office of the Service designated to act on the petition or application.
This can be ascertained by consulting an American consulate.
(ii) Petitioner residing in Canada. A petitioner residing in Canada
shall file an orphan petition or an application for advance processing
with the office of the Service having jurisdiction over the place of the
child's intended residence in the United States.
(iii) Petitioner proceeding abroad when a district director at a
stateside office has made a favorable determination concerning an
application for advance processing -- (A) Jurisdiction retained by
stateside office. When a district director at a stateside office has
made a favorable determination concerning an application for advance
processing and an unmarried petitioner or a married petitioner and/or
spouse are traveling abroad to locate or adopt a child, the petition on
behalf of the child may be filed at the stateside office if such filing
will facilitate the processing of the petition.
(B) Jurisdiction assumed by American consulate or embassy. In an
advance processing case where the petitioner does not wish to have
jurisdiction retained by the stateside Service office, the orphan
petition may be filed at the American consulate or embassy having
jurisdiction over the place where the child is residing, unless the
child is residing in Austria, Germany, Greece, Hong Kong, India, Italy,
Kenya, Korea, Mexico, the Philippines, Singapore, Thailand, or the
United Kingdom of Great Britain and Northern Ireland.
(C) Authority of consular officers. An American consular officer is
authorized to approve an orphan petition when the District Director at a
stateside Service office has made a favorable determination concerning
an advance processing application and the unmarried petitioner or the
married petitioner and/or spouse have traveled abroad either to locate
or adopt a child or facilitate the adoption in the United States of a
known child who resides in a country with no Service office. A consular
officer, however, shall refer any petition which is not clearly
approvable for a decision by the Service office having jurisdiction over
the place where the child is residing. The consular officer's
adjudication shall include all aspects of eligibility for classification
as an orphan under section 101(b)(1)(F) of the Act other than the
ability of the prospective adoptive parent or parents to furnish proper
care to the beneficiary orphan.
(D) Jurisdiction assumed by overseas Service office. If the child is
residing in Austria, Germany, Greece, Hong Kong, India, Italy, Kenya,
Korea, Mexico, the Philippines, Singapore, Thailand, or the United
Kingdom of Great Britain and Northern Ireland, the orphan petition may
be filed at the overseas Service office having jurisdiction over the
child's place of residence.
(e) Child in the United States. A child who is in parole status and
who has not been adopted in the United States is eligible to receive the
benefits of an orphan petition and to adjust status to permanent
residence when all the requirements of sections 101(b)(F) and 204(e) of
the Act have been met. A child in the United States either illegally or
as a nonimmigrant, however, is ineligible to receive the benefits of an
orphan petition and to adjust status on that basis.
(57 FR 41063, Sept. 9, 1992)
08 CFR 204.4 Amerasian child of a United States citizen.
(a) Eligibility. An alien is eligible for benefits under Public Law
97-359 as the Amerasian child or son or daughter of a United States
citizen if there is reason to believe that the alien was born in Korea,
Vietnam, Laos, Kampuchea, or Thailand after December 31, 1950, and
before October 22, 1982, and was fathered by a United States citizen.
Such an alien is eligible for classification under sections 201(b),
203(a)(1), or 203(a)(3) of the Act as the Amerasian child or son or
daughter of a United States citizen, pursuant to section 204(f) of the
Act.
(b) Filing petition. Any alien claiming to be eligible for benefits
as an Amerasian under Public Law 97-359, or any person on the alien's
behalf, may file a petition, Form I-360, Petition for Amerasian, Widow,
or Special Immigrant. Any person filing the petition must either be
eighteen years of age or older or be an emancipated minor. In addition,
a corporation incorporated in the United States may file the petition on
the alien's behalf.
(c) Jurisdiction. The petition must be filed with the Service office
having jurisdiction over the place of the alien's intended residence in
the United States or with the overseas Service office having
jurisdiction over the alien's residence abroad.
(d) Two-stage processing -- (1) Preliminary processing. Upon initial
submission of a petition with the documentary evidence required in
paragraph (f)(1) of this section, the director shall adjudicate the
petition to determine whether there is reason to believe the beneficiary
was fathered by a United States citizen. If the preliminary processing
is completed in a satisfactory manner, the director shall advise the
petitioner to submit the documentary evidence required in paragraph
(f)(1) of this section and the fingerprints of the sponsor on Form
FD-258, if not previously submitted. The petitioner must submit all
required documents within one year of the date of the request or the
petition will be considered to have been abandoned. To reactivate an
abandoned petition, the petitioner must submit a new petition, Form
I-360, without the previously submitted documentation, to the Service
office having jurisdiction over the prior petition.
(2) Final processing. Upon submission of the documentary evidence
required in paragraph (f)(1) of this section, the director shall
complete the adjudication of the petition.
(e) One-stage processing. If all documentary evidence required in
paragraph (f)(1) of this section is available when the petition is
initially filed, the petitioner may submit it at that time. In that
case, the director shall consider all evidence without using the
two-stage processing procedure set out in paragraph (d) of this section.
(f) Evidence to support a petition for an Amerasian child of a United
States citizen -- (1) Two-stage processing of petition -- (i)
Preliminary processing. (A) A petition filed by or on behalf of an
Amerasian under this section must be accompanied by evidence that the
beneficiary was born in Korea, Vietnam, Laos, Kampuchea, or Thailand
after December 31, 1950, and before October 22, 1982. If the
beneficiary was born in Vietnam, the beneficiary's ID card must be
submitted, if available. If it is not available, the petitioner must
submit an affidavit explaining why the beneficiary's ID card is not
available. Evidence that the beneficiary was fathered by a United
States citizen must also be presented. The putative father must have
been a United States citizen at the time of the beneficiary's birth or
at the time of the father's death, if his death occurred prior to the
beneficiary's birth. It is not required that the name of the father be
given. Such evidence may include, but need not be limited to:
(1) The beneficiary's birth and baptismal certificates or other
religious documents;
(2) Local civil records;
(3) Affidavits from knowledgeable witnesses;
(4) Letters or evidence of financial support from the beneficiary's
putative father;
(5) Photographs of the beneficiary's putative father, especially with
the beneficiary; and
(6) Evidence of the putative father's United States citizenship.
(B) The beneficiary's photograph must be submitted.
(C) The beneficiary's marriage certificate, if married, and evidence
of the termination of any previous marriages, if applicable, is
required.
(D) If the beneficiary is under eighteen years of age, a written
irrevocable release for emigration must be received from the
beneficiary's mother or legal guardian. The mother or legal guardian
must authorize the placing agency or agencies to make decisions
necessary for the child's immediate care until the sponsor receives
custody. Interim costs are the responsibility of the sponsor. The
mother or legal guardian must show an understanding of the effects of
the release and state before signing the release whether any money was
paid or any coercion was used. The signature of the mother or legal
guardian must be authenticated by the local registrar, the court of
minors, or a United States immigration or consular officer. The release
must include the mother's or legal guardian's full name, date and place
of birth, and current or permanent address.
(ii) Final processing. (A) If the director notifies the petitioner
that all preliminary processing has been completed in a satisfactory
manner, the petitioner must then submit Form I-361, Affidavit of
Financial Support and Intent to Petition for Legal Custody for Public
Law 97-359 Amerasian, executed by the beneficiary's sponsor, along with
the documentary evidence of the sponsor's financial ability required by
that form. If the beneficiary is under eighteen years of age, the
sponsor must agree to petition the court having jurisdiction, within
thirty days of the beneficiary's arrival in the United States, for legal
custody under the laws of the state where the beneficiary will reside
until the beneficiary is eighteen years of age. The term ''legal
custody'' as used in this section means the assumption of responsibility
for a minor by an adult under the laws of the state in a court of law.
The sponsor must be a United States citizen or lawful permanent resident
who is twenty-one years of age or older and who is of good moral
character.
(B) Other documents necessary to support the petition are:
(1) Evidence of the age of the beneficiary's sponsor;
(2) Evidence of United States citizenship or lawful permanent
residence of the sponsor as provided in 204.1(f); and
(C) If the beneficiary is under eighteen years of age, evidence that
a public, private, or state agency licensed in the United States to
place children and actively involved, with recent experience, in the
intercountry placement of children has arranged the beneficiary's
placement in the United States. Evidence must also be provided that the
sponsor with whom the beneficiary is being placed is able to accept the
beneficiary for care in the sponsor's home under the laws of the state
of the beneficiary's intended residence. The evidence must demonstrate
the agency's capability, including financial capability, to arrange the
placement as described in paragraph (f)(1) of this section, either
directly or through cooperative agreement with other suitable
provider(s) of service.
(iii) Arrangements for placement of beneficiary under eighteen years
of age. (A) If the beneficiary is under eighteen years of age, the
petitioner must submit evidence of the placement arrangement required
under paragraph (f)(1) of this section. A favorable home study of the
sponsor is necessary and must be conducted by an agency in the United
States legally authorized to conduct that study. If the sponsor resides
outside the United States, a home study of the sponsor must be conducted
by an agency legally authorized to conduct home studies in the state of
the sponsor's and beneficiary's intended residence in the United States
and must be submitted with a favorable recommendation by the agency.
(B) A plan from the agency to provide follow-up services, including
mediation and counselling, is required to ensure that the sponsor and
the beneficiary have satisfactorily adjusted to the placement and to
determine whether the terms of the sponsorship are being observed. A
report from the agency concerning the placement, including information
regarding any family separation or dislocation abroad that results from
the placement, must also be submitted. In addition, the agency must
submit to the Director, Outreach Program, Immigration and Naturalization
Service, Washington, DC, within 90 days of each occurrence, reports of
any breakdowns in sponsorship that occur, and reports of the steps taken
to remedy these breakdowns. The petitioner must also submit a statement
from the agency:
(1) Indicating that, before signing the sponsorship agreement, the
sponsor has been provided a report covering pre-placement screening and
evaluation, including a health evaluation, of the beneficiary;
(2) Describing the agency's orientation of both the sponsor and the
beneficiary on the legal and cultural aspects of the placement;
(3) Describing the initial facilitation of the placement through
introduction, translation, and similar services; and
(4) Describing the contingency plans to place the beneficiary in
another suitable home if the initial placement fails. The new sponsor
must execute and submit a Form I-361 to the Service office having
jurisdiction over the beneficiary's residence in the United States. The
original sponsor nonetheless retains financial responsibility for the
beneficiary under the terms of the guarantee of financial support and
intent to petition for legal custody which that sponsor executed, unless
that responsibility is assumed by a new sponsor. In the event that the
new sponsor does not comply with the terms of the new guarantee of
financial support and intent to petition for legal custody and if, for
any reason, that guarantee is not enforced, the original sponsor again
becomes financially responsible for the beneficiary.
(iv) Fingerprints of sponsor. The petitioner must submit the
fingerprints of the sponsor on Form FD-258. The petitioner may submit
Form FD-258 at any time during the processing of the petition. The Form
FD-258 must reflect the originating agency (ORI) number or special
office code relating to the Service office where the petition is filed,
if that office has Forms FD-258 with the relating ORI number.
(2) One-stage processing of petition. If the petitioner chooses to
have the petition processed under the one-stage processing procedure
described in paragraph (e) of this section, the petitioner must submit
all evidence required by paragraph (f)(1) of this section.
(g) Decision -- (1) General. The director shall notify the
petitioner of the decision and, if the petition is denied, of the
reasons for the denial. If the petition is denied, the petitioner may
appeal the decision under part 103 of this chapter.
(2) Denial upon completion of preliminary processing. The director
may deny the petition upon completion of the preliminary processing
under paragraph (d) of this section for:
(i) Failure to establish that there is reason to believe the alien
was fathered by a United States citizen; or
(ii) Failure to meet the sponsorship requirements if the fingerprints
of the sponsor, required in paragraph (f)(1) of this section, were
submitted during the preliminary processing and the completed background
check of the sponsor discloses adverse information resulting in a
finding that the sponsor is not of good moral character.
(3) Denial upon completion of final processing. The director may
deny the petition upon completion of final processing if it is
determined that the sponsorship requirements, or one or more of the
other applicable requirements, have not been met.
(4) Denial upon completion of one-stage processing. The director may
deny the petition upon completion of all processing if any of the
applicable requirements in a case being processed under the one-stage
processing described in paragraph (e) of this section are not met.
(h) Classification of Public Law 97-359 Amerasian. If the petition
is approved the beneficiary is classified as follows:
(1) An unmarried beneficiary under the age of twenty-one is
classified as the child of a United States citizen under section 201(b)
of the Act;
(2) An unmarried beneficiary twenty-one years of age or older is
classified as the unmarried son or daughter of a United States citizen
under section 203(a)(1) of the Act; and
(3) A married beneficiary is classified as the married son or
daughter of a United States citizen under section 203(a)(3) of the Act.
(i) Enforcement of affidavit of financial support and intent to
petition for legal custody. A guarantee of financial support and intent
to petition for legal custody on Form I-361 may be enforced against the
alien's sponsor in a civil suit brought by the Attorney General in the
United States District Court for the district in which the sponsor
resides, except that the sponsor's estate is not liable under the
guarantee if the sponsor dies or is adjudicated as bankrupt under title
11, United States Code. After admission to the United States, if the
beneficiary of a petition requires enforcement of the guarantee of
financial support and intent to petition for legal custody executed by
the beneficiary's sponsor, the beneficiary may file Form I-363 with the
Service office having jurisdiction over the beneficiary's residence in
the United States. If the beneficiary is under eighteen years of age,
any agency or individual (other than the sponsor) having legal custody
of the beneficiary, or a legal guardian acting on the alien's behalf,
may file Form I-363.
(57 FR 41066, Sept. 9, 1992)
08 CFR 204.5 Petitions for employment-based immigrants.
(a) General. A petition to classify an alien under section
203(b)(1), 203(b)(2), or 203(b)(3) of the Act must be filed on Form
I-140, Petition for Immigrant Worker. A petition to classify an alien
under section 203(b)(4) (as it relates to special immigrants under
section 101(a)(27)(C)) must be filed on kForm I-360, Petition for
Amerasian, Widow, or Special Immigrant. A separate Form I-140 or I-360
must be filed for each beneficiary, accompanied by the applicable fee.
A petition is considered properly filed if it is:
(1) Accepted for processing under the provisions of part 103;
(2) Accompanied by any required individual labor certification,
application for Schedule A designation, or evidence that the alien's
occupation qualifies as a shortage occupation within the Department of
Labor's Labor Market Information Pilot Program; and
(3) Accompanied by any other required supporting documentation.
(b) Jurisdiction. Form I-140 or I-360 must be filed with the Service
Center having jurisdiction over the intended place of employment, unless
specifically designated for local filing by the Associate Commissioner
for Examinations.
(c) Filing petition. Any United States employer desiring and
intending to employ an alien may file a petition for classification of
the alien under section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or
203(b)(3) of the Act. An alien, or any person in the alien's behalf,
may file a petition for classification under section 203(b)(1)(A) or
203(b)(4) of the Act (as it relates to special immigrants under section
101(a)(27)(C) of the Act).
(d) Priority date. The priority date of any petition filed for
classification under section 203(b) of the Act which is accompanied by
an individual labor certification from the Department of Labor shall be
the date the request for certification was accepted for processing by
any office within the employment service system of the Department of
Labor. The priority date of any petition filed for classification under
section 203(b) of the Act which is accompanied by an application for
Schedule A designation or with evidence that the alien's occupation is a
shortage occupation within the Department of Labor's Labor Market
Information Pilot Program shall be the date the completed, signed
petition (including all initial evidence and the correct fee) is
properly filed with the Service. The priority date of a petition filed
for classification as a special immigrant under section 203(b)(4) of the
Act shall be the date the completed, signed petition (including all
initial evidence and the correct fee) is properly filed with the
Service. The priority date of an alien who filed for classification as
a special immigrant prior to October 1, 1991, and who is the beneficiary
of an approved I-360 petition after October 1, 1991, shall be the date
the alien applied for an immigrant visa or adjustment of status. In the
case of a special immigrant alien who applied for adjustment before
October 1, 1991, Form I-360 may be accepted and adjudicated at a Service
District Office or sub-office.
(e) Retention of section 203(b) (1), (2), or (3) priority date. -- A
petition approved on behalf of an alien under sections 203(b) (1), (2),
or (3) of the Act accords the alien the priority date of the approved
petition for any subsequently filed petition for any classification
under sections 203(b) (1), (2), or (3) of the Act for which the alien
may qualify. In the event that the alien is the beneficiary of multiple
petitions under sections 203(b) (1), (2), or (3) of the Act, the alien
shall be entitled to the earliest priority date. A petition revoked
under sections 204(e) or 205 of the Act will not confer a priority date,
nor will any priority date be established as a result of a denied
petition. A priority date is not transferable to another alien.
(f) Maintaining the priority date of a third or sixth preference
petition filed prior to October 1, 1991 -- Any petition filed before
October 1, 1991, and approved on any date, to accord status under
section 203(a)(3) or 203(a)(6) of the Act, as in effect before October
1, 1991, shall be deemed a petition approved to accord status under
section 203(b)(2) or within the appropriate classification under section
203(b)(3), respectively, of the Act as in effect on or after October 1,
1991, provided that the alien applies for an immigrant visa or
adjustment of status within the two years following notification that an
immigrant visa is immediately available for his or her use.
(g) Initial evidence -- (1) General. Specific requirements for
initial supporting documents for the various employment-based immigrant
classifications are set forth in this section. In general, ordinary
legible photocopies of such documents (except for labor certifications
from the Department of Labor) will be acceptable for initial filing and
approval. However, at the discretion of the director, original
documents may be required in individual cases. Evidence relating to
qualifying experience or training shall be in the form of letter(s) from
current or former employer(s) or trainer(s) and shall include the name,
address, and title of the writer, and a specific description of the
duties performed by the alien or of the training received. If such
evidence is unavailable, other documentation relating to the alien's
experience or training will be considered.
(2) Ability of prospective employer to pay wage. Any petition filed
by or for an employment-based immigrant which requires an offer of
employment must be accompanied by evidence that the prospective United
States employer has the ability to pay the proffered wage. The
petitioner must demonstrate this ability at the time the priority date
is established and continuing until the beneficiary obtains lawful
permanent residence. Evidence of this ability shall be either in the
form of copies of annual reports, federal tax returns, or audited
financial statements. In a case where the prospective United States
employer employs 100 or more workers, the director may accept a
statement from a financial officer of the organization which establishes
the prospective employer's ability to pay the proffered wage. In
appropriate cases, additional evidence, such as profit/loss statements,
bank account records, or personnel records, may be submitted by the
petitioner or requested by the Service.
(h) Aliens with extraordinary ability -- (1) An alien, or any person
on behalf of the alien, may file an I-140 visa petition for
classification under section 203(b)(1)(A) of the Act as an alien of
extraordinary ability in the sciences, arts, education, business, or
athletics.
(2) Definition. As used in this section:
Extraordinary ability means a level of expertise indicating that the
individual is one of that small percentage who have risen to the very
top of the field of endeavor.
(3) Initial evidence. A petition for an alien of extraordinary
ability must be accompanied by evidence that the alien has sustained
national or international acclaim and that his or her achievements have
been recognized in the field of expertise. Such evidence shall include
evidence of a one-time achievement (that is, a major, international
recognized award), or at least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or
internationally recognized prizes or awards for excellence in the field
of endeavor;
(ii) Documentation of the alien's membership in associations in the
field for which classification is sought, which require outstanding
achievements of their members, as judged by recognized national or
international experts in their disciplines or fields;
(iii) Published material about the alien in professional or major
trade publications or other major media, relating to the alien's work in
the field for which classification is sought. Such evidence shall
include the title, date, and author of the material, and any necessary
translation;
(iv) Evidence of the alien's participation, either individually or on
a panel, as a judge of the work of others in the same or an allied field
of specification for which classification is sought;
(v) Evidence of the alien's original scientific, scholarly, artistic,
athletic, or business-related contributions of major significance in the
field;
(vi) Evidence of the alien's authorship of scholarly articles in the
field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the alien's work in the field at
artistic exhibitions or showcases;
(viii) Evidence that the alien has performed in a leading or critical
role for organizations or establishments that have a distinguished
reputation;
(ix) Evidence that the alien has commanded a high salary or other
significantly high remuneration for services, in relation to others in
the field; or
(x) Evidence of commercial successes in the performing arts, as shown
by box office receipts or record, cassette, compact disk, or video
sales.
(4) If the above standards do not readily apply to the beneficiary's
occupation, the petitioner may submit comparable evidence to establish
the beneficiary's eligibility.
(5) No offer of employment required. Neither an offer for employment
in the United States nor a labor certification is required for this
classification; however, the petition must be accompanied by clear
evidence that the alien is coming to the United States to continue work
in the area of expertise. Such evidence may include letter(s) from
prospective employer(s), evidence of prearranged commitments such as
contracts, or a statement from the beneficiary detailing plans on how he
or she intends to continue his or her work in the United States.
(i) Outstanding professors and researchers. (1) Any United States
employer desiring and intending to employ a professor or researcher who
is outstanding in an academic field under section 203(b)(1)(B) of the
Act may file an I-140 visa petition for such classification.
(2) Definitions. As used in this section:
Academic field means a body of specialized knowledge offered for
study at an accredited United States university or institution of higher
education.
Permanent, in reference to a research position, means either tenured,
tenure-track, or for a term of indefinite or unlimited duration, and in
which the employee will ordinarily have an expectation of continued
employment unless there is good cause for termination.
(3) Initial evidence. A petition for an outstanding professor or
researcher must be accompanied by:
(i) Evidence that the professor or researcher is recognized
internationally as outstanding in the academic field specified in the
petition. Such evidence shall consist of at least two of the following:
(A) Documentation of the alien's receipt of major prizes or awards
for outstanding achievement in the academic field;
(B) Documentation of the alien's membership in associations in the
academic field which require outstanding achievements of their members;
(C) Published material in professional publications written by others
about the alien's work in the academic field. Such material shall
include the title, date, and author of the material, and any necessary
translation;
(D) Evidence of the alien's participation, either individually or on
a panel, as the judge of the work of others in the same or an allied
academic field;
(E) Evidence of the alien's original scientific or scholarly research
contributions to the academic field; or
(F) Evidence of the alien's authorship of scholarly books or articles
(in scholarly journals with international circulation) in the academic
field;
(ii) Evidence that the alien has at least three years of experience
in teaching and/or research in the academic field. Experience in
teaching or research while working on an advanced degree will only be
acceptable if the alien has acquired the degree, and if the teaching
duties were such that he or she had full responsibility for the class
taught or if the research conducted toward the degree has been
recognized within the academic field as outstanding. Evidence of
teaching and/or research experience shall be in the form of letter(s)
from current or former employer(s) and shall include the name, address,
and title of the writer, and a specific description of the duties
performed by the alien; and
(iii) An offer of employment from a prospective United States
employer. A labor certification is not required for this
classification. The offer of employment shall be in the form of a
letter from:
(A) A United States university or institution of higher learning
offering the alien a tenured or tenure-track teaching position in the
alien's academic field;
(B) A United States university or institution of higher learning
offering the alien a permanent research position in the alien's academic
field; or
(C) A department, division, or institute of a private employer
offering the alien a permanent research position in the alien's academic
field. The department, division, or institute must demonstrate that it
employs at least three persons full-time in research positions, and that
it has achieved documented accomplishments in an academic field.
(j) Certain multinational executives and managers. (1) A United
States employer may file a petition on Form I-140 for classification of
an alien under section 203(b)(1)(C) of the Act as a multinational
executive or manager.
(2) Definitions. As used in this section:
Affiliate means:
(A) One of two subsidiaries both of which are owned and controlled by
the same parent or individual;
(B) One of two legal entities owned and controlled by the same group
of individuals, each individual owning and controlling approximately the
same share or proportion of each entity; or
(C) In the case of a partnership that is organized in the United
States to provide accounting services, along with managerial and/or
consulting services, and markets its accounting services under an
internationally recognized name under an agreement with a worldwide
coordinating organization that is owned and controlled by the member
accounting firms, a partnership (or similar organization) that is
organized outside the United States to provide accounting' services
shall be considered to be an affiliate of the United States partnership
if it markets its accounting services under the same internationally
recognized name under the agreement with the worldwide coordinating
organization of which the United States partnership is also a member.
Doing business means the regular, systematic, and continuous
provision of goods and/or services by a firm, corporation, or other
entity and does not include the mere presence of an agent or office.
Executive capacity means an assignment within an organization in
which the employee primarily:
(A) Directs the management of the organization or a major component
or function of the organization;
(B) Establishes the goals and policies of the organization,
component, or function;
(C) Exercises wide latitude in discretionary decisionmaking; and
(D) Receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
Managerial capacity means an assignment within an organization in
which the employee primarily:
(A) Manages the organization, or a department, subdivision, function,
or component of the organization;
(B) Supervises and controls the work of other supervisory,
professional, or managerial employees, or manages an essential function
within the organization, or a department or subdivision of the
organization;
(C) If another employee or other employees are directly supervised,
has the authority to hire and fire or recommend those as well as other
personnel actions (such as promotion and leave authorization), or, if no
other employee is directly supervised, functions at a senior level
within the organizational hierarchy or with respect to the function
managed; and
(D) Exercises direction over the day-to-day operations of the
activity or function for which the employee has authority.
Multinational means that the qualifying entity, or its affiliate, or
subsidiary, conducts business in two or more countries, one of which is
the United States.
Subsidiary means a firm, corporation, or other legal entity of which
a parent owns, directly or indirectly, more than half of the entity and
controls the entity; or owns, directly or indirectly, half of the
entity and controls the entity; or owns, directly or indirectly, 50
percent of a 50-50 joint venture and has equal control and veto power
over the entity; or owns, directly or indirectly, less than half of the
entity, but in fact controls the entity.
(3) Initial evidence -- (i) Required evidence. A petition for a
multinational executive or manager must be accompanied by a statement
from an authorized official of the petitioning United States employer
which demonstrates that:
(A) If the alien is outside the United States, in the three years
immediately preceding the filing of the petition the alien has been
employed outside the United States for at least one year in a managerial
or executive capacity by a firm or corporation, or other legal entity,
or by an affiliate or subsidiary of such a firm or corporation or other
legal entity; or
(B) If the alien is already in the United States working for the same
employer or a subsidiary or affiliate of the firm or corporation, or
other legal entity by which the alien was employed overseas, in the
three years preceding entry as a nonimmigrant, the alien was employed by
the entity abroad for at least one year in a managerial or executive
capacity;
(C) The prospective employer in the United States is the same
employer or a subsidiary or affiliate of the firm or corporation or
other legal entity by which the alien was employed overseas; and
(D) The prospective United States employer has been doing business
for at least one year.
(ii) Appropriate additional evidence. In appropriate cases, the
director may request additional evidence.
(4) Determining managerial or exectuve capacities. -- (i) Supervisors
as managers. A first-line supervisor is not considered to be acting in
a managerial capacity merely by virtue of his or her supervisory duties
unless the employees supervised are professional.
(ii) Staffing levels. If staffing levels are used as a factor in
determining whether an individual is acting in a managerial or executive
capacity, the reasonable needs of the organization, component, or
function, in light of the overall purpose and stage of development of
the organization, component, or function, shall be taken into account.
An individual shall not be considered to be acting in a managerial or
executive capacity merely on the basis of the number of employees that
the individual supervises or has supervised or directs or has directed.
(5) Offer of employment. No labor certification is required for this
classification; however, the prospective employer in the United States
must furnish a job offer in the form of a statement which indicates that
the alien is to be employed in the United States in a managerial or
executive capacity. Such letter must clearly describe the duties to be
performed by the alien.
(k) Aliens who are members of the professions holding advanced
degrees or aliens of exceptional ability. (1) Any United States
employer may file a petition on Form I-140 for classification of an
alien under section 203(b)(2) of the Act as an alien who is a member of
the professions holding an advanced degree or an alien of exceptional
ability in the sciences, arts, or business. If an alien is claiming
exceptional ability in the sciences, arts, or business and is seeking an
exemption from the requirement of a job offer in the United States
pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone
in the alien's behalf, may be the petitioner.
(2) Definitions. As used in this section: Advanced degree means any
United States academic or professional degree or a foreign equivalent
degree above that of baccalaureate. A United States baccalaureate
degree or a foreign equivalent degree followed by at least five years of
progressive experience in the specialty shall be considered the
equivalent of a master's degree. If a doctoral degree is customarily
required by the specialty, the alien must have a United States doctorate
or a foreign equivalent degree.
Exceptional ability in the sciences, arts, or business means a degree
of expertise significantly above that ordinarily encountered in the
sciences, arts, or business.
Profession means one of the occupations listed in section 101(a)(32)
of the Act, as well as any occupation for which a United States
baccalaureate degree or its foreign equivalent is the minimum
requirement for entry into the occupation.
(3) Initial evidence. The petition must be accompanied by
documentation showing that the alien is a professional holding an
advanced degree or an alien of exceptional ability in the sciences, the
arts, or business.
(i) To show that the alien is a professional holding an advanced
degree, the petition must be accompanied by:
(A) An official academic record showing that the alien has a United
States advanced degree or a foreign equivalent degree; or
(B) An official academic record showing that the alien has a United
States baccalaureate degree or a foreign equivalent degree, and evidence
in the form of letters from current or former employer(s) showing that
the alien has at least five years of progressive post-baccalaureate
experience in the specialty.
(ii) To show that the alien is an alien of exceptional ability in the
sciences, arts, or business, the petition must be accompanied by at
least three of the following:
(A) An official academic record showing that the alien has a degree,
diploma, certificate, or similar award from a college, university,
school, or other institution of learning relating to the area of
exceptional ability;
(B) Evidence in the form of letter(s) from current or former
employer(s) showing that the alien has at least ten years of full-time
experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a
particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other
renumeration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant
contributions to the industry or field by peers, governmental entities,
or professional or business organizations.
(iii) If the above standards do not readily apply to the
beneficiary's occupation, the petitioner may submit comparable evidence
to establish the beneficiary's eligibility.
(4) Labor certification or evidence that alien qualifies for Labor
Market Information Pilot Program -- (i) General. Every petition under
this classification must be accompanied by an individual labor
certification from the Department of Labor, by an application for
Schedule A designation (if applicable), or by documentation to establish
that the alien qualifies for one of the shortage occupations in the
Department of Labor's Labor Market Information Pilot Program. To apply
for Schedule A designation or to establish that the alien's occupation
is within the Labor Market Information Program, a fully executed
uncertified Form ETA-750 in duplicate must accompany the petition. The
job offer portion of the individual labor certification, Schedule A
application, or Pilot Program application must demonstrate that the job
requires a professional holding an advanced degree or the equivalent or
an alien of exceptional ability.
(ii) Exemption from job offer. The director may exempt the
requirement of a job offer, and thus of a labor certification, for
aliens of exceptional ability in the sciences, arts, or business if
exemption would be in the national interest. To apply for the
exemption, the petitioner must submit Form ETA-750B, Statement of
Qualifications of Alien, in duplicate, as well as evidence to support
the claim that such exemption would be in the national interest.
(1) Skilled workers, professionals, and other workers. (1) Any
United States employer may file a petition on Form I-140 for
classification of an alien under section 203(b)(3) as a skilled worker,
professional, or other (unskilled) worker.
(2) Definitions. As used in this part:
Other worker means a qualified alien who is capable, at the time of
petitioning for this classification, of performing unskilled labor
(requiring less than two years training or experience), not of a
temporary or seasonal nature, for which qualified workers are not
available in the United States.
Professional means a qualified alien who holds at least a United
States baccalaureate degree or a foreign equivalent degree and who is a
member of the professions.
Skilled worker means an alien who is capable, at the time of
petitioning for this classification, of performing skilled labor
(requiring at least two years training or experience), not of a
temporary or seasonal nature, for which qualified workers are not
available in the United States. Relevant post-secondary education may
be considered as training for the purposes of this provision.
(3) Initial evidence -- (i) Labor certification or evidence that
alien qualifies for Labor Market Information Pilot Program. Every
petition under this classification must be accompanied by an individual
labor certification from the Department of Labor, by an application for
Schedule A designation, or by documentation to establish that the alien
qualifies for one of the shortage occupations in the Department of
Labor's Labor Market Information Pilot Program. To apply for Schedule A
designation or to establish that the alien's occupation is a shortage
occupation with the Labor Market Pilot Program, a fully executed
uncertified Form ETA-750 in duplicate must accompany the petition. The
job offer portion of an individual labor certification, Schedule A
application, or Pilot Program application for a professional must
demonstrate that the job requires the minimum of a baccalaureate degree.
(ii) Other documentation -- (A) General. Any requirements of
training or experience for skilled workers, professionals, or other
workers must be supported by letters from trainers or employers giving
the name, address, and title of the trainer or employer, and a
description of the training received or the experience of the alien.
(B) Skilled workers. If the petition is for a skilled worker, the
petition must be accompanied by evidence that the alien meets the
educational, training or experience, and any other requirements of the
individual labor certification, meets the requirements for Schedule A
designation, or meets the requirements for the Labor Market Information
Pilot Program occupation designation. The minimum requirements for this
classification are at least two years of training or experience.
(C) Professionals. If the petition is for a professional, the
petition must be accompanied by evidence that the alien holds a United
States baccalaureate degree or a foreign equivalent degree and by
evidence that the alien is a member of the professions. Evidence of a
baccalaureate degree shall be in the form of an official college or
university record showing the date the baccalaureate degree was awarded
and the area of concentration of study. To show that the alien is a
member of the professions, the petitioner must submit evidence showing
that the minimum of a baccalaureate degree is required for entry into
the occupation.
(D) Other workers. If the petition is for an unskilled (other)
worker, it must be accompanied by evidence that the alien meets any
educational, training and experience, and other requirements of the
labor certification.
(4) Differentiating between skilled and other workers. The
determination of whether a worker is a skilled or other worker will be
based on the requirements of training and/or experience placed on the
job by the prospective employer, as certified by the Department of
Labor. In the case of a Schedule A occupation or a shortage occupation
within the Labor Market Pilot Program, the petitioner will be required
to establish to the director that the job is a skilled job, i.e., one
which requires at least two years of training and/or experience.
(m) Religious workers -- (1) An alien, or any person in behalf of the
alien, may file an I-360 visa petition for classification under section
203(b)(4) of the Act as a section 101(a)(27)(C) special immigrant
religious worker. Such a petition may be filed by or for an alien, who
(either abroad or in the United States) for at least the two years
immediately preceding the filing of the petition has been a member of a
religious denomination which has a bona fide nonprofit religious
organization in the United States. The alien must be coming to the
United States solely for the purpose of carrying on the vocation of a
minister of that religious denomination, working for the organization at
the organization's request in a professional capacity in a religious
vocation or occupation for the organization or a bona fide organization
which is affiliated with the religious denomination and is exempt from
taxation as an organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 at the request of the organization. All
three types of religious workers must have been performing the vocation,
professional work, or other work continuously (either abroad or in the
United States) for at least the two-year period immediately preceding
the filing of the petition. Petitions for professional workers and
other workers must be filed on or before September 30, 1994.
(2) Definitions. As used in this section:
Bona fide nonprofit religious organization in the United States means
an organization exempt from taxation as described in section 501(c)(3)
of the Internal Revenue Code of 1986 as it relates to religious
organizations, or one that has never sought such exemption but
establishes to the satisfaction of the Service that it would be eligible
therefor if it had applied for tax exempt status.
Bona fide organization which is affiliated with the religious
denomination means an organization which is closely associated with the
religious denomination and which is exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to
religious organizations.
Minister means an individual duly authorized by a recognized
religious denomination to conduct religious worship and to perform other
duties usually performed by authorized members of the clergy of that
religion. In all cases, there must be a reasonable connection between
the activities performed and the religious calling of the minister. The
term does not include a lay preacher not authorized to perform such
duties.
Professional capacity means an activity in a religious vocation or
occupation for which the minimum of a United States baccalaureate degree
or a foreign equivalent degree is required.
Religious denomination means a religious group or community of
believers having some form of ecclesiastical government, a creed or
statement of faith, some form of worship, a formal or informal code of
doctrine and discipline, religious services and ceremonies, established
places of religious worship, religious congregations, or comparable
indicia of a bona fide religious denomination. For the purposes of this
definition, an inter-denominational religious organization which is
exempt from taxation pursuant to section 501(c)(3) of the Internal
Revenue Code of 1986 will be treated as a religious denomination.
Religious occupation means an activity which relates to a traditional
religious function. Examples of individuals in religious occupations
include, but are not limited to, liturgical workers, religious
instructors, religious counselors, cantors, catechists, workers in
religious hospitals or religious health care facilities, missionaries,
religious translators, or religious broadcasters. This group does not
include janitors, maintenance workers, clerks, fund raisers, or persons
solely involved in the solicitation of donations.
Religious vocation means a calling to religious life evidenced by the
demonstration of commitment practiced in the religious denomination,
such as the taking of vows. Examples of individuals with a religious
vocation include, but are not limited to, nuns, monks, and religious
brothers and sisters.
(3) Initial evidence. Unless otherwise specified, each petition for
a religious worker must be accompanied by:
(i) Evidence that the organization qualifies as a nonprofit
organization in the form of either:
(A) Documentation showing that it is exempt from taxation in
accordance with section 501(c)(3) of the Internal Revenue Code of 1986
as it relates to religious organizations (in appropriate cases, evidence
of the organization's assets and methods of operation and the
organization's papers of incorporation under applicable state law may be
requested); or
(B) Such documentation as is required by the Internal Revenue Service
to establish eligibility for exemption under section 501(c)(3) of the
Internal Revenue Code of 1986 as it relates to religious organizations;
and
(ii) A letter from an authorized official of the religious
organization in the United States which (as applicable to the particular
alien) establishes:
(A) That, immediately prior to the filing of the petition, the alien
has the required two years of membership in the denomination and the
required two years of experience in the religious vocation, professional
religious work, or other religious work; and
(B) That, if the alien is a minister, he or she has authorization to
conduct religious worship and to perform other duties usually performed
by authorized members of the clergy, including a detailed description of
such authorized duties. In appropriate cases, the certificate of
ordination or authorization may be requested; or
(C) That, if the alien is a religious professional, he or she has at
least a United States baccalaureate or its foreign equivalent required
for entry into the religious profession. In all professional cases, an
official academic record showing that the alien has the required degree
must be submitted; or
(D) That, if the alien is to work in another religious vocation or
occupation, he or she is qualified in the religious vocation or
occupation. Evidence of such qualifications may include, but need not
be limited to, evidence establishing that the alien is a nun, monk, or
religious brother, or that the type of work to be done relates to a
traditional religious function.
(iii) If the alien is to work in a non-ministerial and
non-professional capacity for a bona fide religious organization which
is affiliated with the religious denomination, the letter from the
authorized official must explain how the affiliation exists. A
tax-exempt certificate indicating that the affiliated organization is
exempt from taxation in accordance with section 501(c)(3) of the
Internal Revenue Code of 1986 as it relates to religious organizations
is required in this instance.
(iv) In appropriate cases, the director may request appropriate
additional evidence relating to the eligibility under section 203(b)(4)
of the Act of the religious organization, the alien, or the affiliated
organization.
(4) Job offer. The letter from the authorized official of the
religious organization in the United States must also state how the
alien will be solely carrying on the vocation of a minister (including
any terms of payment for services or other remuneration), or how the
alien will be paid or remunerated if the alien will work in a
professional religious capacity or in other religious work. The
documentation should clearly indicate that the alien will not be solely
dependent on supplemental employment or solicitation of funds for
support. In doubtful cases, additional evidence such as bank letters,
recent audits, church membership figures, and/or the number of
individuals currently receiving compensation may be requested.
(n) Closing action -- (1) Approval. An approved employment-based
petition will be forwarded to the United States Consulate selected by
the petitioner and indicated on the petition. If a United States
Consulate is not designated, the petition will be forwarded to the
consulate having jurisdiction over the place of the alien's last
residence abroad. If the petition indicates that the alien will apply
for adjustment to permanent residence in the United States, the approved
petition will be retained by the Service for consideration with the
application for permanent resident (Form I-485).
(2) Denial. The denial of a petition for classification under
section 203(b)(1), 203(b)(2), 203(b)(3), or 203(b)(4) of the Act (as it
relates to special immigrants under section 101(a)(27)(C) of the Act)
shall be appealable to the Associate Commissioner for Examinations. The
petitioner shall be informed in plain language of the reasons for denial
and of his or her right to appeal.
(3) Validity of approved petitions. Unless revoked under section
203(e) or 205 of the Act, an employment-based petition is valid
indefinitely.
(56 FR 60905, Nov. 29, 1991)
08 CFR 204.6 Petitions for employment creation aliens.
(a) General. A petition to classify an alien under section 203(b)(5)
of the Act must be filed on Form I-526, Immigrant Petition by Alien
Entrepreneur. The petition must be accompanied by the appropriate fee.
Before a petition is considered properly filed, the petition must be
signed by the petitioner, and the initial supporting documentation
required by this section must be attached. Legible photocopies of
supporting documents will ordinarily be acceptable for initial filing
and approval. However, at the discretion of the director, original
documents may be required.
(b) Jurisdiction. The petition must be filed with the Service Center
having jurisdiction over the area in which the new commercial enterprise
is or will be principally doing business.
(c) Eligibility to file. A petition for classification as an alien
entrepreneur may only be filed by any alien on his or her own behalf.
(d) Priority date. The priority date of a petition for
classification as an alien entrepreneur is the date the petition is
properly filed with the Service or, if filed prior to the effective date
of these regulations, the date the Form I-526 was received at the
appropriate Service Center.
(e) Definitions. As used in this section:
Capital means cash, equipment, inventory, other tangible property,
cash equivalents, and indebtedness secured by assets owned by the alien
entrepreneur, provided that the alien entrepreneur is personally and
primarily liable and that the assets of the new commercial enterprise
upon which the petition is based are not used to secure any of the
indebtedness. All capital shall be valued at fair market value in
United States dollars. Assets acquired, directly or indirectly, by
unlawful means (such as criminal activities) shall not be considered
capital for the purposes of section 203(b)(5) of the Act.
Commercial enterprise means any for-profit activity formed for the
ongoing conduct of lawful business including, but not limited to, a sole
proprietorship, partnership (whether limited or general), holding
company, joint venture, corporation, business trust, or other entity
which may be publicly or privately owned. This definition includes a
commercial enterprise consisting of a holding company and its
wholly-owned subsidiaries, provided that each such subsidiary is engaged
in a for-profit activity formed for the ongoing conduct of a lawful
business. This definition shall not include a noncommercial activity
such as owning and operating a personal residence.
Employee means an individual who provides services or labor for the
new commercial enterprise and who receives wages or other remuneration
directly from the new commercial enterprise. This definition shall not
include independent contractors.
Full-time employment means employment of a qualifying employee by the
new commercial enterprise in a position that requires a minimum of 35
working hours per week. A job-sharing arrangement whereby two or more
qualifying employees share a full-time position shall count as full-time
employment provided the hourly requirement per week is met. This
definition shall not include combinations of part-time positions even
if, when combined, such positions meet the hourly requirement per week.
High employment area means a part of a metropolitan statistical area
that at the time of investment:
(i) Is not a targeted employment area; and
(ii) Is an area with an unemployment rate significantly below the
national average unemployment rates.
Invest means to contribute capital. A contribution of capital in
exchange for a note, bond, convertible debt, obligation, or any other
debt arrangement between the alien entrepreneur and the new commercial
enterprise does not constitute a contribution of capital for the
purposes of this part.
New means established after November 29, 1990.
Qualifying employee means a United States citizen, a lawfully
admitted permanent resident, or other immigrant lawfully authorized to
be employed in the United States including, but not limited to, a
conditional resident, a temporary resident, an asylee, a refugee, or an
alien remaining in the United States under suspension of deportation.
This definition does not include the alien entrepreneur, the alien
entrepreneur's spouse, sons, or daughters, or any nonimmigrant alien.
Rural area means any area not within either a metropolitan
statistical area (as designated by the Office of Management and Budget)
or the outer boundary of any city or town having a population of 20,000
or more.
Targeted employment area means an area which, at the time of
investment, is a rural area or an area which has experienced
unemployment of at least 150 percent of the national average rate.
Troubled business means a business that has been in existence for at
least two years, has incurred a net loss for accounting purposes
(determined on the basis of generally accepted accounting principles)
during the twelve- or twenty-four month period prior to the priority
date on the alien entrepreneur's Form I-526, and the loss for such
period is at least equal to twenty percent of the troubled business's
net worth prior to such loss. For purposes of determining whether or
not the troubled business has been in existence for two years,
successors in interest to the troubled business will be deemed to have
been in existence for the same period of time as the business they
succeeded.
(f) Required amounts of capital. (1) General. Unless otherwise
specified, the amount of capital necessary to make a qualifying
investment in the United States is one million United States dollars
($1,000,000).
(2) Targeted employment area. The amount of capital necessary to
make a qualifying investment in a targeted employment area within the
United States is five hundred thousand United States dollars ($500,000).
(3) High employment area. The amount of capital necessary to make a
qualifying investment in a high employment area within the United
States, as defined in section 203(b)(5)(C)(iii) of the Act, is one
million United States dollars ($1,000,000).
(g) Multiple investors -- (1) General. The establishment of a new
commercial enterprise may be used as the basis of a petition for
classification as an alien entrepreneur by more than one investor,
provided each petitioning investor has invested or is actively in the
process of investing the required amount for the area in which the new
commercial enterprise is principally doing business, and provided each
individual investment results in the creation of at least ten full-time
positions for qualifying employees. The establishment of a new
commercial enterprise may be used as the basis of a petition for
classification as an alien entrepreneur even though there are several
owners of the enterprise, including persons who are not seeking
classification under section 203(b)(5) of the Act and non-natural
persons, both foreign and domestic, provided that the source(s) of all
capital invested is identified and all invested capital has been derived
by lawful means.
(2) Employment creation allocation. The total number of full-time
positions created for qualifying employees shall be allocated solely to
those alien entrepreneurs who have used the establishment of the new
commercial enterprise as the basis of a petition on Form I-526. No
allocation need be made among persons not seeking classification under
section 203(b)(5) of the Act or among non-natural persons, either
foreign or domestic. The Service shall recognize any reasonable
agreement made among the alien entrepreneurs in regard to the
identification and allocation of such qualifying positions.
(h) Establishment of a new commercial enterprise. The establishment
of a new commercial enterprise may consist of:
(1) The creation of an original business;
(2) The purchase of an existing business and simultaneous or
subsequent restructuring or reorganization such that a new commercial
enterprise results; or
(3) The expansion of an existing business through the investment of
the required amount, so that a substantial change in the net worth or
number of employees results from the investment of capital. Substantial
change means a 40 percent increase either in the net worth, or in the
number of employees, so that the new net worth, or number of employees
amounts to at least 140 percent of the pre-expansion net worth or number
of employees. Establishment of a new commercial enterprise in this
manner does not exempt the petitioner from the requirements of 8 CFR
204.6(j) (2) and (3) relating to the required amount of capital
investment and the creation of full-time employment for ten qualifying
employees. In the case of a capital investment in a troubled business,
employment creation may meet the criteria set forth in 8 CFR
204.6(j)(4)(ii).
(i) State designation of a high unemployment area. The state
government of any state of the United States may designate a particular
geographic or political subdivision located within a metropolitan
statistical area or within a city or town having a population of 20,000
or more within such state as an area of high unemployment (at least 150
percent of the national average rate). Evidence of such designation,
including a description of the boundaries of the geographic or political
subdivision and the method or methods by which the unemployment
statistics were obtained, may be provided to a prospective alien
entrepreneur for submission with Form I-526. Before any such
designation is made, an official of the state must notify the Associate
Commissioner for Examinations of the agency, board, or other appropriate
governmental body of the state which shall be delegated the authority to
certify that the geographic or political subdivision is a high
unemployment area.
(j) Initial evidence to accompany petition. A petition submitted for
classification as an alien entrepreneur must be accompanied by evidence
that the alien has invested or is actively in the process of investing
lawfully obtained capital in a new commercial enterprise in the United
States which will create full-time positions for not fewer than 10
qualifying employees. The petitioner may be required to submit
information or documentation that the Service deems appropriate in
addition to that listed below.
(1) To show that a new commercial enterprise has been established by
the petitioner in the United States, the petition must be accompanied
by:
(i) As applicable, articles of incorporation, certificate of merger
or consolidation, partnership agreement, certificate of limited
partnership, joint venture agreement, business trust agreement, or other
similar organizational document for the new commercial enterprise;
(ii) A certificate evidencing authority to do business in a state or
municipality or, if the form of the business does not require any such
certificate or the State or municipality does not issue such a
certificate, a statement to that effect; or
(iii) Evidence that, as of a date certain after November 29, 1990,
the required amount of capital for the area in which an enterprise is
located has been transferred to an existing business, and that the
investment has resulted in a substantial increase in the net worth or
number of employees of the business to which the capital was
transferred. This evidence must be in the form of stock purchase
agreements, investment agreements, certified financial reports, payroll
records, or any similar instruments, agreements, or documents evidencing
the investment in the commercial enterprise and the resulting
substantial change in the net worth, number of employees.
(2) To show that the petitioner has invested or is actively in the
process of investing the required amount of capital, the petition must
be accompanied by evidence that the petitioner has placed the required
amount of capital at risk for the purpose of generating a return on the
capital placed at risk. Evidence of mere intent to invest, or of
prospective investment arrangements entailing no present commitment,
will not suffice to show that the petitioner is actively in the process
of investing. The alien must show actual commitment of the required
amount of capital. Such evidence may include, but need not be limited
to:
(i) Bank statement(s) showing amount(s) deposited in United States
business account(s) for the enterprise;
(ii) Evidence of assets which have been purchased for use in the
United States enterprise, including invoices, sales receipts, and
purchase contracts containing sufficient information to identify such
assets, their purchase costs, date of purchase, and purchasing entity;
(iii) Evidence of property transferred from abroad for use in the
United States enterprise, including United States Customs Service
commercial entry documents, bills of lading, and transit insurance
policies containing ownership information and sufficient information to
identify the property and to indicate the fair market value of such
property;
(iv) Evidence of monies transferred or committed to be transferred to
the new commercial enterprise in exchange for shares of stock (voting or
nonvoting, common or preferred). Such stock may not include terms
requiring the new commercial enterprise to redeem it at the holder's
request; or
(v) Evidence of any loan or mortgage agreement, promissory note,
security agreement, or other evidence of borrowing which is secured by
assets of the petitioner, other than those of the new commercial
enterprise, and for which the petitioner is personally and primarily
liable.
(3) To show that the petitioner has invested, or is actively in the
process of investing, capital obtained through lawful means, the
petition must be accompanied, as applicable, by:
(i) Foreign business registration records;
(ii) Corporate, partnership (or any other entity in any form which
has filed in any country or subdivision thereof any return described in
this subpart), and personal tax returns including income, franchise,
property (whether real, personal, or intangible), or any other tax
returns of any kind filed within five years, with any taxing
jurisdiction in or outside the United States by or on behalf of the
petitioner;
(iii) Evidence identifying any other source(s) of capital; or
(iv) Certified copies of any judgments or evidence of all pending
governmental civil or criminal actions, governmental administrative
proceedings, and any private civil actions (pending or otherwise)
involving monetary judgments against the petitioner from any court in or
outside the United States within the past fifteen years.
(4) Job creation -- (i) General. To show that a new commercial
enterprise will create not fewer than ten (10) full-time positions for
qualifying employees, the petition must be accompanied by:
(A) Documentation consisting of photocopies of relevant tax records,
Form I-9, or other similar documents for ten (10) qualifying employees,
if such employees have already been hired following the establishment of
the new commercial enterprise; or
(B) A copy of a comprehensive business plan showing that, due to the
nature and projected size of the new commercial enterprise, the need for
not fewer than ten (10) qualifying employees will result, including
approximate dates, within the next two years, and when such employees
will be hired.
(ii) Troubled business. To show that a new commercial enterprise
which has been established through a capital investment in a troubled
business meets the statutory employment creation requirement, the
petition must be accompanied by evidence that the number of existing
employees is being or will be maintained at no less than the
pre-investment level for a period of at least two years. Photocopies of
tax records, Forms I-9, or other relevant documents for the qualifying
employees and a comprehensive business plan shall be submitted in
support of the petition.
(5) To show that the petitioner is or will be engaged in the
management of the new commercial enterprise, either through the exercise
of day-to-day managerial control or through policy formulation, as
opposed to maintaining a purely passive role in regard to the
investment, the petition must be accompanied by:
(i) A statement of the position title that the petitioner has or will
have in the new enterprise and a complete description of the position's
duties;
(ii) Evidence that the petitioner is a corporate officer or a member
of the corporate board of directors; or
(iii) If the new enterprise is a partnership, either limited or
general, evidence that the petitioner is engaged in either direct
management or policy making activities. For purposes of this section,
if the petitioner is a limited partner and the limited partnership
agreement provides the petitioner with certain rights, powers, and
duties normally granted to limited partners under the Uniform Limited
Partnership Act, the petitioner will be considered sufficiently engaged
in the management of the new commercial enterprise.
(6) If applicable, to show that the new commercial enterprise has
created or will create employment in a targeted employment area, the
petition must be accompanied by:
(i) In the case of a rural area, evidence that the new commercial
enterprise is principally doing business within a civil jurisdiction not
located within any standard metropolitan statistical area as designated
by the Office of Management and Budget, or within any city or town
having a population of 20,000 or more as based on the most recent
decennial census of the United States; or
(ii) In the case of a high unemployment area:
(A) Evidence that the metropolitan statistical area, the specific
county within a metropolitan statistical area, or the county in which a
city or town with a population of 20,000 or more is located, in which
the new commercial enterprise is principally doing business has
experienced an average unemployment rate of 150 percent of the national
average rate; or
(B) A letter from an authorized body of the government of the state
in which the new commercial enterprise is located which certifies that
the geographic or political subdivision of the metropolitan statistical
area or of the city or town with a population of 20,000 or more in which
the enterprise is principally doing business has been designated a high
unemployment area. The letter must meet the requirements of 8 CFR
204.6(i).
(k) Decision. The petitioner will be notified of the decision, and,
if the petition is denied, of the reasons for the denial and of the
petitioner's right of appeal to the Associate Commissioner for
Examinations in accordance with the provisions of part 103 of this
chapter. The decision must specify whether or not the new commercial
enterprise is principally doing business within a targeted employment
area.
(l) Disposition of approved petition. The approved petition will be
forwarded to the United States consulate selected by the petitioner and
indicated on the petition. If a consulate has not been designated, the
petition will be forwarded to the consulate having jurisdiction over the
place of the petitioner's last residence abroad. If the petitioner is
eligible for adjustment of status to conditional permanent residence,
and if the petition indicates that the petitioner intends to apply for
such adjustment, the approved petition will be retained by the Service
for consideration in conjunction with the application for adjustment of
status.
(56 FR 60910, Nov. 29, 1991, as amended at 57 FR 1860, Jan. 16, 1992)
08 CFR 204.7 Preservation of benefits contained in savings clause of
Immigration and Nationality Act Amendments of 1976.
In order to be considered eligible for the benefits of the savings
clause contained in section 9 of the Immigration and Nationality Act
Amendments of 1976, an alien must show that the facts established prior
to January 1, 1977 upon which the entitlement to such benefits was based
continue to exist.
(41 FR 55849, Dec. 23, 1976)
08 CFR 204.8 Petitions for employees of certain United States
businesses operating in Hong Kong.
(a) General. A petition to accord an alien status as an employee of
a United States business operating in Hong Kong pursuant to section 124
of the Immigration Act of 1990 shall be filed by the employer on Form
I-140, Immigrant Petition for Alien Worker. Since section 124 provides
for up to 12,000 additional visa numbers only in each of fiscal years
1991 through 1993, petitions for these employees will not be accepted
after September 30, 1993.
(b) Definitions. As used in this section:
Affiliate means one of two subsidiaries both of which are owned and
controlled by the same parent or individual or one of two legal entities
owned and controlled by the same group of individuals, each individual
owning and controlling approximately the same share or proportion of
each entity. Effective October 1, 1991, in the case of a partnership
that is organized in the United States to provide accounting services
along with managerial and consulting services and that markets its
accounting services under an internationally recognized name under an
agreement with a worldwide coordinating organization that is owned and
controlled by the member accounting firms, a partnership (or similar
organization) that is organized outside the United States to provide
accounting services shall be considered to be an affiliate of the United
States partnership if its markets its accounting services under the same
internationally recognized name under the agreement with the worldwide
coordinating organization of which the United States partnership is also
a member.
Executive capacity means an assignment within an organization in
which the employee primarily:
(i) Directs the management of the organization or a major component
or function of the organization;
(ii) Establishes the goals and policies of the organization,
component, or function;
(iii) Exercises wide latitude in discretionary decision-making; and
(iv) Receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
Managerial capacity means an assignment within an organization in
which the employee primarily:
(i) Manages the organization, or a department, subdivision, function,
or component of the organization;
(ii) Supervises and controls the work of other supervisory,
professional, or managerial employees, or manages an essential function
within the organization, or a department or subdivision of the
organization;
(iii) Has the authority to hire and fire or recommend those as well
as other personnel actions (such as promotion and leave authorization)
if another employee or other employees are directly supervised, or, if
no other employee is directly supervised, functions at a senior level
within the organizational hierarchy or with respect to the function
managed; and
(iv) Exercises direction over the day-to-day operations of the
activity or function for which the employee has authority.
Officer means, with respect to a business entity, the chairman or
vice-chairman of the board of directors of the entity, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice-president, any assistant vice-president, any senior
trust officer, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or associate trust officer,
the controller, any assistant controller, or any other officer of the
entity customarily performing functions similar to those performed by
any of the foregoing officers.
Parent means a firm, corporation, or other legal entity which has
subsidiaries.
Specialized knowledge means, with respect to an organization, that an
alien has a special knowledge of the organization's product and its
application in international markets or has an advanced level of
knowledge of processes and procedures of the organization.
Subsidiary means a firm, corporation, or other legal entity of which
a parent owns, directly or indirectly, more than half of the entity and
controls the entity; or owns, directly or indirectly, 50 percent of a
50-50 joint venture and has equal control and veto power; or owns,
directly or indirectly, less than half the entity, but in fact controls
the entity.
Supervisor means any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, award, or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or
effectively recommend such action, if in connection with the foregoing,
the exercise of such authority is not merely of a routine or clerical
nature, but requires the use of independent judgement.
United States business, as used in this section, means an entity or
organization created under the laws of the United States which has a
United States principal place of business and which is at least 50
percent owned by United States citizens or permanent residents.
(c) Jurisdiction. The petition must be filed at the Service Center
having jurisdiction over the corporate headquarters of the business in
the United States. There will be no concurrent filing of a petition
with an application for status as a permanent resident (Form I-485).
(d) Eligibility. The alien beneficiary must:
(1) Be a resident of Hong Kong who:
(i) Is employed in Hong Kong and has been employed in Hong Kong
during the 12 previous consecutive months; or
(ii) Is employed outside of Hong Kong during a temporary absence
(i.e., of limited duration) from Hong Kong at the request of the
employer and had been employed in Hong Kong for 12 consecutive months
prior to such absence(s); and
(2) Be employed as an officer or supervisor or in a capacity that is
managerial or executive or involves specialized knowledge, by a
qualifying business entity. A qualifying business entity is one which:
(i) Is owned and organized in the United States (or is the subsidiary
or affiliate of a business owned and organized in the United States);
(ii) Employs at least 100 employees in the United States and at least
50 employees outside the United States (not necessarily all in Hong
Kong); and
(iii) Has a gross annual income of at least $50,000,000.
(3) Have an offer of employment in the United States from the United
States business entity as an officer or supervisor or in a capacity that
is managerial or executive, or involves specialized knowledge. The
offer of employment must:
(i) Be effective from the time of filing the petition through and
including the time of entry into the United States, and
(ii) Provide for salary and benefits comparable to the salary and
benefits provided to others with similar responsibilities and experience
within the same company.
(e) Determining managerial or executive capacities -- (1) Supervisors
as managers. A first-line supervisor is not considered to be acting in
a managerial capacity merely by virtue of his or her supervisory duties
of the supervisor's supervisory duties unless the employees supervised
are professional.
(2) Staffing levels. If staffing levels are used as a factor in
determining whether an individual is acting in a managerial or executive
capacity, the reasonable needs of the organization, component, or
function in light of the overall purpose and stage of development of the
organization, component, or function shall be taken into account. An
individual shall not be considered to be acting in a managerial or
executive capacity merely on the basis of the number of employees that
the individual supervises or has supervised or directs or has directed.
(f) Evidence to accompany petition. A petition filed on Form I-140
shall be accompanied by:
(1) Form ETA-750B, Statement of Qualifications of Alien; and
(2) A letter from the employer attesting to the information contained
in paragraph (d) of this section. Since the alien's move to the United
States from Hong Kong does not need to take place immediately, the
employer's information on the job in the United States will be
determined by the circumstances of the individual case. If immediate
immigration is intended, a specific job description must be included
with the employer's attestation. If immigration will be deferred, a
simple commitment by the employer that a qualifying job will be
available in the United States will be acceptable. Prior to seeking
admission to the United States, a deferred visa applicant must present a
specific job description letter for redetermination of eligibility.
Such letter shall be presented to the visa-issuing consular post, or to
the Service office where the alien is applying for adjustment of status
in the United States.
(g) Closing action -- (1) Approval. If the alien is residing in Hong
Kong, an approved petition will be forwarded for visa processing to the
United States Consulate at Hong Kong. Whether the alien is in Hong Kong
or is adjusting in the United States, the legend ''HONG KONG SEC. 124''
will be clearly printed in the block used for indicating preference at
the top of Form I-140.
(2) Denial. The denial of a petition filed under this provision
shall be appealable to the Associate Commissioner, Examinations.
Notification of denial and appeal rights, and the procedure for appeal
shall be the same as those contained in 8 CFR 103.3.
(3) Revocation. A petition approved under this provision shall be
automatically revoked for the same reasons provided in 8 CFR 205.1(c).
The procedure for revocation on notice shall be the procedure described
in 8 CFR 205.2. Termination of employment shall be grounds for automatic
revocation; however, a transfer within the same company to a different
division, section, subsidiary, or affiliate (regardless of geographical
location) will or affiliate in Hong Kong will not be disqualifying.
(56 FR 23210, May 21, 1991, as amended at 57 FR 14792, 14793, Apr.
23, 1992)
08 CFR 204.9 Special immigrant status for certain aliens who have
served honorably (or are enlisted to serve) in the Armed Forces of the
United States for at least 12 years.
(a) Petition for Armed Forces special immigrant. An alien may not be
classified as an Armed Forces special immigrant unless the alien is the
beneficiary of an approved petition to classify such an alien as a
special immigrant under section 101(a)(27)(K) of the Act. The petition
must be filed on Form I-360, Petition for Amerasian, Widow or Special
Immigrant.
(1) Who may file. An alien Armed Forces enlistee or veteran may file
the petition for Armed Forces special immigrant status in his or her own
behalf. The person filing the petition is not required to be a citizen
or lawful permanent resident of the United States.
(2) Where to file. The petition must be filed with the Service
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.
(b) Eligibility. An alien is eligible for classification as a
special immigrant under section 101(a)(27)(K) of the Act if:
(1) The alien has served honorably on active duty in the Armed Forces
of the United States after October 15, 1978;
(2) The alien's original lawful enlistment was outside the United
States (under a treaty or agreement in effect October 1, 1991) for a
period or periods aggregating --
(i) Twelve years, and who, if separated from such service, was never
separated except under honorable conditions; or
(ii) Six years, in the case of an immigrant who is on active duty at
the time of seeking special immigrant status under this rule and who has
reenlisted to incur a total active duty service obligation of at least
12 years;
(3) The alien is a national of an independent state which maintains a
treaty or agreement allowing nationals of that state to enlist in the
United States Armed Forces each year; and
(4) The executive department under which the alien has served or is
serving has recommended the granting of special immigrant status to the
immigrant.
(c) Derivative beneficiaries. A spouse or child accompanying or
following to join a principal immigrant who has requested benefits under
this section may be accorded the same special immigrant classification
as the principal alien. This may occur whether or not the spouse or
child is named in the petition and without the approval of a separate
petition, but only if the executive department under which the immigrant
serves or served recommends the granting of special immigrant status to
the principal immigrant.
(1) The relationship of spouse and child as defined in section
101(b)(1) of the Act must have existed at the time the principal alien's
special immigrant application under section 101(a)(27)(K) of the Act was
approved. The spouse or child of an immigrant classified as a section
103(a)(27)(K) special immigrant is entitled to a derivative status
corresponding to the classification and priority date of the beneficiary
of the petition.
(2) When a spouse or child of an alien granted special immigrant
status under section 101(a)(27)(K) of the Act is in the United States
but was not included in the principal alien's application, the spouse or
child shall file Form I-485, Application to Register Permanent Residence
or Adjust Status, with the director having jurisdiction over his or her
place of residence, regardless of the status of that spouse or child in
the United States. The application must be supported by evidence that
the principal alien has been granted special immigrant status under
section 101(a)(27)(K) of the Act.
(3) When a spouse or child of an alien granted special immigrant
status under section 101(a)(27)(K) of the Act is outside the United
States, the principal alien may file Form I-824, Application for Action
on an Approved Application or Petition, with the office which approved
the original petition.
(4) Revocation of derivative status. The termination of special
immigrant status for a person who was the principal applicant shall
result in termination of the special immigrant status of a spouse or
child whose status was based on the special immigrant application of the
principal.
(d) Documents which must be submitted in support of the petition.
(1) A petition to classify an immigrant as a special immigrant under
section 101(a)(27)(K) of the Act must be accompanied by the following:
(i) Certified proof of reenlistment (after 6 years of active duty
service), or certification of past active duty status of 12 years,
issued by the authorizing official of the executive department in which
the applicant serves or has served, which certifies that the applicant
has the required honorable active duty service and commitment. The
authorizing official need not be at a level above the ''local command''.
The certification must be submitted with Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant; and
(ii) Birth certificate of the applicant establishing that the
applicant is a national of an independent state which maintains a treaty
or agreement allowing nationals of that state to enlist in the United
States Armed Forces each year.
(2) Any documents submitted in support of the petition must meet the
evidentiary requirements as set forth in 8 CFR part 103.
(3) Submission of an original Form DD-214, Certificate of Release or
Discharge from Active Duty; Form G-325b, Biographic Information; and
Form N-426, Request for Certification of Military or Naval Service, is
not required for approval of a petition for special immigrant status.
(e) Decision. The petitioner will be notified of the director's
decision and, if the petition is denied, of the reasons for the denial.
If the petition is denied, the petitioner will also be notified of the
petitioner's right to appeal the decision to the Associate Commissioner
for Examinations in accordance with 8 CFR part 103.
(f) Revocation under section 205 of the Act. An alien who has been
granted special immigrant classification under section 101(a)(27)(K) of
the Act must meet the qualifications set forth in the Act at the time he
or she is admitted to the United States for lawful permanent residence.
If an Armed Forces special immigrant ceases to be a qualified enlistee
by failing to complete the required active duty service obligation for
reasons other than an honorable discharge prior to entering the United
States with an immigrant visa or approval of an application for
adjustment of status to that of an alien lawfully admitted for permanent
residence, the petition designating his or her classification as a
special immigrant is revoked automatically under the general provisions
of section 205 of the Act. The Service shall obtain a current Form
DD-214, Certificate of Release or Discharge from Active Duty, from the
appropriate executive department for verification of the alien's failure
to maintain eligibility for the classification under section
101(a)(27)(K) of the Act.
(57 FR 33861, July 31, 1992)
08 CFR 204.9 PART 205 -- REVOCATION OF APPROVAL OF PETITIONS
Sec.
205.1 Automatic revocation.
205.2 Revocation on notice.
Authority: 66 Stat. 166, 173, 175, 178, 179, 180, 182; 100 Stat.
3537; 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182, 1186a.
08 CFR 205.1 Automatic revocation.
The approval of a petition made under section 204 of the Act and in
accordance with part 204 of this chapter is revoked as of the date of
approval if the Secretary of State shall terminate the registration of
any beneficiary pursuant to the provisions of section 203(e) of the Act
or if any of the following circumstances occur before the beneficiary's
journey to the United States commences or, if the beneficiary is an
applicant for adjustment of status to that of a permanent resident,
before the decision on his application becomes final:
(a) Relative petitions. (1) Upon written notice of withdrawal filed
by the petitioner with any officer of the Service who is authorized to
grant or deny petitions.
(2) Upon the death of the petitioner or beneficiary.
(3) Upon the death of the petitioner unless the Attorney General in
his discretion determines that for humanitarian reasons revocation would
be inappropriate.
(4) Upon the legal termination of the relationship of husband and
wife when a petition has accorded status as the spouse of a citizen or
lawful resident alien, respectively, under section 201(b), or section
203(a)(2) of the Act.
(5) Upon a child beneficiary reaching the age of 21, when he has been
accorded immediate relative status under section 201(b) of the Act;
however, such petition is valid for the duration of the relationship to
accord preference status under section 203(a)(1) of the Act if the
beneficiary remains unmarried, or to accord preference status under
section 203(a)(4) of the Act if he marries.
(6) Upon the marriage of a beneficiary accorded status as the child
of a United States citizen under section 201(b) of the Act; however,
such petition is valid for the duration of the relationship to accord
preference status under section 203(a)(4) of the Act.
(7) Upon the marriage of a beneficiary accorded preference status as
a son or daughter of a United States citizen under section 203(a)(1) of
the Act; however, such petition is valid for the duration of the
relationship to accord preference status under section 203(a)(4) of the
Act.
(8) Upon the marriage of a beneficiary accorded a status as a son or
daughter of a lawful resident alien under section 203(a)(2) of the Act.
(9) Upon the legal termination of the petitioner's status as an alien
admitted for lawful permanent residence in the United States; unless
the petitioner became a United States citizen, then 204.5(c) of this
title applies.
(10) Upon a determination by the Service that it has approved a
spousal immigrant visa petition based upon a marriage entered into while
the beneficiary was under exclusion or deportation proceedings, or
judicial proceedings relating thereto, and prior to the beneficiary's
having resided outside the United States for at least two years in
accordance with section 204(h) of the Act.
(b) Petition for Pub. L. 97-359 Amerasian. (1) Upon formal notice
of withdrawal filed by the petitioner with the officer who approved the
petition.
(2) Upon the death of the beneficiary.
(3) Upon the death or bankruptcy of the sponsor who executed Form
I-361, Affidavit of Financial Support and Intent to Petition for Legal
Custody for Pub. L. 97-359 Amerasian. In that event, a new petition
may be filed in the beneficiary's behalf with the documentary evidence
relating to sponsorship and, in the case of a beneficiary under eighteen
years of age, placement. If the new petition is approved, it will be
given the priority date of the previously approved petition.
(4) Upon the death or substitution of the petitioner if other than
the beneficiary or sponsor. However, if the petitioner dies or no
longer desires or is able to proceed with the petition, and another
person eighteen years of age or older, an emancipated minor, or a
corporation incorporated in the United States desires to be substituted
for the deceased or original petitioner, a written request may be
submitted to the Service or American consular office where the petition
is located to reinstate the petition and restore the original priority
date.
(5) Upon the beneficiary's reaching the age of twenty-one when the
beneficiary has been accorded classification under section 201(b) of the
Act. Provided that all requirements of section 204(g) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(1) of the Act if the beneficiary remains unmarried or
under section 203(a)(4) if the beneficiary marries.
(6) Upon the beneficiary's marriage when the beneficiary has been
accorded classification under section 201(b) or section 203(a)(1) of the
Act. Provided that all requirements of section 204(g) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(4) of the Act.
(c) Petitions under section 203(a) (3) or (6). (1) Upon invalidation
pursuant to 20 CFR part 656 of the labor certification in support of the
petition.
(2) Upon the death of the petitioner or beneficiary.
(3) Upon written notice of withdrawal filed by the petitioner, in
third preference cases, with any officer of the Service who is
authorized to grant or deny petitions.
(4) Upon written notice of withdrawal filed by the petitioner, in
sixth preference cases, with any officer of the Service who is
authorized to grant or deny petitions.
(5) Upon termination of the employer's business in a sixth-preference
case.
(d) Notice. When it shall appear to the district director that the
approval of a petition has been automatically revoked, he shall cause a
notice of such revocation to be sent promptly to the consular office
having jurisdiction over the visa application and a copy of such notice
to be mailed to the petitioner's last known address.
(41 FR 55849, Dec. 23, 1976, as amended at 48 FR 19156, Apr. 28,
1983; 49 FR 29567, July 23, 1984; 49 FR 30679, Aug. 1, 1984; 53 FR
30017, Aug. 10, 1988)
08 CFR 205.2 Revocation on notice.
(a) General. Any Service officer authorized to approve a petition
under section 204 of the Act may revoke the approval of that petition
upon notice to the petitioner on any ground other than those specified
in 204.1 when the necessity for the revocation comes to the attention
of this Service.
(b) Procedure. Revocation of the approval of a petition under
paragraph (a) of this section will be made only on notice to the
petitioner who must be given an opportunity to offer evidence in support
of the petition and in opposition to the grounds alleged for revocation
of the approval. If, upon reconsideration, the approval previously
granted is revoked, the district director shall notify the petitioner of
the decision and of the reasons for the revocation. The petitioner may
appeal the decision within fifteen days after the service of notice.
Except in the case of a petition filed under section 204(g) of the Act,
if the petition was approved for a preference under section 203(a) (1),
(2), (4), or (5) of the Act or for immediate relative classification
under section 201(b) of the Act other than for a child as defined in
section 101(b)(1)(F) of the Act, the petitioner must file the appeal as
provided in part 3 of this chapter. If the petition was approved for a
preference under section 203(a) (3) or (6) of the Act, for a child as
defined in section 101(b)(1)(F) of the Act, or for a Pub. L. 97-359
Amerasian, the petitioner must file the appeal as provided in part 103
of this chapter. The district director shall notify the consular
officer having jurisdiction over the visa application, if applicable, of
the revocation of an approval.
(48 FR 19156, Apr. 28, 1983)
08 CFR 205.2 PART 207 -- ADMISSION OF REFUGEES
Sec.
207.1 Eligibility.
207.2 Applicant processsing.
207.3 Inadmissible applicant.
207.4 Approved application.
207.5 Waiting lists and priority handling.
207.6 Control over approved refugee numbers.
207.7 Physical presence in the United States.
207.8 Termination of refugee status.
Authority: Secs. 101, 103, 201, 207, 209, and 212; (8 U.S.C. 1101,
1103, 1151, 1157, 1159, and 1182).
Source: 46 FR 45118, Sept. 10, 1981, unless otherwise noted.
08 CFR 207.1 Eligibility.
(a) Presidential designation. Before the beginning of each fiscal
year the President determines (after appropriate consultation) the
number and allocation of refugees who are of special humanitarian
concern to the United States and who are to be admitted during the
succeeding twelve months. Any alien who believes he/she is a
''refugee'' as defined in section 101(a)(42) of the Act, and is included
in a refugee group of special humanitarian concern as designated by the
President, may apply for admission to the United States by filing Form
I-590 (Registration for Classification as Refugee) with the overseas
Immigration and Naturalization Service's officer in charge responsible
for the area where the applicant is located. In those areas too distant
from an officer in charge, making direct filing impracticable, the Form
I-590 may be filed preliminarily at a designated consular office.
(b) Firmly resettled. A refugee is considered to be ''firmly
resettled'' if he/she has been offered resident status, citizenship, or
some other type of permanent resettlement by a country other than the
United States and has travelled to and entered that country as a
consequence of his/her flight from persecution. Any applicant who has
become firmly resettled in a foreign country is not eligible for refugee
status under this chapter.
(c) Not firmly resettled. Any applicant who claims not to be firmly
resettled in a foreign country must establish that the conditions of
his/her residence in that country are so restrictive as to deny
resettlement. In determining whether or not an applicant is firmly
resettled in a foreign country, the officer reviewing the matter shall
consider the conditions under which other residents of the country live:
(1) Whether permanent or temporary housing is available to the refugee
in the foreign country; (2) nature of employment available to the
refugee in the foreign country; and (3) other benefits offered or
denied to the refugee by the foreign country which are available to
other residents, such as (i) right to property ownership, (ii) travel
documentation, (iii) education, (iv) public welfare, and (v)
citizenship.
(d) Immediate relatives and special immigrants. Any applicant for
refugee status who qualifies as an immediate relative or as a special
immigrant shall not be processed as a refugee unless it is in the public
interest. The alien shall be advised to obtain an immediate relative or
special immigrant visa and shall be provided with the proper petition
forms to send to any prospective petitioners. An applicant who may be
eligible for classification under sections 203(a)(1), (2), (3), (4),
(5), (6), or (7) of the Act, and for whom a visa number is now
available, shall be advised of such eligibility but is not required to
apply.
(e) Spouse and children. The spouse of child (as defined in section
101(b)(1)(A), (B), (C), (D), or (E) of the Act) of any refugee who
qualifies for admission, shall if not otherwise entitled to admission
and if not a person described in the second sentence of section
101(a)(42) of the Act, be entitled to the same status as such refugee if
accompanying, or following to join such refugee. His/her entry shall be
charged against the numerical limitation under which the refugee's entry
is charged.
08 CFR 207.2 Applicant processing.
(a) Forms. Each applicant who seeks admission as a refugee shall
submit an individual Form I-590 (Registration for Classification as
Refugee). Additionally, each applicant 14 years old or older must
submit completed forms G-325C (Biographical Information) and FD-258
(Applicant Card).
(b) Hearing. Each applicant 14 years old or older shall appear in
person before an immigration officer for inquiry under oath to determine
his/her eligibility for admission as a refugee.
(c) Medical examination. Each applicant shall submit to a medical
examination as required by sections 221(d) and 234 of the Act.
(d) Sponsorship. Each applicant must be sponsored by a responsible
person or organization. Transportation for the applicant from his/her
present abode to the place of resettlement in the United States must be
guaranteed by the sponsor. The application for refugee status will not
be approved until the Service receives an acceptable sponsorship
agreement and guaranty of transportation in behalf of the applicant.
08 CFR 207.3 Inadmissible applicant.
(a) Statutory exclusion. An applicant within the class of aliens
excluded from admission to the United States under paragraphs (27),
(29), (33), or so much of paragraph (23) as it relates to trafficking in
narcotics of section 212(a) of the Act, shall not be admitted as a
refugee under section 207 of the Act. However, an applicant seeking
refugee status under section 207 is exempt by statute from the
exclusionary provisions of paragraphs (14), (15), (20), (21), (25), and
(32) of section 212(a) of the Act and a waiver of exclusion is not
required.
(b) Waiver of exclusion. Except for the exclusionary and statutory
exemption provisions noted in 207.3(a) any other exclusionary
provisions of section 212(a) of the Act may be waived for humanitarian
purposes, to assure family unity, or when it is in the public interest.
This authority is delegated to officers in charge who shall initiate the
necessary investigations to establish the facts in each waiver
application pending before them. Form I-602 (Application by Refugee for
Waiver of Grounds of Excludability) may be filed with the officer in
charge before whom the applicant's Form I-590 is pending. The burden is
upon the applicant to show that the waiver should be granted based upon:
(1) Humanitarian purposes, (2) family unity, or (3) public interest.
The applicant shall be notified in writing regarding the application for
waiver, including the reason for denial if the application is denied.
There is no appeal from a waiver denial under this chapter.
08 CFR 207.4 Approved application.
Approval of Form I-590 by an officer in charge outside the United
States authorizes the district director of the port of entry in the
United States to admit the applicant conditionally as a refugee upon
arrival at the port within four months of the date the Form I-590 was
approved. There is no appeal from a denial of refugee status under this
chapter.
08 CFR 207.5 Waiting lists and priority handling.
Waiting lists are maintained for each designated refugee group of
special humanitarian concern. Each applicant whose application is
accepted for filing by the Immigration and Naturalization Service shall
be registered as of the date of filing. The date of filing is the
priority date for purposes of case control. Refugees or groups of
refugees may be selected from these lists in a manner that will best
support the policies and interests of the United States. The Attorney
General may adopt appropriate criteria for selecting the refugees and
assignment of processing priorities for each designated group based upon
such considerations as: Reuniting families, close association with the
United States, compelling humanitarian concerns, and public interest
factors.
08 CFR 207.6 Control over approved refugee numbers.
Current numerical accounting of approved refugees is maintained for
each special group designated by the President. As refugee status is
authorized for each applicant, the total count is reduced
correspondingly from the appropriate group so that information is
readily available to indicate how many refugee numbers remain available
for issuance.
08 CFR 207.7 Physical presence in the United States.
For the purpose of adjustment of status under section 209(a)(1) of
the Act, the required one year physical presence of the applicant in the
United States is computed from the date the applicant entered the United
States as a refugee.
08 CFR 207.8 Termination of refugee status.
The refugee status of any alien (and of the spouse or child of the
alien) admitted to the United States under section 207 of the Act shall
be terminated by any district director in whose district the alien is
found if the alien was not a refugee within the meaning of section
101(a)(42) of the Act at the time of admission. The district director
shall notify the alien in writing of the Service's intent to terminate
the alien's refugee status. The alien shall have 30 days from the date
notice is served upon him/her or, delivered to his/her last known
address, to present written or oral evidence to show why the alien's
refugee status should not be terminated. There is no appeal under this
chapter from the termination of refugee status by the district director.
Upon termination of refugee status, the district director shall process
the alien under sections 235, 236, and 237 of the Act.
08 CFR 207.8 PART 208 -- PROCEDURES FOR ASYLUM AND WITHHOLDING OF
DEPORTATION
Sec.
208.1 General.
208.2 Jurisdiction.
208.3 Form of application.
208.4 Filing the application.
208.5 Special duties toward aliens in custody of the Service.
208.6 Disclosure to third parties.
208.7 Interim employment authorization.
208.8 Limitations on travel outside the United States.
208.9 Interview and procedure.
208.10 Failure to appear.
208.11 Comments from the Bureau of Human Rights and Humanitarian
Affairs.
208.12 Reliance on information compiled by other sources.
208.13 Establishing refugee status; burden of proof.
208.14 Approval or denial of application.
208.15 Definition of ''firm resettlement.''
208.16 Entitlement to withholding of deportation.
208.17 Decision.
208.18 Review of decisions and appeal.
208.19 Motion to reopen or reconsider.
208.20 Approval and employment authorization.
208.21 Admission of asylee's spouse and children.
208.22 Effect on deportation proceedings.
208.23 Restoration of status.
208.24 Revocation of asylum or withholding of deportation.
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
Source: 55 FR 30680, July 27, 1990, unless otherwise noted.
08 CFR 208.1 General.
(a) This part shall apply to all applications for asylum or
withholding of deportation that are filed on or after October 1, 1990.
No application for asylum or withholding of deportation that has been
filed with a District Director or Immigration Judge prior to October 1,
1990, may be reopened or otherwise reconsidered under the provisions of
this part except by motion granted in the exercise of discretion by the
Board of Immigration Appeals, an Immigration Judge or an Asylum Officer
for proper cause shown. Motions to reopen or reconsider must meet the
requirements of 8 CFR 3.2, 3.8, 3.22, 103.5, and 242.22 where
applicable. The provisions of this part shall not affect the finality
or validity of any decision made by District Directors, Immigration
Judges, or the Board of Immigration Appeals in any asylum or withholding
of deportation case prior to October 1, 1990.
(b) There shall be attached to the Office of Refugees, Asylum, and
Parole such number of employees as the Commissioner, upon recommendation
from the Assistant Commissioner, shall direct. These shall include a
corps of professional Asylum Officers who are to receive special
training in international relations and international law under the
joint direction of the Assistant Commissioner, Office of Refugees,
Asylum, and Parole and the Director of the Asylum Policy and Review Unit
of the Office of Policy Development of the Department of Justice. The
Assistant Commissioner shall be further responsible for general
supervision and direction in the conduct of the asylum program,
including evaluation of the performance of the employees attached to the
Office.
(c) As an ongoing component of the training required by paragraph (b)
of this section, the Assistant Commissioner, Office of Refugees, Asylum
and Parole, shall assist the Deputy Attorney General and the Director of
the Asylum Policy and Review Unit, in coordination with the Department
of State, and in cooperation with other appropriate sources, to compile
and disseminate to Asylum Officers information concerning the
persecution of persons in other countries on account of race, religion,
nationality, membership in a particular social group, or political
opinion, as well as other information relevant to asylum determinations,
and shall maintain a documentation center with information on human
rights conditions.
08 CFR 208.2 Jurisdiction.
(a) Except as provided in paragraph (b) of this section, the Office
of Refugees, Asylum, and Parole shall have initial jurisdiction over
applications for asylum and withholding of deportation filed by an alien
physically present in the United States or seeking admission at a port
of entry. All such applications shall be decided in the first instance
by Asylum Officers under this part.
(b) Immigration Judges shall have exclusive jurisdiction over asylum
applications filed by an alien who has been served notice of referral to
exclusion proceedings under part 236 of this chapter, or served an order
to show cause under part 242 of this chapter, after a copy of the
charging document has been filed with the Office of the Immigration
Judge. The Immigration Judge shall make a determination on such claims
de novo regardless of whether or not a previous application was filed
and adjudicated by an Asylum Officer prior to the initiation of
exclusion or deportation proceedings. Any previously filed but
unadjudicated asylum application must be resubmitted by the alien to the
Immigration Judge.
08 CFR 208.3 Form of application.
(a) An application for asylum or withholding of deportation shall be
made in quadruplicate on Form I-589 (Request for Asylum in the United
States). The applicant's spouse and children as defined in section 101
of the Act may be included on the application if they are in the United
States. An application shall be accompanied by one completed Form
G-325A (Biographical Information) and one completed Form FD-258
(Fingerprint Card) for every individual included on the application who
is fourteen years of age or older; additional supporting material may
also accompany the application and, if so, must be provided in
quadruplicate. Forms I-589, G-325A, and FD-258 shall be available from
the Office of Refugees, Asylum, and Parole, each District Director, and
the Offices of Immigration Judges. The application for asylum or
withholding of deportation shall also be accompanied by 2 photographs of
each applicant and each dependent included on the application.
(b) An application for asylum shall be deemed to constitute at the
same time an application for withholding of deportation, pursuant to
208.16, 236.3, and 242.17 of this chapter.
(55 FR 30680, July 27, 1990, as amended at 56 FR 50812, Oct. 9, 1991)
08 CFR 208.4 Filing the application.
If no prior application for asylum or withholding of deportation has
been filed, an applicant shall file any initial application according to
the following procedures:
(a) With the Asylum Office by mail. Except as provided in paragraphs
(b) and (c) of this section, applications for asylum or withholding of
deportation shall be filed directly by mail with the asylum office
having jurisdiction over the place of the applicant's residence, or, in
the case of an alien without a United States residence, the applicant's
current lodging, or over the land border port of entry from which the
applicant seeks admission to the United States. The addresses of the
asylum offices are available through the local Immigration and
Naturalization Service Information Unit.
(b) With the District Director. In the cases of:
(1) Stowaways who are presented to the Service,
(2) Crewmen who affirmatively approach a Service officer in order to
file for asylum, and
(3) Other aliens seeking admission at a seaport or airport of entry,
applications for asylum or withholding of deportation shall be accepted
by the District Director having jurisdiction over the port of entry.
The District Director shall immediately forward the application to
the asylum office with jurisdiction over that port of entry.
(c) With the Immigration Judge. Initial applications for asylum or
withholding of deportation are to be filed with the Office of the
Immigration Judge in the following circumstances (and shall be treated
as provided in part 236 or 242 of this chapter):
(1) During exclusion or deportation proceedings. If exclusion or
deportation proceedings have been commenced against an alien pursuant to
part 236 or 242 of this chapter, an initial application for asylum or
withholding of deportation from that alien shall be filed thereafter
with the Office of the Immigration Judge.
(2) After completion of exclusion or deportation proceedings. If
exclusion or deportation proceedings have been completed, an initial
application for asylum or withholding of deportation shall be filed with
the Office of the Immigration Judge having jurisdiction over the prior
proceeding in conjunction with a motion to reopen pursuant to 8 CFR 3.8,
3.22 and 242.22 where applicable.
(3) Pursuant to appeal to the Board of Immigration Appeals. If
jurisdiction over the proceedings is vested in the Board of Immigration
Appeals under part 3 of this chapter, an initial application for asylum
or withholding of deportation shall be filed with the Office of the
Immigration Judge having jurisdiction over the prior proceeding in
conjunction with a motion to remand or reopen pursuant to 8 CFR 3.2 and
3.8 where applicable.
(4) Any motion to reopen or remand accompanied by an initial
application for asylum filed under paragraph (b) of this section must
reasonably explain the failure to request asylum prior to the completion
of the exclusion or deportation proceeding.
(55 FR 30680, July 27, 1990, as amended at 56 FR 50812, Oct. 9, 1991)
08 CFR 208.5 Special duties toward aliens in custody of the Service.
(a) When an alien in the custody of the Service requests asylum or
withholding of deportation or expresses fear of persecution or harm upon
return to his country of origin or to agents thereof, the Service shall
make available the appropriate application forms for asylum and
withholding of deportation and shall provide the applicant with a list,
if available, of persons or private agencies that can assist in
preparation of the application.
(b) Where possible, expedited consideration shall be given to
applications of aliens detained under 8 CFR part 235 or 242. Except as
provided in paragraph (c) of this section, such alien shall not be
deported or excluded before a decision is rendered on his initial asylum
or withholding of deportation application.
(c) A motion to reopen or an order to remand accompanied by an
application for asylum or withholding of deportation pursuant to
208.4(b) shall not stay execution of a final order of exclusion or
deportation unless such a stay is specifically granted by the Board or
the Immigration Judge having jurisdiction over the motion.
08 CFR 208.6 Disclosure to third parties.
(a) An application for asylum or withholding of deportation shall not
be disclosed, except as permitted by this section, or at the discretion
of the Attorney General, without the written consent of the applicant.
Names and other identifying details shall be deleted from copies of
asylum or withholding of deportation decisions maintained in public
reading rooms under 103.9 of this chapter.
(b) The confidentiality of other records kept by the Service
(including G-325A forms) that indicate that a specific alien has applied
for asylum or withholding of deportation shall also be protected from
disclosure. The Service will coordinate with the Department of State to
ensure that the confidentiality of these records is maintained when they
are transmitted to State Department offices in other countries.
(c) This section shall not apply to any disclosure to:
(1) Any United States Government official or contractor having a need
to examine information in connection with:
(i) Adjudication of asylum or withholding of deportation
applications;
(ii) The defense of any legal action arising from the adjudication of
or failure to adjudicate the asylum or withholding of deportation
application;
(iii) The defense of any legal action of which the asylum or
withholding of deportation application is a part; or
(iv) Any United States Government investigation concerning any
criminal or civil matter; or
(2) Any Federal, state, or local court in the United States
considering any legal action:
(i) Arising from the adjudication of or failure to adjudicate the
asylum or withholding of deportation application; or
(ii) Arising from the proceedings of which the asylum or withholding
of deportation application is a part.
08 CFR 208.7 Interim employment authorization.
(a) The Asylum Officer to whom an initial application for employment
authorization (Form I-765) accompanying an application for asylum or
withholding of deportation is referred shall authorize employment for a
period not to exceed one year to aliens who are not in detention and
whose applications for asylum or withholding of deportation the Asylum
Officer determines are not frivolous. ''Frivolous'' is defined as
manifestly unfounded or abusive.
(b) Employment authorization shall be renewable, in increments not to
exceed one year, for the continuous period of time necessary for the
Asylum Officer or lmmigration Judge to decide the asylum application
and, if necessary, for final adjudication of any administrative or
judicial review.
(1) If the asylum application is denied by the Asylum Officer, the
employment authorization shall terminate at the expiration of the
employment authorization document or sixty days after the denial of
asylum, whichever is longer.
(2) If the application is denied by the Immigration Judge, the Board
of Immigration Appeals, or upon judicial review of the asylum denial,
the employment authorization terminates upon the expiration of the
employment authorization document.
(c) In order for employment authorization to be renewed under this
section, the alien must provide the Asylum Officer, or District Director
where appropriate, with a Form I-765 and proof that he has continued to
pursue his application for asylum before an Immigration Judge or sought
administrative or judicial review. Pursuit of an application for
asylum, for purposes of employment authorization is established by
presenting to the Asylum Officer one of the following, depending on the
stage of the alien's immigration proceedings:
(1) If the alien's case is pending before the Immigration Judge, and
the alien wishes to pursue an application for asylum, a copy of the
asylum denial and the Order to Show Cause (Form I-221/I-221S) or Notice
to Applicant for Admission Detained for Hearing before Immigration Judge
(Form I-122) placing the alien in proceedings after asylum has been
denied;
(2) If the immigration judge has denied asylum a copy of the Notice
of Appeal (EOIR-26) date stamped by the Office of the Immigration Judge
to show that a timely appeal has been filed from a denial of the asylum
application by the Immigration Judge; or
(3) If the Board has dismissed the alien's appeal of the denial of
asylum, a copy of the petition for judicial review or for habeas corpus
pursuant to section 106 of the Immigration and Nationality Act, date
stamped by the appropriate court.
(d) In order for employment authorization to be renewed before its
expiration, applications for renewal must be received by the Service
sixty days prior to expiration of the employment authorization.
(e) Upon the denied applicant's request, the District Director, in
his discretion, may grant further employment authorization pursuant to 8
CFR 274a.12(c)(12).
08 CFR 208.8 Limitations on travel outside the United States.
An applicant who leaves the United States pursuant to advance parole
granted under 8 CFR 212.5(e) shall be presumed to have abandoned his
application under this section if he returns to the country of claimed
persecution unless he is able to establish compelling reasons for having
assumed the risk of persecution in so returning.
08 CFR 208.9 Interview and procedure.
(a) For each application for asylum or withholding of deportation
within the jurisdiction of an Asylum Officer, an interview shall be
conducted by that Officer, either at the time of application or at a
later date to be determined by the Officer in consultation with the
applicant. Applications within the jurisdiction of an Immigration Judge
are to be adjudicated under the rules of procedure established by the
Executive Office for Immigration Review in parts 3, 236, and 242 of this
chapter.
(b) The Asylum Officer shall conduct the interview in a
nonadversarial manner and, at the request of the applicant, separate and
apart from the general public. The purpose of the interview shall be to
elicit all relevant and useful information bearing on the applicant's
eligibility for the form of relief sought. The applicant may have
counsel or a representative present and may submit affidavits of
witnesses.
(c) The Asylum Officer shall have authority to administer oaths,
present and receive evidence, and question the applicant and any
witnesses, if necessary.
(d) Upon completion of the interview, the applicant or his
representative shall have an opportunity to make a statement or comment
on the evidence presented. The Asylum Officer, in his discretion, may
limit the length of such comments or statement and may require their
submission in writing.
(e) Following the interview the applicant may be given a period not
to exceed 30 days to submit evidence in support of his application,
unless, in the discretion of the Asylum Officer, a longer period is
required.
(f) The application, all supporting information provided by the
applicant, any comments submitted by the Bureau of Human Rights and
Humanitarian Affairs of the Department of State, the Asylum Policy and
Review Unit of the Department of Justice, or by the Service, and any
other information considered by the Asylum Officer shall comprise the
record.
08 CFR 208.10 Failure to appear.
The unexcused failure of an applicant to appear for a scheduled
interview may be presumed an abandonment of the application. Failure to
appear shall be excused if the notice of the interview was not mailed to
the applicant's current address and such address had been provided to
the Office of Refugees, Asylum, and Parole by the applicant prior to the
date of mailing in accordance with section 265 of the Act and
regulations promulgated thereunder, unless the Asylum Officer determines
that the applicant received reasonable notice of the interview. Such
failure to appear may be excused for other serious reasons in the
discretion of the Asylum Officer.
08 CFR 208.11 Comments from the Bureau of Human Rights and Humanitarian
Affairs.
(a) At its option, the Bureau of Human Rights and Humanitarian
Affairs (BHRHA) of the Department of State may comment on an application
it receives pursuant to 208.4(a), 236.3 or 242.17 of this chapter by
providing:
(1) An assessment of the accuracy of the applicant's assertions about
conditions in his country of nationality or habitual residence and his
own experiences;
(2) An assessment of his likely treatment were he to return to his
country of nationality or habitual residence;
(3) Information about whether persons who are similarly-situated to
the applicant are persecuted in his country of nationality or habitual
residence and the frequency of such persecution;
(4) Information about whether one of the grounds for denial specified
in 208.14 may apply; or
(5) Such other information or views as it deems relevant to deciding
whether to grant or deny the application.
(b) In all cases, BHRHA shall respond within 45 days of receiving a
completed application by either providing comments, requesting
additional time in which to comment, or indicating that it does not wish
to comment. If BHRHA requests additional time in which to provide
comments, the Asylum Officer or Immigration Judge may grant BHRHA up to
30 additional days when necessary to gather information pertinent to the
application or may proceed without BHRHA's comments. Failure to receive
BHRHA's response shall not preclude final decision by the Asylum Officer
or Immigration Judge if at least 60 days have elapsed since mailing the
completed application to BHRHA. If the Deputy Attorney General
determines that an expedited decision is necessary or appropriate, BHRHA
shall provide its comments immediately.
(c) Any Department of State comments provided under this section
shall be made a part of the asylum record. Unless the comments are
classified under E.O. 12356 (3 CFR, 1982 Comp., p. 166), the applicant
shall be given a copy of such comments and be provided an opportunity to
respond prior to the issuance of an adverse decision.
08 CFR 208.12 Reliance on information compiled by other sources.
(a) In deciding applications for asylum or withholding of
deportation, the Asylum Officer may rely on material provided by the
Department of State, the Asylum Policy and Review Unit, the Office of
Refugees, Asylum, and Parole, the District Director having jurisdiction
over the place of the applicant's residence or the port of entry from
which the applicant seeks admission to the United States, or other
credible sources, such as international organizations, private voluntary
agencies, or academic institutions. Prior to the issuance of an adverse
decision made in reliance upon such material, that material must be
identified and the applicant must be provided with an opportunity to
inspect, explain, and rebut the material, unless the material is
classified under E.O. 12356.
(b) Nothing in this part shall be construed to entitle the applicant
to conduct discovery directed toward the records, officers, agents, or
employees of the Service, the Department of Justice, or the Department
of State.
08 CFR 208.13 Establishing refugee status; burden of proof.
(a) The burden of proof is on the applicant for asylum to establish
that he is a refugee as defined in section 101(a)(42) of the Act. The
testimony of the applicant, if credible in light of general conditions
in the applicant's country of nationality or last habitual residence,
may be sufficient to sustain the burden of proof without corroboration.
(b) The applicant may qualify as a refugee either because he has
suffered actual past persecution or because he has a well-founded fear
of future persecution.
(1) Past persecution. An applicant shall be found to be a refugee on
the basis of past persecution if he can establish that he has suffered
persecution in the past in his country of nationality or last habitual
residence on account of race, religion, nationality, membership in a
particular social group, or political opinion, and that he is unable or
unwilling to return to or avail himself of the protection of that
country owing to such persecution.
(i) If it is determined that the applicant has established past
persecution, he shall be presumed also to have a well-founded fear of
persecution unless a preponderance of the evidence establishes that
since the time the persecution occurred conditions in the applicant's
country of nationality or last habitual residence have changed to such
an extent that the applicant no longer has a well-founded fear of being
persecuted if he were to return.
(ii) An application for asylum shall be denied if the applicant
establishes past persecution under this paragraph but is determined not
also to have a well-founded fear of future persecution under paragraph
(b)(2) of this section, unless it is determined that the applicant has
demonstrated compelling reasons for being unwilling to return to his
country of nationality or last habitual residence arising out of the
severity of the past persecution. If the applicant demonstrates such
compelling reasons, he may be granted asylum unless such a grant is
barred by paragraph (c) of this section or 208.14(c).
(2) Well-founded fear of persecution. An applicant shall be found to
have a well-founded fear of persecution if he can establish first, that
he has a fear of persecution in his country of nationality or last
habitual residence on account of race, religion, nationality, membership
in a particular social group, or political opinion, second, that there
is a reasonable possibility of actually suffering such persecution if he
were to return to that country, and third, that he is unable or
unwilling to return to or avail himself of the protection of that
country because of such fear.
(i) In evaluating whether the applicant has sustained his burden of
proving that he has a well-founded fear of persecution, the Asylum
Officer or Immigration Judge shall not require the applicant to provide
evidence that he would be singled out individually for persecution if:
(A) He establishes that there is a pattern or practice in his country
of nationality or last habitual residence of persecution of groups of
persons similarly situated to the applicant on account of race,
religion, nationality, membership in a particular social group, or
political opinion; and
(B) He establishes his own inclusion in and identification with such
group of persons such that his fear of persecution upon return is
reasonable.
(ii) The Asylum Officer or Immigration Judge shall give due
consideration to evidence that the government of the applicant's country
of nationality or last habitual residence persecutes its nationals or
residents if they leave the country without authorization or seek asylum
in another country.
(c) An applicant shall not qualify as a refugee if he ordered,
incited, assisted, or otherwise participated in the persecution of any
person on account of race, religion, nationality, membership in a
particular social group, or political opinion. If the evidence
indicates that the applicant engaged in such conduct, he shall have the
burden of proving by a preponderance of the evidence that he did not so
act.
08 CFR 208.14 Approval or denial of application.
(a) An Immigration Judge or Asylum Officer may grant or deny asylum
in the exercise of discretion to an applicant who qualifies as a refugee
under section 101(a)(42) of the Act unless otherwise prohibited by
paragraph (c) of this section.
(b) If the evidence indicates that one or more of the grounds for
denial of asylum enumerated in paragraph (c) of this section may apply,
the applicant shall have the burden of proving by a preponderance of the
evidence that such grounds do not apply.
(c) Mandatory denials. An application for asylum shall be denied if:
(1) The alien, having been convicted by a final judgment of a
particularly serious crime in the United States, constitutes a danger to
the community;
(2) The applicant has been firmly resettled within the meaning of
208.15; or
(3) There are reasonable grounds for regarding the alien as a danger
to the security of the United States.
08 CFR 208.15 Definition of ''firm resettlement.''
An alien is considered to be firmly resettled if, prior to arrival in
the United States, he entered into another nation with, or while in that
nation received, an offer of permanent resident status, citizenship, or
some other type of permanent resettlement unless he establishes:
(a) That his entry into that nation was a necessary consequence of
his flight from persecution, that he remained in that nation only as
long as was necessary to arrange onward travel, and that he did not
establish significant ties in that nation; or
(b) That the conditions of his residence in that nation were so
substantially and consciously restricted by the authority of the country
of refuge that he was not in fact resettled. In making his
determination, the Asylum Officer or Immigration Judge shall consider
the conditions under which other residents of the country live, the type
of housing made available to the refugee, whether permanent or
temporary, the types and extent of employment available to the refugee,
and the extent to which the refugee received permission to hold property
and to enjoy other rights and privileges, such as travel documentation
including a right of entry and/or reentry, education, public relief, or
naturalization, ordinarily available to others resident in the country.
08 CFR 208.16 Entitlement to withholding of deportation.
(a) Consideration of application for withholding of deportation. If
the Asylum Officer denies an alien's application for asylum, he shall
also decide whether the alien is entitled to withholding of deportation
under section 243(h) of the Act. If the application for asylum is
granted, no decision on withholding of deportation will be made unless
and until the grant of asylum is later revoked or terminated and
deportation proceedings at which a new request for withholding of
deportation is made are commenced. In such proceedings, an Immigration
Judge may adjudicate both a renewed asylum claim and a request for
withholding of deportation simultaneously whether or not asylum is
granted.
(b) Eligibility for withholding of deportation; burden of proof.
The burden of proof is on the applicant for withholding of deportation
to establish that his life or freedom would be threatened in the
proposed country of deportation on account of race, religion,
nationality, membership in a particular social group, or political
opinion. The testimony of the applicant, if credible in light of
general conditions in the applicant's country of nationality or last
habitual residence, may be sufficient to sustain the burden of proof
without corroboration. The evidence shall be evaluated as follows:
(1) The applicant's life or freedom shall be found to be threatened
if it is more likely than not that he would be persecuted on account of
race, religion, nationality, membership in a particular social group, or
political opinion.
(2) If the applicant is determined to have suffered persecution in
the past such that his life or freedom was threatened in the proposed
country of deportation on account of race, religion, nationality,
membership in a particular social group, or political opinion, it shall
be presumed that his life or freedom would be threatened on return to
that country unless a preponderance of the evidence establishes that
conditions in the country have changed to such an extent that it is no
longer more likely than not that the applicant would be so persecuted
there.
(3) In evaluating whether the applicant has sustained the burden of
proving that his life or freedom would be threatened in a particular
country on account of race, religion, nationality, membership in a
particular social group, or political opinion, the Asylum Officer or
Immigration Judge shall not require the applicant to provide evidence
that he would be singled out individually for such persecution if:
(i) He establishes that there is a pattern or practice in the country
of proposed deportation of persecution of groups of persons similarly
situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion; and
(ii) He establishes his own inclusion in and identification with such
group of persons such that it is more likely than not that his life or
freedom would be threatened upon return.
(4) In addition, the Asylum Officer or Immigration Judge shall give
due consideration to evidence that the life or freedom of nationals or
residents of the country of claimed persecution is threatened if they
leave the country without authorization or seek asylum in another
country.
(c) Approval or denial of application. The following standards shall
govern approval or denial of applications for withholding of
deportation:
(1) Subject to paragraph (c)(2) of this section, an application for
withholding of deportation to a country of proposed deportation shall be
granted if the applicant's eligibility for withholding is established
pursuant to paragraph (b) of this section.
(2) An application for withholding of deportation shall be denied if:
(i) The alien ordered, incited, assisted, or otherwise participated
in the persecution of any person on account of race, religion,
nationality, membership in a particular social group, or political
opinion;
(ii) The alien, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of the
United States;
(iii) There are serious reasons for considering that the alien has
committed a serious nonpolitical crime outside the United States prior
to arrival in the United States; or
(iv) There are reasonable grounds for regarding the alien as a danger
to the security of the United States.
(3) If the evidence indicates that one or more of the grounds for
denial of withholding of deportation enumerated in paragraph (c)(2) of
this section apply, the applicant shall have the burden of proving by a
preponderance of the evidence that such grounds do not apply.
(4) In the event that an applicant is denied asylum solely in the
exercise of discretion, and the applicant is subsequently granted
withholding of deportation under this section, thereby effectively
precluding admission of the applicant's spouse or minor children
following to join him, the denial of asylum shall be reconsidered.
Factors to be so considered will include the reasons for the denial and
reasonable alternatives available to the applicant such as reunification
with his spouse or minor children in a third country.
08 CFR 208.17 Decision.
The decision of an Asylum Officer to grant or deny asylum or
withholding of deportation shall be communicated in writing to the
applicant, the District Director having jurisdiction over the place of
the applicant's residence or over the port of entry from which he sought
admission to the United States, the Assistant Commissioner, Refugees,
Asylum, and Parole, and the Director of the Asylum Policy and Review
Unit of the Department of Justice. An adverse decision will state why
asylum or withholding of deportation was denied and will contain an
assessment of the applicant's credibility.
08 CFR 208.18 Review of decisions and appeal.
(a) The Assistant Commissioner, Office of Refugees, Asylum, and
Parole, shall have authority to review decisions by Asylum Officers,
before they become effective, in any cases he shall designate. The
Office of the Deputy Attorney General, assisted by the Asylum Policy and
Review Unit, shall have authority to review decisions by Asylum
Officers, before they become effective, in any cases designated pursuant
to 28 CFR 0.15(f)(3). There shall be no right of appeal to the Office of
Refugees, Asylum, and Parole, to the Office of the Deputy Attorney
General, or to the Asylum Policy and Review Unit, and parties shall have
no right to appear before such offices in the course of such review.
(b) Except as provided in 253.1(f) of this chapter, there shall be
no appeal from a decision of an Asylum Officer. However, an application
for asylum or withholding of deportation may be renewed before an
Immigration Judge in exclusion or deportation proceedings. If exclusion
or deportation proceedings have not been instituted against an applicant
within 30 days of the Asylum Officer's final decision, the applicant may
request in writing that the District Director having jurisdiction over
the applicant's place of residence commence such proceedings. Absent
exceptional circumstances, the District Director shall thereafter
promptly institute proceedings against the applicant.
(c) A denial of asylum or withholding of deportation may only be
reviewed by the Board of Immigration Appeals in conjunction with an
appeal taken under 8 CFR part 3.
08 CFR 208.19 Motion to reopen or reconsider.
(a) A proceeding in which asylum or withholding of deportation was
denied may be reopened or a decision from such a proceeding reconsidered
for proper cause upon motion pursuant to the requirements of 8 CFR 3.2,
3.8, 3.22, 103.5, and 242.17 where applicable.
(b) A motion to reopen or reconsider shall be filed:
(1) With the District Director having jurisdiction over the location
at which the prior determination was made who shall forward the motion
immediately to an Asylum Officer; or
(2) With the Office of the Immigration Judge having jurisdiction over
the prior proceeding.
08 CFR 208.20 Approval and employment authorization.
When an alien's application for asylum is granted, he is granted
asylum status for an indefinite period. Employment authorization is
automatically granted or continued for persons granted asylum or
withholding of deportation unless the alien is detained pending removal
to a third country. Appropriate documentation showing employment
authorization shall be provided by the INS.
08 CFR 208.21 Admission of asylee's spouse and children.
(a) Eligibility. A spouse, as defined in section 101(a)(35) of the
Act, or child, as defined in section 101(b)(1) (A), (B), (C), (D), or
(E) of the Act, may also be granted asylum if accompanying or following
to join the principal alien, unless it is determined that:
(1) The spouse or child ordered, incited, assisted, or otherwise
participated in the persecution of any persons on account of race,
religion, nationality, membership in a particular social group, or
political opinion;
(2) The spouse or child, having been convicted by a final judgment of
a particularly serious crime in the United States, constitutes a danger
to the community of the United States; or
(3) There are reasonable grounds for regarding the spouse or child a
danger to the security of the United States.
(b) Relationship. The relationship of spouse and child as defined in
section 101(b)(1) of the Act must have existed at the time the principal
alien's asylum application was approved, except for children born to or
legally adopted by the principal alien and spouse after approval of the
principal alien's asylum application.
(c) Spouse or child in the United States. When a spouse or child of
an alien granted asylum is in the United States but was not included in
the principal alien's application, the principal alien may request
asylum for the spouse or child by filing Form I-730 with the District
Director having jurisdiction over his place of residence, regardless of
the status of that spouse or child in the United States.
(d) Spouse or child outside the United States. When a spouse or
child of an alien granted asylum is outside the United States, the
principal alien may request asylum for the spouse or child by filing
form I-730 with the District Director, setting forth the full name,
relationship, date and place of birth, and current location of each such
person. Upon approval of the request, the District Director shall
notify the Department of State, which will send an authorization cable
to the American Embassy or Consulate having jurisdiction over the area
in which the asylee's spouse or child is located.
(e) Denial. If the spouse or child is found to be ineligible for the
status accorded under section 208(c) of the Act, a written notice
explaining the basis for denial shall be forwarded to the principal
alien. No appeal shall lie from this decision.
(f) Burden of proof. To establish the claim of relationship of
spouse or child as defined in section 101(b)(1) of the Act, evidence
must be submitted with the request as set forth in part 204 of this
chapter. Where possible this will consist of the documents specified in
8 CFR 204.2(c)(2) and (c)(3). The burden of proof is on the principal
alien to establish by a preponderance of the evidence that any person on
whose behalf he is making a request under this section is an eligible
spouse or child.
(g) Duration. The spouse or child qualifying under section 208(c) of
the Act shall be granted asylum for an indefinite period unless the
principal's status is revoked.
08 CFR 208.22 Effect on deportation proceedings.
(a) An alien who has been granted asylum may not be excluded or
deported unless his asylum status is revoked pursuant to 208.24. An
alien in exclusion or deportation proceedings who is granted withholding
of deportation may not be deported to the country as to which his
deportation is ordered withheld unless withholding of deportation is
revoked pursuant to 208.24.
(b) When an alien's asylum status or withholding of deportation is
revoked under this chapter, he shall be placed in exclusion or
deportation proceedings. Exclusion or deportation proceedings may be
conducted concurrently with a revocation hearing scheduled under
208.24.
08 CFR 208.23 Restoration of status.
An alien who was maintaining his nonimmigrant status at the time of
filing an application for asylum or withholding of deportation may
continue or be restored to that status, if it has not expired,
notwithstanding the denial of asylum or withholding of deportation.
08 CFR 208.24 Revocation of asylum or withholding of deportation.
(a) Revocation of asylum by the Assistant Commissioner, Office of
Refugees, Asylum, and Parole. Upon motion by the Assistant Commissioner
and following a hearing before an Asylum Officer, the grant to an alien
of asylum made under the jurisdiction of an Asylum Officer may be
revoked if, by a preponderance of the evidence, the Service establishes
that:
(1) The alien no longer has a well-founded fear of persecution upon
return due to a change of conditions in the alien's country of
nationality or habitual residence;
(2) There is a showing of fraud in the alien's application such that
he was not eligible for asylum at the time it was granted; or
(3) The alien has committed any act that would have been grounds for
denial of asylum under 208.14(c).
(b) Revocation of withholding of deportation by the Assistant
Commissioner, Office of Refugees, Asylum, and Parole. Upon motion by
the Assistant Commissioner, and following a hearing before an Asylum
Officer, the grant to an alien of withholding of deportation made under
the jurisdiction of an Asylum Officer may be revoked if, by clear and
convincing evidence, the Service establishes that:
(1) The alien is no longer entitled to withholding of deportation due
to a change of conditions in the country to which deportation was
withheld;
(2) There is a showing of fraud in the alien's application such that
he was not eligible for withholding of deportation at the time it was
granted;
(3) The alien has committed any other act that would have been
grounds for denial of withholding of deportation under 208.16(c)(2).
(c) Notice to applicant. Upon motion by the Assistant Commissioner
to revoke asylum status or withholding of deportation, the alien shall
be given notice of intent to revoke, with the reason therefore, at least
thirty days before the hearing by the Asylum Officer. The alien shall
be provided the opportunity to present evidence tending to show that he
is still eligible for asylum or withholding of deportation. If the
Asylum Officer determines that the alien is no longer eligible for
asylum or withholding of deportation, the alien shall be given written
notice that asylum status or withholding of deportation along with
employment authorization are revoked.
(d) Revocation of derivative status. The termination of asylum
status for a person who was the principal applicant shall result in
termination of the asylum status of a spouse or child whose status was
based on the asylum application of the principal.
(e) Reassertion of asylum claim. A revocation of asylum or
withholding of deportation pursuant to paragraphs (a) or (b) of this
section shall not preclude an applicant from reasserting an asylum or
withholding of deportation claim in any subsequent exclusion or
deportation proceeding.
(f) Review. The Office of the Deputy Attorney General, assisted by
the Asylum Policy and Review Unit, shall have authority to review
decisions to revoke asylum or withholding of deportation, before they
become effective, in any cases designated pursuant to 28 CFR 0.15(f)(3).
There shall be no right of appeal to the Office of the Deputy Attorney
General or to the Asylum Policy and Review Unit and parties shall have
no right to appear before such offices in the course of such review.
(g) Revocation of asylum or withholding of deportation by the
Executive Office for Immigration Review. An Immigration Judge or the
Board of Immigration Appeals may reopen a case pursuant to 3.2 or
242.22 of this chapter for the purpose of revoking a grant of asylum or
withholding of deportation made under the exclusive jurisdiction of an
Immigration Judge. In such a reopened proceeding, the Service must
similarly establish by the appropriate standard of evidence one or more
of the grounds set forth in paragraphs (a) or (b) of this section. Any
revocation under this paragraph may occur in conjunction with an
exclusion or deportation proceeding.
08 CFR 208.24 PART 209 -- ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS
GRANTED ASYLUM
Sec.
209.1 Admission for permanent residence after one year.
209.2 Adjustment of status of alien granted asylum.
Authority: 8 U.S.C. 1101, 1103, 1157, 1158, and 1159.
08 CFR 209.1 Admission for permanent residence after one year.
(a) Eligibility. (1) Every alien in the United States as a refugee
under 207 of this chapter whose status has not been terminated, is
required to appear before an immigration officer one year after entry to
determine his/her admissibility under sections 235, 236, and 237 of the
Act. The applicant shall be examined under oath to determine
admissibility. If the applicant is found to be admissible, he/she shall
be inspected and admitted for lawful permanent residence as of the date
of the alien's arrival in the United States. If the applicant is
determined to be inadmissible, he/she shall be informed that he/she may
renew the request for admission to the United States as an immigrant in
exclusion proceedings under section 236 of the Act. The provisions of
this section shall provide the sole and exclusive procedure for
adjustment of status by a refugee admitted under section 207 of the Act,
whose application is based on his/her refugee status.
(2) Every alien processed by the Immigration and Naturalization
Service abroad and paroled into the United States as a refugee after
April 1, 1980, and before May 18, 1980 shall be considered as having
entered the United States as a refugee under section 207(a) of the Act.
(b) Processing Application. One year after arrival in the United
States, every refugee entrant shall be notified to appear for
examination before an immigration officer. Each applicant shall be
examined under oath to determine eligibility for permanent residence.
If the refugee entrant has been physically present in the United States
for at least one year, forms FD-258 (Applicant Card) and G-325A
(Biographical Information) will be processed. Unless there were medical
grounds for exclusion at the time of arrival, a United States Public
Health Service medical examination is not required. If the alien is
found admissible after inspection under section 209(a) of the Act,
he/she shall be processed for issuance of Form I-551 (Alien Registration
Receipt Card).
(46 FR 45119, Sept. 10, 1981)
08 CFR 209.2 Adjustment of status of alien granted asylum.
The provisions of this section shall be the sole and exclusive
procedure for adjustment of status by an asylee admitted under section
208 of the Act whose application is based on his or her asylee status.
(a) Eligibility. (1) Except as provided in paragraph (a)(2) of this
section, the status of any alien who has been granted asylum in the
United States may be adjusted by the district director to that of an
alien lawfully admitted for permanent residence, provided the alien:
(i) Applies for such adjustment;
(ii) Has been physically present in the United States for at least
one year after having been granted asylum;
(iii) Continues to be a refugee within the meaning of section
101(a)(42) of the Act, or is the spouse or child of a refugee;
(iv) Has not been firmly resettled in any foreign country; and
(v) Is admissible to the United States as an immigrant under the Act
at the time of examination for adjustment without regard to paragraphs
(4), (5)(A), (5)(B), and (7)(A)(i) of section 212(a) of the Act, and
(vi) has a refugee number available under section 207(a) of the Act.
If the application for adjustment filed under this part exceeds the
refugee numbers available under section 207(a) of the Act for the fiscal
year, a waiting list will be established on a priority basis by the date
the application was properly filed.
(2) An alien, who was granted asylum in the United States prior to
November 29, 1990 (regardless of whether or not such asylum has been
terminated under section 208(b) of the Act), and is no longer a refugee
due to a change in circumstances in the foreign state where he or she
feared persecution, may also have his or her status adjusted by the
district director to that of an alien lawfully admitted for permanent
residence even if he or she is no longer able to demonstrate that he or
she continues to be a refugee within the meaning of section 10l(a)(42)
of the Act, or to be a spouse or child of such a refugee or to have been
physically present in the United States for at least one year after
being granted asylum, so long as he or she is able to meet the
requirements noted in paragraphs (a)(1)(i), (iv), and (v) of this
section. Such persons are exempt from the numerical limitations of
section 209(b) of the Act. However, the number of aliens who are
natives of any foreign state who may adjust status pursuant to this
paragraph in any fiscal year shall not exceed the difference between the
per country limitation established under section 202(a) of the Act and
the number of aliens who are chargeable to that foreign state in the
fiscal year under section 202 of the Act. Aliens who applied for
adjustment of status under section 209(b) of the Act before June 1,
1990, are also exempt from its numerical limitation without any
restrictions.
(b) Inadmissible Alien. An applicant who is inadmissible to the
United States under section 212(a) of the Act, may, under section 209(c)
of the Act, have the grounds of inadmissibility waived by the district
director (except for those grounds under paragraphs (27), (29), (33),
and so much of (23) as relates to trafficking in narcotics) for
humanitarian purposes, to assure family unity, or when it is otherwise
in the public interest. An application for the waiver may be filed on
Form I-602 (Application by Refugee for Waiver of Grounds of
Excludability) with the application for adjustment. An applicant for
adjustment who has had the status of an exchange alien nonimmigrant
under section 101(a)(15)(J) of the Act, and who is subject to the
foreign resident requirement of section 212(e) of the Act, shall be
eligible for adjustment without regard to the foreign residence
requirement.
(c) Application. An application for the benefits of section 209(b)
of the Act may be filed on Form I-485 (Application for Status as
Permanent Resident) with the district director having jurisdiction over
the applicant's place of residence. A separate application must be
filed by each alien, and if the alien is 14 years or older it must be
accompanied by a completed Form G-325A (Biographical Information) and
Form FD-258 (Applicant Card). Except as provided in paragraph (a)(2) of
this section, the application must also be supported by evidence that
the applicant has been physically present in the United States for at
least one year. If an alien has been placed in deportation or exclusion
proceedings, the application can be filed and considered only in
proceedings under section 242 or 236 of the Act.
(d) Medical Examination. Upon acceptance of the application, the
applicant shall submit to an examination by a selected civil surgeon as
required by sections 221(d) and 234 of the Act. The report setting
forth the findings of the mental and physical condition of the applicant
shall be incorporated into the record.
(e) Interview. Each applicant for adjustment of status under this
part shall be interviewed by an immigration officer. The interview may
be waived for a child under 14 years of age.
(f) Decision. The applicant shall be notified of the decision, and
if the application is denied, of the reasons for denial. No appeal
shall lie from the denial of an application by the district director but
such denial will be without prejudice to the alien's right to renew the
application in proceedings under parts 242 and 236 of this chapter. If
the application is approved, the district director shall record the
alien's admission for lawful permanent residence as of the date one year
before the date of the approval of the application, but not earlier than
the date of the approval for asylum in the case of an applicant approved
under paragraph (a)(2) of this section.
(46 FR 45119, Sept. 10, 1981, as amended at 56 FR 26898, June 12,
1991; 57 FR 42883, 42884, Sept. 17, 1992)
08 CFR 209.2 PART 210 -- SPECIAL AGRICULTURAL WORKERS
Sec.
210.1 Definition of terms used in this part.
210.2 Application for temporary resident status.
210.3 Eligibility.
210.4 Status and benefits.
210.5 Adjustment to permanent resident status.
Authority: 8 U.S.C. 1103, 1160, 8 CFR part 2.
Source: 53 FR 10064, Mar. 29, 1988, unless otherwise noted.
08 CFR 210.1 Definition of terms used in this part.
(a) Act. The Immigration and Nationality Act, as amended by the
Immigration Reform and Control Act of 1986.
(b) ADIT. Alien Documentation, Identification and Telecommunications
card, Form I-89. Used to collect key data concerning an alien. When
processed together with an alien's photographs, fingerprints and
signature, this form becomes the source document for generation of Form
I-551 Alien Registration Receipt Card.
(c) Application period. The 18-month period during which an
application for adjustment of status to that of a temporary resident may
be accepted, begins on June 1, 1987, and ends on November 30, 1988.
(d) Complete application. A complete application consists of an
executed Form I-700, Application for Temporary Resident Status as a
Special Agricultural Worker, evidence of qualifying agricultural
employment and residence, a report of medical examination, and the
prescribed number of photographs. An application is not complete until
the required fee has been paid and recorded.
(e) Determination process. Determination process as used in this
part means reviewing and evaluating all information provided pursuant to
an application for the benefit sought and making a determination
thereon. If fraud, willful misrepresentation of a material fact, a
false writing or document, or any other activity prohibited by section
210(b)(7) of the Act is discovered during the determination process the
Service shall refer the case to a U.S. Attorney for possible
prosecution.
(f) Family unity. The term family unity as used in section
210(c)(2)(B)(i) of the Act means maintaining the family group without
deviation or change. The family group shall include the spouse,
unmarried minor children who are not members of some other household,
and parents who reside regularly in the household of the family group.
(g) Group 1. Special agricultural workers who have performed
qualifying agricultural employment in the United States for at least 90
man-days in the aggregate in each of the twelve-month periods ending on
May 1, 1984, 1985, and 1986, and who have resided in the United States
for six months in the aggregate in each of those twelve-month periods.
(h) Group 2. Special agricultural workers who during the
twelve-month period ending on May 1, 1986 have performed at least 90
man-days in the aggregate of qualifying agricultural employment in the
United States.
(i) Legalization Office. Legalization offices are local offices of
the Immigration and Naturalization Service which accept and process
applications for legalization or special agricultural worker status,
under the authority of the district directors in whose districts such
offices are located.
(j) Man-day. The term man-day means the performance during any day
of not less than one hour of qualifying agricultural employment for
wages paid. If employment records relating to an alien applicant show
only piece rate units completed, then any day in which piece rate work
was performed shall be counted as a man-day. Work for more than one
employer in a single day shall be counted as no more than one man-day
for the purposes of this part.
(k) Nonfrivolous application. A complete application will be
determined to be nonfrivolous at the time the applicant appears for an
interview at a legalization or overseas processing office if it
contains:
(1) Evidence or information which shows on its face that the
applicant is admissible to the United States or, if inadmissible, that
the applicable grounds of excludability may be waived under the
provisions of section 210(c)(2)(i) of the Act,
(2) Evidence or information which shows on its face that the
applicant performed at least 90 man-days of qualifying employment in
seasonal agricultural services during the twelve-month period from May
1, 1985 through May 1, 1986, and
(3) Documentation which establishes a reasonable inference of the
performance of the seasonal agricultural services claimed by the
applicant.
(l) Overseas processing office. Overseas processing offices are
offices outside the United States at which applications for adjustment
to temporary resident status as a special agricultural worker are
received, processed, referred to the Service for adjudication or denied.
The Secretary of State has designated for this purpose the United
States Embassy at Mexico City, and in all other countries the immigrant
visa issuing of office at which the alien, if an applicant for an
immigrant visa, would make such application. Consular officers assigned
to such offices are authorized to recommend approval of an application
for special agricultural worker status to the Service if the alien
establishes eligibility for approval and to deny such an application if
the alien fails to establish eligibility for approval or is found to
have committed fraud or misrepresented facts in the application process.
(m) Preliminary application. A preliminary application is defined as
a fully completed and signed application with fee and photographs which
contains specific information concerning the performance of qualifying
employment in the United States, and identifies documentary evidence
which the applicant intends to submit as proof of such employment. The
applicant must be otherwise admissible to the United States and must
establish to the satisfaction of the examining officer during an
interview that his or her claim to eligibility for special agriculture
worker status is credible.
(n) Public cash assistance. Public cash assistance means income or
needs-based monetary assistance. This includes but is not limited to
supplemental security income received by the alien or his immediate
family members through federal, state, or local programs designed to
meet subsistence levels. It does not include assistance in kind, such
as food stamps, public housing, or other non-cash benefits, nor does it
include work-related compensation or certain types of medical assistance
(Medicare, Medicaid, emergency treatment, services to pregnant women or
children under 18 years of age, or treatment in the interest of public
health).
(o) Qualified designated entity. A qualified designated entity is
any state, local, church, community, or voluntary agency, farm labor
organization, association of agricultural employers or individual
designated by the Service to assist aliens in the preparation of
applications for Legalization and/or Special Agricultural Worker status.
(p) Qualifying agricultural employment. Qualifying agricultural
employment means the performance of ''seasonal agricultural services''
described at section 210(h) of the Act as that term is defined in
regulations by the Secretary of Agriculture at 7 CFR part 1d.
(q) Regional processing facility. Regional Processing Facilities are
Service offices established in each of the four Service regions to
adjudicate, under the authority of the Directors of the Regional
Processing Facilities, applications for adjustment of status under
sections 210 and 245a of the Act.
(r) Service. The Immigration and Naturalization Service (INS).
(s) Special agricultural worker. Any individual granted temporary
resident status in the Group 1 or Group 2 classification or permanent
resident status under section 210(a) of the Act.
(53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989)
08 CFR 210.2 Application for temporary resident status.
(a)(1) Application for temporary resident status. An alien
agricultural worker who believes that he or she is eligible for
adjustment of status under the provisions of 210.3 of this part may
file an application for such adjustment at a qualified designated
entity, at a legalization office, or at an overseas processing office
outside the United States. Such application must be filed within the
application period.
(2) Application for Group 1 status. An alien who believes that he or
she qualifies for Group 1 status as defined in 210.1(f) of this part
and who desires to apply for that classification must so endorse his or
her application at the time of filing. Applications not so endorsed
will be regarded as applications for Group 2 status as defined in
210.1(g) of this part.
(3) Numerical limitations. The numerical limitations of sections 201
and 202 of the Act do not apply to the adjustment of aliens to lawful
temporary or permanent resident status under section 210 of the Act. No
more than 350,000 aliens may be granted temporary resident status in the
Group 1 classification. If more than 350,000 aliens are determined to
be eligible for Group 1 classification, the first 350,000 applicants (in
chronological order by date the application is filed at a legalization
or overseas processing office) whose applications are approved for Group
1 status shall be accorded that classification. Aliens admitted to the
United States under the transitional admission standard placed in effect
between July 1, 1987, and November 1, 1987, and under the preliminary
application standard at 210.2(c)(4) who claim eligibility for Group 1
classification shall be registered as applicants for that classification
on the date of submission to a legalization office of a complete
application as defined in 210.1(c) of this part. Other applicants who
may be eligible for Group 1 classification shall be classified as Group
2 aliens. There is no limitation on the number of aliens whose resident
status may be adjusted from temporary to permanent in Group 2
classification.
(b) Filing date of application -- (1) General. The date the alien
submits an application to a qualified designated entity, legalization
office or overseas processing office shall be considered the filing date
of the application, provided that in the case of an application filed at
a qualified designated entity the alien has consented to have the entity
forward the application to a legalization office. Qualified designated
entities are required to forward completed applications to the
appropriate legalization office within 60 days after the applicant gives
consent for such forwarding.
(c) Filing of application -- (1) General. The application must be
filed on Form I-700 at a qualified designated entity, at a legalization
office, at a designated port of entry, or at an overseas processing
office within the eighteen-month period beginning on June 1, 1987 and
ending on November 30, 1988.
(2) Applications in the United States. (i) The application must be
filed on Form I-700 with the required fee and, if the applicant is 14
years or older, the application must be accompanied by a completed Form
FD-258 (Fingerprint Card).
(ii) All fees for applications filed in the United States, other than
those within the provisions of 210.2(c)(4), must be submitted in the
exact amount in the form of a money order, cashier's check, or bank
check made payable to the Immigration and Naturalization Service. No
personal checks or currency will be accepted. Fees will not be waived
or refunded under any circumstances.
(iii) In the case of an application filed at a legalization office,
including an application received from a qualified designated entity,
the district director may, at his or her discretion, require filing
either by mail or in person, or may permit filing in either manner.
(iv) Each applicant, regardless of age, must appear at the
appropriate Service legalization office and must be fingerprinted for
the purpose of issuance of Form I-688A. Each applicant shall be
interviewed by an immigration officer, except that the interview may be
waived when it is impractical because of the health of the applicant.
(3) Filing at overseas processing offices. (i) The application must
be filed on Form I-700 and must include a completed State Department
Form OF-179 (Biographic Data for Visa Purposes).
(ii) Every applicant must appear at the appropriate overseas
processing office to be interviewed by a consular officer. The overseas
processing office will inform each applicant of the date and time of the
interview. At the time of the interview every applicant shall submit
the required fee.
(iii) All fees for applications submitted to an overseas processing
office shall be submitted in United States currency, or in the currency
of the country in which the overseas processing office is located. Fees
will not be waived or refunded under any circumstances.
(iv) An applicant at an overseas processing office whose application
is recommended for approval shall be provided with an entry document
attached to the applicant's file. Upon admission to the United States,
the applicant shall proceed to a legalization office for presentation or
completion of Form FD-258 (Fingerprint Card), presentation of the
applicant's file and issuance of the employment authorization Form
I-688A.
(4) Border processing. The Commissioner will designate specific
ports of entry located on the southern land border to accept and process
applications under this part. Ports of entry so designated will process
preliminary applications as defined at 210.1(l) under the authority of
the district directors in whose districts they are located. The ports
of entry at Calexico, California, Otay Mesa, California, and Laredo,
Texas have been designated to conduct preliminary application
processing. Designated ports of entry may be closed or added at the
discretion of the Commissioner.
(i) Admission standard. The applicant must present a fully completed
and signed Form I-700, Application for Temporary Resident Status with
the required fee and photographs at a designated port of entry. The
application must contain specific information concerning the performance
of qualifying employment in the United States and identify documentary
evidence which the applicant intends to submit as proof of such
employment. The applicant must establish to the satisfaction of the
examining officer during an interview that his or her claim to
eligibility for special agricultural worker classification is credible,
and that he or she is otherwise admissible to the United States under
the provisions of 210.3(e) of this part including, if required,
approval of an application for waiver of grounds of excludability.
(ii) Procedures. The fee for any application under this paragraph
including applications for waivers of grounds of excludability, must be
submitted in United States currency. Application fees shall not be
collected until the examining immigration officer has determined that
the applicant has presented a preliminary application and is admissible
to the United States including, if required, approval of an application
for waiver of grounds of excludability as provided in this paragraph.
Applicants at designated ports of entry must present proof of identity
in the form of a valid passport, a ''cartilla'' (Mexican military
service registration booklet), a Form 13 (''Forma trece'' -- Mexican
lieu passport identity document), or a certified copy of a birth
certificate accompanied by additional evidence of identity bearing a
photograph and/or fingerprint of the applicant. Upon a determination by
an immigration officer at a designated port of entry that an applicant
has presented a preliminary application, the applicant shall be admitted
to the United States as an applicant for special agricultural worker
status. All preliminary applicants shall be considered as prospective
applicants for the Group 2 classification. However, such applicants may
later submit a complete application for either the Group 1 or Group 2
classification to a legalization office. Preliminary applicants are not
required to pay the application fee a second time when submitting the
complete application to a legalization office.
(iii) Conditions of admission. Aliens who present a preliminary
application shall be admitted to the United States for a period of
ninety (90) days with authorization to accept employment, if they are
determined by an immigration officer to be admissible to the United
States. Such aliens are required, within that ninety-day period, to
submit evidence of eligibility which meets the provisions of 210.3 of
this part; to complete Form FD-258 (Fingerprint Card); to obtain a
report of medical examination in accordance with 210.2(d) of this part;
and to submit to a legalization office a complete application as
defined at 210.1(c) of this part. A district director may, for good
cause, extend the ninety-day period and grant further authorization to
accept employment in the United States if an alien demonstrates he or
she was unable to perfect an application within the initial period. If
an alien described in this paragraph fails to submit a complete
application to a legalization office within ninety days or within such
additional period as may have been authorized, his or her application
may be denied for lack of prosecution, without prejudice.
(iv) Deportation is not stayed for an alien subject to deportation
and removal under the INA, notwithstanding a claim to eligibility for
SAW status, unless that alien has filed a nonfrivolous application.
(d) Medical examination. An applicant under this part must be
examined at no expense to the government by a designated civil surgeon
or, in the case of an applicant abroad, by a physician or clinic
designated to perform medical examinations of immigrant visa applicants.
The medical report setting forth the findings concerning the mental and
physical condition of the applicant shall be incorporated into the
record. Any applicant certified under paragraph (1), (2), (3), (4), or
(5) of section 212(a) of the Act may appeal to a Board of Medical
Officers of the U.S. Public Health Service as provided in section 234 of
the Act and part 235 of this chapter.
(e) Limitation on access to information and confidentiality. (1)
Except for consular officials engaged in the processing of applications
overseas and employees of a qualified designated entity where an
application is filed with that entity, no person other than a sworn
officer or employee of the Department of Justice or bureau or agency
thereof, or contract personnel employed by the Service to work in
connection with the legalization program, will be permitted to examine
individual applications.
(2) Files and records prepared by qualified designated entities under
this section are confidential. The Attorney General and the Service
shall not have access to these files and records without the consent of
the alien.
(3) All information furnished pursuant to an application for
temporary resident status under this part including documentary evidence
filed with the application shall be used only in the determination
process, including a determination under 210.4(d) of this part, or to
enforce the provisions of section 210(b)(7) of the Act, relating to
prosecutions for fraud and false statements made in connection with
applications, as provided in paragraph (e)(4) of this section.
(4) If a determination is made by the Service that the alien has, in
connection with his or her application, engaged in fraud or willful
misrepresentation or concealment of a material fact, knowingly provided
a false writing or document in making his or her application, knowingly
made a false statement or representation, or engaged in any other
activity prohibited by section 210(b)(7) of the Act, the Service shall
refer the matter to the U.S. Attorney for prosecution of the alien or
any person who created or supplied a false writing or document for use
in an application for adjustment of status under this part.
(f) Decision. The applicant shall be notified in writing of the
decision and, if the application is denied, of the reason(s) therefor.
An adverse decision under this part including an overseas application
may be appealed to the Associate Commissioner, Examinations
(Administrative Appeals Unit) on Form I-694. The appeal with the
required fee shall be filed with the Regional Processing Facility in
accordance with the provisions of 103.3(a)(2) of this chapter. An
applicant for Group 1 status as defined in 210.1(f) of this part who is
determined to be ineligible for that status may be classified as a
temporary resident under Group 2 as defined in 210.1(g) of this part if
otherwise eligible for Group 2 status. In such a case the applicant
shall be notified of the decision to accord him or her Group 2 status
and to deny Group 1 status. He or she is entitled to file an appeal in
accordance with the provisions of 103.3(a)(2) of this chapter from that
portion of the decision denying Group 1 status. In the case of an
applicant who is represented in the application process in accordance
with 8 CFR part 292, the applicant's representative shall also receive
notification of decision specified in this section.
(g) Motions. In accordance with the provisions of 103.5(b) of this
chapter, the director of a regional processing facility or a consular
officer at an overseas processing office may sua sponte reopen any
proceeding under this part under his or her jurisdiction and reverse any
adverse decision in such proceeding when appeal is taken under
103.3(a)(2) of this part from such adverse decision; the Associate
Commissioner, Examinations, and the Chief of the Administrative Appeals
Unit may sua sponte reopen any proceeding conducted by that unit under
this part and reconsider any decision rendered in such proceeding. The
decision must be served on the appealing party within forty-five (45)
days of receipt of any briefs and/or new evidence, or upon expiration of
the time allowed for the submission of any briefs. Motions to reopen a
proceeding or reconsider a decision shall not be considered under this
part.
(h) Certifications. The regional processing facility director may,
in accordance with 103.4 of this chapter, certify a decision to the
Associate Commissioner, Examinations when the case involves an unusually
complex or novel question of law or fact. A consular officer assigned
to an overseas processing office is authorized to certify a decision in
the same manner and upon the same basis.
(53 FR 10064, Mar. 29, 1988, as amended at 55 FR 12629, Apr. 5, 1990)
08 CFR 210.3 Eligibility.
(a) General. An alien who, during the twelve-month period ending on
May 1, 1986, has engaged in qualifying agricultural employment in the
United States for at least 90 man-days is eligible for status as an
alien lawfully admitted for temporary residence if otherwise admissible
under the provisions of section 210(c) of the Act and if he or she is
not ineligible under the provisions of paragraph (d) of this section.
(b) Proof of eligibility -- (1) Burden of proof. An alien applying
for adjustment of status under this part has the burden of proving by a
preponderance of the evidence that he or she has worked the requisite
number of man-days, is admissible to the United States under the
provisions of section 210(c) of the Act, is otherwise eligible for
adjustment of status under this section and in the case of a Group 1
applicant, has resided in the United States for the requisite periods.
If the applicant cannot provide documentation which shows qualifying
employment for each of the requisite man-days, or in the case of a Group
1 applicant, which meets the residence requirement, the applicant may
meet his or her burden of proof by providing documentation sufficient to
establish the requisite employment or residence as a matter of just and
reasonable inference. The inference to be drawn from the documentation
provided shall depend on the extent of the documentation, its
credibility and amenability to verification as set forth in paragraphs
(b)(2) and (3) of this section. If an applicant establishes that he or
she has in fact performed the requisite qualifying agricultural
employment by producing sufficient evidence to show the extent of that
employment as a matter of just and reasonable inference, the burden then
shifts to the Service to disprove the applicant's evidence by showing
that the inference drawn from the evidence is not reasonable.
(2) Evidence. The sufficiency of all evidence produced by the
applicant will be judged according to its probative value and
credibility. Original documents will be given greater weight than
copies. To meet his or her burden of proof, an applicant must provide
evidence of eligibility apart from his or her own testimony. Analysis
of evidence submitted will include consideration of the fact that work
performed by minors and spouses is sometimes credited to a principal
member of a family.
(3) Verification. Personal testimony by an applicant which is not
corroborated, in whole or in part, by other credible evidence (including
testimony of persons other than the applicant) will not serve to meet an
applicant's burden of proof. All evidence of identity, qualifying
employment, admissibility, and eligibility submitted by an applicant for
adjustment of status under this part will be subject to verification by
the Service. Failure by an applicant to release information protected
by the Privacy Act or related laws when such information is essential to
the proper adjudication of an application may result in denial of the
benefit sought. The Service may solicit from agricultural producers,
farm labor contractors, collective bargaining organizations and other
groups or organizations which maintain records of employment, lists of
workers against which evidence of qualifying employment can be checked.
If such corroborating evidence is not available and the evidence
provided is deemed insufficient, the application may be denied.
(4) Securing SAW employment records. When a SAW applicant alleges
that an employer or farm labor contractor refuses to provide him or her
with records relating to his or her employment and the applicant has
reason to believe such records exist, the Service shall attempt to
secure such records. However, prior to any attempt by the Service to
secure the employment records, the following conditions must be met: a
SAW application (Form I-700) must have been filed; an interview must
have been conducted; the applicant's testimony must support credibly
his or her claim; and, the Service must determine that the application
cannot be approved in the absence of the employer or farm labor
contractor records. Provided each of these conditions has been met, and
after unsuccessful attempts by the Service for voluntary compliance, the
District Directors shall utilize section 235 of the Immigration and
Nationality Act and issue a subpoena in accordance with 8 CFR 287.4, in
such cases where the employer or farm labor contractor refuses to
release the needed employment records.
(c) Documents. A complete application for adjustment of status must
be accompanied by proof of identity, evidence of qualifying employment,
evidence of residence and such evidence of admissibility or eligibility
as may be requested by the examining immigration officer in accordance
with requirements specified in this part. At the time of filing,
certified copies of documents may be submitted in lieu of originals.
However, at the time of the interview, wherever possible, the original
documents must be presented except for the following: Official
government records; employment or employment related records maintained
by employers, unions, or collective bargaining organizations; medical
records; school records maintained by a school or school board; or
other records maintained by a party other than the applicant. Copies of
records maintained by parties other than the applicant which are
submitted in evidence must be certified as true and correct by such
parties and must bear their seal or signature or the signature and title
of persons authorized to act in their behalf. If at the time of the
interview the return of original documents is desired by the applicant,
they must be accompanied by notarized copies or copies certified true
and correct by a qualified designated entity or by the alien's
representative in the format prescribed in 204.2(j)(1) or (2) of this
chapter. At the discretion of the district director or consular
officer, original documents, even if accompanied by certified copies,
may be temporarily retained for further examination.
(1) Proof of identity. Evidence to establish identity is listed
below in descending order of preference:
(i) Passport;
(ii) Birth certificate;
(iii) Any national identity document from a foreign country bearing a
photo and/or fingerprint (e.g., ''cedula'', ''cartilla'', ''carte
d'identite,'' etc.);
(iv) Driver's license or similar document issued by a state if it
contains a photo;
(v) Baptismal record or marriage certificate;
(vi) Affidavits, or
(vii) Such other documentation which may establish the identity of
the applicant.
(2) Assumed names -- (i) General. In cases where an applicant claims
to have met any of the eligibility criteria under an assumed name, the
applicant has the burden of proving that the applicant was in fact the
person who used that name.
(ii) Proof of common identity. The most persuasive evidence is a
document issued in the assumed name which identifies the applicant by
photograph, fingerprint or detailed physical description. Other
evidence which will be considered are affidavit(s) by a person or
persons other than the applicant, made under oath, which identify the
affiant by name and address and state the affiant's relationship to the
applicant and the basis of the affiant's knowledge of the applicant's
use of the assumed name. Affidavits accompanied by a photograph which
has been identified by the affiant as the individual known to the
affiant under the assumed name in question will carry greater weight.
Other documents showing the assumed name may serve to establish the
common identity when substantiated by corroborating detail.
(3) Proof of employment. The applicant may establish qualifying
employment through government employment records, or records maintained
by agricultural producers, farm labor contractors, collective bargaining
organizations and other groups or organizations which maintain records
of employment, or such other evidence as worker identification issued by
employers or collective bargaining organizations, union membership cards
or other union records such as dues receipts or records of the
applicant's involvement or that of his or her immediate family with
organizations providing services to farmworkers, or work records such as
pay stubs, piece work receipts, W-2 Forms or certification of the filing
of Federal income tax returns on IRS Form 6166, or state verification of
the filing of state income tax returns. Affidavits may be submitted
under oath, by agricultural producers, foremen, farm labor contractors,
union officials, fellow employees, or other persons with specific
knowledge of the applicant's employment. The affiant must be identified
by name and address; the name of the applicant and the relationship of
the affiant to the applicant must be stated; and the source of the
information in the affidavit (e.g. personal knowledge, reliance on
information provided by others, etc.) must be indicated. The affidavit
must also provide information regarding the crop and the type of work
performed by the applicant and the period during which such work was
performed. The affiant must provide a certified copy of corroborating
records or state the affiant's willingness to personally verify the
information provided. The weight and probative value of any affidavit
accepted will be determined on the basis of the substance of the
affidavit and any documents which may be affixed thereto which may
corroborate the information provided.
(4) Proof of residence. Evidence to establish residence in the
United States during the requisite period(s) includes: Employment
records as described in paragraph (c)(3) of this section; utility bills
(gas, electric, phone, etc.), receipts, or letters from companies
showing the dates during which the applicant received service; school
records (letters, report cards, etc.) from the schools that the
applicant or his or her children have attended in the United States
showing the name of school, name and, if available, address of student,
and periods of attendance, and hospital or medical records showing
similar information; attestations by churches, unions, or other
organizations to the applicant's residence by letter which: Identify
applicant by name, are signed by an official (whose title is shown),
show inclusive dates of membership, state the address where applicant
resided during the membership period, include the seal of the
organization impressed on the letter, establish how the author knows the
applicant, and the origin of the information; and additional documents
that could show that the applicant was in the United States at a
specific time, such as: Money order receipts for money sent out of the
country; passport entries; birth certificates of children born in the
United States; bank books with dated transactions; letters of
correspondence between the applicant and another person or organization;
Social Security card; Selective Service card; automobile license
receipts, title, vehicle registration, etc.; deeds, mortgages, contracts
to which applicant has been a party; tax receipts; insurance policies,
receipts, or letters; and any other document that will show that
applicant was in the United States at a specific time. For Group 2
eligibility, evidence of performance of the required 90 man-days of
seasonal agricultural services shall constitute evidence of qualifying
residence.
(5) Proof of financial responsibility. Generally, the evidence of
employment submitted under paragraph (c)(3) of this section will serve
to demonstrate the alien's financial responsibility. If it appears that
the applicant may be inadmissible under section 212(a)(15) of the Act,
he or she may be required to submit documentation showing a history of
employment without reliance on public cash assistance for all periods of
residence in the United States.
(d) Ineligible classes. The following classes of aliens are
ineligible for temporary residence under this part:
(1) An alien who at any time was a nonimmigrant exchange visitor
under section 101(a)(15)(J) of the Act who is subject to the two-year
foreign residence requirement unless the alien has complied with that
requirement or the requirement has been waived pursuant to the
provisions of section 212(e) of the Act;
(2) An alien excludable under the provisions of section 212(a) of the
Act whose grounds of excludability may not be waived, pursuant to
section 210(c)(2)(B)(ii) of the Act;
(3) An alien who has been convicted of a felony, or three or more
misdemeanors.
(e) Exclusion grounds -- (1) Grounds of exclusion not to be applied.
Sections (14), (20), (21), (25), and (32) of section 212(a) of the Act
shall not apply to applicants applying for temporary resident status.
(2) Waiver of grounds for exclusion. Except as provided in paragraph
(e)(3) of this section, the Service may waive any other provision of
section 212(a) of the Act only in the case of individual aliens for
humanitarian purposes, to assure family unity, or when the granting of
such a waiver is in the public interest. If an alien is excludable on
grounds which may be waived as set forth in this paragraph, he or she
shall be advised of the procedures for applying for a waiver of grounds
of excludability on Form I-690. When an application for waiver of
grounds of excludability is submitted in conjunction with an application
for temporary residence under this section, it shall be accepted for
processing at the legalization office, overseas processing office, or
designated port of entry. If an application for waiver of grounds of
excludability is submitted after the alien's preliminary interview at
the legalization office it shall be forwarded to the appropriate
regional processing facility. All applications for waivers of grounds
of excludability must be accompanied by the correct fee in the exact
amount. All fees for applications filed in the United States other than
those within the provisions of 210.2(c)(4) must be in the form of a
money order, cashier's check, or bank check. No personal checks or
currency will be accepted. Fees for waiver applications filed at the
designated port of entry under the preliminary application standard must
be submitted in United States currency. Fees will not be waived or
refunded under any circumstances. Generally, an application for waiver
of grounds of excludability under this part submitted at a legalization
office or overseas processing office will be approved or denied by the
director of the regional processing facility in whose jurisdiction the
applicant's application for adjustment of status was filed. However, in
cases involving clear statutory ineligibility or admitted fraud, such
application for a waiver may be denied by the district director in whose
jurisdiction the application is filed; in cases filed at overseas
processing offices, such application for a waiver may be denied by a
consular officer; or, in cases returned to a legalization office for
reinterview, such application may be approved at the discretion of the
district director. Waiver applications filed at the port of entry under
the preliminary application standard will be approved or denied by the
district director having jurisdiction over the port of entry. The
applicant shall be notified of the decision and, if the application is
denied, of the reason(s) therefor. The applicant may appeal the
decision within 30 days after the service of the notice pursuant to the
provisions of 103.3(a)(2) of this chapter.
(3) Grounds of exclusion that may not be waived. The following
provisions of section 212(a) of the Act may not be waived:
(i) Paragraphs (9) and (10) (criminals);
(ii) Paragraph (15) (public charge) except as provided in paragraph
(c)(4) of this section.
(iii) Paragraph (23) (narcotics) except for a single offense of
simple possession of thirty grams or less of marijuana.
(iv) Paragraphs (27), (prejudicial to the public interest), (28),
(communists), and (29) (subversive);
(v) Paragraph (33) (Nazi persecution).
(4) Special Rule for determination of public charge. An applicant
who has a consistent employment history which shows the ability to
support himself and his or her family, even though his income may be
below the poverty level, is not excludable under paragraph (e)(3)(ii) of
this section. The applicant's employment history need not be continuous
in that it is uninterrupted. It should be continuous in the sense that
the applicant shall be regularly attached to the workforce, has an
income over a substantial period of the applicable time, and has
demonstrated the capacity to exist on his or her income and maintain his
or her family without reliance on public cash assistance. This
regulation is prospective in that the Service shall determine, based on
the applicant's history, whether he or she is likely to become a public
charge. Past acceptance of public cash assistance within a history of
consistent employment will enter into this decision. The weight given
in considering applicability of the public charge provisions will depend
on many factors, but the length of time an applicant has received public
cash assistance will constitute a significant factor.
(53 FR 10064, Mar. 29, 1988, as amended at 53 FR 27335, July 20,
1988; 54 FR 4757, Jan. 31, 1989; 55 FR 12629, Apr. 5, 1990)
08 CFR 210.4 Status and benefits.
(a) Date of adjustment. The status of an alien whose application for
temporary resident status is approved shall be adjusted to that of a
lawful temporary resident as of the date on which the fee was paid at a
legalization office, except that the status of an alien who applied for
such status at an overseas processing office whose application has been
recommended for approval by that office shall be adjusted as of the date
of his or her admission into the United States.
(b) Employment and travel authorization -- (1) General.
Authorization for employment and travel abroad for temporary resident
status applicants under section 210 of the Act may only be granted by a
Service legalization office. In the case of an application which has
been filed with a qualified designated entity, employment authorization
may only be granted after a nonfrivolous application has been received
at a legalization office, and receipt of the fee has been recorded.
(2) Employment and travel authorization prior to the granting of
temporary resident status. Permission to travel abroad and to accept
employment will be granted to the applicant, after an interview has been
conducted in connection with a nonfrivolous application at a
legalization office. If an interview appointment cannot be scheduled
within 30 days from the date an application is filed at a legalization
office, authorization to accept employment will be granted valid to the
scheduled appointment date. The appointnent letter will be endorsed
with the temporary employment authorization. Employment and travel
authorization subsequent to an interview will be granted on Service Form
I-688A, and will be restricted to six months duration, pending final
determination on the application for temporary resident status. If a
final determination has not been made on the application prior to the
expiration date of the I-688A, that date may be extended upon return of
the I-688A by the applicant to the legalization office where it was
obtained. Applications submitted under this part by persons who
currently have work authorization incident to status as identified at
274a.12(b) shall be granted work authorization by INS effective the date
the alien's prior work authorization expires.
(3) Employment and travel authorization upon grant of temporary
resident status. Upon the granting of an application for adjustment to
temporary resident status, the Regional Processing Facility will forward
a notice of approval to the applicant at his or her last known address
and to his or her qualified designated entity or representative. The
applicant may appear at any legalization office, and upon surrender of
the previously issued Form I-688A will be issued Form I-688, Temporary
Resident Card. An alien whose status is adjusted to that of a lawful
temporary resident under section 210 of the Act has the right to reside
in the United States, to travel abroad (including commuting from a
residence abroad), and to accept employment in the United States in the
same manner as aliens lawfully admitted for permanent residence.
(c) Ineligibility for immigration benefits. An alien whose status is
adjusted to that of a lawful temporary resident under section 210 of the
Act is not entitled to submit a petition pursuant to section 203(a)(2)
of the Act or to any other benefit or consideration accorded under the
Act to aliens lawfully admitted for permanent residence, except as
provided in paragraph (b)(3) of this section.
(d) Termination of temporary resident status -- (1) General. The
temporary resident status of a special agricultural worker is terminated
automatically and without notice under section 210(a)(3) of the Act upon
entry of a final order of deportation by an immigration judge based on a
determination that the alien is deportable under section 241 of the Act.
(2) The status of an alien lawfully admitted for temporary residence
under section 210(a)(2) of the Act, may be terminated before the alien
becomes eligible for adjustment of status under 210.5 of this part,
upon the occurrence of any of the following:
(i) It is determined by a preponderance of the evidence that the
adjustment to temporary resident status was the result of fraud or
willful misrepresentation as provided in section 212(a)(19) of the Act;
(ii) The alien commits an act which renders him or her inadmissible
as an immigrant, unless a waiver is secured pursuant to 210.3(e)(2) of
this part;
(iii) The alien is convicted of any felony, or three or more
misdemeanors in the United States.
(3) Procedure. (i) Termination of an alien's status under paragraph
(d)(2) of this section will be made only on notice to the alien sent by
certified mail directed to his or her last known address, and to his or
her representative. The alien must be given an opportunity to offer
evidence in opposition to the grounds alleged for termination of his or
her status. Evidence in opposition must be submitted within thirty (30)
days after the service of the Notice of Intent to Terminate. If the
alien's status is terminated, the director of the regional processing
facility shall notify the alien of the decision and the reasons for the
termination, and further notify the alien that any Service Form I-94,
Arrival-Departure Record or other official Service document issued to
the alien authorizing employment and/or travel abroad, or any Form
I-688, Temporary Resident Card previously issued to the alien will be
declared void by the director of the regional processing facility within
thirty (30) days if no appeal of the termination decision is filed
within that period. The alien may appeal the decision to the Associate
Commissioner, Examinations (Administrative Appeals Unit) using Form
I-694. Any appeal with the required fee shall be filed with the
regional processing facility within thirty (30) days after the service
of the notice of termination. If no appeal is filed within that period,
the Forms I-94, I-688 or other official Service document shall be deemed
void, and must be surrendered without delay to an immigration officer or
to the issuing office of the Service.
(ii) Termination proceedings must be commenced before the alien
becomes eligible for adjustment of status under 210.5 of this part.
The timely commencement of termination proceedings will preclude the
alien from becoming a lawful permanent resident until a final
determination is made in the proceedings, including any appeal.
(53 FR 10064, Mar. 29, 1988, as amended at 55 FR 12629, Apr. 5, 1990)
08 CFR 210.5 Adjustment to permanent resident status.
(a) Eligibility and date of adjustment to permanent resident status.
The status of an alien lawfully admitted to the United States for
temporary residence under section 210(a)(1) of the Act, if the alien has
otherwise maintained such status as required by the Act, shall be
adjusted to that of an alien lawfully admitted to the United States for
permanent residence as of the following dates:
(1) Group 1. Aliens determined to be eligible for Group 1
classification, whose adjustment to temporary residence occurred prior
to November 30, 1988, shall be adjusted to lawful permanent residence as
of December 1, 1989. Those aliens whose adjustment to temporary
residence occurred after November 30, 1988 shall be adjusted to lawful
permanent residence one year from the date of the adjustment to
temporary residence.
(2) Group 2. Aliens determined to be eligible for Group 2
classification whose adjustment to temporary residence occurred prior to
November 30, 1988, shall be adjusted to lawful permanent residence as of
December 1, 1990. Those aliens whose adjustment to temporary residence
occurred after November 30, 1988 shall be adjusted to lawful permanent
residence two years from the date of the adjustment to temporary
residence.
(b) ADIT processing -- (1) General. To obtain proof of permanent
resident status an alien described in paragraph (a) of this section must
appear at a legalization or Service office designated for this purpose
for preparation of Form I-551, Alien Registration Receipt Card. Such
appearance may be prior to the date of adjustment, but only upon
invitation by the Service. Form I-551 shall be issued subsequent to the
date of adjustment.
(2) Upon appearance at a Service office for preparation of Form
I-551, an alien must present proof of identity, suitable ADIT
photographs, and a fingerprint and signature must be obtained from the
alien on Form I-89.
(53 FR 10064, Mar. 29, 1988, as amended at 54 FR 50339, Dec. 6, 1989)
08 CFR 210.5 PART 210a -- REPLENISHMENT AGRICULTURAL WORKERS
Sec.
210a.1 Definition of terms used in this part.
210a.2 Eligibility and priority consideration.
210a.3 Registration process.
210a.4 Admissibility.
210a.5 Petition for temporary resident status.
210a.6 Evidence.
210a.7 Decision and appeal.
210a.8 Status, benefits and obligations.
210a.9 Adjustment to permanent resident status.
Authority: 8 U.S.C. 1103; 8 CFR part 2.
Source: 55 FR 20775, May 21, 1990, unless otherwise noted.
08 CFR 210a.1 Definition of terms used in this part.
(a) Act. The Immigration and Nationality Act, as amended by the
Immigration Reform and Control Act of 1986, Public Law 99-603.
(b) ADIT. Alien Documentation, Identification and Telecommunications
card, Form I-89. Used to collect key data concerning an alien. When
processed together with an alien's photographs, fingerprints and
signature, this form becomes the source document for generation of Form
I-551 Alien Registration Receipt Card.
(c) Agricultural employment. The term agricultural employment has
the meaning of agricultural labor and services as defined by the
Department of Labor at 20 CFR 655.100(c)(1).
(d) Application under IRCA. The term application under IRCA means an
application filed by any alien with the Immigration and Naturalization
Service under section 245a (legalization) and 210 (Special Agricultural
Worker) of the Immigration and Nationality Act and section 202
(Cuban/Haitian adjustees) of the Immigration Reform and Control Act of
1986 (IRCA).
(e) Fiscal Year. The term fiscal year refers to the twelve (12)
month period beginning on October 1 and ending on September 30 of the
following calendar year.
(f) Man-day. The term man-day is used to quantify work performed for
the purpose of establishing eligibility under 210a.2(a)(1)(iii) of this
part; and means the performance, during any day, of not less than one
(1) hour of agricultural employment or seasonal agricultural services
for wages paid on any day in which piece rate work was performed. Work
for more than one employer in a single day shall be counted as no more
than one man-day for purposes of this part.
(g) Public cash assistance. Public cash assistance means income or
needs-based monetary assistance to include, but not limited to,
supplemental security income received by the alien or his or her
immediate family members through federal, state or local programs
designed to meet subsistence levels. It does not include assistance in
kind, such as food stamps, public housing, or other non-cash benefits,
nor does it include work-related compensation or certain types of
medical assistance (Medicare, Medicaid, emergency treatment, services to
pregnant women or children under 18 years of age, or treatment in the
interest of public health).
(h) Participating Qualified Designated Entity (QDE). The term
participating qualified designated entity means those entities
designated pursuant to sections 210 and 245A of the Act, who have
entered into new cooperative agreements with the Service to specifically
participate in the RAW program. Only QDEs in good standing with the
Service are eligible to participate in the RAW program.
(i) Service Center. Service offices established in each of the four
Service regions to process or adjudicate applications for adjustment of
status under sections 210, 210A, 245A(a) or 245A(b)(1) of the Act.
(j) Registrant. An alien who filed form I-807, Request for
Consideration as a Replenishment Agricultural Worker (RAW), with the
Service during the registration period beginning September 1, 1989,
provided that the form I-807 was filed according to regulations at
210a.3 of this part, according to instructions provided with the form,
and that the completed form was accepted by the Service for processing.
(k) Replenishment Agricultural Worker (RAW). Any individual granted
temporary resident status or permanent resident status under section
210A(c) of the Act.
(l) Seasonal Agricultural Services. Defined in section 210(h) of the
Act as the performance of field work related to planting, cultivating,
cultural practices, growing and harvesting of fruits and vegetables of
every kind and other perishable commodities, as defined by the Secretary
of Agriculture. Regulations further defining these terms can be found
at 7 CFR part 1d.
(m) Secretaries. The term Secretaries means the Secretaries of Labor
and Agriculture.
(n) Shortage number. The number, if any, of replenishment
agricultural workers to be adjusted or admitted to the United States
during a fiscal year as determined by the Departments of Labor and
Agriculture under the provisions of section 210A (a) and (b) of the Act.
The numerical limitations of sections 201 and 202 of the Act do not
apply to the admission or adjustment of aliens for lawful temporary or
permanent resident status under section 210A(c) of the Act.
(o) Special Agricultural Worker (SAW). Any individual granted
temporary or permanent resident status under section 210(a) of the Act.
(p) Work-day. The term work-day quantifies the work required of RAWs
in order to maintain temporary resident status as described in
210a.8(b) of this part and means a calendar day during which at least
four (4) hours of work in seasonal agricultural services is performed.
Note: The term work-day is used here in lieu of the statutory term
man-day to conform with its usage in Department of Labor regulations at
29 CFR part 502 and to distinguish between the term man-day as defined
elsewhere in this section.
(55 FR 20775, May 21, 1990; 55 FR 23345, June 7, 1990)
08 CFR 210a.2 Eligibility and priority consideration.
(a) Eligibility. (1) An alien eligible for status as an alien
lawfully admitted for temporary residence under section 210A(c) of the
Act is one who:
(i) Is eighteen (18) years of age or older;
(ii) Is admissible to the United States as an immigrant, or if
inadmissible, has had the grounds of excludability waived in accordance
with the provisions of 210a.4(d) of this part;
(iii) Has performed at least 20 man-days of employment in
agricultural work in the United States during any 12 consecutive months
during the period beginning May 1, 1985, and ending on November 30,
1988; and
(iv) Certifies that he or she is able and intends to perform seasonal
agricultural services as required under 210a.8(b) of this part.
(2) An alien who entered the United States illegally after November
30, 1988, is not eligible for RAW status.
(b) Priority consideration. General registration is limited to
aliens who meet the eligibility criteria as provided at 210a.2(a) of
this part. Registrants will be selected at random and invited to
petition in accordance with the following priority classes in descending
order (i.e.; if there are sufficient numbers of registrants to meet a
shortage number in the higher priority class, registrants in the lower
priority class will not be considered for selection, but, will be held
for possible future selection):
(1) Aliens, in the United States, who have performed at least 20
man-days of employment in agricultural work in the United States, during
any 12 consecutive months during the period beginning May 1, 1985, and
ending on November 30, 1988, and who meet all the eligibility criteria
provided at 210a.2(a) of this part.
(2) Aliens, outside the United States, who have performed at least 20
man-days of employment in agricultural work in the United States during
any 12 consecutive months during the period beginning May 1, 1985, and
ending on November 30, 1988, and who meet all the eligibility criteria
provided at 210a.2(a) of this part.
(c) Family preference. (1) Within each of the two (2) registration
priority classes, preference in selection will be given to the qualified
spouses and unmarried sons or daughters (18 years of age or older) of
aliens who have filed an application under IRCA, which has been approved
or is pending. Any marriage or adoption which created the claimed
family relationship must have occurred on or before November 30, 1988.
(2) Registrants will be sorted into the two (2) priority classes and
within each class, into family preference and non-preference groups.
(3) If the petitioner fails to establish eligibility for the priority
status accorded by the claimed family relationship, or if the IRCA
application of the relative is denied, the procedure at 210a.5(h) of
this part will be followed.
08 CFR 210a.3 Registration process.
(a) General. The general registration is intended to provide an
adequate number of persons to satisfy shortage number requirements for
several years. Registrant's names in excess of the current year's
shortage number requirement will be retained for potential future
selection. Aliens who are not yet eighteen (18) years of age but who
will become eighteen (18) during the period October 1, 1989, through
September 30, 1993, may register. These registrants will not be
selected to petition for temporary resident status as a RAW until they
have turned eighteen (18) years of age.
(b) Registration period. The Service conducted a general
registration period between September 1, 1989, and November 30, 1989.
(c) Obtaining registration Form (I-807). Registration cards (Form
I-807) will be available from all Service district, legalization and
sub-offices. Registration forms will also be available from
participating QDEs. Persons residing outside the United States can
obtain a registration card only from a participating QDE.
Non-participating QDEs, farmworker and grower organizations, non-profit
community groups and public agencies may also receive cards for
distribution to aliens within the United States upon approval of a
request to the Regional commissioner of the Service having jurisdiction
over the area of the proposed distribution.
(d) Filing of registration Form (I-807). (1) Aliens must mail their
registration card only to the address provided in the instructions
accompanying the registration card and pre-printed on the registration
card and accompanying envelope. All registration cards shall be
submitted by regular domestic or international surface or airmail to the
address provided on the registration card. Participating QDEs operating
overseas may be exempted from the requirement to use regular mail when
forwarding cards of aliens registered overseas. An alternate means of
delivery may be approved by the Service upon written request from the
QDE.
(2) A separate registration card must be filed by each eligible
registrant. Only one registration card per registrant will be accepted.
If more than one registration card is discovered, all but one will be
disqualified and destroyed.
(e) Filing or registration fee. The required registration fee of ten
dollars ($10.00) shall be submitted to the Service in the envelope
provided with the registration card. All fees for registration shall be
paid in United States funds in the form of a money order, cashier's
check, or bank check made payable to the Immigration and Naturalization
Service. No personal checks or currency will be accepted. Each
registration card must be accompanied by a separate fee. Group payment
of registration fees is not permitted unless specifically approved in
advance by the Service on a case by case basis. Registration fees will
not be waived or refunded under any circumstances.
(f) Appeal. The decision of the Service regarding acceptance of a
form I-807 registration card shall be final. No appeal shall lie from
failure to be registered, or as a registrant, to be placed in a priority
class, or to be given family preference.
(g) No benefit for registration. Neither employment authorization
nor any other benefit shall derive from filing a registration card,
being placed in a registry pool, or being invited to petition for RAW
status.
(h) Invitation to petition. (1) If a shortage number is announced
after completion of the registration period, registrants will be invited
to petition for temporary residence as a RAW, up to the shortage number.
(2) Invitations to submit a petition and necessary materials will be
mailed to registrants who are eighteen (18) years of age or older in the
order of their random selection from the registration pool, beginning
with registrants selected at random from the group claiming family
relationship to IRCA legalized aliens in the first registration priority
class. The invitation process will continue through priority classes,
in order, with successive random selection of registrants until the
shortage number for that year is reached.
(3) Registrants in excess of the current shortage number will be
retained for future random selection and invitation to petition for
temporary resident status as a RAW.
08 CFR 210a.4 Admissibility.
(a) General. An alien seeking temporary resident status as a
replenishment agricultural worker must be admissible to the United
States as an immigrant. This means that the alien must not be
excludable under the provisions of section 212(a) of the Act. However,
section 210A(e) of the Act provides that certain grounds of
excludability are not applicable, that certain grounds may be waived,
and that other grounds cannot be waived.
(b) Grounds of exclusion not to be applied. The following paragraphs
of section 212(a) of the Act shall not apply to petitioners for
temporary resident status: (14), workers entering without Labor
Certification; (20), immigrants not in possession of a valid entry
document; (21), visas issued without compliance with section 203;
(25), illiterates; and (32), graduates of non-accredited medical
schools.
(c) Special rule for determination of public charge. Section
212(a)(15) of the Act shall not apply to an alien who demonstrates a
history of employment in the United States evidencing self-support
without reliance on public cash assistance. Consideration of the use of
the special rule for determination of public charge will occur only
after a determination is made that a petitioner appears to be subject to
the provisions of section 212a(15) of the Act. The alien will not be
considered to be reliant on public cash assistance received by an
immediate family member unless the alien's sole means of support was
incident to the eligibility for cash assistance by the family member.
(d) Waiver of grounds for exclusion. (1) Except as provided in
paragraph (e) of this section, the Service may waive any other provision
of section 212(a) of the Act only in the case of individual aliens for
humanitarian purposes, to assure family unity, or when the granting of
such a waiver is in the public interest. When an application for waiver
of grounds of excludability is filed jointly with a petition for
temporary residence under this part, it shall be accepted for
adjudication at the service center. If an alien is found to be
excludable on grounds which may be waived as set forth in this
paragraph, during the petition interview, then he or she shall be
advised of the procedures for applying for a waiver of grounds of
excludability. If an application for waiver of grounds of excludability
is filed at the time of the initial petition interview, it shall be
accepted at the interview office and adjudicated under the designated
authority of the district director where filed. If an application for
waiver of grounds of excludability is filed subsequent to the initial
petition interview, it shall be filed with and adjudicated by the
Service processing facility with jurisdiction over the alien's place of
residence, unless otherwise directed by the Service. District directors
and directors of service centers are delegated authority to adjudicate
applications for waivers of grounds of excludability.
(2) Applications for grounds of excludability are filed on Form
I-690. All applications for waivers of grounds of excludability must be
accompanied by the correct fee in the exact amount. All fees for
applications must be in the form of a money order, cashier's check, or
bank check. No personal checks or currency will be accepted. Fees will
not be waived or refunded under any circumstances.
(3) The applicant will be notified of the decision on the application
for waiver in writing and, if denied, the reason therefore. The
applicant may appeal the decision within thirty (30) days after service
of the notice pursuant to the provisions of 103.3(a)(3) of this
chapter.
(e) Grounds of exclusion that may not be waived. The following
provisions of section 212(a) of the Act may not be waived:
(1) Paragraphs (9) and (10) (relating to criminals);
(2) Paragraph (23) (relating to narcotics), except for a single
offense of simple possession of thirty grams or less of marijuana;
(3) Paragraphs (27), (28), and (29) (relating to national security
and members of certain organizations);
(4) Paragraph (33) (relating to those who assisted in the Nazi
persecutions).
(f) Exchange visitors. An alien who was at any time a nonimmigrant
exchange visitor (as defined in section 101(a)(15)(J) of the Act), must
establish that he or she was not subject to the two-year foreign
residence requirement of section 212(e) of the Act, or has fulfilled
that requirement or has received a waiver of such requirement. Requests
for waiver of this requirement must be filed with the District Director
having jurisdiction over the alien's place of residence and must be
approved by the Service prior to the petition interview.
(55 FR 20775, May 21, 1990; 55 FR 23345, June 7, 1990)
08 CFR 210a.5 Petition for temporary resident status.
(a) General. Registrants who have been selected pursuant to 210a.3
of this part will be invited to petition for temporary resident status
as a RAW. To address the variety of circumstances which might be
expected to occur during the RAW program, there are two different
procedures for the return of completed petition packages. Participating
Qualified Designated Entities (QDEs) are authorized to assist
petitioners with the preparation of their petitions and, if identified
by a valid QDE number, will be advised of determinations on such
petitions.
(b) Registrants who are invited to petition will be sent petition
materials consisting of:
(1) Instructions in English and Spanish for completing all required
forms;
(2) Petition for Temporary Resident Status as a Replenishment
Agricultural Worker (RAW) Section 210A of the Immigration and
Nationality Act, Form I-805;
(3) Change of Address Card for Replenishment Agricultural Workers
(RAW), Form I-697A;
(4) Fingerprint card, Form FD-258;
(5) Medical Examination of Aliens Seeking Adjustment of Status (P.L.
99-603), Form I-693; and
(6) ADIT photo instruction sheet.
(c) Changes to petitioner's address. (1) The petition package will
be mailed to the address supplied on the registration form. If a
registrant changes address prior to an invitation to petition, it is his
or her responsibility to notify the Service of a change of address on
Form I-697A, and to file a separate notice of a change of address with
the postal service, so that the petition package may be forwarded to the
current address.
(2) If a petition package is returned as undeliverable by the postal
service because of an insufficient address or because the registrant has
moved and left no forwarding address, he or she will lose the
opportunity to petition and will be placed back into the registration
pool from which he or she was selected. If a registrant is selected a
second time and the petition package is again returned as undeliverable,
the registrant will be disqualified from further consideration.
(d) Acceptance of completed petition package. (1) For a petition to
be accepted, petition form I-805 must be completed and returned to the
Service within 60 days of the date of the invitation to petition letter
according to the instructions supplied, together with the one hundred
seventy-five dollar ($175.00) fee as prescribed by 103.7(b)(1), and
completed fingerprint card.
(2) Following the receipt and acceptance of a petition as provided in
paragraph (d)(1) of this section, the petitioner will be sent a fee
receipt. The fee receipt will provide temporary work authorization for
six (6) months from the date the petition is accepted by the Service,
except that petitioners who have received work authorization incident to
non-immigrant status, as provided at 274a.12(b) of this chapter, shall
be granted work authorization under this section the day following the
expiration of the petitioner's prior employment authorization obtained
under 274a.12(b) of this chapter.
(e) Filing of fee. The required fee of one hundred seventy-five
dollars ($175.00) shall be submitted at the time the petition is
returned to the Service, except as provided in paragraph (i) of this
section. All fees for petitions shall be in the form of a money order,
cashier's check, or bank check made payable to the Immigration and
Naturalization Service. The petitioner's RAW registraation number shall
be written on the fee payment. No personal checks or currency will be
accepted. Fees will not be refunded under any circumstances.
(f) Complete petition. (1) Invited registrants will have sixty (60)
days from the date of the invitation to petition letter to complete the
filing of an acceptable petition by submitting the completed petition
together with the one hundred seventy-five dollar ($175.00) fee as
required by 103.7(b)(1), and completed fingerprint card.
(2) If an acceptable petition has not been received by the Service
within 60 days of the date of the invitation to petition letter, the
petition fee and all other materials which are submitted after the 60
day period expires will not be accepted and will be returned to the
registrant unprocessed. Registrants who fail to return petitions on
time will lose their chance at petitioning and will be placed back into
the priority class from which they were selected. If a registrant is
selected again and fails to respond a second time, that registrant will
be disqualified from further consideration.
(g) Interview. Except as otherwise provided in paragraph (i) of this
section, registrants will be invited to appear for an interview at an
INS office or U.S. consulate for the purpose of petitioning for
admission or adjustment to temporary resident status under this part.
At that time, the petitioner must submit proof of identity and age, two
ADIT photographs, proof of family relationship to an IRCA legalized
alien (if claimed), and the results of the medical examination on Form
I-693. The immigration or consular officer shall judge the sufficiency
of the documents submitted and the truthfulness of the petitioner's
claims to the performance of qualifying employment. Petitioners shall
be entitled to supply interpreters at an interview. Interpreters
supplied by a petitioner shall certify to the Service in writing that
the translation is accurate and that he or she is competent to translate
from the language in which the written and/or oral evidence is provided.
Additional documentation and statements from the petitioner may be
required, including the filing of additional requests for waiver of a
ground(s) of exclusion, to establish eligibility under this part.
(h) Inability to establish IRCA family relationship. Where a
petitioner is unable to substantiate a claim to family preference and
fraud has not been established, the petition will be denied without
prejudice. The petitioner will lose his or her present chance at
petitioning and will be placed into the priority class of qualifying
aliens not claiming a priority based on family relationship. In this
case, the petitioner may again be selected at random and invited to
petition. Temporary employment authorization obtained incident to the
original petition will be terminated. Fees will not be refunded;
however, if the alien is subsequently selected from the non-family pool
of registrants, the fee for the filing of a second petition will be
waived.
(i) Expedited interview and petition filing. If the Service
determines that exigent circumstances exist, petitioners may be
instructed to comply with the following expedited procedure in the
invitation to petition letter.
(1) The Service will mail a petition package to the address supplied
on the registration form, accompanied by a letter which invites the
registrant to petition and to appear as soon as possible at any Service
office designated to accept RAW petitions. The registrant must appear
with the invitation letter, completed I-805 petition, two ADIT
photographs, correct fee, proof of identity, age, and proof of family
relationship to an IRCA legalized alien, if claimed at registration.
(2) On appearing at a listed Service office and after acceptance of
the petition fee, the petitioner will receive a fee receipt and will be
interviewed with respect to identity, age, and family relationship to an
IRCA legalized alien if preference in selection was claimed on that
basis. A determination regarding the truthfulness of claims to
performance of qualifying employment may be made at this interview, or
deferred to a later date. A petitioner who appears eligible will be
granted six (6) months employment authorization on Form I-688A. If the
petition is still pending upon expiration of the employment
authorization, it may be extended beyond the original six (6) month
period. Petitioners who have employment authorization incident to
non-immigrant status, pursuant to 274a.12(b) of this chapter, will not
be granted employment authorization under this section until the day
following the expiration of the employment authorization obtained
incident to the non-immigrant status.
(3) The petitioner must return the fingerprint card, 1 ADIT
photograph, any waiver(s) of ground(s) of excludability required, and
the results of the required medical examination on Form I-693, to the
Service, in the envelope that was provided with the petition package,
within sixty (60) days from the date of the invitation to petition
letter. Petition materials received by the Service after sixty (60)
days will be returned to the petitioner unprocessed.
(4) If all required documentation and evidence is provided to the
Service within the sixty (60) day period beginning with the date of the
invitation to petition, the petitioner will be informed in writing of
the Service's decision regarding the petition. If the petition is
approved, the petitioner will be instructed to return to a Service
office to exchange Form I-688A for a Temporary Resident Card (Form
I-688). If the petition is denied, the petitioner will be informed in
writing of his or her appeal rights and procedures to be followed in
accordance with 210a.7(g) of this part.
(5) An alien who fails to appear for the interview within 60 days of
the date of the invitation to petition will lose this opportunity to
petition, but may be selected at random again. Petition materials
received by the Service after sixty (60) days will be returned to the
petitioner unprocessed.
(j) Failure to pursue petition. (1) Where a petitioner timely files
his or her petition, but fails to return requested documentation within
the number of days allowed in this section, the petition will be denied
for failure to pursue his or her petition for temporary residence.
(2) When an alien fails to report to a scheduled second or subsequent
interview, the petition will be denied.
08 CFR 210a.6 Evidence.
(a) Proof of eligibility -- (1) General. Proof of identity and age,
proof of claimed family relationship to an IRCA legalized alien, results
of the required medical examination (Form I-693) and two ADIT
photographs shall be provided to the Service at the time of the petition
interview, except as provided in 210a.5(i) of this part. Although not
required, documentation of claimed qualifying employment may also be
presented at this time.
(2) Burden and standard of proof. An alien seeking admission or
adjustment of status under this part has the burden of establishing, by
a preponderance of the evidence, each of the eligibility requirements
set forth in 210a.2(a) of this part, the basis for placement in a
priority class as provided in 210a.2(b) of this part, and family
relationship as provided in 210a.2(c) of this part, if claimed on the
registration form.
(b) Proof of identity and age. (1) The petitioner may establish
identity and age by submitting the following documents:
(i) Passport;
(ii) Birth certificate;
(iii) Any national identity document from the alien's country of
origin bearing a photograph and/or fingerprint (e.g., ''cedula'',
''cartilla'', ''carte d'identite'', etc.);
(iv) Driver's license or similar document issued by the state, if it
contains a photograph;
(v) Baptismal record or marriage certificate;
(vi) Affidavits; or,
(vii) Such other documentation which may establish the identify and
age of the petitioner.
(2) Assumed names. (i) In cases where a petitioner claims to have
met any of the eligibility criteria under an assumed name, the
petitioner has the burden of proving that the petitioner was, in fact,
the person who used that name. The petitioner's true identity is
established pursuant to the requirements of paragraph (b)(1) of this
section. The assumed name must appear in documents provided by the
petitioner to establish eligibility. To meet the requirements of this
paragraph, documentation must be submitted to prove that the assumed
name was, in fact, used by the petitioner.
(ii) Proof of common identity. The most persuasive proof of common
identity is a document issued in the assumed name which identifies the
petitioner by photograph, fingerprint or detailed physical description.
Other evidence which will be considered are affidavit(s) by a person or
persons other than the petitioner, made under oath, which identify the
affiant by name and address, state the affiant's relationship to the
petitioner and the basis of the affiant's knowledge of the petitioner's
use of the assumed name. Affidavits accompanied by a photograph, which
have been identified by the affiant as the individual known to affiant
under the assumed name in question, will carry greater weight.
(c) Evidence of family relationship -- (1) Spouse of legalized alien.
If the petitioner is the spouse of a legalized alien, then a
certificate of marriage between the petitioner and legalized alien is
required. If either the husband or wife was married before, then
documents must be submitted to show that all previous marriages were
legally ended (e.g., divorce decree, death certificate).
(2) Unmarried son or daughter of a legalized alien. (i) If the
legalized alien is the mother, then the birth certificate of the
unmarried son or daughter showing the name of the mother is required.
(ii) If the legalized alien is the father, a certificate of marriage
of the parents and the unmarried son or daughter's birth certificate
showing the names of the parents must be provided.
(iii) If the legalized alien is the stepparent, the unmarried son or
daughter's birth certificate showing the names of both natural parents,
the marriage certificate of the parent to the stepparent, and proof of
legal termination of their prior marriages must be provided.
(iv) if the unmarried son or daughter was born out of wedlock, and
the father is the legalized alien, the parent/child relationship must be
established by providing the unmarried son or daughter's birth
certificate showing the father's name, and evidence that he supported
the child.
(v) If the unmarried son or daughter is the adoptive child of a
legalized alien, a certified copy of the adoption decree, the legal
custody decree, if the custody of the unmarried son or daughter was
obtained before adoption, and a statement showing the dates and places
the unmarried son or daughter and adoptive parent lived together must be
submitted.
(vi) If the umarried son or daughter has previously been married, a
certified copy of the divorce or annulment decree, or other document
that terminated the prior marriage, must be submitted.
(3) Documents not available. If the documents listed in this section
are not available, the following evidence may be submitted. The Service
may require a statement from the appropriate authority certifying that
the needed document is not available (blood test may be required):
(i) Church record. A certificate under the seal of the church of
baptism, dedication, or comparable rite showing the date and place of
the child's birth, date of the religious ceremony, and the names of the
child's parents;
(ii) School record. A letter from the authorities of the first
school attended showing the date of admission to the school, the child's
date and place of birth, and the names and places of birth of the
parents, if shown in the school records;
(iii) Census record. State or federal census record showing the
name, place of birth, and date of birth or the age of the person listed;
(iv) Affidavits. Written statements sworn to or affirmed by two
persons who were living at the time who have personal knowledge of the
event the petitioner is trying to prove. The affidavit must include the
affiant's full name, address, date and place of birth, and his or her
relationship to the petitioner, if any; full information concerning the
event; and complete details concerning how the person acquired
knowledge of the event.
(d) Employment documentation. Upon request or instruction by the
Service, documents which may be submitted to establish performance of
qualifying employment include: government employment records; records
maintained by agricultural producers, farm labor contractors, collective
bargaining organizations and other groups or organizations which
maintain records of employment; worker identification issued by
employers or collective bargaining organizations; union membership
cards or other union records such as dues receipts; other records of
the applicant's involvement with organizations providing services to
farm workers; work records such as pay stubs, piece work receipts, W-2
forms; certification of filing income tax returns on IRS Form 6166;
state verification of the filing of state income tax returns; or
affidavits from employers.
(e) Documents -- (1) Original documents. When documents are
required, original documents must be presented wherever possible, except
the following: Official government records; employment or employment
related records maintained by employers, unions or collective bargaining
organizations; medical records; school records maintained by a school
or school board; or other records maintained by a party other than the
applicant. Copies of records maintained by parties other than the
petitioner which are presented in evidence must be certified as true and
complete by such parties and must bear their seal or signature or the
signature and title of persons authorized to act in their behalf. If at
the time of the interview the return of orignial documents is desired by
the petitioner, then they must be accompanied by notarized copies or
copies certified true and complete by a qualified designated entity, or
by the petitioner's attorney or accredited representative, in the format
prescribed at 8 CFR 204.2(j) (1) or (2).
(2) At the discretion of the district director, original documents,
even if accompanied by certified copies, may be temporarily retained for
forensic examination by the Service. Original documents will be
retained only for the period of time necessary to determine their
authenticity. Documents will be returned to petitioners at a Service
office whenever possible and will be returned by mail at the option of
the petitioner.
(3) Documents in a foreign language. Documents in a language other
than English must be accompanied by a summary translation into English.
A summary translation is a condensation or abstract of the document's
text but includes all pertinent facts. The translator must certify that
the translation is accurate, and that he or she is competent to
translate from the language in which the original document is written.
(f) Medical examination. A petitioner under this part must be
examined by a designated civil surgeon at no expense to the government.
The medical report setting forth the findings concerning the mental and
physical condition of the applicant shall be incorporated into the
record on Form I-693, Medical Examination of Aliens Seeking Adjustment
of Status. This form will be sent to the petitioner with the petition
package. The results of the medical examination on Form I-693 must be
submitted at the time of the interview, except as provided in 210a.5(i)
of this part. Any petitioner certified under paragraphs (1), (2), (3),
(4), or (5) of section 212(a) of the Act may appeal to a Board of
Medical Officers of the U.S. Public Health Service, as provided in
section 234 of the Act and part 235 of this chapter.
(g) Confidentiality of information. Information furnished pursuant
to registration or petitioning under this part will not be used to
deport or prosecute any person unless fraud is discovered during the
registration or petition processes, an alien has failed to maintain
status as a RAW, or a person is the subject of an outstanding criminal
arrest warrant.
08 CFR 210a.7 Decision and appeal.
(a) General. Based on all information provided with the petition, at
the interview, or as otherwise provided in 210a.5(i), a district
director or the director of a service center may decide to approve,
continue, or deny a petition for adjustment to temporary resident status
as a RAW.
(b) Approval. If the petitioner has submitted a complete petition,
has been interviewed, has established his or her admissibility and
eligibility, and record check(s) initiated by the Service are returned
without adverse information concerning the petitioner, the petition
shall be approved by the Service. The petitioner will be issued Form
I-688, Temporary Resident Card, valid for a period of fifteen (15)
months from the filing date of the petition. Employment authorization
will be extended for 12 months from the 15-month anniversary date of
temporary resident status upon a finding by the Service that the alien
has completed the required work-days of employment in seasonal
agricultural services as provided in 210a.8 of this part during the
petitioner's first 12 months in temporary resident status, and for an
additional 12 months from the expiry of the second expiration date, upon
a finding that the petitioner has completed the required employment
during the petitioner's second 12-month period in temporary resident
status.
(c) Continuance -- General. Except as provided in 210a.5(i) of this
part, a petitioner who has provided all required evidence to meet the
burden of proof but in whose case the Service has not completed required
record checks or other processing, a claim to IRCA family preference is
made and the relative's IRCA application is pending, or a Notice of
Intent to Deny is issued, may be granted a six (6) month period of
employment authorization on Form I-688A (Employment Authorization Card).
This card may be renewed, extended or reissued at the direction of the
district director. Petitioners who have received employment
authorization incident to non-immigrant status pursuant to 274a.12(b)
of this chapter will not be granted employment authorization under this
section until the day following the expiration of the employment
authorization obtained incident to the non-immigrant status.
(d) Notice of Intent to Deny. The Service shall issue a Notice of
Intent to Deny where a petitioner is the subject of adverse information,
of which the petitioner is unaware, that would render him or her
ineligible if the Service relied on this information in making a
decision on the petition. This notice is a statement by the Service
that specifies the basis for the intended denial of the petition and
what additional evidence is required to prevent denial of the petition.
Petitioners will be granted thirty (30) days to return to the Service
with the required evidence. If the petitioner fails to meet the burden
of proof by the end of this thirty (30) day period, the petition will be
denied.
(e) Denial. When a petition for temporary resident status as a RAW
is denied, the petitioner will be given written notice setting forth the
specific reasons for the denial on Form I-692. Form I-692 shall also
contain advice to the petitioner that he or she may appeal the decision
and that such appeal must be taken within thirty (30) days after service
of the notification of the decision, accompanied by any additional new
evidence, and a copy of a supporting brief if desired. The Form I-692
shall additionally provide a notice to the petitioner that if he or she
fails to file an appeal from the decision, the Form I-692 will serve as
a final notice of ineligibility.
(f) Reopening or reconsideration of decisions. The director of a
service center may sua sponte reopen any proceeding under this part
within his or her jurisdiction, and may render a new decision. This
decision may reverse a prior favorable decision when it is determined
that there is evidence of fraud during the registration or petition
processes, and the petitioner was not entitled to the status granted.
If the decision of the director, after reconsideration, is to deny the
petition, the petitioner shall be accorded the due process provisions
contained in paragraphs (d), (e) and (g) of this section related to the
notice of intent to deny, denial and appeal processes.
(g) Appeal process. Denial of a petition for status as a RAW and
denial of an application for waiver of grounds of excludability may be
appealed to the Associate Commissioner, Examinations (Administrative
Appeals Unit) using Form I-694. Any appeal, with the required fee of
fifty dollars ($50.00), shall be filed with the service center within
thirty (30) days after service of the Notice of Denial in accordance
with the procedures of 8 CFR 103.3(a)(3). The thirty (30) day period
includes any time required for service or receipt by mail.
(h) Date of adjustment. (1) The status of an alien whose petition
for temporary resident status is approved by the Service shall be
adjusted to that of a lawful temporary resident as of the date the
petition was accepted by the Service, as provided for in 210a.5(d)(1)
of this part.
(2) An exception to paragraph (h)(1) of this section occurs if an
alien has been granted employment authorization incident to
non-immigrant status pursuant to 274a.12(b) of this chapter. The date
of adjustment for these petitioners will be the day following the
expiration of the employment authorization obtained incident to
non-immigrant status.
(i) Fraud or willful misrepresentation. If, during the petition
process, fraud or willful misrepresentation of a material fact is found
in the registration and/or petition processes, a Notice of Intent to
Deny will be issued and, if not answered satisfactorily or within the
time allowed, the petition will be denied. If the petitioner is in the
United States, he or she will be subject to deportation under section
241 of the Act and/or referral to the United States Attorney for
possible prosecution.
(j) In the case of a petition which was denied for failure of the
petitioner to meet the priority class standard from which he or she was
selected, absent a finding of fraud, the petitioner will be placed into
the next lower priority class for which he or she appears eligible. If
selected again, a new petition may be required; however, the petition
fee will be waived.
(55 FR 20775, May 21, 1990; 55 FR 23345, June 7, 1990)
08 CFR 210a.8 Status, benefits and obligations.
(a) Employment and travel authorization. (1) An alien whose petition
for temporary residence has been approved under section 210A(c) of the
Act has the right to reside in the United States, to travel abroad
(including commuting from a residence abroad), and to accept employment
in the United States in the same manner as an alien lawfully admitted
for permanent residence. Employment and travel abroad will be
authorized for such aliens on Temporary Resident Card (Form I-688).
(2) An alien who has been granted temporary work authorization
incident to a continuance during the petition interview process will be
issued an Employment Authorization Card (Form I-688A) for the duration
of the approved period of employment. Travel outside the United States
is authorized by Form I-688A.
(b) Obligation to perform seasonal agricultural services. (1) An
alien who has obtained temporary resident status as a replenishment
agricultural worker must establish to the Service, as set forth in this
section, that he or she has performed ninety (90) work-days of seasonal
agricultural services in each of three successive twelve (12) month
periods following the date the alien's status was adjusted, unless the
required number of work days has been adjusted pursuant to paragraph (c)
of this section.
(2) An alien granted lawful permanent residence on the basis of
temporary residence under section 210A(c) of the Act may not be
naturalized as a citizen of the United States under any provision in
Title III of the Act, unless the alien has performed ninety (90)
work-days of seasonal agricultural services in each of two (2)
additional years beyond the three (3) twelve (12) month periods required
by paragraph (b)(1) of this section.
(3) A replenishment agricultural worker who fails to establish to the
Service that he or she has fulfilled the requirements of section
210A(d)(5)(A) of the Act, to perform seasonal agricultural services in
any one of the twelve (12) month periods, shall be subject to
deportation proceedings under section 241(a)(1)(F) of the Act.
(c) Adjustment of required work-days. (1) The number of work-days of
required employment in seasonal agricultural services during a fiscal
year is subject to reduction, by the Department of Labor and the
Department of Agriculture, under section 210A(a)(8) of the Act. The
Secretaries will make a determination in this regard and will publish a
notice of any such adjustment in the Federal Register.
(2) A RAW whose 12-month period during which the required employment
must be performed falls in two fiscal years, shall be required to meet
the lesser work-day standard which is in effect during that 12-month
period.
(d) Proof of performance of seasonal agricultural services. (1) The
burden is on the RAW temporary resident or permanent resident to
collect, maintain, and have available for inspection evidence that he or
she has performed the requisite number of work-days of seasonal
agricultural services for each year as described in this section.
(2) Such evidence may consist of certificates provided to employees
by employers, as required in section 210A(b)(2) of the Act, and under
Department of Labor regulations located at 29 CFR 502.13; or the same
type of documentation as may be submitted under section 210(b)(3) of the
Act.
(3) Aliens are required to establish performance of required
work-days in seasonal agricultural services annually for each of the
three 12-month periods of temporary residence.
(e) Waiver of requirement to perform work. Where a RAW temporary
resident is unable to perform the 90 work days of seasonal agricultural
services required by the Act and this part, because of extraordinary,
unusual, and unique circumstances such as disabling injury, disease or
condition which is beyond an alien's control, the Service may waive this
requirement.
(f) Securing RAW employment records. (1) When a RAW temporary
resident or permanent resident alleges that an employer refuses to
provide him or her with records relating to his or her employment and
the petitioner has reason to believe such records exist, the Service
shall attempt to secure such records.
(2) Prior to any attempt by the Service to secure the employment
records, the following conditions must be met: the alien must be in
approved temporary resident status as a Replenishment Agricultural
Worker; the alien must have made reasonable attempts to secure the
documentation from the employer; the alien's testimony must support
credibly his or her claim; and, the Service must determine that
temporary resident status is in jeopardy in the absence of employer
records.
(3) Provided each of the conditions in paragraph (f)(2) of this
section have been met, and after unsuccessful attempts by the Service
for voluntary compliance, district directors shall issue a subpoena in
accordance with 8 CFR 287.4, in such cases where the employer or farm
labor contractor refuses to release the needed employment records.
(g) Reissuance of Temporary Resident Card (Form I-688). (1) Upon a
finding by the Service that the work-days in seasonal agricultural
services required during the first twelve (12) month period following
the acceptance date of the RAW petition have been completed, a second
Temporary Resident Card (Form I-688) shall be issued and will be valid
for twelve (12) months from the expiry of the I-688 issued for the first
12-month period. Upon a finding by the Service that a RAW has completed
the work-days in seasonal agricultural services required during the
second twelve (12) month period following the filing date of the RAW
petition, a third Temporary Resident Card (Form I-688) will be issued
and will be valid for twelve (12) months from the expiry of the I-688
issued for the second 12-month period.
(2) Form I-688 shall not be issued, reissued or extended and shall
lose its validity if the temporary resident status of the alien has been
terminated as provided in paragraph (i) of this section.
(h) Ineligibility for immigration benefits. An alien who is admitted
as, or whose status is adjusted to that of, a lawful temporary resident
under section 210A(c) of the Act is not entitled to submit a petition
pursuant to section 203(a)(2) of the Act, or receive any other benefit
or consideration accorded under the Act to aliens lawfully admitted for
lawful permanent residence, except as provided in paragraph (a) of this
section.
(i) Termination of temporary resident status. (1) Upon a finding by
the Service that an alien is deportable under sections 235, 236, 237 or
241 of the Act as amended, to include failure to meet the work-day
requirement of section 210A(d)(5)(A) of the Act, the Service shall issue
an Order to Show Cause and place the alien in deportation proceedings.
Temporary resident status as a replenishment agricultural worker shall
be terminated upon a finding by an Immigration Judge that an alien is
deportable.
(2) Retention of Form I-688. The alien shall be entitled to retain
his or her I-688 Temporary Resident Card while deportation proceedings
are pending and until a determination is made by an immigration judge
that the alien is deportable. This card shall be reissued or extended
as required during the period of time that the deportation proceedings
are pending.
(3) Surrender of Form I-688. An alien whose status as a temporary
resident has been terminated as a consequence of an order of deportation
by an immigration judge shall, upon demand, promptly surrender Form
I-688, Temporary Resident Card, to the district director having
jurisdiction over the alien's place of residence, or, in the case of a
commuter, employment.
(55 FR 20775, May 21, 1990, as amended at 56 FR 38333, Aug. 13, 1991)
08 CFR 210a.9 Adjustment to permanent resident status.
The status of an alien lawfully admitted to the United States for
temporary residence as a RAW shall be adjusted to that of an alien
lawfully admitted to the United States for permanent residence only
after performance of the required work-days in seasonal agricultural
services has been verified by the Service. However, once adjustment of
status has been approved by the Service, the effective date of permanent
residence shall be as of the end of the three (3) year period that began
on the date the alien was granted such temporary resident status.
08 CFR 210a.9 PART 211 -- DOCUMENTARY REQUIREMENTS: IMMIGRANTS;
WAIVERS
Sec.
211.1 Visas.
211.2 Passports.
211.3 Expiration of immigrant visas, reentry permits, refugee travel
document, and Form I-151 or I-551.
211.4 Recording the entry of certain immigrant children admitted
without immigrant visas.
211.5 Alien commuters.
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257.
08 CFR 211.1 Visas.
(a) General. A valid unexpired immigrant visa shall be presented by
each arriving immigrant alien applying for admission to the United
States for lawful permanent residence, except as immigrant alien who:
(1) Is a child born subsequent to the issuance of an immigrant visa to
his accompanying parent and applies for admission during the validity of
such a visa; or (2) is a child born during the temporary visit abroad
of a mother who is a lawful permanent resident alien, or a national, of
the United States, provided the child's application for admission to the
United States is made within 2 years of his birth, the child is
accompanied by his parent who is applying for readmission as a permanent
resident upon the first return of the parent to the United States after
the birth of the child, and the accompanying parent is found to be
admissible to the United States.
(b)(1) Alien Registration Receipt Card (Form I-151 or I-551) -- (i)
Alien not travelling pursuant to government orders. An Alien
Registration Receipt Card may be presented in lieu of an immigrant visa
by an immigrant alien who is returning to an unrelinquished lawful
permanent residence in the United States, in returning prior to the
second anniversary of the date on which he or she obtained such
residence if subject to the provisions of section 216 of the Act, or
within six months of the date of filing a Joint Petition to Remove the
Conditional Basis of Aliens Permanent Resident Status (Form I-751) or an
Application for Waiver of Requirement to File Joint Petition for Removal
of Conditions (Form I-752) pursuant to part 216 of this chapter if the
alien is in possession of a Service-issued receipt for such filing, and:
(A) Is returning after a temporary absence abroad not exceeding one
year, or
(B) Is an alien crewman regularly serving abroad an aircraft or
vessel of American registry who is returning after a temporary absence
abroad in connection with his/her duties as a crewman.
(ii) Alien traveling pursuant to government orders. An Alien
Registration Receipt Card, including an expired Alien Registration
Receipt Card issued to a conditional resident may be presented in lieu
of an immigrant visa by an immigrant alien who is returning to an
unrelinquished lawful permanent residence in the United States and:
(A) Is a civilian employee of the United States government returning
from a foreign assignment pursuant to official orders; or
(B) Is a spouse or child of a civilian employee of the United States
government or member of the United States Armed Forces, provided that
the spouse or child resided abroad while the employee or serviceperson
was on overseas duty, and the spouse or child is preceding or
accompanying the employee or serviceperson, or is following to join the
employee or serviceperson within four months of his or her return to the
United States.
(2) Reentry permit. Any immigrant alien returning to an
unrelinquished lawful permanent residence in the United States after a
temporary absence abroad may present a valid unexpired reentry permit
duly issued to him/her in lieu of an immigrant visa. A refugee travel
document issued to a lawful permanent resident pursuant to part 223a of
this chapter shall be regarded as a reentry permit.
(3) Waiver of visas. An immigrant alien returning to an
unrelinquished lawful permanent residence in the United States after a
temporary absence abroad who satisfies the district director in charge
of the port of entry that there is good cause for his failure to present
an immigrant visa, Form I-151 or I-551, or reentry permit may, upon
application on Form I-193, be granted a waiver of that requirement. If
the returning resident alien is not presenting Form I-151 or I-551
because he has lost it, a Form I-90, (application for a replacement Form
I-151) in duplicate, may be filed with the district director having
jurisdiction over the port of entry who may in his discretion grant or
deny without appeal a waiver of the required immigrant visa, reentry
permit or Form I-151, by an immigrant alien who is returning to an
unrelinquished lawful permanent residence in the United States after a
temporary absence abroad not exceeding one year; filing the I-90 will
serve not only as an application for replacement but also as an
application for waiver of passport and visa without the necessity of a
separate filing of Form I-193. An alien who is granted a waiver under
this part upon presentation of Form I-90 shall, after admission into the
United States, comply with the requirements of 264.1(c) of this
chapter.
(4) Private Law 98-53. A lawful permanent resident alien who
immediately preceding travel to the United States was employed by the
American University of Beirut, and seeks admission either to remain
temporarily in the United States and then resume employment with the
American University of Beirut, or to resume permanent residence in the
United States may present Form I-151/551, Alien Registration Receipt
Card, or a boarding letter issued by a United States consular or
immigration officer in lieu of an immigrant visa.
(c) Immigrants having occupational status defined in section
101(a)(15) (A), (E), or (G) of the Act. An immigrant visa, reentry
permit, or Form I-151 or I-551 shall be invalid when presented by an
alien who has an occupational status under section 101(a)(15) (A), (E),
or (G) of the Act, unless he has previously submitted, or submits at the
time he applies for admission to the United States, the written waiver
required by section 247(b) of the Act and part 247 of this chapter.
(d) Returning temporary residents -- (I-688). (1) Form I-688 may be
presented in lieu of an immigrant visa by an alien whose status has been
adjusted to that of a temporary resident under the provisions of 210.1
of this chapter, such status not having changed, and who is returning to
an unrelinquished residence within one year after a temporary absence
abroad.
(2) Form I-688 may be presented in lieu of an immigrant visa by an
alien whose status has been adjusted to that of a temporary resident
under the provisions of 245a.2 of this chapter, such status not having
changed, and who is returning to an unrelinquished residence within 30
days after a temporary absence abroad, provided that the aggregate of
all such absences abroad during the temporary residence period has not
exceeded 90 days.
(31 FR 13387, Oct. 15, 1966, as amended at 42 FR 19478, Apr. 14,
1977; 45 FR 30062, 30063, May 7, 1980; 45 FR 32657, May 19, 1980; 46
FR 25597, May 8, 1981; 46 FR 37240, July 20, 1981; 50 FR 49921, Dec.
6, 1985; 52 FR 16193, May 1, 1987; 53 FR 30017, Aug. 10, 1988; 54 FR
30369, July 20, 1989)
08 CFR 211.2 Passports.
A passport valid for the bearer's entry into a foreign country at
least 60 days beyond the expiration date of this immigrant visa shall be
presented by each immigrant except an immigrant who: (a) Is the parent,
spouse, or unmarried son or daughter of a United States citizen or of an
alien lawful permanent resident of the United States, or (b) is a child
born during the temporary visit abroad of a mother who is a lawful
permanent resident alien, or a national, of the United States, provided
the child's application for admission to the United States is made
within two years of his birth, the child is accompanied by his parent
who is applying for readmission as a permanent resident upon the first
return of the parent to the United States after the birth of the child,
and the accompanying parent is found to be admissible to the United
States, or (c) is returning to an unrelinquished lawful permanent
residence in the United States after a temporary absence abroad, or (d)
is a stateless person or a person who because of his opposition to
Communism is unwilling or unable to obtain a passport from the country
of his nationality or is the accompanying spouse or unmarried son or
daughter of such immigrant, or (e) is a third-preference immigrant, or
(f) is a member of the Armed Forces of the United States, or (g)
satisfies the district director in charge of the port of entry that
there is good cause for failure to present the required document, in
which case an application for waiver shall be made on Form I-193.
(29 FR 10578, July 30, 1964, as amended at 30 FR 14776, Nov. 30,
1965)
08 CFR 211.3 Expiration of immigrant visas, reentry permits, refugee
travel document, and Form I-151 or I-551.
An immigrant visa, reentry permit, refugee travel document, or Form
I-151 or I-551 shall be regarded as unexpired if the rightful holder
embarked or enplaned before the expiration of his immigrant visa,
reentry permit, or refugee travel document, or, with respect to Form
I-151 or I-551, before the first anniversary of the date on which he
departed from the United States: Provided, That the vessel or aircraft
on which he so embarked or enplaned arrives in the United States or
foreign contiguous territory on a continuous voyage. The continuity of
the voyage shall not be deemed to have been interrupted by scheduled or
emergency stops of the vessel or aircraft en route to the United States
or foreign contiguous territory, or by a layover in foreign contiguous
territory necessitated solely for the purpose of effecting a
transportation connection to the United States.
(29 FR 10578, July 30, 1964, as amended at 38 FR 8238, Mar. 30, 1973;
45 FR 32657, May 19, 1980)
08 CFR 211.4 Recording the entry of certain immigrant children admitted
without immigrant visas.
When an immigrant alien who: (a) Is a child born subsequent to the
issuance of an immigrant visa to his accompanying parent; or (b) is a
child born during the temporary visit abroad of a mother who is a lawful
permanent resident, or a national, of the United States, is admitted to
the United States for lawful permanent residence without an immigrant
visa, the admission shall be recorded on Form I-181.
(32 FR 9625, July 4, 1967. Redesignated at 41 FR 55849, Dec. 23,
1976)
08 CFR 211.5 Alien commuters.
(a) General. Notwithstanding any other provisions of this part, an
alien lawfully admitted for permanent residence or a special
agricultural worker lawfully admitted for temporary residence under
section 210 of the Act may commence or continue to reside in foreign
contiguous territory and commute as a special immigrant defined in
section 101(a)(27)(A) of the Act to his place of employment in the
United States. Such commutation may be daily or seasonal for employment
which, on the whole, is regular and stable. At the time of each reentry
the commuter must present a valid Form I-151, I-551, or I-688 in lieu of
an immigrant visa and passport. An alien commuter engaged in seasonal
work will be presumed to have taken up residence in the United States if
he is present in this country for more than six months, in the
aggregate, during any continuous 12-month period. An alien commuter's
address report under section 265 of the Act must show his actual
residence address even though it is not in the United States.
(b) Loss of residence status. An alien commuter who has been out of
regular employment in the United States for a continuous period of six
months shall be deemed to have lost his residence status,
notwithstanding temporary entries in the interim for other than
employment purposes, unless his employment in the United States was
interrupted for reasons beyond his control other than lack of a job
opportunity or he can demonstrate that he has worked ninety days in the
United States in the aggregate during the twelve-month period preceding
his application for admission into the United States. Upon loss of
status, Form I-151, I-551, or I-688 shall become invalid and shall be
surrendered to an immigration officer.
(c) Eligibility for benefits under the immigration and nationality
laws. Until he has taken up residence in the United States, an alien
commuter cannot satisfy the residence requirements of the naturalization
laws and cannot qualify for any benefits under the immigration laws on
his own behalf or on behalf of his relatives other than as specified in
paragraph (a) of this section. When an alien commuter takes up
residence in the United States, he shall no longer be regarded as a
commuter. He may facilitate proof of having taken up such residence by
notifying the Service as soon as possible, preferably at the time of his
first reentry for that purpose. Application for issuance of a new alien
registration receipt card to show that he has taken up residence in the
United States shall be made on Form I-90.
(40 FR 34106, Aug. 14, 1975. Redesignated and amended at 41 FR 55849,
Dec. 23, 1976; 45 FR 32657, May 19, 1980; 46 FR 4858, Jan. 19, 1981;
52 FR 16193, May 1, 1987; 53 FR 18260, May 23, 1988; 54 FR 8184, Feb.
27, 1989)
08 CFR 211.5 PART 212 -- DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS;
WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
Sec.
212.1 Documentary requirements for nonimmigrants.
212.2 Consent to reapply for admission after deportation, removal or
departure at Government expense.
212.3 Application for the exercise of discretion under section
212(c).
212.4 Applications for the exercise of discretion under section
212(d)(3).
212.5 Parole of aliens into the United States.
212.6 Nonresident alien border crossing cards.
212.7 Waiver of certain grounds of excludability.
212.8 Certification requirement of section 212(a)(14).
212.9 Applicability of section 212(a)(32) to certain derivative third
and sixth preference and nonpreference immigrants.
212.10 Section 212(k) waiver.
212.11 Controlled substance convictions.
212.12 Parole determinations and revocations respecting Mariel
Cubans.
212.13 Departmental parole determinations respecting certain Mariel
Cubans.
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1225, 1226, 1228,
1252; 8 CFR part 2.
08 CFR 212.1 Documentary requirements for nonimmigrants.
A valid unexpired visa and an unexpired passport, valid for the
period set forth in section 212(a)(26) of the Act, shall be presented by
each arriving nonimmigrant alien except that the passport validity
period for an applicant for admission who is a member of a class
described in section 102 of the Act is not required to extend beyond the
date of his application for admission if so admitted, and except as
otherwise provided in the Act, this chapter, and for the following
classes:
(a) Canadian nationals, and aliens having a common nationality with
nationals of Canada or with British subjects in Bermuda, Bahamian
nationals or British subjects resident in Bahamas, Cayman Islands, and
Turks and Caicos Islands. A visa is not required of a Canadian national
in any case. A passport is not required of such national except after a
visit outside of the Western Hemisphere. A visa is not required of an
alien having a common nationality with Canadian nationals or with
British subjects in Bermuda, who has his or her residence in Canada or
Bermuda. A passport is not required of such alien except after a visit
outside of the Western Hemisphere. A visa and a passport are required
of a Bahamian national or a British subject who has his residence in the
Bahamas except that a visa is not required of such an alien who, prior
to or at the time of embarkation for the United States on a vessel or
aircraft, satisfied the examining U.S. immigration officer at the
Bahamas, that he is clearly and beyond a doubt entitled to admission in
all other respects. A visa is not required of a British subject who has
his residence in, and arrives directly from, the Cayman Islands or the
Turks and Caicos Islands and who presents a current certificate from the
Clerk of Court of the Cayman Islands or the Turks and Caicos Islands
indicating no criminal record.
(b) British, French, and Netherlands nationals, and nationals of
certain adjacent islands of the Caribbean which are independent
countries. A visa is not required of a British, French, or Netherlands
national -- or of a national of Barbados, Grenada, Jamaica, or Trinidad
and Tobago, who has his residence in British, French, or Netherlands
territory located in the adjacent islands of the Caribbean area, or in
Barbados, Grenada, Jamaica, or Trinidad and Tobago, who: (1) Is
proceeding to the United States as an agricultural worker; or (2) is
the beneficiary of a valid, unexpired indefinite certification granted
by the Department of Labor for employment in the Virgin Islands of the
United States and is proceeding to the Virgin Islands of the United
States for such purpose, or is the spouse or child of such an alien
accompanying or following to join him. A visa is not required of a
national of the British Virgin Islands who has his residence in the
British Virgin Islands, and who is proceeding to the Virgin Islands of
the United States.
(c) Mexican nationals. A visa and a passport are not required of a
Mexican national who is in possession of a border crossing card on Form
I-186 or I-586 and is applying for admission as a temporary visitor for
business or pleasure from continguous territory; or is entering solely
for the purpose of applying for a Mexican passport or other official
Mexican document at a Mexican consular office on the United States side
of the border. A visa is not required of a Mexican national who is in
possession of a border crossing card and is applying for admission to
the United States as a temporary visitor for business or pleasure from
other than contiguous territory. A visa is not required of a Mexican
national who is a crewman employed on an aircraft belonging to a Mexican
company authorized to engage in commercial transportation into the
United States.
(c-1) Bearers of Mexican diplomatic or official passports. A visa
shall not be required by a Mexican national bearing a Mexican diplomatic
or official passport who is a military or civilian official of the
Federal Government of Mexico entering the United States for six months
or less for a purpose other than on assignment as a permanent employee
to an office of the Mexican Federal Government in the United States and
the official's spouse or any of the official's dependent family members
under 19 years of age, bearing diplomatic or official passports, who are
in the actual company of such official at the time of entry into the
United States. This waiver does not apply to the spouse or any of the
official's family members classifiable under section 101(a)(15) (F) or
(M) of the Act.
(c-2) Aliens entering pursuant to International Boundary and Water
Commission Treaty. A visa and a passport are not required of an alien
employed either directly or indirectly on the construction, operation,
or maintenance of works in the United States undertaken in accordance
with the treaty concluded on February 3, 1944, between, the United
States and Mexico regarding the functions of the International Boundary
and Water Commission, and entering the United States temporarily in
connection with such employment.
(d) Citizens of the Freely Associated States, formerly Trust
Territory of the Pacific Islands. Citizens of the Republic of the
Marshall Islands and the Federated States of Micronesia may enter into,
lawfully engage in employment, and establish residence in the United
States and its territories and possessions without regard to paragraphs
(14), (20) and (26) of section 212(a) of the Act pursuant to the terms
of Pub. L. 99-239. Pending issuance by the aforementioned governments
of travel documents to eligible citizens, travel documents previously
issued by the Trust Territory of the Pacific Islands will continue to be
accepted for purposes of identification and to establish eligibility for
admission into the United States, its territories and possessions.
(e) Aliens entering Guam pursuant to section 14 of Pub. L. 99-396,
''Omnibus Territories Act.'' (1) A visa is not required of an alien who
is a citizen of a country enumerated in paragraph (e)(3) of this section
who:
(i) Is classifiable as a vistor for business or pleasure;
(ii) Is solely entering and staying on Guam for a period not to
exceed fifteen days;
(iii) Is in possession of a round-trip nonrefundable and
nontransferable transportation ticket bearing a confirmed departure date
not exceeding fifteen days from the date of admission to Guam;
(iv) Is in possession of a completed and signed Visa Waiver
Information Form (Form I-736);
(v) Waives any right to review or appeal the immigration officer's
determination of admissibility at the port of entry at Guam; and
(vi) Waives any right to contest any action for deportation, other
than on the basis of a request for asylum.
(2) An alien is eligible for the waiver provision if all of the
eligibility criteria in paragraph (e)(1) of this section have been met
prior to embarkation and the alien is a citizen of a country that:
(i) Has a visa refusal rate of 16.9% or less, or a country whose visa
refusal rate exceeds 16.9% and has an established preinspection or
preclearance program, pursuant to a bilateral agreement with the United
States under which its citizens traveling to Guam without a valid United
States visa are inspected by the Immigration and Naturalization Service
prior to departure from that country;
(ii) Is within geographical proximity to Guam, unless the country has
a substantial volume of nonimmigrant admissions to Guam as determined by
the Commissioner and extends reciprocal privileges to citizens of the
United States;
(iii) Is not designated by the Department of State as being of
special humanitarian concern; and
(iv) Poses no threat to the welfare, safety or security of the United
States, its territories, or commonwealths.
Any potential threats to the welfare, safety, or security of the
United States, its territories, or commonwealths will be dealt with on a
country by country basis, and a determination by the Commissioner of the
Immigration and Naturalization Service that a threat exists will result
in the immediate deletion of that country from the listing in paragraph
(e)(3) of this section.
(3) The following countries now meet the eligibility criteria as
stated in paragraph (e)(2) of this section: Australia, Brunei, Burma,
Indonesia, Japan, Malaysia, Nauru, New Zealand, Papua New Guinea,
Republic of Korea, Singapore, Solomon Islands, the United Kingdom
(including the citizens of the colony of Hong Kong), Vanuatu, and
Western Samoa.
(4) Admission under this section renders an alien ineligible for:
(i) Adjustment of status to temporary or permanent resident;
(ii) Change of nonimmigrant status; or
(iii) Extension of stay.
(5) A transportation line bringing any alien to Guam pursuant to this
section shall:
(i) Enter into a contract on Form I-760, made by the Commissioner of
the Immigration and Naturalization Service in behalf of the government;
(ii) Transport only an alien who is a citizen and in possession of a
valid passport of a country enumerated in paragraph (e)(3) of this
section;
(iii) Transport only an alien in possession of a round-trip,
nontransferable transportation ticket:
(A) Bearing a confirmed departure date not exceeding fifteen days
from the date of admission to Guam,
(B) Valid for a period of not less than one year,
(C) Nonrefundable except in the country in which issued or in the
country of the alien's nationality or residence,
(D) Issued by a carrier which has entered into an agreement described
in part (5)(i) of this section, and
(E) Which the carrier will unconditionally honor when presented for
return passage; and
(iv) Transport only an alien in possession of a completed and signed
Visa Waiver Information Form I-736.
(f) Direct transits -- (1) Transit without visa. A passport and visa
are not required of an alien who is being transported in immediate and
continuous transit through the United States in accordance with the
terms of an agreement entered into between the transportation line and
the Service under the provisions of section 238(d) of the Act on Form
I-426 to insure such immediate and continuous transit through, and
departure from, the United States en route to a specifically designated
foreign country: Provided, That such alien is in possession of a travel
document or documents establishing his/her identity and nationality and
ability to enter some country other than the United States.
(2) Waiver of passport and visa. On the basis of reciprocity, the
waiver of passport and visa is available to a national of Albania,
Bulgaria, Czechoslovakia, Estonia, the German Democratic Republic,
Hungary, Latvia, Lithuania, Mongolian People's Republic, People's
Republic of China, Poland, Romania, or the Union of Soviet Socialist
Republics resident in one of said countries, only if he/she is
transiting the United States by aircraft of a transportation line
signatory to an agreement with the Service on Form I-426 on a direct
through flight which will depart directly to a foreign place from the
port of arrival.
(3) Unavailability to transit. This waiver of passport and visa
requirement is not available to an alien who is a citizen of
Afghanistan, Bangladesh, Cuba, India, Iran, Iraq, Libya, Pakistan or Sri
Lanka. This waiver of passport and visa requirement is not available to
an alien who is a citizen or national of North Korea (Democratic
People's Republic of Korea) or Democratic Republic of Vietnam and is a
resident of the said countries.
(4) Foreign government officials in transit. If an alien is of the
class described in section 212(d)(8) of the Act, only a valid unexpired
visa and a travel document valid for entry into a foreign country for at
least 30 days from the date of admission to the United States are
required.
(g) Unforeseen emergency. A visa and a passport are not required of
a nonimmigrant who, either prior to his embarkation at a foreign port or
place or at the time of arrival at a port of entry in the United States,
satisfies the district director at the port of entry (after consultation
with and concurrence by the Director of the Visa Office of the
Department of State) that, because of an unforeseen emergency, he was
unable to obtain the required documents, in which case a waiver
application shall be made on Form I-193. The district director or the
Deputy Commissioner may at any time revoke a waiver previously
authorized pursuant to this paragraph and notify the nonimmigrant in
writing to that effect. Any waiver of the visa requirement heretofore
or hereafter granted pursuant to section 212(d)(4)(A) of the Act in the
case of a national or resident of Cuba who embarks for the United States
on or after November 16, 1963, shall not be valid unless such national
or resident proceeds directly from Cuba to the United States and has
been inspected in Cuba by officials of the United States Immigration and
Naturalization Service and of the United States Public Health Service
immediately prior to his departure for the United States, irrespective
of whether such national or resident had prior notice of these
conditions.
(h) Fiancees or fiances of U.S. citizens. Notwithstanding any of the
provisions of this part, an alien seeking admission as a fiancee or
fiance of a U.S. citizen pursuant to section 101(a)(15)(K) of the Act
shall be in possession of a nonimmigrant visa issued by an American
consular officer classifying the alien under that section.
(i) Visa Waiver Pilot Program. A visa is not required of any alien
who is eligible to apply for admission to the United States as a Visa
Waiver Pilot Program applicant pursuant to the provisions of section 217
of the Act and part 217 of this chapter if such alien is a national of a
country designated under the Visa Waiver Pilot Program, who seeks
admission to the United States for a period of 90 days or less as a
visitor for business or pleasure.
(j) Officers authorized to act upon recommendations of United States
consular officers for waiver of visa and passport requirements. All
district directors, the officers in charge are authorized to act upon
recommendations made by United States consular officers or by officers
of the Visa Office, Department of State, pursuant to the provisions of
22 CFR 41.7 for waiver of visa and passport requirements under the
provisions of section 212(d)(4)(A) of the Act. The District Director at
Washington, DC, has jurisdiction in such cases recommended to the
Service at the seat of Government level by the Department of State.
Neither an application nor fee are required if the concurrence in a
passport or visa waiver is requested by a U.S. consular officer or by an
officer of the Visa Office. The district director or the Deputy
Commissioner, may at any time revoke a waiver previously authorized
pursuant to this paragraph and notify the nonimmigrant alien in writing
to that effect.
(k) Cancellation of nonimmigrant visas by immigration officers. Upon
receipt of advice from the Department of State that a nonimmigrant visa
has been revoked or invalidated, and request by that Department for such
action, immigration officers shall place an appropriate endorsement
thereon.
(l) Treaty traders and investors. Notwithstanding any of the
provisions of this part, an alien seeking admission as a treaty trader
or investor under the provisions of Chapter 15 of the United
States-Canada Free-Trade Agreement (FTA) pursuant to section
101(a)(15)(E) of the Act, shall be in possession of a nonimmigrant visa
issued by an American consular officer classifying the alien under that
section.
(Secs. 103, 104, 212 of the Immigration and Nationality Act, as
amended (8 U.S.C. 1103, 1104, 1132))
(26 FR 12066, Dec. 16, 1961)
Editorial Note: For Federal Register citations affecting 212.1, see
the List of CFR Sections Affected in the Finding Aids section in this
volume.
08 CFR 212.2 Consent to reapply for admission after deportation,
removal or departure at Government expense.
(a) Evidence. Any alien who has been deported or removed from the
United States is inadmissible to the United States unless the alien has
remained outside of the United States for five consecutive years since
the date of deportation or removal. If the alien has been convicted of
an aggravated felony, he or she must remain outside of the United States
for twenty consecutive years from the deportation date before he or she
is eligible to re-enter the United States. Any alien who has been
deported or removed from the United States and is applying for a visa,
admission to the United States, or adjustment of status, must present
proof that he or she has remained outside of the United States for the
time period required for re-entry after deportation or removal. The
examining consular or immigration officer must be satisfied that since
the alien's deportation or removal, the alien has remained outside the
United States for more than five consecutive years, or twenty
consecutive years in the case of an alien convicted of an aggravated
felony as defined in section 101(a)(43) of the Act. Any alien who does
not satisfactorily present proof of absence from the United States for
more than five consecutive years, or twenty consecutive years in the
case of an alien convicted of an aggravated felony, to the consular or
immigration officer, and any alien who is seeking to enter the United
States prior to the completion of the requisite five- or twenty-year
absence, must apply for permission to reapply for admission to the
United States as provided under this part. A temporary stay in the
United States under section 212(d)(3) of the Act does not interrupt the
five or twenty consecutive year absence requirement.
(b) Alien applying to consular officer for nonimmigrant visa or
nonresident alien border crossing card. (1) An alien who is applying to
a consular officer for a nonimmigrant visa or a nonresident alien border
crossing card, must request permission to reapply for admission to the
United States if five years, or twenty years if the alien's deportation
was based upon a conviction for an aggravated felony, have not elapsed
since the date of deportation or removal. This permission shall be
requested in the manner prescribed through the consular officer, and may
be granted only in accordance with sections 212(a)(17) and 212(d)(3)(A)
of the Act and 212.4 of this part. However, the alien may apply for
such permission by submitting Form I-212, Application for Permission to
Reapply for Admission into the United States after Deportation or
Removal, to the consular officer if that officer is willing to accept
the application, and recommends to the district director that the alien
be permitted to apply.
(2) The consular officer shall forward the Form I-212 to the district
director with jurisdiction over the place where the deportation or
removal proceedings were held.
(c) Special provisions for an applicant for nonimmigrant visa under
section 101(a)(15)(K) of the Act. (1) An applicant for a nonimmigrant
visa under section 101(a)(15)(K) must:
(i) Be the beneficiary of a valid visa petition approved by the
Service; and
(ii) File an application on Form I-212 with the consular officer for
permission to reapply for admission to the United States after
deportation or removal.
(2) The consular officer must forward the Form I-212 to the Service
office with jurisdiction over the area within which the consular officer
is located. If the alien is ineligible on grounds which, upon the
applicant's marriage to the United States citizen petitioner, may be
waived under section 212 (g), (h), or (i) of the Act, the consular
officer must also forward a recommendation as to whether the waiver
should be granted.
(d) Applicant for immigrant visa. An applicant for an immigrant visa
who is not physically present in the United States and who requires
permission to reapply must file Form I-212 with the district director
having jurisdiction over the place where the deportation or removal
proceedings were held. If the applicant also requires a waiver under
section 212 (g), (h), or (i) of the Act, Form I-601, Application for
Waiver of Grounds of Excludability, must be filed simultaneously with
the Form I-212 with the American consul having jurisdiction over the
alien's place of residence. The consul must forward these forms to the
appropriate Service office abroad with jurisdiction over the area within
which the consul is located.
(e) Applicant for adjustment of status. An applicant for adjustment
of status under section 245 of the Act and part 245 of this chapter must
request permission to reapply for entry in conjunction with his or her
application for adjustment of status. This request is made by filing an
application for permission to reapply, Form I-212, with the district
director having jurisdiction over the place where the alien resides. If
the application under section 245 of the Act has been initiated,
renewed, or is pending in a proceeding before an immigration judge, the
district director must refer the Form I-212 to the immigration judge for
adjudication.
(f) Applicant for admission at port of entry. Within five years of
the deportation or removal, or twenty years in the case of an alien
convicted of an aggravated felony, an alien may request permission at a
port of entry to reapply for admission to the United States. The alien
shall file the Form I-212 with the district director having jurisdiction
over the port of entry.
(g) Other applicants. (1) Any applicant for permission to reapply
for admission under circumstances other than those described in
paragraphs (b) through (f) of this section must file Form I-212. This
form is filed with either:
(i) The district director having jurisdiction over the place where
the deportation or removal proceedings were held; or
(ii) The district director who exercised or is exercising
jurisdiction over the applicant's most recent proceeding.
(2) If the applicant is physically present in the United States but
is ineligible to apply for adjustment of status, he or she must file the
application with the district director having jurisdiction over his or
her place of residence.
(h) Decision. An applicant who has submitted a request for consent
to reapply for admission after deportation or removal must be notified
of the decision. If the application is denied, the applicant must be
notified of the reasons for the denial and of his or her right to appeal
as provided in part 103 of this chapter. Except in the case of an
applicant seeking to be granted advance permission to reapply for
admission prior to his or her departure from the United States, the
denial of the application shall be without prejudice to the renewal of
the application in the course of proceedings before an immigration judge
under section 242 of the Act and this chapter.
(i) Retroactive approval. (1) If the alien filed Form I-212 when
seeking admission at a port of entry, the approval of the Form I-212
shall be retroactive to either:
(i) The date on which the alien embarked or reembarked at a place
outside the United States; or
(ii) The date on which the alien attempted to be admitted from
foreign contiguous territory.
(2) If the alien filed Form I-212 in conjunction with an application
for adjustment of status under section 245 of the Act, the approval of
Form I-212 shall be retroactive to the date on which the alien embarked
or reembarked at a place outside the United States.
(j) Advance approval. An alien whose departure will execute an order
of deportation shall receive a conditional approval depending upon his
or her satisfactory departure. However, the grant of permission to
reapply does not waive inadmissibility under section 212(a) (16) or (17)
of the Act resulting from exclusion, deportation, or removal proceedings
which are instituted subsequent to the date permission to reapply is
granted.
(56 FR 23212, May 21, 1991)
08 CFR 212.3 Application for the exercise of discretion under section
212(c).
(a) Jurisdiction. An application for the exercise of discretion
under section 212(c) of the Act shall be submitted on Form I-191,
Application for Advance Permission to Return to Unrelinquished Domicile,
to:
(1) The district director having jurisdiction over the area in which
the applicant's intended or actual place of residence in the United
States is located; or
(2) The Office of the Immigration Judge if the application is made in
the course of proceedings under sections 235, 236, or 242 of the Act.
(b) Filing of application. The application may be filed prior to, at
the time of, or at any time after the applicant's departure from or
arrival into the United States. All material facts and/or circumstances
which the applicant knows or believes apply to the grounds of
excludability or deportability must be described. The applicant must
also submit all available documentation relating to such grounds.
(c) Decision of the District Director. A district director may grant
or deny an application for advance permission to return to an
unrelinquished domicile under section 212(c) of the Act, in the exercise
of discretion, unless otherwise prohibited by paragraph (f) of this
section. The applicant shall be notified of the decision and, if the
application is denied, of the reason(s) for denial. No appeal shall lie
from denial of the application, but the application may be renewed
before an Immigration Judge as provided in paragraph (e) of this
section.
(d) Validity. Once an application is approved, that approval is
valid indefinitely. However, the approval covers only those specific
grounds of excludability or deportability that were described in the
application. An application who failed to describe any other grounds of
excludability or deportability, or failed to disclose material facts
existing at the time of the approval of the application, remains
excludable or deportable under the previously unidentified grounds. If
at a later date, the applicant becomes subject to exclusion or
deportation based upon these previously unidentified grounds or upon new
ground(s), a new application must be filed with the appropriate district
director.
(e) Filing or renewal of applications before an Immigration Judge.
(1) An application for the exercise of discretion under section 212(c)
of the Act may be renewed or submitted in proceedings before an
Immigration Judge under sections 235, 236, or 242 of the Act, and under
this chapter. Such application shall be adjudicated by the Immigration
Judge, without regard to whether the applicant previously has made
application to the district director.
(2) The Immigration Judge may grant or deny an application for
advance permission to return to an unrelinquished domicile under section
212(c) of the Act, in the exercise of discretion, unless otherwise
prohibited by paragraph (f) of this section.
(3) An alien otherwise entitled to appeal to the Board of Immigration
Appeals may appeal the denial by the Immigration Judge of this
application in accordance with the provisions of 3.36 of this chapter.
(f) Limitations on discretion to grant an application under section
212(c) of the Act. A district director or Immigration Judge shall deny
an application for advance permission to enter under section 212(c) of
the Act if:
(1) The alien has not been lawfully admitted for permanent residence;
(2) The alien has not maintained lawful permanent resident status in
the United States for at least seven consecutive years immediately
preceding the filing of the application;
(3) The alien is subject to exclusion from the United States under
paragraphs (3)(A), (3)(B), (3)(C), or (3)(E) of section 212(a) of the
Act;
(4) The alien has been convicted of an aggravated felony, as defined
by section 101(a)(43) of the Act, and has served a term of imprisonment
of at least five years for such conviction; or
(5) The alien applies for relief under section 212(c) within five
years of the barring act as enumerated in one or more sections of
section 242B(e) (1) through (4) of the Act.
(56 FR 50034, Oct. 3, 1991)
08 CFR 212.4 Applications for the exercise of discretion under section
212(d)(3).
(a) Applications under section 212(d)(3)(A) -- (1) General. District
directors and officers in charge outside the United States in the
districts of Bangkok, Thailand; Mexico City, Mexico; and Rome, Italy
are authorized to act upon recommendations made by consular officers for
the exercise of discretion under section 212(d)(3)(A) of the Act. The
District Director, Washington, DC, has jurisdiction in such cases
recommended to the Service at the seat-of-government level by the
Department of State. When a consular officer or other State Department
official recommends that the benefits of section 212(d)(3)(A) of the Act
be accorded an alien, neither an application nor fee shall be required.
The recommendation shall specify:
(i) The reasons for inadmissibility and each section of law under
which the alien is inadmissible;
(ii) Each intended date of arrival;
(iii) The length of each proposed stay in the United States;
(iv) The purpose of each stay;
(v) The number of entries which the alien intends to make; and
(vi) The justification for exercising the authority contained in
section 212(d)(3) of the Act.
If the alien desires to make multiple entries and the consular
officer or other State Department official believes that the
circumstances justify the issuance of a visa valid for multiple entries
rather than for a specified number of entries, and recommends that the
alien be accorded an authorization valid for multiple entries, the
information required by items (ii) and (iii) shall be furnished only
with respect to the initial entry. Item (ii) does not apply to a bona
fide crewman. The consular officer or other State Department official
shall be notified of the decision on his recommendation. No appeal by
the alien shall lie from an adverse decision made by a Service officer
on the recommendation of a consular officer or other State Department
official.
(2) Authority of consular officers to approve section 212(d)(3)(A)
recommendations pertaining to aliens inadmissible under section
212(a)(28)(C). In certain categories of visa cases defined by the
Secretary of State, United States consular officers assigned to
visa-issuing posts abroad may, on behalf of the Attorney General
pursuant to section 212(d)(3)(A) of the Act, approve a recommendation by
another consular officer that an alien be admitted temporarily despite
visa ineligibility solely because the alien is of the class of aliens
defined at section 212(a)(28)(C) of the Act, as a result of presumed or
actual membership in, or affiliation with, an organization described in
that section. Authorizations for temporary admission granted by
consular officers shall be subject to the terms specified in 212.4(c)
of this chapter. Any recommendation which is not clearly approvable
shall, and any recommendation may, be presented to the appropriate
official of the Immigration and Naturalization Service for a
determination.
(b) Applications under section 212(d)(3)(B). An application for the
exercise of discretion under section 212(d)(3)(B) of the Act shall be
submitted on Form I-192 to the district director in charge of the
applicant's intended port of entry prior to the applicant's arrival in
the United States. (For Department of State procedure when a visa is
required, see 22 CFR 41.95 and paragraph (a) of this section.) If the
application is made because the applicant may be inadmissible due to
present or past membership in or affiliation with any Communist or other
totalitarian party or organization, there shall be attached to the
application a written statement of the history of the applicant's
membership or affiliation, including the period of such membership or
affiliation, whether the applicant held any office in the organization,
and whether his membership or affiliation was voluntary or involuntary.
If the applicant alleges that his membership or affiliation was
involuntary, the statement shall include the basis for that allegation.
When the application is made because the applicant may be inadmissible
due to disease, mental or physical defect, or disability of any kind,
the application shall describe the disease, defect, or disability. If
the purpose of seeking admission to the United States is for treatment,
there shall be attached to the application statements in writing to
establish that satisfactory treatment cannot be obtained outside the
United States; that arrangements have been completed for treatment, and
where and from whom treatment will be received; what financial
arrangements for payment of expenses incurred in connection with the
treatment have been made, and that a bond will be available if required.
When the application is made because the applicant may be inadmissible
due to the conviction of one or more crimes, the designation of each
crime, the date and place of its commission and of the conviction
thereof, and the sentence or other judgment of the court shall be stated
in the application; in such a case the application shall be
supplemented by the official record of each conviction, and any other
documents relating to commutation of sentence, parole, probation, or
pardon. If the application is made at the time of the applicant's
arrival to the district director at a port of entry, the applicant shall
establish that he was not aware of the ground of inadmissibility and
that it could not have been ascertained by the exercise of reasonable
diligence, and he shall be in possession of a passport and visa, if
required, or have been granted a waiver thereof. The applicant shall be
notified of the decision and if the application is denied of the reasons
therefor and of his right to appeal to the Board within 15 days after
the mailing of the notification of decision in accordance with the
Provisions of part 3 of this chapter. If denied, the denial shall be
without prejudice to renewal of the application in the course of
proceedings before a special inquiry officer under sections 235 and 236
of the Act and this chapter. When an appeal may not be taken from a
decision of a special inquiry officer excluding an alien but the alien
has applied for the exercise of discretion under section 212(d)(3)(B) of
the Act, the alien may appeal to the Board from a denial of such
application in accordance with the provisions of 236.5(b) of this
chapter.
(c) Terms of authorization. Each authorization under section
212(d)(3) (A) or (B) of the Act shall specify:
(1) Each section of law under which the alien is inadmissible;
(2) The intended date of each arrival;
(3) The length of each stay authorized in the United States;
(4) The purpose of each stay;
(5) The number of entries for which the authorization is valid;
(6) The dates on or between which each application for admission at
ports of entry in the United States is valid; and
(7) The justification for exercising the authority contained in
section 212(d)(3) of the Act. If the consular officer has recommended
under section 212(d)(3)(A), or an applicant under section 212(d)(3)(B)
seeks, the issuance of an authorization valid for multiple entries
rather than for a specified number of entries, and it is determined that
the circumstances justify the issuance of the authorization valid for
mutiple entries, the information required by items (2) and (3) shall be
specified only with respect to the initial entry. Item (2) does not
apply to a bona fide crewman. Authorizations granted to crewmen may be
valid for a maximum period of 2 years for application for admission at
U.S. ports of entry and may be valid for multiple entries. An
authorization issued in conjunction with an application for a
nonresident alien border crossing card shall be valid for a period not
to exceed the validity of such card for applications for admission at
U.S. ports of entry and shall be valid for multiple entries. A multiple
entry authorization for a person other than a crewman or applicant for a
border crossing card may be made valid for a maximum period of 1 year
for applications for admission at U.S. ports of entry, except that a
period in excess of 1 year may be permitted on the recommendation of the
Department of State. A single entry authorization to apply for
admission at a U.S. port of entry shall not be valid for more than 6
months from the date the authorization is issued. All admissions
pursuant to section 212(d)(3) of the Act shall be subject to the terms
and conditions set forth in the authorization. The period for which the
alien's admission is authorized pursuant to item (3) shall not exceed
the period justified, subject to the limitations specified in part 214
of this chapter for each class of nonimmigrants. Each authorization
shall specify that it is subject to revocation at any time. Unless the
alien applies for admission during the period of validity of the
authorization, a new authorization is required. An authorization may
not be revalidated.
(d) Admission of groups inadmissible under section 212(a)(28) for
attendance at international conferences. When the Secretary of State
recommends that a group of nonimmigrant aliens and their accompanying
family members be admitted to attend international conferences
notwithstanding their inadmissibility under section 212(a)(28) of the
Act, the Deputy Commissioner, may enter an order pursuant to the
authority contained in section 212(d)(3)(A) of the Act specifying the
terms and conditions of their admission and stay.
(e) Inadmissibility under section 212(a)(1). Pursuant to the
authority contained in section 212(d)(3) of the Act, the temporary
admission of a nonimmigrant visitor is authorized notwithstanding
inadmissibility under section 212(a)(1) of the Act, if such alien is
accompanied by a member of his/her family, or a guardian who will be
responsible for him/her during the period of admission authorized.
(f) Action upon alien's arrival. Upon admitting an alien who has
been granted the benefits of section 212(d)(3)(A) of the Act, the
immigration officer shall be guided by the conditions and limitations
imposed in the authorization and noted by the consular officer in the
alien's passport. When admitting any alien who has been granted the
benefits of section 212(d)(3)(B) of the Act, the Immigration officer
shall note on the arrival-departure record, Form I-94, or crewman's
landing permit, Form I-95, issued to the alien, the conditions and
limitations imposed in the authorization.
(g) Authorizations issued to crewmen without limitation as to period
of validity. When a crewman who has a valid section 212(d)(3)
authorization without any time limitation comes to the attention of the
Service, his travel document shall be endorsed to show that the validity
of his section 212(d)(3) authorization expires as of a date six months
thereafter, and any previously-issued Form I-184 shall be lifted and
Form I-95 shall be issued in its place and similarly endorsed.
(h) Revocation. The Deputy Commissioner or the district director may
at any time revoke a waiver previously authorized under section
212(d)(3) of the Act and shall notify the nonimmigrant in writing to
that effect.
(29 FR 15252, Nov. 13, 1964, as amended at 30 FR 12330, Sept. 28,
1965; 31 FR 10413, Aug. 3, 1966; 32 FR 15469, Nov. 7, 1967; 35 FR
3065, Feb. 17, 1970; 35 FR 7637, May 16, 1970; 40 FR 30470, July 21,
1975; 51 FR 32295, Sept. 10, 1986; 53 FR 40867, Oct. 19, 1988)
08 CFR 212.5 Parole of aliens into the United States.
(a) In determining whether or not aliens who have been or are
detained in accordance with 235.3 (b) or (c) will be paroled out of
detention, the district director should consider the following:
(1) The parole of aliens who have serious medical conditions in which
continued detention would not be appropriate would generally be
justified by ''emergent reasons'';
(2) The parole of aliens within the following groups would generally
come within the category of aliens for whom the granting of the parole
exception would be ''strictly in the public interest'', provided that
the aliens present neither a security risk nor a risk of absconding:
(i) Women who have been medically certified as pregnant;
(ii) Aliens who are defined as juveniles in 8 CFR 242.24. The
district director shall follow the guidelines set forth in 242.24(b) in
determining under what conditions a juvenile should be paroled from
detention.
(iii) Aliens who have close family relatives in the United States
(parent, spouse, children, or siblings who are United States citizens or
lawful permanent resident aliens) who are eligible to file, and have
filed, a visa petition on behalf of the detainee;
(iv) Aliens who will be witnesses in proceedings being, or to be,
conducted by judicial, administrative, or legislative bodies in the
United States;
(v) Aliens whose continued detention is not in the public interest as
determined by the district director.
(3) Aliens subject to prosecution in the United States who are needed
for the purposes of such prosecution may be paroled to the custody of
the appropriate responsible agency or prosecuting authority.
(b) In the cases of all other arriving aliens except those detained
under 235.3(b) or (c), and paragraph (a) of this section, the district
director in charge of a port of entry may, prior to examination by an
immigration officer, or subsequent to such examination and pending a
final determination of inadmissibility in accordance with sections 235
and 236 of the Act and this chapter, or after a finding of
inadmissibility has been made, parole into the United States temporarily
in accordance with section 212(d)(5) of the Act any such alien applicant
for admission at such port of entry under such terms and conditions,
including those set forth in paragraph (c) of this section, as he may
deem appropriate; however, an alien who arrives at a port of entry and
applies for parole into the United States for the sole purpose of
seeking adjustment of status under section 245A of the Act, without
benefit of advance authorization as described in paragraph (e)(2) of
this section shall be denied parole and detained for exclusion in
accordance with the provisions of paragraph (b) or (c) of 235.3 of this
chapter. An alien seeking to enter the United States for the sole
purpose of applying for adjustment of status under section 210 of the
Act shall be denied parole and detained for exclusion under paragraph
(b) or (c) of 235.3 of this chapter, unless the alien has been
recommended for approval of such application for adjustment by a
consular officer at an Overseas Processing Office.
(c) Conditions. In any case where an alien is paroled under
paragraph (a) or (b) of this section, the district director may require
reaonable assurances that the alien will appear at all hearings and/or
depart the United States when required to do so. Not all factors listed
need be present for parole to be exercised. The district director
should apply reasonable discretion. The consideration of all relevant
factors includes:
(1) The giving of an undertaking by the applicant, counsel, or a
sponsor to ensure appearances, and a bond may be exacted on Form I-352
in such amount as the district director may deem appropriate;
(2) Community ties such as close relatives with known addresses; and
(3) Agreement to reasonable conditions (such as periodic reporting of
whereabouts).
(d) Termination of parole -- (1) Automatic. Parole shall be
automatically terminated without written notice (i) upon the departure
from the United States of the alien, or, (ii) if not departed, at the
expiration of the time for which parole was authorized, and in the
latter case the alien shall be processed in accordance with paragraph
(d)(2) of this section except that no written notice shall be required.
(2)(i) On notice. In cases not covered by paragraph (d)(1) of this
section, upon accomplishment of the purpose for which parole was
authorized or when in the opinion of the district director in charge of
the area in which the alien is located neither emergency nor public
interest warrants the continued presence of the alien in the United
States, parole shall be terminated upon written notice to the alien and
he or she shall be restored to the status which he or she had at the
time of parole. Any further inspection or hearing shall be conducted
under section 235 or 236 of the Act and this chapter, or any order of
exclusion and deportation previously entered shall be executed. If the
exclusion order cannot be executed by deportation within a reasonable
time, the alien shall again be released on parole unless in the opinion
of the district director the public interest requires that the alien be
continued in custody.
(ii) An alien who is granted parole into the United States after
enactment of the Immigration Reform and Control Act of 1986 for other
than the specific purpose of applying for adjustment of status under
section 245A of the Act shall not be permitted to avail him or herself
of the privilege of adjustment thereunder. Failure to abide by this
provision through making such an application will subject the alien to
termination of parole status and institution of proceedings under
sections 235 and 236 of the Act without the written notice of
termination required by 212.5(d)(2)(i) of this chapter.
(e) Advance authorization. When parole is authorized for an alien
who will travel to the United States without a visa, the alien shall be
issued Form I-512.
(f) Parole for certain Cuban nationals. Notwithstanding any other
provision respecting parole, the determination whether to release on
parole, or to revoke the parole of, a native of Cuba who last came to
the United States between April 15, 1980, and October 20, 1980, shall be
governed by the terms of 212.12 and 212.13.
(47 FR 30045, July 9, 1982, as amended at 47 FR 46494, Oct. 19, 1982;
52 FR 16194, May 1, 1987; 52 FR 48802, Dec. 28, 1987; 53 FR 17450,
May 17, 1988)
08 CFR 212.6 Nonresident alien border crossing cards.
(a) Use -- (1) Nonresident alien Canadian border crossing card, Form
I-185. Any Canadian citizen or British subject residing in Canada may
use Form I-185 for entry at a United States port of entry.
(2) Mexican border crossing card, Form I-186 or I-586. The rightful
holder of a nonresident alien Mexican border crossing card, Form I-186
or I-586, may be admitted under 235.1(f) and (g) of this title if found
otherwise admissible. However, any alien seeking entry as a visitor for
business or pleasure must also present a valid passport and shall be
issued Form I-94 if the alien is applying for admission from:
(i) A country other than Mexico or Canada, or
(ii) Canada if the alien has been in a country other than the United
States or Canada since leaving Mexico.
(b) Application. A citizen of Canada or a British subject residing
in Canada must apply on Form I-175 for a nonresident alien border
crossing card, supporting his/her application with evidence of Canadian
or British citizenship, residence in Canada, and two photographs, size 1
1/2'' x 1 1/2''. Form I-175 must be submitted to an immigration officer
at a Canadian border port of entry. A citizen of Mexico must apply on
Form I-190 for a nonresident alien border crossing card, supporting his
application with evidence of Mexican citizenship and residence, a valid
unexpired passport or a valid Mexican Form 13, and one color photograph
with a white background. The photograph must be glossy, unretouched and
not mounted. Dimension of the facial image must be approximately one
inch from chin to top of hair, and the applicant must be shown in 3/4
frontal view showing right side of face with right ear visible. Form
I-190 must be submitted to an immigration officer at a Mexican border
port of entry or to an American consular officer in Mexico, other than
one assigned to a consulate situated adjacent to the border between
Mexico and the United States; however, Form FS-257 may be used in lieu
of Form I-190 when the application is made to an American consular
officer. If the application is submitted to an immigration officer,
each applicant, regardless of age, must appear in person for an
interview concerning eligibility for a nonresident alien border crossing
card. If the application is submitted to a consular officer, each
applicant, except a child under fourteen years of age, must appear in
person for the interview. If the application is denied, the applicant
shall be given a notice of denial with the reasons on Form I-180. There
is no appeal from the denial but the denial is without prejudice to a
subsequent application for a visa or for admission to the United States.
(c) Validity. Notwithstanding any expiration dates which may appear
thereon, Forms I-185, I-186, and I-586, are valid until revoked or
voided.
(d) Voidance -- (1) At port of entry. Forms I-185, I-186 and I-586
may be declared void by a supervisory immigration officer at a port of
entry. If the card is declared void, the applicant shall be advised in
writing that he/she may request a hearing before an immigration judge to
determine his/her admissibility in accordance with part 236 of this
chapter and may be represented at this hearing by an attorney of his/her
own choice at no expense to the Government. He/she shall also be
advised of the availability of free legal services programs qualified
under part 292a of this chapter and organizations recognized under
292.2 of this chapter, located in the district where the exclusion
hearing is to be held. If the applicant requests a hearing, Forms
I-185, I-186 and I-586 shall be held at the port of entry for
presentation to the immigration judge. If the applicant chooses not to
have a hearing, the card shall be voided. The alien to whom the form
was issued shall be notified of the action taken and the reasons
therefore by means of form I-180 delivered in person or, if such action
is not possible, by mailing the Form I-180 to the last known address.
(2) Within the United States. If the holder of a Form I-185, I-186
or I-586 is placed under deportation proceedings, no action to void the
card shall be taken pending the outcome of the hearing. If the alien is
ordered deported or granted voluntary departure, the card shall be
voided by an immigration officer. In the case of an alien holder of a
Form I-185, I-186 or I-586 who is granted voluntary departure without a
hearing, the card may be declared void by an immigration officer who is
authorized to issue an Order to Show Cause or to grant voluntary
departure.
(3) In Mexico or Canada. Forms I-185, I-186 or I-586 may be declared
void by a consular officer in Mexico or Canada if the card was issued in
one of those countries.
(4) Grounds. Grounds for voidance of a Form I-185, I-186 or I-586
shall be that the holder has violated the immigration laws; that he/she
is inadmissible to the United States; or that he/she has abandoned
his/her residence in the country upon which the card was granted.
(e) Replacement. If a nonresident alien border crossing card has
been lost, mutilated, or destroyed, the person to whom the card was
issued may apply for a new card as provided for in this section. The
holder of a Form I-185, I-186 or I-586 which is in poor condition
because of improper production may be issued a new form without
submitting fee or application upon surrendering the original card.
(f) Previous removal or deportation; waiver of inadmissibility.
Pursuant to the authority contained in section 212 (d)(3) of the Act,
the temporary admission of an alien who is inadmissible under paragraph
(16) or (17) of section 212(a) of the Act is authorized if such alien is
in possession of a Mexican Nonresident Alien Border Crossing Card and he
establishes that he is otherwise admissible as a nonimmigrant visitor or
student except for his removal or deportation prior to November 1, 1956,
because of entry without inspection or lack of required documents.
(30 FR 10184, Aug. 17, 1965, as amended at 34 FR 129, Jan. 4, 1969;
35 FR 3065, Feb. 17, 1970; 37 FR 7584, Apr. 18, 1972; 37 FR 8061, Apr.
25, 1972; 45 FR 11114, Feb. 20, 1980; 46 FR 25082, May 5, 1981; 48 FR
35349, Aug. 4, 1983)
08 CFR 212.7 Waiver of certain grounds of excludability.
(a) Section 212(h) or (i) -- (1) Filing procedure -- (i) Immigrant
visa or fiance(e) nonimmigrant visa applicant. An applicant for an
immigrant visa or ''K'' nonimmigrant visa who is excludable and seeks a
waiver under section 212(h) or (i) of the Act shall file an application
on Form I-601 at the consular office considering the visa application.
Upon determining that the alien is admissible except for the grounds for
which a waiver is sought, the consular officer shall transmit the Form
I-601 to the Service for decision.
(ii) Adjustment of status applicant. An applicant for adjustment of
status who is excludable and seeks a waiver under section 212(h) or (i)
of the Act shall file an application on Form I-601 with the director or
immigration judge considering the application for adjustment of status.
(2) Termination of application for lack of prosecution. An applicant
may withdraw the application at any time prior to the final decision,
whereupon the case will be closed and the consulate notified. If the
applicant fails to prosecute the application within a reasonable time
either before or after interview the applicant shall be notified that if
he or she fails to prosecute the application within 30 days the case
will be closed subject to being reopened at the applicant's request. If
no action has been taken within the 30-day period immediately
thereafter, the case will be closed and the appropriate consul notified.
(3) Decision. If the application is approved the director shall
complete Form I-607 for inclusion in the alien's file and shall notify
the alien of the decision. If the application is denied the applicant
shall be notified of the decision, of the reasons therefor, and of the
right to appeal in accordance with part 103 of this chapter.
(4) Validity. A waiver granted under section 212(h) or section
212(i) of the Act shall apply only to those grounds of excludability and
to those crimes, events or incidents specified in the application for
waiver. Once granted, the waiver shall be valid indefinitely, even if
the recipient of the waiver later abandons or otherwise loses lawful
permanent resident status, except that any waiver which is granted to an
alien who obtains lawful permanent residence on a conditional basis
under section 216 of the Act shall automatically terminate concurrently
with the termination of such residence pursuant to the provisions of
section 216. Separate notification of the termination of the waiver is
not required when an alien is notified of the termination of residence
under section 216 of the Act, and no appeal shall lie from the decision
to terminate the waiver on this basis. However, if the respondent is
found not to be deportable in a deportation proceeding based on the
termination, the waiver shall again become effective. Nothing in this
subsection shall preclude the director from reconsidering a decision to
approve a waiver if the decision is determined to have been made in
error.
(b) Section 212(g) (tuberculosis and certain mental conditions) --
(1) General. Any alien who is ineligible for a visa and is excluded
from admission into the United States under section 212(a) (1), (3), or
(6) of the Act may file an Application for Waiver of Grounds of
Excludability (Form I-601) under section 212(g) of the Act at an office
designated in paragraph (2). The family member specified in section
212(g) of the Act may file the waiver for the applicant if the applicant
is incompetent to file the waiver personally.
(2) Locations for filing Form I-601. Form I-601 may be filed at any
one of the following offices:
(i) The American consulate where the application for a visa is being
considered if the alien is outside the United States;
(ii) The Service office having jurisdiction over the port of entry
where the alien is applying for admission into the United States; or
(iii) The Service office having jurisdiction over the alien if the
alien is in the United States.
(3) Section 212(a)(6) (tuberculosis). If the alien is excludable
under section 212(a)(6) of the Act because of tuberculosis, he shall
execute Statement A on the reverse of page 1 of Form I-601. In
addition, he or his sponsor in the United States is responsible for
having Statement B executed by the physician or health facility which
has agreed to supply treatment or observation; and, if required,
Statement C shall be executed by the appropriate local or State health
officer.
(4) Section 212(a) (1) or (3) (certain mental conditions) -- (i)
Arrangements for submission of medical report. If the alien is
excludable under section 212(a) (1) or (3) (because of mental
retardation or because of a past history of mental illness) he or his
sponsoring family member shall submit an executed Form I-601 to the
consular or Service office with a statement that arrangements have been
made for the submission to that office of a medical report. The medical
report shall contain a complete medical history of the alien, including
details of any hospitalization or institutional care or treatment for
any physical or mental condition; findings as to the current physical
condition of the alien, including reports of chest X-ray examination and
of serologic test for syphilis if the alien is 15 years of age or over,
and other pertinent diagnostic tests; and findings as to the current
mental condition of the alien, with information as to prognosis and life
expectancy and with a report of a psychiatric examination conducted by a
psychiatrist who shall, in case of mental retardation, also provide an
evaluation of the alien's intelligence. For an alien with a past
history of mental illness, the medical report shall also contain
available information on which the U.S. Public Health Service can base a
finding as to whether the alien has been free of such mental illness for
a period of time sufficient in the light of such history to demonstrate
recovery. Upon receipt of the medical report, the consular or Service
office shall refer it to the U.S. Public Health Service for review.
(ii) Submission of statement. Upon being notified that the medical
report has been reviewed by the U.S. Public Health Service and
determined to be acceptable, the alien or the alien's sponsoring family
member shall submit a statement to the consular or Service office. The
statement must be from a clinic, hospital, institution, specialized
facility, or specialist in the United States approved by the U.S. Public
Health Service. The alien or alien's sponsor may be referred to the
mental retardation or mental health agency of the state of proposed
residence for guidance in selecting a post-arrival medical examining
authority who will complete the evaluation and provide an evaluation
report to the Centers for Disease Control. The statement must specify
the name and address of the specialized facility, or specialist, and
must affirm that:
(A) The specified facility or specialist agrees to evaluate the
alien's mental status and prepare a complete report of the findings of
such evaluation.
(B) The alien, the alien's sponsoring family member, or another
responsible person has made complete financial arrangements for payment
of any charges that may be incurred after arrival for studies, care,
training and service;
(C) The Director, Division of Quarantine, Center for Prevention
Services, Centers for Disease Control, Atlanta, GA. 30333 shall be
furnished:
(1) The report evaluating the alien's mental status within 30 days
after the alien's arrival; and
(2) Prompt notification of the alien's failure to report to the
facility or specialist within 30 days after being notified by the U.S.
Public Health Service that the alien has arrived in the United States.
(D) The alien shall be in an outpatient, inpatient, study, or other
specified status as determined by the responsible local physcian or
specialist during the initial evaluation.
(5) Assurances: Bonds. In all cases under paragraph (b) of this
section the alien or his or her sponsoring family member shall also
submit an assurance that the alien will comply with any special travel
requirements as may be specified by the U.S. Public Health Service and
that, upon the admission of the alien into the United States, he or she
will proceed directly to the facility or specialist specified for the
initial evaluation, and will submit to such further examinations or
treatment as may be required, whether in an outpatient, inpatient, or
other status. The alien, his or her sponsoring family member, or other
responsible person shall provide such assurances or bond as may be
required to assure that the necessary expenses of the alien will be met
and that he or she will not become a public charge. For procedures
relating to cancellation or breaching of bonds, see part 103 of this
chapter.
(c) Section 212(e). (1) An alien who was admitted to the United
States as an exchange visitor, or who acquired that status after
admission, is subject to the foreign residence requirement of section
212(e) of the Act if his or her participation in an exchange program was
financed in whole or in part, directly or indirectly, by a United States
government agency or by the government of the country of his or her
nationality or last foreign residence.
(2) An alien is also subject to the foreign residence requirement of
section 212(e) of the Act if at the time of admission to the United
States as an exchange visitor or at the time of acquisition of exchange
visitor status after admission to the United States, the alien was a
national or lawful permanent resident of a country which the Director of
the United States Information Agency had designated, through public
notice in the Federal Register, as clearly requiring the services of
persons engaged in the field of specialized knowledge or skill in which
the alien was to engage in his or her exchange visitor program.
(3) An alien is also subject to the foreign residence requirement of
section 212(e) of the Act if he or she was admitted to the United States
as an exchange visitor on or after January 10, 1977 to receive graduate
medical education or training, or following admission, acquired such
status on or after that date for that purpose. However, an exchange
visitor already participating in an exchange program of graduate medical
education or training as of January 9, 1977 who was not then subject to
the foreign residence requirement of section 212(e) and who proceeds or
has proceeded abroad temporarily and is returning to the United States
to participate in the same program, continues to be exempt from the
foreign residence requirement.
(4) A spouse or child admitted to the United States or accorded
status under section 101(a)(15)(J) of the Act to accompany or follow to
join an exchange visitor who is subject to the foreign residence
requirement of section 212(e) of the Act is also subject to that
requirement.
(5) An alien who is subject to the foreign residence requirement and
who believes that compliance therewith would impose exceptional hardship
upon his/her spouse or child who is a citizen of the United States or a
lawful permanent resident alien, or that he or she cannot return to the
country of his or her nationality or last residence because he or she
will be subject to persecution on account of race, religion, or
political opinion, may apply for a waiver on Form I-612. The alien's
spouse and minor children, if also subject to the foreign residence
requirement, may be included in the application, provided the spouse has
not been a participant in an exchange program.
(6) Each application based upon a claim to exceptional hardship must
be accompanied by the certificate of marriage between the applicant and
his or her spouse and proof of legal termination of all previous
marriages of the applicant and spouse; the birth certificate of any
child who is a United States citizen or lawful permanent resident alien,
if the application is based upon a claim of exceptional hardship to a
child, and evidence of the United States citizenship of the applicant's
spouse or child, when the application is based upon a claim of
exceptional hardship to a spouse or child who is a citizen of the United
States.
(7) Evidence of United States citizenship and of status as a lawful
permanent resident shall be in the form provided in part 204 of this
chapter. An application based upon exceptional hardship shall be
supported by a statement, dated and signed by the applicant, giving a
detailed explanation of the basis for his or her belief that his or her
compliance with the foreign residence requirement of section 212(e) of
the Act, as amended, would impose exceptional hardship upon his or her
spouse or child who is a citizen of the United States or a lawful
permanent resident thereof. The statement shall include all pertinent
information concerning the incomes and savings of the applicant and
spouse. If exceptional hardship is claimed upon medical grounds, the
applicant shall submit a medical certificate from a qualified physician
setting forth in terms understandable to a layman the nature and effect
of the illness and prognosis as to the period of time the spouse or
child will require care or treatment.
(8) An application based upon the applicant's belief that he or she
cannot return to the country of his or her nationality or last residence
because the applicant would be subject to persecution on account of
race, religion, or political opinion, must be supported by a statement,
dated and signed by the applicant, setting forth in detail why the
applicant believes he or she would be subject to persecution.
(9) The applicant and his or her spouse may be interviewed by an
immigration officer in connection with the application and consultation
may be had with the Director, United States Information Agency and the
sponsor of any exchange program in which the applicant has been a
participant.
(10) The applicant shall be notified of the decision, and if the
application is denied, of the reasons therefor and of the right of
appeal in accordance with the provisions of part 103 of this chapter.
However, no appeal shall lie from the denial of an application for lack
of a favorable recommendation from the Secretary of State. When an
interested United States Government agency requests a waiver of the
two-year foreign-residence requirement and the Director, United States
Information Agency had made a favorable recommendation, the interested
agency shall be notified of the decision on its request and, if the
request is denied, of the reasons thereof, and of the right of appeal.
If the foreign country of the alien's nationality or last residence has
furnished statement in writing that it has no objection to his/her being
granted a waiver of the foreign residence requirement and the Director,
United States Information Agency has made a favorable recommendation,
the Director shall be notified of the decision and, if the foreign
residence requirement is not waived, of the reasons therefor and of the
foregoing right of appeal. However, this ''no objection'' provision is
not applicable to the exchange visitor admitted to the United States on
or after January 10, 1977 to receive graduate medical education or
training, or who acquired such status on or after that date for such
purpose; except that the alien who commenced a program before January
10, 1977 and who was readmitted to the United States on or after that
date to continue participation in the same program, is eligible for the
''no objection'' waiver.
(Secs. 103, 203, 212 of the Immigration and Nationality Act, as
amended by secs. 4, 5, 18 of Pub. L. 97-116, 95 Stat. 1611, 1620, (8
U.S.C. 1103, 1153, 1182)
(29 FR 12584, Sept. 4, 1964, and 29 FR 13242; Sept. 24, 1964, as
amended at 30 FR 14776, Nov. 30, 1965; 32 FR 2500, Feb. 7, 1967; 37 FR
22725, Oct. 31, 1972; 46 FR 45327, Sept. 11, 1981; 47 FR 44235, Oct.
7, 1982; 48 FR 20684, May 9, 1983; 48 FR 23159, May 24, 1983; 48 FR
30610, July 5, 1983; 49 FR 48530, Dec. 13, 1984; 53 FR 30017, Aug. 10,
1988)
08 CFR 212.8 Certification requirement of section 212(a)(14).
(a) General. The certification requirement of section 212(a)(14) of
the Act applies to aliens seeking admission to the United States or
adjustment of status under section 245 of the Act for the purpose of
performing skilled or unskilled labor, who are preference immigrants as
described in section 203(a) (3) or (6) of the Act, or who are
nonpreference immigrants as described in section 203(a)(8). The
certification requirement shall not be applicable to a nonpreference
applicant for admission to the United States or to a nonpreference
applicant for adjustment of status under section 245 who establishes
that he will not perform skilled or unskilled labor. A native of the
Western Hemisphere who established a priority date with a consular
officer prior to January 1, 1977 and who was found to be entitled to an
exemption from the labor certification requirement of section 212(a)(14)
of the Act under the law in effect prior to January 1, 1977 as the
parent, spouse or child of a United States citizen or lawful permanent
resident alien shall continue to be exempt from that requirement for so
long as the relationship upon which the exemption is based continues to
exist.
(b) Aliens not required to obtain labor certifications. The
following persons are not considered to be within the purview of section
212(a)(14) of the Act and do not require a labor certification: (1) A
member of the Armed Forces of the United States; (2) a spouse or child
accompanying or following to join his spouse or parent who either has a
labor certification or is a nondependent alien who does not require such
a certification; (3) a female alien who intends to marry a citizen or
alien lawful permanent resident of the United States, who establishes
satisfactorily that she does not intend to seek employment in the United
States and whose fiance has guaranteed her support; (4) an alien who
establishes on Form I-526 that he has invested, or is actively in the
process of investing, capital totaling at least $40,000 in an enterprise
in the United States of which he will be a principal manager and that
the enterprise will employ a person or persons in the United States of
which he will be a principal manager and that the enterprise will employ
a person or persons in the United States who are United States citizens
or aliens lawfully admitted for permnanent residence, exclusive of the
alien, his spouse and children. A copy of a document submitted in
support of Form I-526 may be accepted though unaccompanied by the
original, if the copy bears a certification by an attorney, typed or
rubber-stamped in the language set forth in 204.2(j) of this chapter.
However, the original document shall be submitted, if submittal is
requested by the Service.
(31 FR 10021, July 23, 1966; 31 FR 10355, Aug. 22, 1966, as amended
at 34 FR 5326, Mar. 18, 1969; 38 FR 31166, Nov. 12, 1973; 41 FR 37566,
Sept. 7, 1976; 41 FR 55850, Dec. 23, 1976; 47 FR 44990, Oct. 13, 1982;
48 FR 19157, Apr. 28, 1983)
08 CFR 212.9 Applicability of section 212(a)(32) to certain derivative
third and sixth preference and nonpreference immigrants.
A derivative beneficiary who is the spouse or child of a qualified
third or sixth preference or nonpreference immigrant and who is also a
graduate of a medical school as defined by section 101(a)(41) of the Act
is not considered to be an alien who is coming to the United States
principally to perform services as a member of the medical profession.
Therefore, a derivative third or sixth preference or nonpreference
immigrant under section 203(a)(8) of the Act, who is also a graduate of
a medical school, is eligible for an immigrant visa or for adjustment of
status under section 245 of the Act, whether or not such derivative
immigrant has passed Parts I and II of the National Board of Medical
Examiners Examination or equivalent examination.
(Secs. 103, 203(a)(8), and 212(a)(32), 8 U.S.C 1103, 1153(a)(8), and
1182(a)(32))
(45 FR 63836, Sept. 26, 1980)
08 CFR 212.10 Section 212(k) waiver.
Any applicant for admission who is in possession of an immigrant
visa, and who is excludable under sections 212(a)(14), (20), or (21) of
the Act, may apply to the district director at the port of entry for a
waiver under section 212(k) of the Act. If the application for waiver
is denied by the district director, the application may be renewed in
exclusion proceedings before an immigration judge as provided in part
236 of this chapter.
(Secs. 103, 203, 212 of the Immigration and Nationality Act, as
amended by secs. 4, 5, 18 of Pub. L. 97-116, 95 Stat. 1611, 1620, (8
U.S.C. 1103, 1153, 1182)
(47 FR 44236, Oct. 7, 1982)
08 CFR 212.11 Controlled substance convictions.
In determining the admissibility of an alien who has been convicted
of a violation of any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance, the term
controlled substance as used in section 212(a)(23) of the Act, shall
mean the same as that referenced in the Controlled Substances Act, 21
U.S.C. 801, et seq. , and shall include any substance contained in
Schedules I through V of 21 CFR 1308.1, T3et seq. For the purposes of
this section, the term controlled substance includes controlled
substance analogues as defined in 21 U.S.C. 802(23) and 813.
(53 FR 9282, Mar. 22, 1988)
08 CFR 212.12 Parole determinations and revocations respecting Mariel
Cubans.
(a) Scope. This section applies to any native of Cuba who last came
to the United States between April 15, 1980, and October 20, 1980
(hereinafter referred to as Mariel Cuban) and who is being detained by
the Immigration and Naturalization Service (hereinafter referred to as
the Service) pending his or her exclusion hearing, or pending his or her
return to Cuba or to another country. It covers Mariel Cubans who have
never been paroled as well as those Mariel Cubans whose previous parole
has been revoked by the Service. It also applies to any Mariel Cuban,
detained under the authority of the Immigration and Nationality Act in
any facility, who has not been approved for release or who is currently
awaiting movement to a Service or Bureau Of Prisons (BOP) facility. In
addition, it covers the revocation of parole for those Mariel Cubans who
have been released on parole at any time.
(b) Parole authority and decision. Except as provided in 212.13,
the authority to grant parole under section 212(d)(5) of the Act to a
detained Mariel Cuban shall be exercised by the Commissioner, acting
through the Associate Commissioner for Enforcement, as follows:
(1) Parole decisions. The Associate Commissioner for Enforcement
may, in the exercise of discretion, grant parole to a detained Mariel
Cuban for emergent reasons or for reasons deemed strictly in the public
interest. A decision to retain in custody shall briefly set forth the
reasons for the continued detention. A decision to release on parole
may contain such special conditions as are considered appropriate. A
copy of any decision to parole or to detain, with an attached copy
translated into Spanish, shall be provided to the detainee. Parole
documentation for Mariel Cubans shall be issued by the district director
having jurisdiction over the alien, in accordance with the parole
determination made by the Associate Commissioner for Enforcement.
(2) Additional delegation of authority. All references to the
Commissioner and Associate Commissioner for Enforcement in this section
shall be deemed to include any person or persons (including a committee)
designated in writing by the Commissioner or Associate Commissioner for
Enforcement to exercise powers under this section.
(c) Review Plan Director. The Associate Commissioner for Enforcement
shall appoint a Director of the Cuban Review Plan. The Director shall
have authority to establish and maintain appropriate files respecting
each Mariel Cuban to be reviewed for possible parole, to determine the
order in which the cases shall be reviewed, and to coordinate activities
associated with these reviews.
(d) Recommendations to the Associate Commissioner for Enforcement.
Parole recommendations for detained Mariel Cubans shall be developed in
accordance with the following procedures.
(1) Review Panels. The Director shall designate a panel or panels to
make parole recommendations to the Associate Commissioner for
Enforcement. A Cuban Review Panel shall, except as otherwise provided,
consist of two persons. Members of a Review Panel shall be selected
from the professional staff of the Service. All recommendations by a
two-member Panel shall be unanimous. If the vote of a two-member Panel
is split, it shall adjourn its deliberations concerning that particular
detainee until a third Panel member is added. A recommendation by a
three-member Panel shall be by majority vote. The third member of any
Panel shall be the Director of the Cuban Review Plan or his designee.
(2) Criteria for Review. Before making any recommendation that a
detainee be granted parole, a majority of the Cuban Review Panel
members, or the Director in case of a record review, must conclude that:
(i) The detainee is presently a nonviolent person;
(ii) The detainee is likely to remain nonviolent;
(iii) The detainee is not likely to pose a threat to the community
following his release; and
(iv) The detainee is not likely to violate the conditions of his
parole.
(3) Factors for consideration. The following factors should be
weighed in considering whether to recommend further detention or release
on parole of a detainee:
(i) The nature and number of disciplinary infractions or incident
reports received while in custody;
(ii) The detainee's past history of criminal behavior;
(iii) Any psychiatric and psychological reports pertaining to the
detainee's mental health;
(iv) Institutional progress relating to participation in work,
educational and vocational programs;
(v) His ties to the United States, such as the number of close
relatives residing lawfully here;
(vi) The likelihood that he may abscond, such as from any sponsorship
program; and
(vii) Any other information which is probative of whether the
detainee is likely to adjust to life in a community, is likely to engage
in future acts of violence, is likely to engage in future criminal
activity, or is likely to violate the conditions of his parole.
(4) Procedure for review. The following procedures will govern the
review process:
(i) Record review. Initially, the Director or a Panel shall review
the detainee's file. Upon completion of this record review, the
Director or the Panel shall issue a written recommendation that the
detainee be released on parole or scheduled for a personal interview.
(ii) Personal interview. If a recommendation to grant parole after
only a record review is not accepted or if the detainee is not
recommended for release, a Panel shall personally interview the
detainee. The scheduling of such interviews shall be at the discretion
of the Director. The detainee may be accompanied during the interview
by a person of his choice, who is able to attend at the time of the
scheduled interview, to assist in answering any questions. The detainee
may submit to the Panel any information, either orally or in writing,
which he believes presents a basis for release on parole.
(iii) Panel recommendation. Following completion of the interview
and its deliberations, the Panel shall issue a written recommendation
that the detainee be released on parole or remain in custody pending
deportation or pending further observation and subsequent review. This
written recommendation shall include a brief statement of the factors
which the Panel deems material to its recommendation. The
recommendation and appropriate file material shall be forwarded to the
Associate Commissioner for Enforcement, to be considered in the exercise
of discretion pursuant to 212.12(b).
(e) Withdrawal of parole approval. If a detainee approved for parole
fails to maintain proper behavior while he is awaiting suitable
sponsorship or placement, his parole approval may be revoked by the
Associate Commissioner for Enforcement.
(f) Sponsorship. No detainee may be released on parole until
suitable sponsorship or placement has been found for the detainee. The
paroled detainee must abide by the parole conditions specified by the
Service in relation to his sponsorship or placement. The following
sponsorships and placements are suitable:
(1) Placement by the Public Health Service in an approved halfway
house or mental health project;
(2) Placement by the Community Relations Service in an approved
halfway house or community project; and
(3) Placement with a close relative such as a parent, spouse, child,
or sibling who is a lawful permanent resident or a citizen of the United
States.
(g) Timing of reviews. The timing of review shall be in accordance
with the following guidelines.
(1) Parole revocation cases. The Director shall schedule the review
process in the case of a new or returning detainee whose previous
immigration parole has been revoked. The review process will commence
with a scheduling of a file review, which will ordinarily be expected to
occur within approximately three months after parole is revoked.
(2) Continued detention cases. A subsequent review shall be
commenced for any detainee within one year of a refusal to grant parole
under either 212.12(b) or 212.13, whichever is later, unless a shorter
interval is specified by the Director.
(3) Discretionary reviews. The Cuban Review Plan Director, in his
discretion, may schedule a review of a detainee at any time when the
Director deems such a review to be warranted.
(h) Revocation of parole. The Associate Commissioner for Enforcement
shall have authority, in the exercise of discretion, to revoke parole in
respect to Mariel Cubans. A district director may also revoke parole
when, in the district director's opinion, revocation is in the public
interest and circumstances do not reasonably permit referral of the case
to the Associate Commissioner. Parole may be revoked in the exercise of
discretion when, in the opinion of the revoking official:
(1) The purposes of parole have been served;
(2) The Mariel Cuban violates any condition of parole;
(3) It is appropriate to enforce an order of exclusion or to commence
proceedings against a Mariel Cuban; or
(4) The period of parole has expired without being renewed.
(52 FR 48802, Dec. 28, 1987)
08 CFR 212.13 Departmental parole determinations respecting certain
Mariel Cubans.
(a) Scope. This section, establishing a Departmental Release Review
Program, applies to all excludable Mariel Cubans who on the effective
date of this regulation are detained by virtue of the Attorney General's
authority under the Immigration and Nationality Act and whose parole has
been denied after the exhaustion of the procedures set forth in 212.12.
This Departmental Release Review Program shall be under the general
supervision of the Associate Attorney General, who shall administer the
Program and establish such additional procedures as may be required.
(b) Single review. Each detainee described in paragraph (a) above
shall be entitled to only one review before a Departmental Panel.
Should a detainee denied parole under this section subsequently receive
further review pursuant to 212.12 or any successor parole review plan
of the Service, such detainee shall not be entitled to a second review
before a Departmental Panel.
(c) Departmental panels. The Associate Attorney General shall
establish panels which will be comprised of three persons from within
the Department of Justice, one of whom must be an attorney, and one of
whom must be a representative of the Community Relations Service. The
Immigration and Naturalization Service shall not be represented on the
panels. These panels shall consider the cases of those Mariel Cubans
whose parole has previously been denied pursuant to the provisions set
forth in 212.12.
(d) Parole authority. Each Departmental Panel shall be vested with
the full discretion of the Attorney General under section 212(d)(5) of
the Act to grant parole for emergent reasons or for reasons deemed
strictly in the public interest.
(e) Notification and submission. Prior to the submission by the
Service of a case to a Departmental Panel, the detainee shall receive
notification from the Service that he is about to receive Departmental
Panel consideration. Such notification shall inform the detainee that
he may submit a written statement to a Departmental Panel, within 30
days from the date of service of the notification, setting forth any
factors he deems relevant to the parole consideration and he may, at no
expense to the government, have his representative or counsel assist in
the preparation of this written statement.
(f) Interviews. A Departmental Panel may designate one of its
members to interview the detainee and report in writing to the full
Panel whenever in its sole discretion it deems such action appropriate.
(g) Panel decisions. The written decision of a Departmental Panel
will be based on a review of the record created during the review by the
Service pursuant to 212.12, the written submission, if any, from the
detainee, and the information obtained from any Panel interview of the
detainee. Except as provided in paragraph (i) of this section, all
written decisions of a Departmental Panel will be final and subject to
no further review.
(h) Sponsorship. No detainee may be released on parole until
suitable sponsorship or placement has been found for the detainee. The
paroled detainee must abide by the parole conditions specified by the
Service in relation to his sponsorship or placement. The following
sponsorships and placements are suitable:
(1) Placement by the Public Health Service in an approved halfway
house or mental health project;
(2) Placement by the Community Relations Service in an approved
halfway house or community project; and
(3) Placement with a close relative such as a parent, spouse, child,
or sibling who is a lawful permanent resident or a citizen of the United
States.
(i) Withdrawal of parole approval. A Departmental Panel may, in its
discretion, withdraw its approval for parole of any detainee prior to
release when, in its opinion, the conduct of the detainee, or any other
circumstance, indicates that parole would no longer be appropriate.
(j) Parole revocations. Parole granted under this section may be
revoked pursuant to 212.12.
(52 FR 48804, Dec. 28, 1987)
08 CFR 212.13 PART 213 -- ADMISSION OF ALIENS ON GIVING BOND OR CASH
DEPOSIT
Authority: Sec. 103, 66 Stat. 173; 8 U.S.C. 1103.
08 CFR 213.1 Admission under bond or cash deposit.
The district director having jurisdiction over the intended place of
residence of an alien may accept a public charge bond prior to the
issuance of an immigrant visa to the alien upon receipt of a request
directly from a United States consular officer or upon presentation by
an interested person of a notification from the consular officer
requiring such a bond. Upon acceptance of such a bond, the district
director shall notify the U.S. consular officer who requested the bond,
giving the date and place of acceptance and the amount of the bond. The
district director having jurisdiction over the place where the
examination for admission is being conducted or the special inquiry
officer to whom the case is referred may exercise the authority
contained in section 213 of the Act. All bonds and agreements covering
cash deposits given as a condition of admission of an alien under
section 213 of the Act shall be executed on Form I-352 and shall be in
the sum of not less than $1,000. The officer accepting such deposit
shall give his receipt therefor on Form I-305. For procedures relating
to bond riders, acceptable sureties, cancellation or breaching of bonds,
see part 103 of this chapter.
(29 FR 10579, July 30, 1964, as amended at 32 FR 9626, July 4, 1967)
08 CFR 213.1 PART 214 -- NONIMMIGRANT CLASSES
Sec.
214.1 Requirements for admission, extension, and maintenance of
status.
214.2 Special requirements for admission, extension, and maintenance
of status.
214.3 Petitions for approval of schools.
214.4 Withdrawal of school approval.
214.5 Libyan and third country nationals acting on behalf of Libyan
entities.
214.6 Canadian citizens seeking temporary entry to engage in business
activities at a professional level.
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1221, 1281, 1282;
8 CFR part 2.
08 CFR 214.1 Requirements for admission, extension, and maintenance of
status.
(a) General. Every nonimmigrant alien who applies for admission to,
or an extension of stay in, the United States, shall establish that he
or she is admissible to the United States, or that any ground of
inadmissibility has been waived under section 212(d)(3) of the Act.
Upon application for admission, the alien shall present a valid passport
and valid visa unless either or both documents have been waived.
However, an alien applying for extension of stay shall present a
passport only if requested to do so by the Service. The passport of an
alien applying for admission shall be valid for a minimum of six months
from the expiration date of the contemplated period of stay, unless
otherwise provided in this chapter, and the alien shall agree to abide
by the terms and conditions of his or her admission. The passport of an
alien applying for extension of stay shall be valid at the time of
application for extension, unless otherwise provided in this chapter,
and the alien shall agree to maintain the validity of his or her
passport and to abide by all the terms and conditions of his extension.
The alien shall also agree to depart the United States at the expiration
of his or her authorized period of admission or extension, or upon
abandonment of his or her authorized nonimmigrant status. At the time a
nonimmigrant alien applies for admission or extension of stay he or she
shall post a bond on Form I-352 in the sum of not less than $500, to
insure the maintenance of his or her nonimmigrant status and departure
from the United States, if required to do so by the director,
immigration judge, or Board of Immigration Appeals.
(b) Readmission of nonimmigrants under section 101(a)(15) (F), (J),
or (M) to complete unexpired periods of previous admission or extension
of stay -- (1) Section 101(a)(15)(F). The inspecting immigration
officer shall readmit for duration of status as defined in
214.2(f)(5)(iii), any nonimmigrant alien whose nonimmigrant visa is
considered automatically revalidated pursuant to 22 CFR 41.125(f) and
who is applying for readmission under section 101(a)(15)(F) of the Act,
if the alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence from the United
States not exceeding thirty days solely in contiguous territory or
adjacent islands;
(iii) Is in possession of a valid passport unless exempt from the
requirement for presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien who
presents, an Arrival-Departure Record, Form I-94, issued to the alien in
connection with the previous admission or stay, the alien's Form I-20 ID
copy, and either:
(A) A properly endorsed page 4 of Form I-20A-B if there has been no
substantive change in the information on the student's most recent Form
I-20A since the form was initially issued; or
(B) A new Form I-20A-B if there has been any substantive change in
the information on the student's most recent Form I-20A since the form
was initially issued.
(2) Section 101(a)(15)(J). The inspecting immigration officer shall
readmit for the unexpired period of stay authorized prior to the alien's
departure, any nonimmigrant alien whose nonimmigrant visa is considered
automatically revalidated pursuant to 22 CFR 41.125(f) and who is
applying for readmission under section 101(a)(15)(J) of the Act, if the
alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence from the United
States not exceeding thirty days solely in contiguous territory or
adjacent islands;
(iii) Is in possession of a valid passport unless exempt from the
requirement for the presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien who
presents, Form I-94 issued to the alien in connection with the previous
admission or stay or copy three of the last Form IAP-66 issued to the
alien. Form I-94 or Form IAP-66 must show the unexpired period of the
alien's stay endorsed by the Service.
(3) Section 101(a)(15)(M). The inspecting immigration officer shall
readmit for the unexpired period of stay authorized prior to the alien's
departure, any nonimmigrant alien whose nonimmigrant visa is considered
automatically revalidated pursuant to 22 CFR 41.125(f) and who is
applying for readmission under section 101(a)(15)(M) of the Act, if the
alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence not exceeding
thirty days solely in contiguous territory;
(iii) Is in possession of a valid passport unless exempt from the
requirement for presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien who
presents, Form I-94 issued to the alien in connection with the previous
admission or stay, the alien's Form I-20 ID copy, and a properly
endorsed page 4 of Form I-20M-N.
(c) Extension of stay -- (1) General. Any nonimmigrant alien defined
in section 101(a)(15)(A)(i) or (ii) or (G)(i), (ii), (iii), or (iv) of
the Act is to be admitted for, or granted a change of nonimmigrant
classification for, as long as that alien continues to be recognized by
the Secretary of State for that status. The alien need not apply for an
extension of stay. Any nonimmigrant alien defined in section
101(a)(15)(C), (D), or (K) of the Act, or any alien admitted in transit
without a visa, is ineligible for an extension of stay. A nonimmigrant
defined in section 101(a)(15)(F) or (M) of the Act shall apply for an
extension of stay on Form I-538. A nonimmigrant alien defined in
section 101(a)(15)(J) of the Act shall apply for an extension of stay on
Form IAP-66. An alien in any other nonimmigrant classification shall
apply for an extension of stay on Form I-539. Except as provided in
paragraph (c)(3) of this section, each alien seeking an extension of
stay generally must execute and submit a separate application for
extension of stay to the district office having jurisdiction over the
alien's place of temporary residence in the United States.
(2) Time of filing application. The application must be submitted at
least fifteen days but not more than sixty days before the expiration of
the alien's currently authorized stay. If failure to file a timely
application is found to be excusable, an extension of stay may be
granted, but the extension must date from the time of expiration of the
previously authorized stay.
(3) Family members of principal alien. Regardless of whether a
principal nonimmigrant alien's spouse and minor unmarried children
accompanied the principal alien to the United States, the spouse and
children may be included in the principal alien's application for
extension of stay without any additional fee. Extensions granted to
members of a family group must be for the same period of time. If one
member is eligible for only a six-month extension and another for a
twelve-month extension, the shorter period will be granted to all
members of the family.
(4) Decision on application for extension of stay. The district
director shall notify the applicant of the decision and, if the
application is denied, of the reason(s) for the denial. The applicant
may not appeal the decision.
(5) Less than thirty days' additional time. When, because of
conditions beyond an alien's control or other special circumstances, an
alien needs an additional period of less than thirty days beyond the
previously authorized stay within which to depart from the United
States, the alien may present the alien's Form I-94 or, in the case of a
nonimmigrant defined in section 101(a)(15)(F) or (M) of the Act, the
alien's Form I-20 ID copy, at the district office having jurisdiction
over the alien's place of temporary residence in the United States. The
requested time may be granted without a formal application.
(6) Bonds. For procedures on cancelling and breaching bonds, see
103.6 (c) and (e) of this title.
(d) Termination of status. Within the period of initial admission or
extension of stay, the nonimmigrant status of an alien shall be
terminated by the revocation of a waiver previously authorized in his
behalf under section 212(d)(3) or (4) of the Act; or by the
introduction of a private bill to confer permanent resident status on
such alien.
(e) Employment. A nonimmigrant in the United States in a class
defined in section 101(a)(15)(B) of the Act as a temporary visitor for
pleasure, or section 101(a)(15)(C) of the Act as an alien in transit
through this country, may not engage in any employment. Any other
nonimmigrant in the United States may not engage in any employment
unless he has been accorded a nonimmigrant classification which
authorizes employment or he has been granted permission to engage in
employment in accordance with the provisions of this chapter. A
nonimmigrant who is permitted to engage in employment may engage only in
such employment as has been authorized. Any unauthorized employment by
a nonimmigrant constitutes a failure to maintain status within the
meaning of section 241(a)(1)(C)(i) of the Act.
(f) False information. A condition of a nonimmigrant's admission and
continued stay in the United States is the full and truthful disclosure
of all information requested by the Service. Willful failure by a
nonimmigrant to provide full and truthful information requested by the
Service (regardless of whether or not the information requested was
material) constitutes a failure to maintain nonimmigrant status under
section 241(a)(1)(C)(i) of the Act.
(g) Criminal activity. A condition of a nonimmigrant's admission and
continued stay in the United States is obedience to all laws of United
States jurisdictions which prohibit the commission of crimes of violence
and for which a sentence of more than one year imprisonment may be
imposed. A nonimmigrant's conviction in a jurisdiction in the United
States for a crime of violence for which a sentence of more than one
year imprisonment may be imposed (regardless of whether such sentence is
in fact imposed) constitutes a failure to maintain status under section
241(a)(1)(C)(i) of the Act.
(26 FR 12067, Dec. 16, 1961, as amended at 36 FR 8048, Apr. 29, 1971;
37 FR 14288, June 19, 1972; 43 FR 12674, Mar. 27, 1978; 44 FR 65727,
Nov. 14, 1979; 48 FR 14582, Apr. 5, 1983; 48 FR 20685, May 9, 1983;
48 FR 30350, July 1, 1983; 52 FR 45446, Nov. 30, 1987; 56 FR 38333,
Aug. 13, 1991)
08 CFR 214.2 Special requirements for admission, extension, and
maintenance of status.
The general requirements in 214.1 are modified for the following
nonimmigrant classes:
(a) Foreign government officials -- (1) General. The determination
by a consular officer prior to admission and the recognition by the
Secretary of State subsequent to admission is evidence of the proper
classification of a nonimmigrant under section 101(a)(15)(A) of the Act.
An alien who has a nonimmigrant status under section 101(a)(15)(A)(i)
or (ii) of the Act is to be admitted for the duration of the period for
which the alien continues to be recognized by the Secretary of State as
being entitled to that status. An alien defined in section
(101)(a)(15)(A)(iii) of the Act is to be admitted for an initial period
of not more than three years, and may be granted extensions of temporary
stay in increments of not more than two years. In addition, the
application for extension of temporary stay must be accompanied by a
statement signed by the employing official stating that he/she intends
to continue to employ the applicant and describing the type of work the
applicant will perform.
(2) Definition of A-1 or A-2 dependent. For purposes of employment
in the United States, the term dependent of an A-1 or A-2 principal
alien, as used in 214.2(a), means any of the following immediate
members of the family habitually residing in the same household as the
principal alien who is an officer or employee assigned to a diplomatic
or consular office in the United States:
(i) Spouse;
(ii) Unmarried children under the age of 21;
(iii) Unmarried sons or daughters under the age of 23 who are in
full-time attendance as students at post-secondary educational
institutions;
(iv) Unmarried sons or daughters under the age of 25 who are in
full-time attendance as students at post-secondary educational
institutions if a formal bilateral employment agreement permitting their
employment in the United States was signed prior to November 21, 1988,
and such bilateral employment agreement does not specify 23 as the
maximum age for employment of such sons and daughters. The Office of
Protocol of the Department of State shall maintain a listing of foreign
states with which the United States has such bilateral employment
agreements;
(v) Unmarried sons or daughters who are physically or mentally
disabled to the extent that they cannot adequately care for themselves
or cannot establish, maintain or re-establish their own households. The
Department of State or the Service may require certification(s) as it
deems sufficient to document such mental or physical disability.
(3) Applicability of a formal bilateral agreement or an informal de
facto arrangement for A-1 or A-2 dependents. The applicability of a
formal bilateral agreement shall be based on the foreign state which
employs the principal alien and not on the nationality of the principal
alien or dependent. The applicability of an informal de facto
arrangement shall be based on the foreign state which employs the
principal alien, but under a de facto arrangement the principal alien
also must be a national of the foreign state which employs him/her in
the United States.
(4) Income tax, Social Security liability; non-applicability of
certain immunities. Dependents who are granted employment authorization
under this section are responsible for payment of all federal, state and
local income, employment and related taxes and Social Security
contributions on any remuneration received. In addition, immunity from
civil or administrative jurisdiction in accordance with Article 37 of
the Vienna Convention on Diplomatic Relations or other international
agreements does not apply to these dependents with respect to matters
arising out of their employment.
(5) Dependent employment pursuant to formal bilateral employment
agreements and informal de facto reciprocal arrangements. (i) The
Office of Protocol shall maintain a listing of foreign states which have
entered into formal bilateral employment agreements. Dependents of an
A-1 or A-2 principal alien assigned to official duty in the United
States may accept or continue in unrestricted employment based on such
formal bilateral agreements upon favorable recommendation by the
Department of State and issuance of employment authorization
documentation by the Service in accordance with 8 CFR part 274a. The
application procedures are set forth in paragraph (a)(6) of this
section.
(ii) For purposes of this section, an informal de facto reciprocal
arrangement exists when the Department of State determines that a
foreign state allows appropriate employment on the local economy for
dependents of certain United States officials assigned to duty in that
foreign state. The Office of Protocol shall maintain a listing of
countries with which such reciprocity exists. Dependents of an A-1 or
A-2 principal alien assigned to official duty in the United States may
be authorized to accept or continue in employment based upon informal de
facto arrangements upon favorable recommendation by the Department of
State and issuance of employment authorization by the Service in
accordance with 8 CFR part 274a. Additionally, the procedures set forth
in paragraph (a)(6) of this section must be complied with, and the
following conditions must be met:
(A) Both the principal alien and the dependent desiring employment
are maintaining A-1 or A-2 status as appropriate;
(B) The principal's assignment in the United States is expected to
last more than six months;
(C) Employment of a similar nature for dependents of United States
Government officials assigned to official duty in the foreign state
employing the principal alien is not prohibited by that foreign state's
government;
(D) The proposed employment is not in an occupation listed in the
Department of Labor Schedule B (20 CFR part 656), or otherwise
determined by the Department of Labor to be one for which there is an
oversupply of qualified U.S. workers in the area of proposed employment.
This Schedule B restriction does not apply to a dependent son or
daughter who is a full-time student if the employment is part-time,
consisting of not more than 20 hours per week, and/or if it is temporary
employment of not more than 12 weeks during school holiday periods; and
(E) The proposed employment is not contrary to the interest of the
United States. Employment contrary to the interest of the United States
includes, but is not limited to, the employment of A-1 or A-2
dependents: who have criminal records; who have violated United States
immigration laws or regulations, or visa laws or regulations; who have
worked illegally in the United States; and/or who cannot establish that
they have paid taxes and social security on income from current or
previous United States employment.
(6) Application procedures. The following procedures are applicable
to dependent employment applications under bilateral agreements and de
facto arrangements:
(i) The dependent must submit a completed Form I-566 to the
Department of State through the office, mission, or organization which
employs his/her principal alien. A dependent applying under paragraph
(a)(2)(iii) or (iv) of this section must submit a certified statement
from the post-secondary educational institution confirming that he/she
is pursuing studies on a full-time basis. A dependent applying under
paragraph (a)(2)(v) of this section must submit medical certification
regarding his/her condition. The certification should identify the
dependent and the certifying physician and give the physician's phone
number; identify the condition, describe the symptoms and provide a
prognosis; and certify that the dependent is unable to maintain a home
of his or her own. Additionally, a dependent applying under the terms
of a de facto arrangement must attach a statement from the prospective
employer which includes the dependent's name; a description of the
position offered and the duties to be performed; the salary offered;
and verification that the dependent possesses the qualifications for the
position.
(ii) The Department of State reviews and verifies the information
provided, makes its determination, and endorses the Form I-566.
(iii) If the Department of State's endorsement is favorable, the
dependent may apply to the Service. A dependent whose principal alien
is stationed at a post in Washington, DC, or New York City shall apply
to the District Director, Washington, DC, or New York City,
respectively. A dependent whose principal alien is stationed elsewhere
shall apply to the District Director, Washington, DC, unless the
Service, through the Department of State, directs the dependent to apply
to the district director having jurisdiction over his or her place of
residence. Directors of the regional service centers may have
concurrent adjudicative authority for applications filed within their
respective regions. When applying to the Service, the dependent must
present his or her Form I-566 with a favorable endorsement from the
Department of State and any additional documentation as may be required
by the Attorney General.
(7) Period of time for which employment may be authorized. If
approved, an application to accept or continue employment under this
section shall be granted in increments of not more than three years
each.
(8) No appeal. There shall be no appeal from a denial of permission
to accept or continue employment under this section.
(9) Dependents or family members of principal aliens classified A-3.
A dependent or family member of a principal alien classified A-3 may not
be employed in the United States under this section.
(10) Unauthorized employment. An alien classified under section
101(a)(15)(A) of the Act who is not a principal alien and who engages in
employment outside the scope of, or in a manner contrary to this
section, may be considered in violation of section 241(a)(1)(C)(i) of
the Act. An alien who is classified under section 101(a)(15)(A) of the
Act who is a principal alien and who engages in employment outside the
scope of his/her official position may be considered in violation of
section 241(a)(9)(A) of the Act.
(b) Visitors -- (1) General. Any B-1 visitor for business or B-2
visitor for pleasure may be admitted for not more than one year and may
be granted extensions of temporary stay in increments of not more than
six months each, except that alien members of a religious denomination
coming temporarily and solely to do missionary work in behalf of a
religious denomination may be granted extensions of not more than one
year each, provided that such work does not involve the selling of
articles or the solicitation or acceptance of donations. The B-2 spouse
or unmarried minor child of a Canadian citizen admitted under section
214(e) of the Act in accordance with the United States-Canada Free-Trade
Agreement may be admitted for a period not to exceed one year and may be
granted extensions of temporary stay in increments of not more than one
year, providing the principal alien is maintaining status. Those B-1
and B-2 visitors admitted pursuant to the waiver provided at 212.1(e)
of this chapter may be admitted to and stay on Guam for a period not to
exceed fifteen days and are not eligible for extension of stay.
(2) Minimum six month admissions. Any B-2 visitor who is found
otherwise admissible and is issued a Form I-94, will be admitted for a
minimum period of six months, regardless of whether less time is
requested, provided, that any required passport is valid as specified in
section 212(a)(26) of the Act. Exceptions to the minimum six month
admission may be made only in individual cases upon the specific
approval of the district director for good cause.
(3) Visa Waiver Pilot Program. Special requirements for admission
and maintenance of status for visitors admitted to the United States
under the Visa Waiver Pilot Program are set forth in section 217 of the
Act and part 217 of this chapter.
(4) Admission of aliens pursuant to the United States-Canada
Free-Trade Agreement (FTA). A citizen of Canada seeking temporary entry
for purposes set forth in paragraph (b)(4)(i) of this section, who
otherwise meets existing requirements under section 101(a)(15)(B) of the
Act, including but not limited to requirements regarding the source of
remuneration, shall be admitted upon presentation of proof of Canadian
citizenship, a description of the purpose of entry, and evidence
demonstrating that he or she is engaged in one of the occupations or
professions set forth in paragraph (b)(4)(i) of this section. Existing
requirements are those requirements which were in effect at the time of
entry into force of the FTA. Additionally, nothing shall preclude the
admission of a citizen of Canada who meets the requirements of paragraph
(b)(4)(ii) of this section.
(i) Occupations and professions set forth in Schedule 1 to Annex
1502.1 of the FTA.
(A) Research and design. Technical, scientific, and statistical
researchers conducting independent research for an enterprise located in
Canada.
(B) Growth, manufacture and production. (1) Harvester owner
supervising a harvesting crew admitted under applicable law. (Applies
only to harvesting of agricultural crops: grain, fiber, fruit, and
vegetables.)
(2) Purchasing and production management personnel conducting
commercial transactions for an enterprise located in Canada.
(C) Marketing. (1) Market researchers and analysts conducting
independent research or analysis, or research or analysis for an
enterprise located in Canada.
(2) Trade fair and promotional personnel attending a trade
convention.
(D) Sales. (1) Sales representatives and agents taking orders or
negotiating contracts for goods or services for an enterprise located in
Canada/the United States but not delivering goods or providing services.
(2) Buyers purchasing for an enterprise located in Canada.
(E) Distribution. (1) Transportation operators delivering to the
United States or loading and transporting back to Canada, with no
intermediate loading or delivery within the United States. (These
operators may make intermediate deliveries in the United States if all
commodities or passengers to be delivered were loaded in Canada.
Furthermore, they may load from intermediate locations in the United
States if all commodities or passengers to be loaded will be delivered
in Canada. Purely domestic service or solicitation, in competition with
United States operators, is not permitted.)
(2) Customs brokers performing brokerage duties associated with the
export of goods from the United States to or through Canada.
(F) After-sales service. Installers, repair and maintenance
personnel, and supervisors, possessing specialized knowledge essential
to the seller's contractual obligation, performing services or training
workers to perform such services, pursuant to a warranty or other
service contract incidental to the sale of commercial or industrial
equipment or machinery, including computer software, purchased from an
enterprise located outside the United States, during the life of the
warranty or service agreement. (For the purposes of this provision, the
commercial or industrial equipment or machinery, including computer
software, must have been manufactured outside the United States.)
(G) General service. (1) Professionals who are otherwise
classifiable under section 101(a)(15(H)(i) of the Immigration and
Nationality Act, but receiving no salary or other remuneration from a
United States source (other than an expense allowance or other
reimbursement for expenses incidental to the temporary stay).
(2) Management and supervisory personnel engaging in commercial
transactions for an enterprise located in Canada.
(3) Computer specialists who are otherwise classifiable under section
101(a)(15)(H)(i) of the Immigration and Nationality Act, but receiving
no salary or remuneration from a United States source (other than an
expense allowance or other reimbursement for expenses incidental to the
temporary stay).
(4) Financial services personnel (insurers, bankers or investment
brokers) engaging in commercial transactions for an enterprise located
in Canada.
(5) Public relations and advertising personnel consulting with
business associates, or attending or participating in conventions.
(6) Tourism personnel (tour and travel agents, tour guides or tour
operators) attending or participating in conventions or conducting a
tour that has begun in Canada. (The tour may begin in the United
States; but must terminate in foreign territory, and a significant
portion of the tour must be conducted in foreign territory. In such a
case, an operator may enter the United States with an empty conveyance,
and a tour guide may enter on his/her own and join the conveyance.)
(7) Translators or interpreters performing services as employees of
an enterprise located in Canada.
(ii) Occupations and professions not listed in Schedule 1 to Annex
1502.1 of the FTA. Nothing in this paragraph shall preclude a business
person engaged in an occupation or profession other than those listed in
Schedule 1 to Annex 1502.1 of the FTA from temporary entry under section
101(a)(15)(B) of the Act, if such person otherwise meets the existing
requirements for admission as prescribed by the Attorney General.
(5) Construction workers not admissible. Aliens seeking to enter the
country to perform building or construction work, whether on-site or
in-plant, are not eligible for classification or admission as B-1
nonimmigrants under section 101(a)(15)(B) of the Act. However, alien
nonimmigrants otherwise qualified as B-1 nonimmigrants may be issued
visas and may enter for the purpose of supervision or training of others
engaged in building or construction work, but not for the purpose of
actually performing any such building or construction work themselves.
(c) Transits -- (1) Without visas. An applicant for admission under
the transit without visa privilege must establish that he is admissable
under the immigration laws; that he has confirmed and onward
reservations to at least the next country beyond the United States, and
that he will continue his journey on the same line or a connecting line
within 8 hours after his arrival; however, if there is no scheduled
transportation within that 8-hour period, continuation of the journey
thereafter on the first available transport will be satisfactory.
Transfers from the equipment on which an applicant arrives to other
equipment of the same or a connecting line shall be limited to 2 in
number, with the last transport departing foreign (but not necessarily
nonstop foreign), and the total period of waiting time for connecting
transportation shall not exceed 8 hours except as provided above.
Notwithstanding the foregoing, an applicant, if seeking to join a vessel
in the United States as a crewman, shall be in possession of a valid
''D'' visa and a letter from the owner or agent of the vessel he seeks
to join, shall proceed directly to the vessel on the first available
transportation and upon joining the vessel shall remain aboard at all
times until it departs from the United States. Except for transit from
one part of foreign contiguous territory to another part of the same
territory, application for direct transit without a visa must be made at
one of the following ports of entry: Agana, Guam, Anchorage, AK,
Atlanta, GA, Baltimore, MD, Bangor, ME, Boston, MA, Brownsville, TX,
Buffalo, NY, Charlotte, NC, Charlotte Amalie, VI, Chicago, IL,
Christiansted, VI, Dallas, TX, Denver, CO, Detroit, MI, Fairbanks, AK,
Hartford, CT, Honolulu, HI, Houston, TX, Los Angeles, CA, Miami, FL,
Newark, NJ, New Orleans, LA, New York, NY, Niagara Falls, NY, Norfolk,
VA, Orlando, FL, Philadelphia, PA, Pittsburgh, PA, Ponce, PR, Port
Everglades FL, Portland, OR, San Antonio, TX, San Diego, CA, San
Francisco, CA, San Juan, PR, Seattle, WA, St. Paul, MN, Tampa, FL,
Washington, DC. The privilege of transit without a visa may be
authorized only under the conditions that the transportation line,
without the prior consent of the Service, will not refund the ticket
which was presented to the Service as evidence of the alien's confirmed
and onward reservations; that the alien will not apply for extension of
temporary stay or for adjustment of status under section 245 of the Act,
and that until his departure from the United States responsibility for
his continuous actual custody will lie with the transportation line
which brought him to the United States unless at the direction of the
district director he is in the custody of this Service or other custody
approved by the Commissioner.
(2) United Nations Headquarters District. An alien of the class
defined in section 101(a)(15)(C) of the Act, whose visa is limited to
transit to and from the United Nations Headquarters District, if
otherwise admissible, shall be admitted on the additional conditions
that he proceed directly to the immediate vicinity of the United Nations
Headquarters District, and remain there continuously, departing
therefrom only if required in connection with his departure from the
United States, and that he have a document establishing his ability to
enter some country other than the United States following his sojourn in
the United Nations Headquarters District. The immediate vicinity of the
United Nations Headquarters District is that area lying within a
twenty-five mile radius of Columbus Circle, New York, NY.
(3) Others. The period of admission of an alien admitted under
section 101(a)(15)(C) of the Act shall not exceed 29 days.
(d) Crewmen. (1) The provisions of parts 251, 252, 253, and 258 of
this chapter shall govern the landing of crewmen as nonimmigrants of the
class defined in section 101(a)(15)(D) of the Act. An alien in this
status may be employed only in a crewman capacity on the vessel or
aircraft of arrival, or on a vessel or aircraft of the same
transportation company, and may not be employed in connection with
domestic flights or movements of a vessel or aircraft. However,
nonimmigrant crewmen may perform crewmember duties through stopovers on
an international flight for any United States carrier where such flight
uses a single aircraft and has an origination or destination point
outside the United States.
(2) Denial of crewman status in the case of certain labor disputes (D
nonimmigrants). (i) An alien shall be denied D crewman status as
described in section 101(a)(15)(D) of the Act if:
(A) The alien intends to land for the purpose of performing service
on a vessel of the United States (as defined in 46 U.S.C. 2101(46)) or
an aircraft of an air carrier (as defined in section 101(3) of the
Federal Aviation Act of 1958); and
(B) A labor dispute consisting of a strike or lockout exists in the
bargaining unit of the employer in which the alien intends to perform
such service; and
(C) The alien is not already an employee of the company (as described
in paragraph (d)(2)(iv) of this section).
(ii) Refusal to land. Any alien (except a qualified current employee
as described in paragraph (d)(2)(iv) of this section) who the examining
immigration officer determines has arrived in the United States for the
purpose of performing service on board a vessel or an aircraft of the
United States when a strike or lockout is under way in the bargaining
unit of the employer, shall be refused a conditional landing permit
under section 252 of the Act.
(iii) Ineligibility for parole. An alien described in paragraph
(d)(2)(i) of this section may not be paroled into the United States
under section 212(d)(5) of the Act for the purpose of performing
crewmember duties unless the Attorney General determines that the parole
of such alien is necessary to protect the national security of the
United States. This paragraph does not prohibit the granting of parole
for other purposes, such as medical emergencies.
(iv) Qualified current employees. (A) Paragraphs (d)(2)(i),
(d)(2)(ii), and (d)(2)(iii) of this section do not apply to an alien who
is already an employee of the owner or operator of the vessel or air
carrier and who at the time of inspection presents true copies of
employer work records which satisfy the examining immigration officer
that the alien:
(1) Has been an employee of such employer for a period of not less
than one year preceding the date that a strike or lawful lockout
commenced;
(2) Has served as a qualified crewman for such employer at least once
in three different months during the 12-month period preceding the date
that the strike or lockout commenced; and
(3) Shall continue to provide the same crewman services that he or
she previously provided to the employer.
(B) An alien crewman who qualifies as a current employee under this
paragraph remains subject to the restrictions on his or her employment
in the United States contained in paragraph (d)(1) of this section.
(v) Strike or lockout determination. These provisions will take
effect if the Attorney General, through the Commissioner of the
Immigration and Naturalization Service or his or her designee, after
consultation with the National Mediation Board, determines that a
strike, lockout, or labor dispute involving a work stoppage is in
progress in the bargaining unit of the employer for whom the alien
intends to perform such service.
(e) Traders and Investors -- (1) General. An alien defined in
section 101(a)(15)(E) of the Act may be admitted for an initial period
of not more than one year and may be granted extensions of temporary
stay in increments of not more than two years. A trader or investor and
his or her spouse or child who accompanied or followed to join the
trader or investor, who acquired nonimmigrant status on or after
December 24, 1952 under section 101(a)(15)(E) (i) or (ii) of the Act
shall submit to the district director having jurisdiction over the
alien's place of residence properly executed Forms I-539 and I-126 to
apply for an extension of the period of his or her temporary admission.
A trader or investor may change from one employer to another after a
written request for permission to do so has been approved by the
district director having jurisdiction over the alien's residence. The
request must be supported by evidence that the requester would still be
classifiable as a trader or investor in the new employment. After the
request is granted, Service officers shall make a notation on the
reverse of the alien's Form I-94 reading ''Employment by (name of new
employer) authorized'', followed by the date of the authorization. Any
unauthorized change to a new employer will constitute a failure to
maintain status within the meaning of section 241 (a)(1)(C)(i) of the
Act.
(2) Definition of the term trade. The term trade, as used in this
section, means the exchange, purchase, or sale of goods and/or services.
Goods are tangible commodities or merchandise having intrinsic value.
Services are economic activities whose outputs are other than tangible
goods. Such service activities include, but are not limited to,
banking, insurance, transportation, communications and data processing,
advertising, accounting, design and engineering, management consulting,
tourism, and technology transfer.
(f) Students in colleges, universities, seminaries, conservatories,
academic high schools, elementary schools, other academic institutions,
and in language training programs -- (1) Admission of student -- (i)
Eligibility for admission. A nonimmigrant student and his or her
accompanying spouse and minor children may be admitted into the United
States in F-1 and F-2 classifications for duration of status under
section 101(a)(15)(F)(i) of the Act, if the student:
(A) Presents a properly completed Form I-20 A-B/I-20 ID, Certificate
of Eligibility for Nonimmigrant (F-1) Student Status, which is issued by
a school approved by the Service for attendance by foreign students;
(B) Has documentary evidence of financial support in the amount
indicated on the Form I-20 A-B/I-20 ID; and
(C) For students seeking initial admission only, intends to attend
the school specified in the student's visa except where the student is
exempt from the requirement for a visa, in which case the student must
intend to attend the school indicated on the Form I-20 A-B/I-20 ID.
(ii) Disposition of Form I-20 A-B/I-20 ID. Form I-20 A-B/I-20 ID
contains two copies, the I-20 School Copy and the I-20 ID (Student)
Copy. For purposes of clarity, the entire Form I-20 A-B/I-20 ID shall
be referred to as Form I-20 A-B and the I-20 ID (Student) Copy shall be
referred to as the I-20 ID. When an F-1 student applies for admission
with a complete Form I-20 A-B, the inspecting officer shall:
(A) Transcribe the student's admission number from Form I-94 onto his
or her Form I-20 A-B (for students seeking initial admission only);
(B) Endorse all copies of the Form I-20 A-B;
(C) Return the I-20 ID to the student; and
(D) Forward the I-20 School Copy to the Service's processing center
for data entry. (The school copy of Form I-20 A-B will be sent back to
the school as a notice of the student's admission after data entry.)
(2) I-20 ID. An F-1 student is expected to safekeep the initial I-20
ID bearing the admission number and any subsequent copies which have
been issued to him or her. Should the student lose his or her current
I-20 ID, a replacement copy bearing the same information as the lost
copy, including any endorsement for employment and notations, may be
issued by the designated school official (DSO) as defined in 8 CFR
214.3(l)(1)(i).
(3) Spouse and minor children following to join student. The spouse
and minor children following to join an F-1 student are eligible for
admission to the United States if the F-1 student is, or will be within
sixty days, enrolled in a full course of study or, if the student is
engaged in approved practical training following completion of studies.
The eligible spouse and minor children of an F-1 student may be admitted
in F-2 status if they present the F-1 student's current I-20 ID with
proper endorsement by the DSO. A new Form I-20 A-B is required where
there has been any substantive change in the information on the
student's current I-20 ID.
(4) Temporary absence. An F-1 student returning to the United States
from a temporary absence of five months or less may be readmitted for
attendance at a Service-approved educational institution, if the student
presents:
(i) A current I-20 ID properly endorsed by the DSO for reentry if
there is no substantive change on the most recent I-20 ID; or
(ii) A new Form I-20 A-B if there has been any substantive change in
the information on the student's most recent I-20 ID, such as in the
case of a student who has changed the major area of study, who intends
to transfer to another Service-approved institution, or who has advanced
to a higher level of study.
(5) Duration of status -- (i) General. Duration of status is defined
as the time during which an F-1 student is pursuing a full course of
study at an educational institution approved by the Service for
attendance by foreign students, or engaging in authorized practical
training following completion of studies, plus sixty days to prepare for
departure from the United States. The student is considered to be
maintaining status if he or she is making normal progress toward
completing a course of study.
(ii) Change in educational levels. An F-1 student who continues from
one educational level to another is considered to be maintaining status,
provided that the transition to the new educational level is
accomplished according to transfer procedures outlined in paragraph
(f)(8) of this section.
(iii) Annual vacation. An F-1 student at an academic institution is
considered to be in status during the annual (or summer) vacation if the
student is eligible and intends to register for the next term. A
student attending a school on a quarter or trimester calendar who takes
only one vacation a year during any one of the quarters or trimesters
instead of during the summer is considered to be in status during that
vacation, if the student has completed the equivalent of an academic
year prior to taking the vacation.
(iv) Illness or medical conditions. A student who is compelled by
illness or other medical conditions to interrupt or reduce a full course
of study is considered to be in status during the illness or other
medical condition. The student must resume a full course of study upon
recovery.
(6) Full course of study -- (i) General. Successful completion of
the full course of study must lead to the attainment of a specific
educational or professional objective. A ''full course of study'' as
required by section 101(a)(15)(F)(i) of the Act means:
(A) Postgraduate study or postdoctoral study at a college or
university, or undergraduate or postgraduate study at a conservatory or
religious seminary, certified by a DSO as a full course of study;
(B) Undergraduate study at a college or university, certified by a
school official to consist of at least twelve semester or quarter hours
of instruction per academic term in those institutions using standard
semester, trimester, or quarter hour systems, where all undergraduate
students who are enrolled for a minimum of twelve semester or quarter
hours are charged full-time tuition or are considered full-time for
other administrative purposes, or its equivalent (as determined by the
district director in the school approval process), except when the
student needs a lesser course load to complete the course of study
during the current term;
(C) Study in a post-secondary language, liberal arts, fine arts or
other non-vocational program at a school which confers upon its
graduates recognized associate or other degrees or has established that
its credits have been and are accepted unconditionally by at least three
institutions of higher learning within 8 CFR 214.3(c) (1) or (2), and
which has been certified by a designated school official to consist of
at least twelve clock hours of instruction a week, or its equivalent as
determined by the district director in the school approval process;
(D) Study in any other language, liberal arts, fine arts, or other
nonvocational training program, certified by a designated school
official to consist of at least eighteen clock hours of attendance a
week if the dominant part of the course of study consists of classroom
instruction, or to consist of at least twenty-two clock hours a week if
the dominant part of the course of study consists of laboratory work;
or
(E) Study in a primary school or academic high school curriculum
certified by a designated school official to consist of class attendance
for not less than the minimum number of hours a week prescribed by the
school for normal progress towards graduation.
(ii) Institution of higher learning. For purposes of this paragraph,
a college or university is an institution of higher learning which
awards recognized associate, bachelor's, master's, doctorate, or
professional degrees. Schools which devote themselves exclusively or
primarily to vocational, business, or language instruction are not
included in the category of colleges or universities. Vocational or
business schools which are classifiable as M-1 schools are provided for
by regulations under 8 CFR 214.2(m).
(iii) Reduced course load. The designated school official may advise
an F-1 student to engage in less than a full course of study due to
initial difficulties with the English language or reading requirements,
unfamiliarity with American teaching methods, or improper course level
placement. An F-1 student authorized to reduce course load by the DSO
in accordance with the provisions of this paragraph is considered to be
maintaining status. On-campus employment pursuant to the terms of a
scholarship, fellowship, or assistantship is deemed to be part of the
academic program of a student otherwise taking a full course of study.
(7) Extension of stay -- (i) General. An F-1 student is admitted for
duration of status. The student is not required to apply for extension
of stay as long as the student is maintaining status and making normal
progress toward completing his or her educational objective. An F-1
student who is unable to complete a full course of study in a timely
manner must apply, in a 30-day period before the completion date on the
Form I-20 A-B, to the DSO for a program extension pursuant to paragraph
(f)(7)(iii) of this section.
(ii) Completion date on Form I-20 A-B. When determining the program
completion date on Form I-20 A-B, the DSO should make a reasonable
estimate based on the time an average foreign student would need to
complete a similar program in the same discipline. A grace period of no
more than one year may be added onto the DSO's estimate.
(iii) Program extension for students in lawful status. An F-1
student who is unable to meet the program completion date on the Form
I-20 A-B may be granted a program extension by the school, if the DSO
certifies on a Form I-538 that the student has continually maintained
status and that the delays are caused by compelling academic or medical
reasons, such as changes of major or research topics, unexpected
research problems, or documented illnesses. Delays caused by academic
probation or suspension are not acceptable reasons for program
extension. The DSO must notify the Service within 30 days of any
approved program extensions by forwarding to the Service data processing
center a certification on Form I-538 and the top page of a new Form I-20
A-B showing a new program completion date.
(iv) Failure to complete the educational program in a timely manner.
An F-1 student who is unable to complete the educational program within
the time period written on the Form I-20 A-B and who is ineligible for
program extension pursuant to paragraph (f)(7)(iii) of this section is
considered to be out of status. Under these circumstances, the student
must apply for reinstatement under the Provisions of paragraph (f)(16)
of this section.
(8) School transfer -- (i) Eligibility. An F-1 student who is
maintaining status may transfer to another Service-approved school by
following the notification procedure prescribed in paragraph (f)(8)(ii)
of this section. An F-1 student who was not pursuing a full course of
study at the school he or she was last authorized to attend is
ineligible for school-transfer and must apply for reinstatement under
the provisions of paragraph (f)(16) of this section.
(ii) Transfer procedure. To transfer schools, an F-1 student must
first notify the school he or she is attending of the intent to
transfer, then obtain a Form I-20 A-B, issued in accordance with the
provisions of 8 CFR 214.3(k), from the school to which he or she intends
to transfer. The transfer will be effected only if the F-1 student
completes the Student Certification portion of the Form I-20 A-B and
returns the form to a designated school official on campus within 15
days of beginning attendance at the new school.
(iii) Notification. Upon receipt of the student's Form I-20 A-B, the
DSO must:
(A) Note ''transfer completed on (date)'' on the student's I-20 ID in
the space provided for the DSO's remarks, thereby acknowledging the
student's attendance;
(B) Return the I-20 ID to the student;
(C) Submit the I-20 School copy to the Service's Data Processing
Center within 30 days of receipt from the student; and
(D) Forward a photocopy of the Form I-20 A-B School Copy to the
school from which the student transferred.
(9) Employment -- (i) On-campus employment. On-campus employment
must either be performed on the school's premises, (including
on-location commercial firms which provide services for students on
campus, such as the school bookstore or cafeteria), or at an off-campus
location which is educationally affiliated with the school. Employment
with on-site commercial firms, such as a construction company building a
school building, which do not provide direct student services is not
deemed on-campus employment for the purposes of this paragraph. In the
case of off-campus locations, the educational affiliation must be
associated with the school's established curriculum or related to
contractually funded research projects at the post-graduate level. In
any event, the employment must be an integral part of the student's
educational program. Employment authorized under this paragraph must
not exceed twenty hours a week while school is in session. An F-1
student may, however, work on campus full-time when school is not in
session or during the annual vacation. A student who has been issued a
Form I-20 A-B to begin a new program in accordance with the provision of
8 CFR 214.3(k) and who intends to enroll for the next regular academic
year, term, or session at the institution which issued the Form I-20 A-B
may continue on-campus employment incident to status. Otherwise, an F-1
student may not engage in on-campus employment after completing a course
of study, except employment for practical training as authorized under
paragraph (f)(10) of this section. An F-I student may engage in any
on-campus employment authorized under this paragraph which will not
displace United States residents.
(ii) Off-campus work authorization -- (A) General. An F-1 student
may be authorized to work off-campus on a part-time basis in accordance
with paragraph (f)(9)(ii) (B) or (C) of this section after having been
in F-1 status for one full academic year provided that the student is in
good academic standing as determined by the DSO. Part-time off-campus
employment authorized under this section is limited to no more than
twenty hours a week when school is in session. A student who is granted
off-campus employment authorization may work full-time during holidays
or school vacation. The employment authorization is automatically
terminated whenever the student fails to maintain status.
(B) Wage-and-labor attestation requirement. Except as provided under
paragraphs (f)(9)(ii)(C) and (f)(9)(iii) of this section, a student may
be authorized to accept off-campus employment only if the prospective
employer has filed a labor-and-wage attestation pursuant to 20 CFR part
655, subparts J and K (requiring the employer to attest to the fact that
it has actively recruited domestic labor for at least 60 days for the
position and will accord the student worker the same wages and working
conditions as domestic workers similarly employed.)
(C) Severe economic hardship. If other employment opportunities are
not available or are otherwise insufficient, an eligible F-1 student may
request off-campus employment work authorization based upon severe
economic hardship caused by unforeseen circumstances beyond the
student's control. These circumstances may include loss of financial
aid or on-campus employment without fault on the part of the student,
substantial fluctuations in the value of currency or exchange rate,
inordinate increases in tuition and/or living costs, unexpected changes
in the financial condition of the student's source of support, medical
bills, or other substantial and unexpected expenses.
(D) Procedure for off-campus employment authorization. The student
must submit the application to the DSO on Form I-538, Certification by
Designated School Official. The DSO may recommend the student work
off-campus for one year intervals by certifying on the Form I-538 that:
(1) The student has been in F-1 status for one full academic year;
(2) The student is in good standing as a student and is carrying a
full course of study as defined in paragraph (f)(6) of this section;
(3) The student has demonstrated that acceptance of employment will
not interfere with the student's carrying a full course of study; and
(4) Either: (i) The prospective employer has submitted a
labor-and-wage attestation pursuant to paragraph (f)(9)(ii)(B) of this
section, or
(ii) The student has demonstrated that the employment is necessary to
avoid severe economic hardship due to unforeseen circumstances beyond
the student's control pursuant to paragraph (f)(9)(ii)(C) of this
section, and has demonstrated that employment under paragraph (f)(9)(i)
and (f)(9)(ii)(B) of this section is unavailable or otherwise
insufficient to meet the needs that have arisen as a result of the
unforeseen circumstances.
(E) Wage-and-Labor attestation application to the DSO. An eligible
F-1 student may make a request for off-campus employment authorization
to the DSO on Form I-538 after the employer has filed the labor-and-wage
attestation. By certifying on Form I-538 that the student is eligible
for off-campus employment, and endorsing the student's I-20 ID, the DSO
may authorize off-campus employment in one year intervals for the
duration of a valid attestation as determined by the Secretary of Labor.
The endorsement on the student's I-20 ID should read ''part-time
employment with (name of employer) at (location) authorized from (date)
to (date).'' Off-campus employment authorized by the DSO under this
provision is incident to the student's status pursuant to 8 CFR
274a.12(b)(6)(ii) and employer-specific and, therefore, exempt from the
EAD requirement. The DSO must notify the Service of each off-campus
employment authorization by forwarding to the Service data processing
center the completed Form I-538. The DSO shall return to the student
the endorsed I-20 ID.
(F) Severe economic hardship application -- (1) The applicant should
submit to the Service Form I-20 ID, Form I-538, and Form I-765 along
with the fee required by 8 CFR 103.7(b)(1), and any other supporting
materials such as affidavits which further detail the unforeseen
circumstances that require the student to seek employment authorization
and the unavailability or insufficiency of employment under paragraphs
(f)(9)(i) and (f)(9)(ii)(B) of this section. The requirement with
respect to paragraph (f)(9)(ii)(B) of this section is satisfied if the
DSO certifies on Form I-538 that the student and the DSO are not aware
of available employment in the area through the Pilot Off-Campus
Employment Program. In areas where there are such Pilot program
opportunities, this requirement is satisfied if the DSO certifies on
Form I-538 that employment under the Pilot program is insufficient to
meet the student's needs. The student must apply for the employment
authorization on Form I-765 with the Service office having jurisdiction
over his or her place of residence.
(2) The Service shall adjudicate the application for work
authorization based upon severe economic hardship on the basis of Form
I-20 ID, Form I-538, and Form I-765, and any additional supporting
materials. If employment is authorized, the adjudicating officer shall
issue an EAD. The Service director shall notify the student of the
decision, and, if the application is denied, of the reason or reasons
for the denial. No appeal shall lie from a decision to deny a request
for employment authorization under this section. The employment
authorization may be granted in one year intervals up to the expected
date of completion of the student's current course of study. A student
has permission to engage in off-campus employment only if the student
receives the EAD endorsed to that effect. Off-campus employment
authorization may be renewed by the Service only if the student is
maintaining status and good academic standing. The employment
authorization is automatically terminated whenever the student fails to
maintain status.
(iii) Internship with an international organization. A bona fide F-1
student who has been offered employment by a recognized international
organization within the meaning of the International Organization
Immunities Act (59 Stat. 669) must apply for employment authorization,
in person, to the Service office having jurisdiction over his or her
place of residence. A student seeking employment authorization under
this provision is required to present a written certification from the
international organization that the proposed employment is within the
scope of the organization's sponsorship, an I-20 ID endorsed for reentry
by the DSO within the last 30 days, and a completed Form I-765,
Application for Employment Authorization, with the fee required in 8 CFR
103.7(b)(1).
(10) Practical training. Practical training is available to F-1
students who have been lawfully enrolled on a full-time basis in a
Service-approved college, university, conservatory, or seminary for at
least nine consecutive months. Students in English language training
programs are ineligible for practical training. An eligible F-1 student
may request employment authorization for practical training in a
position which is directly related to his or her major area of study.
There are two types of practical training available:
(i) Curricular practical training programs. An F-1 student may be
authorized, by the DSO, to participate in a curricular practical
training program which is an integral part of an established curriculum.
Curricular practical training is defined to be alternate work/study,
internship, cooperative education, or any other type of required
internship or practicum which is offered by sponsoring employers through
cooperative agreements with the school. Students who have received one
year or more of full-time curricular practical training are ineligible
for post-completion practical training. Exceptions to the nine-month in
status requirement are provided for students enrolled in graduate
studies which require immediate participation in curricular practical
training. A request for authorization for curricular practical training
must be made to the DSO on Form I-538. Upon approving the request for
authorization, the DSO shall:
(A) Certify the Form I-538 and send the form to the Service's data
processing center;
(B) Endorse the student's I-20 ID with ''full-time (or part-time)
curricular practical training authorized for (employer) at (location)
from (date) to (date)''; and
(C) Sign and date the I-20 ID before returning it to the student. A
student may begin curricular practical training only after receiving his
or her I-20 ID with the DSO endorsement.
(ii) Optional practical training -- (A) General. An F-1 student may
apply to the Service for authorization for temporary employment for
practical training directly related to the student's major area of
study. Temporary employment for practical training may be authorized:
(1) During the student's annual vacation and at other times when
school is not in session if the student is currently enrolled and
eligible, and intends, to register for the next term or session;
(2) While school is in session, provided that practical training does
not exceed twenty hours a week while school is in session;
(3) After completion of all course requirements for the degree
(excluding thesis or equivalent), if the student is in a bachelor's
master's, or doctoral degree program; or
(4) After completion of the course of study. A student must complete
all practical training within a 14 month period following the completion
of study.
(B) Termination of practical training. Authorization to engage in
practical training employment is automatically terminated when the
student transfers to another school.
(C) Request for authorization for practical training. A request for
authorization to accept practical training must be made to the
designated school official (DSO) of the school the student is authorized
to attend on Form I-538, accompanied by his or her current Form I-20 ID.
(D) Action of the DSO. In making a recommendation for practical
training, a designated school official must:
(1) Certify on Form I-538 that the proposed employment is directly
related to the student's major area of study and commensurate with the
student's educational level;
(2) Endorse and date the student's Form I-20 ID to show that
practical training in the student's major field of study is recommended
''full-time (or part-time) from (date) to (date)''; and
(3) Return to the student the Form I-20 ID and send to the Service
data processing center the school certification on Form I-538.
(11) Employment authorization. The total periods of authorization
for optional practical training under paragraph (f)(10) of this section
shall not exceed a maximum of twelve months. Part-time practical
training, 20 hours per week or less, shall be deducted from the
available practical training at one-half the full-time rate. As
required by the regulations at 8 CFR part 274a, an F-1 student seeking
practical training (excluding curricular practical training) under
paragraph (f)(10) of this section may not accept employment until he or
she has been issued an Employment Authorization Document (EAD) by the
Service. An F-1 student must apply for the EAD on Form I-765 at the
Service office having jurisdiction over his or her place of residence
during the same 120-day period when the DSOs are authorized to recommend
practical training. (The application process includes a required
personal appearance.) The application for employment authorization must
include the following documents:
(i) A completed Form I-765, with the fee required by 103.7(b)(1);
and
(ii) A DSO's recommendation for practical training on I-20 ID.
(12) Decision on application for employment authorization. The
Service shall adjudicate the Form I-765 and issue an EAD on the basis of
the DSO's recommendation unless the student is found otherwise
ineligible. The Service director shall notify the applicant of the
decision and, if the application is denied, of the reason or reasons for
the denial. The applicant may not appeal the decision.
(13) Temporary absence from the United States of F-1 student granted
employment authorization. (i) A student returning from a temporary trip
abroad with an unexpired off-campus employment authorization on his or
her I-20 ID may resume employment only if the student is readmitted to
attend the same school which granted the employment authorization.
(ii) An F-1 student who has an unexpired EAD issued for
post-completion practical training and who is otherwise admissible may
return to the United States to resume employment after a period of
temporary absence. The EAD must be used in combination with an I-20 ID
endorsed for reentry by the DSO within the last six months.
(14) Effect of strike or other labor dispute. Any employment
authorization, whether or not part of an academic program, is
automatically suspended upon certification by the Secretary of Labor or
the Secretary's designee to the Commissioner of the Immigration and
Naturalization Service or the Commissioner's designee, that a strike or
other labor dispute involving a work stoppage of workers is in progress
in the occupation at the place of employment. As used in this
paragraph, ''place of employment'' means the facility or facilities
where a labor dispute exists. The employer is prohibited from
transferring F-1 students working at other facilities to the facility
where the work stoppage is occurring.
(15) Spouse and children of F-1 student. The F-1 spouse and children
of an F-1 student may not accept employment.
(16) Reinstatement to student status -- (i) General. A Service
director may consider reinstating an F-1 student who makes a request for
reinstatement on Form I-539, Application to Extend Time of Temporary
Stay, accompanied by a properly completed Form I-20 A-B from the school
the student is attending or intends to attend, if the student:
(A) Establishes to the satisfaction of the Service director that the
violation of status resulted from circumstances beyond the student's
control or that failure to receive reinstatement to lawful F-1 status
would result in extreme hardship to the student;
(B) Is currently pursuing, or intending to pursue, a full course of
study at the school which issued the Form I-20 A-B;
(C) Has not engaged in unauthorized employment; and
(D) Is not deportable on any ground other than section 241(a)(1)(B)
or (C)(i) of the Act.
(ii) Decision. If the Service director reinstates the student, the
director shall endorse Form I-20 A-B to indicate that the student has
been reinstated, return the I-20 ID to the student, and forward the
school copy of the form to the Service's processing center for data
entry. If the Service director does not reinstate the student, the
student may not appeal that decision.
(g) Representatives to international organizations -- (1) General.
The determination by a consular officer prior to admission and the
recognition by the Secretary of State subsequent to admission is
evidence of the proper classification of a nonimmigrant under section
101(a)(15)(G) of the Act. An alien who has a nonimmigrant status under
section 101(a)(15)(G) (i), (ii), (iii) or (iv) of the Act is to be
admitted for the duration of the period for which the alien continues to
be recognized by the Secretary of State as being entitled to that
status. An alien defined in section (101)(a)(15)(G)(v) of the Act is to
be admitted for an initial period of not more than three years, and may
be granted extensions of temporary stay in increments of not more than
two years. In addition, the application for extension of temporary stay
must be accompanied by a statement signed by the employing official
stating that he or she intends to continue to employ the applicant and
describing the type of work the applicant will perform.
(2) Definition of G-1, G-3, or G-4 dependent. For purposes of
employment in the United States, the term dependent of a G-1, G-3, or
G-4 principal alien, as used in 214.2(g), means any of the following
immediate members of the family habitually residing in the same
household as the principal alien who is an officer or employee assigned
to a mission, to an international organization, or is employed by an
international organization in the United States:
(i) Spouse;
(ii) Unmarried children under the age of 21;
(iii) Unmarried sons or daughters under the age of 23 who are in
full-time attendance as students at post-secondary educational
institutions;
(iv) Unmarried sons or daughters under the age of 25 who are in
full-time attendance as students at post-secondary educational
institutions if a formal bilateral employment agreement permitting their
employment in the United States was signed prior to November 21, 1988,
and such bilateral employment agreement does not specify 23 as the
maximum age for employment of such sons and daughters. The Office of
Protocol of the Department of State shall maintain a listing of foreign
states which the United States has such bilateral employment agreements.
The provisions of this paragraph apply only to G-1 and G-3 dependents
under certain bilateral agreements and are not applicable to G-4
dependents; and
(v) Unmarried sons or daughters who are physically or mentally
disabled to the extent that they cannot adequately care for themselves
or cannot establish, maintain, or re-establish their own households.
The Department of State or the Service may require certification(s) as
it deems sufficient to document such mental or physical disability.
(3) Applicability of a formal bilateral agreement or an informal de
facto arrangement for G-1 and G-3 dependents. The applicability of a
formal bilateral agreement shall be based on the foreign state which
employs the principal alien and not on the nationality of the principal
alien or dependent. The applicability of an informal de facto
arrangement shall be based on the foreign state which employs the
principal alien, but under a de facto arrangement the principal alien
also must be a national of the foreign state which employs him or her in
the United States.
(4) Income tax, Social Security liability; non-applicability of
certain immunities. Dependents who are granted employment authorization
under this section are responsible for payment of all federal, state and
local income, employment and related taxes and Social Security
contributions on any remuneration received. In addition, immunity from
civil or administrative jurisdiction in accordance with Article 37 of
the Vienna Convention on Diplomatic Relations or other international
agreements does not apply to these dependents with respect to matters
arising out of their employment.
(5) G-1 and G-3 dependent employment pursuant to formal bilateral
employment agreements and informal de facto reciprocal arrangements, and
G-4 dependent employment. (i) The Office of Protocol shall maintain a
listing of foreign states which have entered into formal bilateral
employment agreements. Dependents of a G-1 or G-3 principal alien
assigned to official duty in the United States may accept or continue in
unrestricted employment based on such formal bilateral agreements, if
the applicable agreement includes persons in G-1 or G-3 visa status,
upon favorable recommendation by the Department of State and issuance of
employment authorization documentation by the Service in accordance with
8 CFR part 274a. The application procedures are set forth in paragrpah
(g)(6) of this section.
(ii) For purposes of this section, an informal de facto reciprocal
arrangement exists when the Department of State determines that a
foreign state allows appropriate employment on the local economy for
dependents of certain United States officials assigned to duty in that
foreign state. The Office of Protocol shall maintain a listing of
countries with which such reciprocity exists. Dependents of a G-1 or
G-3 principal alien assigned to official duty in the United States may
be authorized to accept or continue in employment based upon informal de
facto arrangements, and dependents of a G-4 principal alien assigned to
official duty in the United States may be authorized to accept or
continue in employment upon favorable recommendation by the Department
of State and issuance of employment authorization by the Service in
accordance with 8 CFR part 274a. Additionally, the procedures set forth
in paragraph (g)(6) of this section must be complied with, and the
following conditions must be met:
(A) Both the principal alien and the dependent desiring employment
are maintaining G-1, G-3, or G-4 status as appropriate;
(B) The principal's assignment in the United States is expected to
last more than six months;
(C) Employment of a similar nature for dependents of United States
Government officials assigned to official duty in the foreign state
employing the principal alien is not prohibited by that foreign
government. The provisions of this paragraph apply only to G-1 and G-3
dependents;
(D) The proposed employment is not in an occupation listed in the
Department of Labor Schedule B (20 CFR part 656), or otherwise
determined by the Department of Labor to be one for which there is an
oversupply of qualified U.S. workers in the area of proposed employment.
This Schedule B restriction does not apply to a dependent son or
daughter who is a full-time student if the employment is part-time,
consisting of not more than 20 hours per week, and/or if it is temporary
employment of not more than 12 weeks during school holiday periods; and
(E) The proposed employment is not contrary to the interest of the
United States. Employment contrary to the interest of the United States
includes, but is not limited to, the employment of G-1, G-3, or G-4
dependents: who have criminal records; who have violated United States
immigration laws or regulations, or visa laws or regulations; who have
worked illegally in the United States; and/or who cannot establish that
they have paid taxes and social security on income from current or
previous United States employment. Additionally, the Department of
State may determine a G-4 dependent's employment is contrary to the
interest of the United States when the principal alien's country of
nationality has one or more components of an international organization
or international organizations within its borders and does not allow the
employment of dependents of United States citizens employed by such
component(s) or organization(s).
(6) Application procedures. The following procedures are applicable
to G-1 and G-3 dependent employment applications under bilateral
agreements and de facto arrangements, as well as to G-4 dependent
employment applications:
(i) The dependent must submit a completed Form I-566 to the
Department of State through the office, mission, or organization which
employs his or her principal alien. If the principal is assigned to or
employed by the United Nations, the Form I-566 must be submitted to the
U.S. Mission to the United Nations. All other applications must be
submitted to the Office of Protocol of the Department of State. A
dependent applying under paragraph (g)(2) (iii) or (iv) of this section
must submit a certified statement from the post-secondary educational
institution confirming that he or she is pursuing studies on a full-time
basis. A dependent applying under paragraph (g)(2)(v) of this section
must submit medical certification regarding his or her condition. The
certification should identify the dependent and the certifying physician
and give the physician's phone number; identify the condition, describe
the symptoms and provide a prognosis; certify that the dependent is
unable to establish, re-establish, and maintain a home or his or her
own. Additionally, a G-1 or G-3 dependent applying under the terms of a
de facto arrangement or a G-4 dependent must attach a statement from the
prospective employer which includes the dependent's name; a description
of the position offered and the duties to be performed; the salary
offered; and verification that the dependent possesses the
qualifications for the position.
(ii) The Department of State reviews and verifies the information
provided, makes its determination, and endorses the Form I-566.
(iii) If the Department of State's endorsement is favorable, the
dependent may apply to the Service. A dependent whose principal alien
is stationed at a post in Washington, DC, or New York City shall apply
to the District Director, Washington, DC, or New York City,
respectively. A dependent whose principal alien is stationed elsewhere
shall apply to the District Director, Washington, DC, unless the
Service, through the Department of State, directs the dependent to apply
to the district director having jurisdiction over his or her place of
residence. Directors of the regional service centers may have
concurrent adjudicative authority for applications filed within their
respective regions. When applying to the Service, the dependent must
present his or her Form I-566 with a favorable endorsement from the
Department of State and any additional documentation as may be required
by the Attorney General.
(7) Period of time for which employment may be authorized. If
approved, an application to accept or continue employment under this
section shall be granted in increments of not more than three years
each.
(8) No appeal. There shall be no appeal from a denial of permission
to accept or continue employment under this section.
(9) Dependents or family members of principal aliens classified G-2
or G-5. A dependent or family member of a principal alien classified
G-2 or G-5 may not be employed in the United States under this section.
(10) Unauthorized employment. An alien classified under section
101(a)(15)(G) of the Act who is not a principal alien and who engages in
employment outside the scope of, or in a manner contrary to this
section, may be considered in violation of section 241(a)(1)(C)(i) of
the Act. An alien who is classified under section 101(a)(15)(G) of the
Act who is a principal alien and who engages in employment outside the
scope of his/her official position may be considered in violation of
section 241(a)(1)(C)(i) of the Act.
(11) Special provision. As of February 16, 1990 no new employment
authorization will be granted and no pre-existing employment
authorization will be extended for a G-1 dependent absent an appropriate
bilateral agreement or de facto arrangement. However, a G-1 dependent
who has been granted employment authorization by the Department of State
prior to the effective date of this section and who meets the definition
of dependent under 214.2(g)(2) (i), (ii), (iii) or (v) of this part but
is not covered by the terms of a bilateral agreement or de facto
arrangement may be allowed to continue in employment until whichever of
the following occurs first:
(i) The employment authorization by the Department of State expires;
or
(ii) He or she no longer qualifies as a dependent as that term is
defined in this section; or
(iii) March 19, 1990.
(h) Temporary employees -- (1) Admission of temporary employees --
(i) General. Under section 101(a)(15)(H) of the Act, an alien may be
authorized to come to the United States temporarily to perform services
or labor for, or to receive training from, an employer, if petitioned
for by that employer. Under this nonimmigrant category, the alien may
be classified as follows: under section 101(a)(15)(H)(i)(a) of the Act
as a registered nurse; under section 101(a)(15)(H)(i)(b) of the Act as
an alien who is coming to perform services in a specialty occupation,
services relating to a Department of Defense (DOD) cooperative research
and development project or coproduction project, or services as a
fashion model who is of distinguished merit and ability; under section
101(a)(15)(H)(ii)(a) of the Act as an alien who is coming to perform
agricultural labor or services of a temporary or seasonal nature; under
section 101(a)(15)(H)(ii)(b) of the Act as an alien coming to perform
other temporary services or labor; or under section 101(a)(15)(H)(iii)
of the Act as an alien who is coming as a trainee or as a participant in
a special education exchange visitor program. These classifications are
called H-1A, H-1B, H-2A, H-2B, and H-3, respectively. The employer must
file a petition with the Service for review of the services or training
and for determination of the alien's eligibility for classification as a
temporary employee or trainee, before the alien may apply for a visa or
seek admission to the United States. This paragraph sets forth the
standards and procedures applicable to these classifications.
(ii) Description of classifications. (A) An H-1A classification
applies to an alien who is coming temporarily to the United States to
perform services as a registered nurse, meets the requirements of
section 212(m)(1) of the Act, and will perform services at a facility
for which the Secretary of Labor has determined and certified to the
Attorney General that an unexpired attestation is on file and in effect
under section 212(m)(2) of the Act.
(B) An H-1B classification applies to an alien who is coming
temporarily to the United States:
(1) To perform services in a specialty occupation (except registered
nurses, agricultural workers, and aliens of extraordinary ability or
achievement in the sciences, education, or business) described in
section 214(i)(1) of the Act, that meets the requirements of section
214(i)(2) of the Act, and for whom the Secretary of Labor has determined
and certified to the Attorney General that the prospective employer has
filed a labor condition application under section 212(n)(1) of the Act;
(2) To perform services of an exceptional nature requiring
exceptional merit and ability relating to a cooperative research and
development project or a coproduction project provided for under a
Government-to-Government agreement administered by the Secretary of
Defense;
(3) To perform services as a fashion model of distinguished merit and
ability and for whom the Secretary of Labor has determined and certified
to the Attorney General that the prospective employer has filed a labor
condition application under section 212(n)(1) of the Act.
(C) An H-2A classification applies to an alien who is coming
temporarily to the United States to perform agricultural work of a
temporary or seasonal nature.
(D) An H-2B classification applies to an alien who is coming
temporarily to the United States to perform nonagricultural work of a
temporary or seasonal nature, if unemployed persons capable of
performing such service or labor cannot be found in this country. This
classification does not apply to graduates of medical schools coming to
the United States to perform services as members of the medical
profession. The temporary or permanent nature of the services or labor
to be performed must be determined by the service. This classification
requires a temporary labor certification issued by the Secretary of
Labor or the Governor of Guam, or a notice from one of these individuals
that such a certification cannot be made, prior to the filing of a
petition with the Service.
(E) An H-3 classification applies to an alien who is coming
temporarily to the United States:
(1) As a trainee, other than to receive graduate medical education or
training, or training provided primarily at or by an academic or
vocational institution, or
(2) As a participant in a special education exchange visitor program
which provides for practical training and experience in the education of
children with physical, mental, or emotional disabilities.
(2) Petitions -- (i) Filing of petitions -- (A) General. A United
States employer seeking to classify an alien as an H-1A, H-1B, H-2A,
H-2B, or H-3 temporary employee shall file a petition on Form I-129,
Petition for Nonimmigrant Worker, only with the Service Center which has
jurisdiction in the area where the alien will perform services or
receive training, even in emergent situations, except as provided in
this section. Petitions in Guam and the Virgin Islands, and petitions
involving special filing situations as determined by Service
Headquarters, shall be filed with the local Service Office or a
designated Service Office. The petitioner may submit a legible
photocopy of a document in support of the visa petition in lieu of the
original document. However, the original document shall be submitted if
requested by the Service.
(B) Service or training in more than one location. A petition which
requires services to be performed or training to be received in more
than one location must include an itinerary with the dates and locations
of the services or training and must be filed with the Service office
which has jurisdiction over I-129H petitions in the area where the
petitioner is located. The address which the petitioner specifies as
its location on the I-129H petition shall be where the petitioner is
located for purposes of this paragraph. If the petitioner is a foreign
employer with no United States location, the petition shall be filed
with the Service office that has jurisdiction over the area where the
employment will begin.
(C) Services or training for more than one employer. If the
beneficiary will perform nonagricultural services for, or receive
training from, more than one employer, each employer must file a
separate petition with the Service Center that has jurisdiction over the
area where the alien will perform services or receive training, unless
an established agent files the petition.
(D) Change of employers. If the alien is in the United States and
decides to change employers, the new employer must file a petition on
Form I-129 requesting classification and extension of the alien's stay
in the United States. If the new petition is approved, the extension of
stay may be granted for the validity of the approved petition. The
validity of the petition and the alien's extension of stay shall conform
to the limits on the alien's temporary stay that are prescribed in
paragraph (h)(13) of this section. The alien is not authorized to begin
the new employment until the petition is approved.
(E) Amended or new petition. The petitioner shall file an amended or
new petition, with fee, with the Service Center where the original
petition was filed to reflect any material changes in the terms and
conditions of employment or training or the beneficiary's eligibility as
specified in the original approved petition. An amended or new H-1A,
H-1B, H-2A, or H-2B petition must be accompanied by a current or new
Department of Labor determination. In the case of an H-1B petition,
this requirement includes a new labor condition application.
(F) Agents as petitioners. An established United States agent may
file a petition in cases involving workers who traditionally are
self-employed or use agents to arrange short-term employment in their
behalf with numerous employers, and in cases where a foreign employer
authorizes the agent to act in its behalf. A petition filed by a agent
is subject to the following conditions:
(1) A person or company in business as an agent may file the H
petition involving multiple employers as the representative of both the
employers and the beneficiary(ies) if the supporting documentation
includes a complete itinerary of services or engagements. The itinerary
shall specify the dates of each service or engagement, the names and
addresses of the actual employers, and the names and addresses of the
establishments, venues, or locations where the services will be
performed. In questionable cases, a contract between the employers and
the beneficiary(ies) may be required. The burden is on the agent to
explain the terms and conditions of the employment and to provide any
required documentation.
(2) An agent performing the function of an employer must guarantee
the wage offered and the other terms and conditions of employment by
contractural agreement with the beneficiary(ies). The agent/employer
must also provide an itinerary of definite employment and information on
any other services planned for the period of time requested.
(ii) Multiple beneficiaries. More than one beneficiary may be
included in an H-2A, H-2B, or H-3 petition if the beneficiaries will be
performing the same service, or receiving the same training, for the
same period of time and in the same location. If the beneficiaries will
be applying for visas at more than one consulate, the petitioner shall
file a separate petition for each consulate. If visa-exempt
beneficiaries will be applying for admission at more than one port of
entry, the petitioner shall file a separate petition for each port of
entry.
(iii) Named beneficiaries. Nonagricultural petitions must include
the names of beneficiaries and other required information at the time of
filing. Under the H-2B classification, exceptions may be granted in
emergent situations involving multiple beneficiaries at the discretion
of the director, and in special filing situations as determined by the
Service's Headquarters. If all of the beneficiaries covered by an H-2A
or H-2B labor certification have not been identified at the time a
petition is filed, multiple petitions naming subsequent beneficiaries
may be filed at different times with a copy of the same labor
certification. Each petition must reference all previously filed
petitions for that labor certification.
(iv) Substitution of beneficiaries. Beneficiaries may be substituted
in and H-2B petitions that are approved for a group, or H-2B petitions
that are approved for unnamed beneficiaries, or approved H-2B petitions
where the job offered to the alien(s) does not require any education,
training, and/or experience. To request a substitution, the petitioner
shall, by letter and a copy of the petition's approval notice, notify
the consular office at which the alien will apply for a visa or the port
of entry where the alien will apply for admission. Where evidence of
the qualifications of beneficiaries is required in petitions for unnamed
beneficiaries, the petitioner shall also submit such evidence to the
consular office or port of entry prior to issuance of a visa or
admission.
(v) H-2A Petitions. Special criteria for admission, extension, and
maintenance of status apply to H-2A petitions and are specified in
paragraph (h)(5) of this section. The other provisions of 214.2(h)
apply to H-2A only to the extent that they do not conflict with the
special agricultural provisions in paragraph (h)(5) of this section.
(3) Petition for registered nurse (H-1A) -- (i) General. (A) For
purposes of H-1A classification, the term ''registered nurse'' includes
a foreign nurse who is or will be licensed or authorized by the State
Board of Nursing to engage in professional nurse practice in the state
of intended employment.
(B) A United States employer which provides health care services is
referred to as a ''facility,'' and may file an H-1A petition for an
alien nurse to perform the services of a registered nurse. A
''facility'' must also meet the Department of Labor's requirements as
defined in 29 CFR part 504.''.
(C) The position must involve nursing practice and require licensure
or other authorization to practice as a registered nurse from the State
Board of Nursing in the state of intended employment.
(D) A petition, application for change of status, or application for
extension of stay for an H-1A nurse may be adjudicated only at the
appropriate INS service center.
(ii) Definition of registered nurse. For purposes of H-1A
classification, ''registered nurse'' shall mean a person who is or will
be authorized by a State Board of Nursing to engage in registered nurse
practice in a state or U.S. territory or possession, and who is or will
be practicing at a facility which provides health care services.
(iii) Beneficiary requirements. An H-1A petition for a nurse shall
be accompanied by evidence that the nurse:
(A) Has obtained a full and unrestricted license to practice nursing
in the country where the alien obtained nursing education, or has
received nursing education in the United States or Canada;
(B) Has passed the examination given by the Commission on Graduates
of Foreign Nursing Schools (CGFNS), or has obtained a full and
unrestricted (permanent) license to practice as a registered nurse in
the state of intended employment, or has obtained a full and
unrestricted (permanent) license in any state or territory of the United
States and received temporary authorization to practice as a registered
nurse in the state of intended employment; and
(C) Is fully qualified and eligible under the laws (including such
temporary or interim licensing requirements which authorize the nurse to
be employed) governing the place of intended employment to practice as a
registered nurse immediately upon admission to the United States, and is
authorized under such laws to be employed by the employer. For purposes
of this paragraph, the temporary or interim licensing may be obtained
immediately after the alien enters the United States and registers to
take the first available examination for permanent licensure.
(iv) Petitioner requirements. The petitioning facility shall submit
the following with an H-1A petition:
(A) A current copy of the Department of Labor's (DOL) notice of
acceptance of the filing of its attestation on Form ETA 9029,
(B) A statement that it will comply with the terms of its current
attestation, and any attestations accepted by DOL for the duration of
the alien's authorized period of stay,
(C) A statement describing any limitations which the laws of the
state or jurisdiction of intended employment place on the nurse's
services,
(D) A statement that notice of the filing of the petition has been
provided by the employer to the bargaining representative of the
registered nurses at the facility or, where there is no such bargaining
representative, notice of the filing has been provided to registered
nurses employed at the facility through posting in conspicuous
locations. A copy of the notice provided shall be submitted with the
petitions, and
(v) Licensure requirements. (A) A nurse who is granted H-1A
classification based on passage of the CGFNS examination must, upon
admission to the United States, be able to obtain temporary licensure or
other temporary authorization to practice as a registered nurse from the
State Board of Nursing in the state of intended employment. A petition
for such a nurse shall be approved initially for a period not to exceed
one year.
(B) After admission to the United States, an H-1A nurse who does not
hold a permanent state license must take and pass the first available
examination for state licensure as a registered nurse; after which the
nurse must be granted permanent state licensure in order to maintain his
or her eligibility for H-1A classification in the state of employment or
any other state or territory of the United States.
(C) Although a nurse shall automatically lose his or her eligibility
for H-1A classification after failing the state licensure examination,
subsequent eligibility after he or she has passed the state licensure
examination is not precluded. Such a nurse is not authorized to remain
in employment unless he or she otherwise receives authorization from the
Service.
(D) A nurse may be granted H-1A classification based on passage of
the CGFNS examination only until he or she has been admitted to the
United States, and has had an opportunity to take the state licensure
examination for registered nurses.
(vi) Other requirements. (A) If the Secretary of Labor notifies the
Service that a facility which employs nurses has failed to meet a
condition in its attestation, or that there was a misrepresentation of a
material fact in the attestation, the Service shall not approve
petitions for or extend the stay of nurses to be employed by the
facility for a period of one year from the date of receipt of such
notice.
(B) If the facility's attestation expires, or is suspended or
invalidated by DOL, the Service will not suspend or revoke the
facility's approved petitions for nurses, if the facility has agreed to
comply with the terms of the attestation under which the nurses were
admitted or subsequent attestations accepted by DOL for the duration of
the nurses' authorized stay.
(4) Petition for alien to perform services in a specialty occupation,
services relating to a DOD cooperative research and development project
or coproduction project, or services of distinguished merit and ability
in the ield of fashion modeling (H-1B) -- (i)(A) Types of H-1B
classification. An H-1B classification may be granted to an alien who:
(1) Will perform services in a specialty occupation which requires
theoretical and practical application of a body of highly specialized
knowledge and attainment of a baccalaureate or higher degree or its
equivalent as a minimum requirement for entry into the occupation in the
United States, and who is qualified to perform services in the specialty
occupation because he or she has attained a baccalaureate or higher
degree or its equivalent in the specialty occupation;
(2) Based on reciprocity, will perform services of an exceptional
nature requiring exceptional merit and ability relating to a DOD
cooperative research and development project or a coproduction project
provided for under a Government-to-Government agreement administered by
the Secretary of Defense;
(3) Will perform services in the field of fashion modeling and who is
of distinguished merit and ability.
(B) General requirements for petitions involving a specialty
occupation. (1) Before filing a petition for H-1B classification in a
specialty occupation, the petitioner shall obtain a certification from
the Department of Labor that it has filed a labor condition application
in the occupational specialty in which the alien(s) will be employed.
(2) Certification by the Department of Labor of a labor condition
application in an occupational classification does not constitute a
determination by that agency that the occupation in question is a
specialty occupation. The director shall determine if the application
involves a specialty occupation as defined in section 214(i)(1) of the
Act. The director shall also determine whether the particular alien for
whom H-1B classification is sought qualifies to perform services in the
specialty occupation as prescribed in section 214(i)(2) of the Act.
(3) If all of the beneficiaries covered by an H-1B labor condition
application have not been identified at the time a petition is filed,
petitions for newly identified beneficiaries may be filed at any time
during the validity of the labor condition application using photocopies
of the same application. Each petition must refer by file number to all
previously approved petitions for that labor condition application.
(4) When petitions have been approved for the total number of workers
specified in the labor condition application, substitution of aliens
against previously approved openings shall not be made. A new labor
condition application shall be required.
(5) If the Secretary of Labor notifies the Service that the
petitioning employer has failed to meet a condition of paragraph (B) of
section 212(n)(1) of the Act in its labor condition application, has
substantially failed to meet a condition of paragraphs (C) or (D) of
section 212(n)(1) of the Act, has willfully failed to meet a condition
of paragraph (A) of section 212(n)(1) of the Act, or has misrepresented
any material fact in the application, the Service shall not approve new
petitions in specialty occupations for that employer or extend the stay
of aliens employed in specialty occupations by that employer for a
period of one year from the date of receipt of such notice.
(6) If the employer's labor condition application is suspended or
invalidated by the Department of Labor, the Service will not suspend or
revoke the employer's approved petitions for aliens already employed in
specialty occupations if the employer has certified to the Department of
Labor that it will comply with the terms of the labor condition
application for the duration of the authorized stay of aliens it
employs.
(C) General requirements for petitions involving an alien of
distinguished merit and ability in the field of fashion modeling. --
H-1B classification may be granted to an alien who is of distinguished
merit and ability in the field of fashion modeling. An alien of
distinguished merit and ability in the field of fashion modeling is one
who is prominent in the field of fashion modeling. The alien must also
be coming to the United States to perform services which require a
fashion model of prominence.
(ii) Definitions.
Prominence means a high level of achievement in the field of fashion
modeling evidenced by a degree of skill and recognition substantially
above that ordinarily encountered to the extent that a person described
as prominent is renowned, leading, or well-known in the field of fashion
modeling.
Regonized authority means a person or an organization with expertise
in a particular field, special skills or knowledge in that field, and
the expertise to render the type of opinion requested. Such an opinion
must state:
(1) The writer's qualifications as an expert;
(2) The writer's experience giving such opinions, citing specific
instances where past opinions have been accepted as authoritative and by
whom;
(3) How the conclusions were reached; and
(4) The basis for the conclusions supported by copies or citations of
any research material used.
Specialty occupation means an occupation which requires theoretical
and practical application of a body of highly specialized knowledge in
fields of human endeavor including, but not limited to, architecture,
engineering, mathematics, physical sciences, social sciences, medicine
and health, education, business specialties, accounting, law, theology,
and the arts, and which requires the attainment of a bachelor's degree
or higher in a specific specialty, or its equivalent, as a minimum for
entry into the occupation in the United States.
United States employer means a person, firm, corporation, contractor,
or other association, or organization in the United States which:
(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees
under this part, as indicated by the fact that it may hire, pay, fire,
supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.
(iii) Criteria for H-1B petitions involving a specialty occupation.
-- (A) Standards for specialty occupation position. To qualify as a
specialty occupation, the position must meet one of the following
criteria:
(1) A baccalaureate or higher degree or its equivalent is normally
the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel
positions among similar organizations or, in the alternative, an
employer may show that its particular position is so complex or unique
that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the
position; or
(4) The nature of the specific duties are so specialized and complex
that knowledge required to perform the duties is usually associated with
the attainment of a baccalaureate or higher degree.
(B) Petitioner requirements. The petitioner shall submit the
following with an H-1B petition involving a specialty occupation:
(1) A certification from the Secretary of Labor that the petitioner
has filed a labor condition application with the Secretary,
(2) A statement that it will comply with the terms of the labor
condition application for the duration of the alien's authorized period
of stay,
(3) Evidence that the alien qualifies to perform services in the
specialty occupation as described in paragraph (h)(4)(iii)(A) of this
section, and
(C) Beneficiary qualifications. To qualify to perform services in a
specialty occupation, the alien must meet one of the following criteria:
(1) Hold a United States baccalaureate or higher degree required by
the specialty occupation from an accredited college or university;
(2) Hold a foreign degree determined to be equivalent to a United
States baccalaureate or higher degree required by the specialty
occupation from an accredited college or university;
(3) Hold an unrestricted State license, registration or certification
which authorizes him or her to fully practice the specialty occupation
and be immediately engaged in that specialty in the state of intended
employment; or
(4) Have education, specialized training, and/or progressively
responsible experience that is equivalent to completion of a United
States baccalaureate or higher degree in the specialty occupation, and
have recognition of expertise in the specialty through progressively
responsible positions directly related to the specialty.
(D) Equivalence to completion of a college degree. For purposes of
paragraph (h)(4)(iii)(C)(4) of this section, equivalence to completion
of a United States baccalaureate or higher degree shall mean achievement
of a level of knowledge, competence, and practice in the specialty
occupation that has been determined to be equal to that of an individual
who has a baccalaureate or higher degree in the specialty and shall be
determined by one or more of the following:
(1) An evaluation from an official who has authority to grant
college-level credit for training and/or experience in the specialty at
an accredited college or university which has a program for granting
such credit based on an individual's training and/or work experience;
(2) The results of recognized college-level equivalency examinations
or special credit programs, such as the College Level Examination
Program (CLEP), or Program on Noncollegiate Sponsored Instruction
(PONSI);
(3) An evaluation of education by a reliable credentials evaluation
service which specializes in evaluating foreign educational credentials;
(4) Evidence of certification or registration from a
nationally-recognized professional association or society for the
specialty that is known to grant certification or registration to
persons in the occupational specialty who have achieved a certain level
of competence in the specialty;
(5) A determination by the Service that the equivalent of the degree
required by the specialty occupation has been acquired through a
combination of education, specialized training, and/or work experience
in areas related to the specialty and that the alien has achieved
recognition of expertise in the specialty occupation as a result of such
training and experience. For purposes of determining equivalency to a
baccalaureate degree in the specialty, three years of specialized
training and/or work experience must be demonstrated for each year of
college-level training the alien lacks. For equivalence to an advanced
(or Masters) degree, the alien must have a baccalaureate degree followed
by at least five years of experience in the specialty. If required by a
specialty, the alien must hold a Doctorate degree or its foreign
equivalent. It must be clearly demonstrated that the alien's training
and/or work experience included the theoretical and practical
application of specialized knowledge required by the specialty
occupation; that the alien's experience was gained while working with
peers, supervisors, or subordinates who have a degree or its equivalent
in the specialty occupation; and that the alien has recognition of
expertise in the specialty evidenced by at least one type of
documentation such as:
(i) Recognition of expertise in the specialty occupation by at least
two recognized authorities in the same specialty occupation;
(ii) Membership in a recognized foreign or United States association
or society in the specialty occupation;
(iii) Published material by or about the alien in professional
publications, trade journals, books, or major newspapers;
(iv) Licensure or registration to practice the specialty occupation
in a foreign country; or
(v) Achievements which a recognized authority has determined to be
significant contributions to the field of the specialty occupation.
(E) Liability for transportation costs. The employer will be liable
for the reasonable costs of return transportation of the alien abroad if
the alien is dismissed from employment by the employer before the end of
the period of authorized admission pursuant to section 214(c)(5) of the
Act. If the beneficiary voluntarily terminates his or her employment
prior to the expiration of the validity of the petition, the alien has
not been dismissed. If the beneficiary believes that the employer has
not complied with this provision, the beneficiary shall advise the
Service Center which adjudicated the petition in writing. The complaint
will be retained in the file relating to the petition. Within the
context of this paragraph, the term ''abroad'' refers to the alien's
last place of foreign residence. This provision applies to any employer
whose offer of employment became the basis for an alien obtaining or
continuing H-1B status.
(iv) General documentary requirements for H-1B classification in a
specialty occupation. An H-1B petition involving a specialty occupation
shall be accompanied by:
(A) Documentation, certifications, affidavits, declarations, degrees,
diplomas, writings, reviews, or any other required evidence sufficient
to establish that the beneficiary is qualified to perform services in a
specialty occupation as described in paragraph (h)(4)(i) of this section
and that the services the beneficiary is to perform are in a specialty
occupation. The evidence shall conform to the following:
(1) School records, diplomas, degrees, affidavits, declarations,
contracts, and similar documentation submitted must reflect periods of
attendance, courses of study, and similar pertinent data, be executed by
the person in charge of the records of the educational or other
institution, firm, or establishment where education or training was
acquired.
(2) Affidavits or declarations made under penalty of perjury
submitted by present or former employers or recognized authorities
certifying as to the recognition and expertise of the beneficiary shall
specifically describe the beneficiary's recognition and ability in
factual terms and must set forth the expertise of the affiant and the
manner in which the affiant acquired such information.
(B) Copies of any written contracts between the petitioner and
beneficiary, or a summary of the terms of the oral agreement under which
the beneficiary will be employed, if there is no written contract.
(v) Licensure for H classification -- (A) General. If an occupation
requires a state or local license for an individual to fully perform the
duties of the occupation, an alien (except an H-1A nurse) seeking H
classification in that occupation must have that license prior to
approval of the petition to be found qualified to enter the United
States and immediately engage in employment in the occupation.
(B) Temporary licensure. If a temporary license is available and the
alien is allowed to perform the duties of the occupation without a
permanent license, the director shall examine the nature of the duties,
the level at which the duties are performed, the degree of supervision
received, and any limitations placed on the alien. If an analysis of
the facts demonstrates that the alien under supervision is authorized to
fully perform the duties of the occupation, H classification may be
granted.
(C) Duties without licensure. In certain occupations which generally
require licensure, a state may allow an individual to fully practice the
occupation under the supervision of licensed senior or supervisory
personnel in that occupation. In such cases, the director shall examine
the nature of the duties and the level at which they are performed. If
the facts demonstrate that the alien under supervision could fully
perform the duties of the occupation, H classification may be granted.
(D) H-1A nurses. For purposes of licensure, H-1A nurses must provide
the evidence required in paragraph (h)(3)(iii) of this section.
(E) Limitation on approval of petition. Where licensure is required
in any occupation, including registered nursing, the H petition may only
be approved for a period of one year or for the period that the
temporary license is valid, whichever is longer, unless the alien
already has a permanent license to practice the occupation. An alien
who is accorded H classification in an occupation which requires
licensure may not be granted an extension of stay or accorded a new H
classification after the one year unless he or she has obtained a
permanent license in the state of intended employment or continues to
hold a temporary license valid in the same state for the period of the
requested extension.
(vi) Criteria and documentary requirements for H-1B petitions
involving DOD cooperative research and development projects or
coproduction projects. -- (A) General. (1) For purposes of H-1B
classification, services of an exceptional nature relating to DOD
cooperative research and development projects or coproduction projects
shall be those services which require a baccalaureate or higher degree,
or its equivalent, to perform the duties. The existence of this special
program does not preclude the DOD from utilizing the regular H-1B
provisions provided the required guidelines are met.
(2) The requirements relating to a labor condition application from
the Department of Labor shall not apply to petitions involving DOD
cooperative research and development projects or coproduction projects.
(B) Petitioner requirements. (1) The petition must be accompanied by
a verification letter from the DOD project manager for the particular
project stating that the alien will be working on a cooperative research
and development project or a coproduction project under a reciprocal
Government-to-Government agreement administered by DOD. Details about
the specific project are not required.
(2) The petitioner shall provide a general description of the alien's
duties on the particular project and indicate the actual dates of the
alien's employment on the project.
(3) The petitioner shall submit a statement indicating the names of
aliens currently employed on the project in the United States and their
dates of employment. The petitioner shall also indicate the names of
aliens whose employment on the project ended within the past year.
(C) Beneficiary requirement. The petition shall be accompanied by
evidence that the beneficiary has a baccalaureate or higher degree or
its equivalent in the occupational field in which he or she will be
performing services in accordance with paragraph (h)(4)(iii)(C) and/or
(h)(4)(iii)(D) of this section.
(vii) Criteria and documentary requirements for H-1B petitions for
aliens of distinguished merit and ability in the field of fashion
modeling. -- (A) General. Prominence in the field of fashion modeling
may be established in the case of an individual fashion model. The work
which a prominent alien is coming to perform in the United States must
require the services of a prominent alien. A petition for an H-1B alien
of distinguished merit and ability in the field of fashion modeling
shall be accompanied by:
(1) Documentation, certifications, affidavits, writings, reviews, or
any other required evidence sufficient to establish that the beneficiary
is a fashion model of distinguished merit and ability. Affidavits
submitted by present or former employers or recognized experts
certifying to the recognition and distinguished ability of the
beneficiary shall specifically describe the beneficiary's recognition
and ability in factual terms and must set forth the expertise of the
affiant and the manner in which the affiant acquired such information.
(2) Copies of any written contracts between the petitioner and
beneficiary, or a summary of the terms of the oral agreement under which
the beneficiary will be employed, if there is no written contract.
(B) Petitioner's requirements. To establish that a position requires
prominence, the petitioner must establish that the position meets one of
the following criteria:
(1) The services to be performed involve events or productions which
have a distinguished reputation;
(2) The services are to be performed for an organization or
establishment that has a distinguished reputation for, or record of,
employing prominent persons.
(C) Beneficiary's requirements. A petitioner may establish that a
beneficiary is a fashion model of distinguished merit and ability by the
submission of documentation showing that the alien has done any two of
the following:
(1) Has been the recipient of significant national or international
awards or prizes for services performed;
(2) Has achieved national or international recognition for
achievements evidenced by critical reviews or other published material
by or about the alien in major newspapers, trade journals, magazines, or
other publications;
(3) Has performed and will perform services as a fashion model for
employers that have a distinguished reputation;
(4) Has received recognition for significant achievements from
organizations, critics, or other recognized experts in the field of
fashion modeling. Such testimonials must be in a form that clearly
indicates the author's authority, expertise, and knowledge of the
alien's achievements; or
(5) Has commanded and now commands a high salary or other substantial
remuneration for services in relation to others in the field, as
evidenced by contracts or other reliable evidence.
(viii) Criteria and documentary requirements for H-1B petitions for
physicians. -- (A) Beneficiary's requirements. An H-1B petition for a
physician shall be accompanied by evidence that the physician:
(1) Has a license or other authorization required by the state of
intended employment to practice medicine if the physician will perform
direct patient care and the state requires the license or authorization,
and
(2) Has a full and unrestricted license to practice medicine in a
foreign state or has graduated from a medical school in the United
States or in a foreign state.
(B) Petitioner's requirements. The petitioner must establish that
the alien physician:
(1) Is coming to the United States primarily to teach or conduct
research, or both, at or for a public or nonprofit private educational
or research institution or agency, and that no patient care will be
performed, except that which is incidental to the physician's teaching
or research; or
(2) The alien has passed the Federation Licensing Examination (or an
equivalent examination as determined by the Secretary of Health and
Human Services); and
(i) Has competency in oral and written English which shall be
demonstrated by the passage of the English language proficiency test
given by the Educational Commission for Foreign Medical Graduates; or
(ii) Is a graduate of a school of medicine accredited by a body or
bodies approved for that purpose by the Secretary of Education.
(5) Petition for alien to perform agricultural labor or services of a
temporary or seasonal nature (H-2A) -- (i) Filing a petition -- (A)
General. An H-2A petition must be filed on Form I-129. The petition
must be filed with a single valid temporary agricultural labor
certification. However, if a certification is denied, domestic labor
subsequently fails to appear at the worksite, and the Department of
Labor denies an appeal under section 216(e)(2) of the Act, the written
denial of appeal shall be considered a certification for this purpose if
filed with evidence which establishes that qualified domestic labor is
unavailable. An H-2A petition may be filed by either the employer
listed on the certification, the employer's agent, or the association of
United States agricultural producers named as a joint employer on the
certification.
(B) Multiple beneficiaries. The total number of beneficiaries of a
petition or series of petitions based on the same certification may not
exceed the number of workers indicated on that document. A single
petition can include more than one beneficiary if the total number does
not exceed the number of positions indicated on the relating
certification, and all beneficiaries will obtain a visa at the same
consulate or are not required to have a visa and will apply for
admission at the same port of entry.
(C) Unnamed beneficiaries. The sole beneficiary of an H-2A petition
must be named in the petition. In a petition for multiple
beneficiaries, each must be named unless he or she is not named in the
certification and is outside the United States. Unnamed beneficiaries
must be shown on the petition by total number.
(D) Evidence. An H-2A petitioner must show that the proposed
employment qualifies as a basis for H-2A status, and that any named
beneficiary qualifies for that employment. A petition will be
automatically denied if filed without the certification evidence
required in paragraph (h)(5)(i)(A) of this section and, for each named
beneficiary, the initial evidence required in paragraph (h)(5)(v) of
this section.
(E) Special filing requirements. Where a certification shows joint
employers, a petition must be filed with an attachment showing that each
employer has agreed to the conditions of H-2A eligibility. A petition
filed by an agent must be filed with an attachment in which the employer
has authorized the agent to act on its behalf, has assumed full
responsibility for all representations made by the agent on its behalf,
and has agreed to the conditions of H-2A eligibility.
(ii) Effect of the labor certification process. The temporary
agricultural labor certification process determines whether employment
is as an agricultural worker, whether it is open to U.S. workers, if
qualified U.S. workers are available, the adverse impact of employment
of a qualified alien, and whether employment conditions, including
housing, meet applicable requirements. In petition proceedings a
petitioner must establish that the employment and beneficiary meet the
requirements of paragraph (h)(5) of this section. In a petition filed
with a certification denial, the petitioner must also overcome the
Department of Labor's findings regarding the availability of qualified
domestic labor.
(iii) Ability and intent to meet a job offer -- (A) Eligibility
requirements. An H-2A petitioner must establish that each beneficiary
will be employed in accordance with the terms and conditions of the
certification, which includes that the principal duties to be performed
are those on the certification, with other duties minor and incidental.
(B) Intent and prior compliance. Requisite intent cannot be
established for two years after an employer or joint employer, or a
parent, subsidiary or affiliate thereof, is found to have violated
section 274(a) of the Act or to have employed an H-2A worker in a
position other than that described in the relating petition.
(C) Initial evidence. Representations required for the purpose of
labor certification are initial evidence of intent.
(iv) Temporary and seasonal employment -- (A) Eligibility
requirements. An H-2A petitioner must establish that the employment
proposed in the certification is of a temporary or seasonal nature.
Employment is of a seasonal nature where it is tied to a certain time of
year by an event or pattern, such as a short annual growing cycle or a
specific aspect of a longer cycle, and requires labor levels far above
those necessary for ongoing operations. Employment is of a temporary
nature where the employer's need to fill the position with a temporary
worker will, except in extraordinary circumstances, last no longer than
one year.
(B) Effect of Department of Labor findings. In temporary
agricultural labor certification proceedings the Department of Labor
separately tests whether employment qualifies as temporary or seasonal.
Its finding that employment qualifies is normally sufficient for the
purpose of an H-2A petition, However, notwithstanding that finding,
employment will be found not to be temporary or seasonal where an
application for permanent labor certification has been filed for the
same alien, or for another alien to be employed in the same position, by
the same employer or by its parent, subsidiary or affiliate. This can
only be overcome by the petitioner's demonstration that there will be at
least a six month interruption of employment in the United States after
H-2A status ends. Also, eligibility will not be found, notwithstanding
the issuance of a temporary agricultural labor certification, where
there is substantial evidence that the employment is not temporary or
seasonal.
(v) The beneficiary's qualifications -- (A) Eligibility requirements.
An H-2A petitioner must establish that any named beneficiary met the
stated minimum requirements and was fully able to perform the stated
duties when the application for certification was filed. It must be
established at time of application for an H-2A visa, or for admission if
a visa is not required, that any unnamed beneficiary either met these
requirements when the certification was applied for or passed any
certified aptitude test at any time prior to visa issuance, or prior to
admission if a visa is not required.
(B) Initial evidence of employment/job training. A petition must be
filed with evidence that at the required time the beneficiary met the
certification's minimum employment and job training requirements.
Initial evidence must be in the form of the past employer's detailed
statement or actual employment documents, such as company payroll or tax
records. Alternately, a petitioner must show that such evidence cannot
be obtained, and submit affidavits from people who worked with the
beneficiary that demonstrate the claimed employment.
(C) Initial evidence of education and other training. A petition
must be filed with evidence that at the required time each beneficiary
met the certification's minimum post-secondary education and other
formal training requirements. Initial evidence must be in the form of
documents, issued by the relevant institution or organization, that show
periods of attendance, majors and degrees or certificates accorded.
(vi) Petition agreements -- (A) Consent and liabilities. In filing
an H-2A petition, a petitioner and each employer consents to allow
access to the site where the labor is being performed for the purpose of
determining compliance with H-2A requirements. The petitioner further
agrees to notify the Service in the manner specified within twenty-four
hours if an H-2A worker absconds or if the authorized employment ends
more than five days before the relating certification document expires,
and to pay liquidated damages of ten dollars for each instance where it
cannot demonstrate compliance with this notification requirement. The
petitioner also agrees to pay liquidated damages of two hundred dollars
for each instance where is cannot demonstrate that its H-2A worker
either departed the United States or obtained authorized status based on
another petition during the period of admission or within five days of
early termination, whichever comes first.
(B) Process. Where evidence indicates noncompliance under paragraph
(h)(5)(vi)(A) of this section, the petitioner shall be given written
notice and given ten days to reply. If it does not demonstrate
compliance, it shall be given written notice of the assessment of
liquidated damages.
(C) Failure to pay liquidated damages. If liquidated damages are not
paid within ten days of assessment, an H-2A petition may not be
processed for that petitioner or any joint employer shown on the
petition until such damages are paid.
(vii) Validity. An approved H-2A petition is valid through the
expiration of the relating certification for the purpose of allowing a
beneficiary to seek issuance of an H-2A nonimmigrant visa, admission or
an extension of stay for the purpose of engaging in the specific
certified employment.
(viii) Admission -- (A) Effect of violation of status. An alien may
not be accorded H-2A status who the Service finds to have violated the
conditions of H-2A status within the prior five years. H-2A status is
violated by remaining beyond the specific period of authorized stay or
by engaging in unauthorized employment.
(B) Period of admission. Notwithstanding paragraph (h)(13) of this
section, and except as provided in paragraph (h)(5)(ix)(C) of this
section, an alien admissible as an H-2A shall be admitted for the period
of the approved petition plus a period of up to one week before the
beginning of the approved period for the purpose of travel to the
worksite, and a period following the expiration of the H-2A petition
equal to the validity period of the petition, but not more than ten
days, for the purpose of departure or extension based on a subsequent
offer of employment. However, this extended admission period does not
affect the beneficiary's employment authorization. Such authorization
only applies to the specific employment indicated in the relating
petition, for the specific period of time indicated.
(C) Limits on an individual's stay. An alien's stay as an H-2A is
limited by the term of an approved petition. An alien may remain longer
to engage in other qualifying temporary agricultural employment by
obtaining an extension of stay. However, an individual who has held
H-2A status for a total of three years may not again be granted H-2A
status, or other nonimmigrant status based on agricultural activities,
until such time as he or she remains outside the United States for an
uninterrupted period of six months. An absence can interrupt the
accumulation of time spent as an H-2A. If the accumulated stay is
eighteen months or less, an absence is interruptive if it lasts for at
least three months. If more than eighteen months stay has been
accumulated, an absence is interruptive if it lasts for at least
one-sixth the accumulated stay. Eligibility under this subparagraph
will be determined in admission, change of status or extension
proceedings. An alien found eligible for a shorter period of H-2A
status than that indicated by the petition due to the application of
this subparagraph shall only be admitted for that abbreviated period.
(ix) Substitution of beneficiaries after admission. An H-2A petition
may be filed to replace H-2A workers whose employment was terminated
early. The petition must be filed with a copy of the certification
document, a copy of the approval notice covering the workers for which
replacements are sought, and other evidence required by paragraph
(h)(5)(i)(D) of this section. It must also be filed with a statement
giving each terminated worker's name, date and country of birth,
termination date, and evidence the worker has departed the United
States. A petition for a replacement may not be approved where the
requirements of paragraph (h)(5)(vi) of this section have not been met.
A petition for replacements does not constitute the notice that an H-2A
worker has absconded or has ended authorized employment more than five
days before the relating certification expires.
(x) Extensions without labor certification. A single H-2A petition
may be extended without a certification if it is based on approval of
the alien's application for extension of stay for a continuation of the
employment authorized by the approval of a previous H-2A petition filed
with a certification (but not a certification extension granted under 20
CFR 655.106(c)(3)), and the proposed continuation of employment will
last no longer than the previously authorized employment and also will
not last longer than two weeks.
(6) Petition for alien to perform temporary nonagricultural services
or labor (H-2B) -- (i) General. An H-2B nonagricultural temporary
worker is an alien who is coming temporarily to the United States to
perform temporary services or labor, is not displacing United States
workers capable of performing such services or labor, and whose
employment is not adversely affecting the wages and working conditions
of United States workers.
(ii) Temporary services or labor -- (A) Definition. Temporary
services or labor under the H-2B classification refers to any job in
which the petitioner's need for the duties to be performed by the
employee(s) is temporary, whether or not the underlying job can be
described as permanent or temporary.
(B) Nature of petitioner's need. As a general rule, the period of
the petitioner's need must be a year or less, although there may be
extraordinary circumstances where the temporary services or labor might
last longer than one year. The petitioner's need for the services or
labor shall be a one-time occurrence, a seasonal need, a peakload need,
or an intermittent need:
(1) One-time occurence. The petitioner must establish that it has
not employed workers to perform the services or labor in the past and
that it will not need workers to perform the services or labor in the
future, or that it has an employment situation that is otherwise
permanent, but a temporary event of short duration has created the need
for a temporary worker.
(2) Seasonal need. The petitioner must establish that the services
or labor is traditionally tied to a season of the year by an event or
pattern and is of a recurring nature. The petitioner shall specify the
period(s) of time during each year in which it does not need the
services or labor. The employment is not seasonal if the period during
which the services or labor is not needed is unpredictable or subject to
change or is considered a vacation period for the petitioner's permanent
employees.
(3) Peakload need. The petitoner must establish that it regularly
employs permanent workers to perform the services or labor at the place
of employment and that it needs to supplement its permanent staff at the
place of employment on a temporary basis due to a seasonal or short-term
demand and that the temporary additions to staff will not become a part
of the petitioner's regular operation.
(4) Intermittent need. The petitioner must establish that it has not
employed permanent or full-time workers to perform the services or
labor, but occasionally or intermittently needs temporary workers to
perform services or labor for short periods.
(iii) Procedures. (A) Prior to filing a petition with the director
to classify an alien as an H-2B worker, the petitioner shall apply for a
temporary labor certification with the Secretary of Labor for all areas
of the United States, except the Territory of Guam. In the Territory of
Guam, the petitioning employer shall apply for a temporary labor
certification with the Governor of Guam. The labor certification shall
be advice to the director on whether or not United States workers
capable of performing the temporary services or labor are available and
whether or not the alien's employment will adversely affect the wages
and working conditions of similarly employed United States workers.
(B) An H-2B petitioner shall be a United States employer, or the
authorized representative of a foreign employer having a location in the
United States. The petitioning employer shall consider available U.S.
workers for the temporary services or labor, and shall offer terms and
conditions of employment which are consistent with the nature of the
occupation, activity, and industry in the United States.
(C) The petitioner may not file an H-2B petition unless the United
States petitioner has applied for a labor certification with the
Secretary of Labor or the Governor of Guam within the time limits
prescribed or accepted by each, and has obtained a labor certification
determination as required by paragraph (h)(6)(iv) or (h)(6)(v) of this
section.
(D) The Secretary of Labor and the Governor of Guam shall separately
establish procedures for administering the temporary labor certification
program under his or her jurisdiction.
(E) After obtaining a determination from the Secretary of Labor or
the Governor of Guam, as appropriate, the petitioner shall file a
petition on I-129, accompanied by the labor certification determination
and supporting documents, with the director having jurisdiction in the
area of intended employment.
(iv) Labor certifications, except Guam -- (A) Secretary of Labor's
determination. An H-2B petition for temporary employment in the United
States, except for temporary employment on Guam, shall be accompanied by
a labor certification determination that is either:
(1) A certification from the Secretary of Labor stating that
qualified workers in the United States are not available and that the
alien's employment will not adversely affect wages and working
conditions of similary employed United States workers; or
(2) A notice detailing the reasons why such certification cannot be
made. Such notice shall address the availability of U.S. workers in the
occupation and the prevailing wages and working conditions of U.S.
workers in the occupation.
(B) Validity of the labor certification. The Secretary of Labor may
issue a temporary labor certification for a period of up to one year.
(C) U.S. Virgin Islands. Temporary labor certifications filed under
section 101(a)(15)(H)(ii)(b) of the Act for employment in the United
States Virgin Islands may be approved only for entertainers and athletes
and only for periods not to exceed 45 days.
(D) Attachment to petition. If the petitioner receives a notice from
the Secretary of Labor that certification cannot be made, a petition
containing countervailing evidence may be filed with the director. The
evidence must show that qualified workers in the United States are not
available, and that the terms and conditions of employment are
consistent with the nature of the occupation, activity, and industry in
the United States. All such evidence submitted will be considered in
adjudicating the petition.
(E) Countervailing evidence. The countervailing evidence presented
by the petitioner shall be in writing and shall address availability of
U.S. workers, the prevailing wage rate for the occupation of the United
States, and each of the reasons why the Secretary of Labor could not
grant a labor certification. The petitioner may also submit other
appropriate information in support of the petition. The director, at
his or her discretion, may require additional supporting evidence.
(v) Labor certification for Guam -- (A) Governor of Guam's
determination. An H-2B petition for temporary employment on Guam shall
be accompanied by a labor certification determination that is either:
(1) A certification from the Governor of Guam stating that qualified
workers in the United States are not available to perform the required
services, and that the alien's employment will not adversely affect the
wages and working conditions of United States resident workers who are
similarly employed on Guam; or
(2) A notice detailing the reasons why such certification cannot be
made. Such notice shall address the availability of U.S. workers in the
occupation and/or the prevailing wages and working conditions of U.S.
workers in the occupation.
(B) Validity of labor certification. The Governor of Guam may issue
a temporary labor certification for a period up to one year.
(C) Attachments to petition. If the employer receives a notice from
the Governor of Guam that certification cannot be made, a petition
containing countervailing evidence may be filed with the director. The
evidence must show that qualified workers in the United States are not
available, and that the terms and conditions of employment are
consistent with the nature of the occupation, activity, and industry in
the United States. All such evidence submitted will be considered in
adjudicating the petition.
(D) Countervailing evidence. The countervailing evidence presented
by the petitioner shall be in writing and shall address availability of
United States workers, the prevailing wage rate, and each of the reasons
why the Governor of Guam could not make the required certification. The
petitioner may also provide any other appropriate information in support
of the petition. The director, at his or her discretion, may require
additional supporting evidence.
(E) Criteria for Guam labor certifications. The Governor of Guam
shall, in consultation with the Service, establish systematic methods
for determining the prevailing wage rates and working conditions for
individual occupations on Guam and for making determinations as to
availability of qualified United States residents.
(1) Prevailing wage and working conditions. The system to determine
wages and working conditions must provide for consideration of wage
rates and employment conditions for occupations in both the private and
public sectors, in Guam and/or in the United States (as defined in
section 101(a)(38) of the Act), and may not consider wages and working
conditions outside of the United States. If the system includes
utilitzation of advisory opinions and consultations, the opinions must
be provided by officially sanctioned groups which reflect a balance of
the interests of the private and public sectors, government, unions and
management.
(2) Availability of United States workers. The system for
determining availability of qualified United States workers must require
the prospective employer to:
(i) Advertise the availability of the position for a minimum of three
consecutive days in the newspaper with the largest daily circulation on
Guam;
(ii) Place a job offer with an appropriate agency of the Territorial
Government which operates as a job referral service at least 30 days in
advance of the need for the services to commence, except that for
applications from the armed forces of the United States and those in the
entertainment industry, the 30-day period may be reduced by the Governor
to 10 days;
(iii) Conduct appropriate recruitment in other areas of the United
and its territories if sufficient qualified United States construction
workers are not available on Guam to fill a job. The Governor of Guam
may require a job order to be placed more than 30 days in advance of
need to accommodate such recruitment;
(iv) Report to the appropriate agency the names of all United States
resident workers who applied for the position, indicating those hired
and the job-related reasons for not hiring;
(v) Offer all special considerations, such as housing and
transportation expenses, to all United States resident workers who
applied for the position, indicating those hired and the job-related
reasons for not hiring;
(vi) Meet the prevailing wage rates and working conditions determined
under the wages and working conditions system by the Governor; and
(vii) Agree to meet all Federal and Territorial requirements relating
to employment, such as nondiscrimination, occupational safety, and
minimum wage requirements.
(F) Approval and publication of employment systems on Guam -- (1)
Systems. The Commissioner of Immigration and Naturalization must
approve the system to determine prevailing wages and working conditions
and the system to determine availability of United States resident
workers and any future modifications of the systems prior to
implementation. If the Commissioner, in consultation with the Secretary
of Labor, finds that the systems or modified systems meet the
requirements of this section, the Commissioner shall publish them as a
notice in the Federal Register and the Governor shall publish them as a
public record in Guam.
(2) Approval of construction wage rates. The Commissioner must
approve specific wage data and rates used for construction occupations
on Guam prior to implementation of new rates. The Governor shall submit
new wage survey data and proposed rates to the Commissioner for approval
at least eight weeks before authority to use existing rates expires.
Surveys shall be conducted at least every two years, unless the
Commissioner prescribes a lesser period.
(G) Reporting. The Governor shall provide the Commissioner
statistical data on temporary labor certification workload and
determinations. This information shall be submitted quarterly no later
than 30 days after the quarter ends.
(H) Invalidation of temporary labor certification issued by the
Governor of Guam -- (1) General. A temporary labor certification issued
by the Governor of Guam may be invalidated by a director if it is
determined by the director or a court of law that the certification
request involved fraud or willful misrepresentation. A temporary labor
certification may also be invalidated if the director determines that
the certification involved gross error.
(2) Notice of intent to invalidate. If the director intends to
invalidate a temporary labor certification, a notice of intent shall be
served upon the employer, detailing the reasons for the intended
invalidation. The employer shall have 30 days in which to file a
written response in rebuttal to the notice of intent. The director
shall consider all evidence submitted upon rebuttal in reaching a
decision.
(3) Appeal of invalidation. An employer may appeal the invalidation
of a temporary labor certification in accordance with part 103 of this
chapter.
(vi) Evidence for H-2B petitions. An H-2B petition shall be
accompanied by:
(A) Labor certification or notice. A temporary labor certification
or a notice that certification cannot be made, issued by the Secretary
of Labor or the Governor of Guam, as appropriate;
(B) Countervailing evidence. Evidence to rebut the Secretary of
Labor's or the Governor of Guam's notice that certification cannot be
made, if appropriate;
(C) Alien's qualifications. Documentation that the alien qualifies
for the job offer as specified in the application for labor
certification, except in petitions where the labor certification
application requires no education, training, experience, or special
requirements of the beneficiary; and
(D) Statement of need. A statement describing in detail the
temporary situation or conditions which make it necessary to bring the
alien to the United States and whether the need is a one-time
occurrence, seasonal, peakload, or intermittent. If the need is
seasonal, peakload, or intermittent, the statement shall indicate
whether the situation or conditions are expected to be recurrent.
(E) Liability for transportation costs. The employer will be liable
for the reasonable costs of return transportation of the alien abroad,
if the alien is dismissed from employment for any reason by the employer
before the end of the period of authorized admission pursuant to section
214(c)(5) of the Act. If the beneficiary voluntarily terminates his or
her employment prior to the expiration of the validity of the petition,
the alien has not been dismissed. If the beneficiary believes that the
employer has not complied with this provision, the beneficiary shall
advise the Service Center which adjudicated the petition in writing.
The complaint will be retained in the file relating to the petition.
Within the context of this paragraph, the term ''abroad'' means the
alien's last place of foreign residence. This provision applies to any
employer whose offer of employment became the basis for the alien
obtaining or continuing H-2B status.
(7) Petition for alien trainee or participant in a special education
exchange visitor program (H-3) -- (i) Alien trainee. The H-3 trainee is
a nonimmigrant who seeks to enter the United States at the invitation of
an organization or individual for the purpose of receiving training in
any field of endeavor, such as agriculture, commerce, communications,
finance, government, transportation, or the professions, as well as
training in a purely industrial establishment. This category shall not
apply to physicians, who are statutorily ineligible to use H-3
classification in order to receive any type of graduate medical
education or training.
(A) Externs. A hospital approved by the American Medical Association
or the American Osteopathic Association for either an internship or
residency program may petition to classify as an H-3 trainee a medical
student attending a medical school abroad, if the alien will engage in
employment as an extern during his/her medical school vacation.
(B) Nurses. A petitioner may seek H-3 classification for a nurse who
is not H-1 if it can be established that there is a genuine need for the
nurse to receive a brief period of training that is unavailable in the
alien's native country and such training is designed to benefit the
nurse and the overseas employer upon the nurse's return to the country
of origin, if:
(1) The beneficiary has obtained a full and unrestricted license to
practice professional nursing in the country where the beneficiary
obtained a nursing education, or such education was obtained in the
United States or Canada; and
(2) The petitioner provides a statement certifying that the
beneficiary is fully qualified under the laws governing the place where
the training will be received to engage in such training, and that under
those laws the petitioner is authorized to give the beneficiary the
desired training.
(ii) Evidence required for petition involving alien trainee -- (A)
Conditions. The petitioner is required to demonstrate that:
(1) The proposed training is not available in the alien's own
country;
(2) The beneficiary will not be placed in a position which is in the
normal operation of the business and in which citizens and resident
workers are regularly employed;
(3) The beneficiary will not engage in productive employment unless
such employment is incidental and necessary to the training; and
(4) The training will benefit the beneficiary in pursuing a career
outside the United States.
(B) Description of training program. Each petition for a trainee
must include a statement which:
(1) Describes the type of training and supervision to be given, and
the structure of the training program;
(2) Sets forth the proportion of time that will be devoted to
productive employment;
(3) Shows the number of hours that will be spent, respectively, in
classroom instruction and in on-the-job training;
(4) Describes the career abroad for which the training will prepare
the alien;
(5) Indicates the reasons why such training cannot be obtained in the
alien's country and why it is necessary for the alien to be trained in
the United States; and
(6) Indicates the source of any remuneration received by the trainee
and any benefit which will accrue to the petitioner for providing the
training.
(iii) Restrictions on training program for alien trainee. A training
program may not be approved which:
(A) Deals in generalities with no fixed schedule, objectives, or
means of evaluation;
(B) Is incompatible with the nature of the petitioner's business or
enterprise;
(C) Is on behalf of a beneficiary who already possesses substantial
training and expertise in the proposed field of training;
(D) Is in a field in which it is unlikely that the knowledge or skill
will be used outside the United States;
(E) Will result in productive employment beyond that which is
incidental and necessary to the training;
(F) Is designed to recruit and train aliens for the ultimate staffing
of domestic operations in the United States;
(G) Does not establish that the petitioner has the physical plant and
sufficiently trained manpower to provide the training specified; or
(H) Is designed to extend the total allowable period of practical
training previously authorized a nonimmigrant student.
(iv) Petition for participant in a special education exchange visitor
program -- (A) General Requirements. (1) The H-3 participant in a
special education training program must be coming to the United States
to participate in a structured program which provides for practical
training and experience in the education of children with physical,
mental, or emotional disabilities.
(2) The petition must be filed by a facility which has professionally
trained staff and a structured program for providing education to
children with disabilities, and for providing training and hands-on
experience to participants in the special education exchange visitor
program.
(3) The requirements in this section for alien trainees shall not
apply to petitions for participants in a special education exchange
visitor program.
(B) Evidence. An H-3 petition for a participant in a special
education exchange visitor program shall be accompanied by:
(1) A description of the training program and the facility's
professional staff and details of the alien's participation in the
training program (any custodial care of children must be incidental to
the training), and
(2) Evidence that the alien participant is nearing completion of a
baccalaureate or higher degree in special education, or already holds
such a degree, or has extensive prior training and experience in
teaching children with physical, mental, or emotional disabilities.
(8) Numerical limits -- (i) Limits on affected categories. During
each fiscal year, the total number of aliens who can be provided
nonimmigrant classification is limited as follows:
(A) Aliens classified as H1-B nonimmigrants, excluding those involved
in DOD research and development projects or coproduction projects, may
not exceed 65,000.
(B) Aliens classified as H-1B nonimmigrants to work for DOD research
and development projects or coproduction projects may not exceed 100 at
any time.
(C) Aliens classified as H-2B nonimmigrants may not exceed 66,000.
(D) Aliens classified as H-3 nonimmigrant participants in a special
education exchange visitor program may not exceed 50.
(ii) Procedures. (A) Each alien issued a visa or otherwise provided
nonimmigrant status under section 101(a)(15)(H)(i)(b) of the Act shall
be counted for purposes of the numerical limit. Requests for petition
extension or extension of an alien's stay shall not be counted for the
purpose of the numerical limit. The spouse and children of principal
aliens classified as H-4 nonimmigrants shall not be counted against the
numerical limit.
(B) Numbers will be assigned temporarily to each alien (or job
opening(s) for aliens in petitions with unnamed beneficiaries) included
in a new petition in the order that petitions are filed. If a petition
is denied, the number(s) originally assigned to the petition shall be
returned to the system which maintains and assigns numbers.
(C) For purposes of assigning numbers to aliens on petitions filed in
Guam and the Virgin Islands, Service Headquarters Adjudications shall
assign numbers to these locations from the central system which controls
and assigns numbers to petitions filed in other locations of the United
States.
(D) When an approved petition is not used because the
beneficiary(ies) does not apply for admission to the United States, the
petitioner shall notify the Service Center Director who approved the
petition that the number(s) has not been used. The petition shall be
revoked pursuant to paragraph (h)(11)(ii) of this section and the unused
number(s) shall be returned to the system which maintains and assigns
numbers.
(E) If the total numbers available in a fiscal year are used, new
petitions and the accompanying fee shall be rejected and returned with a
notice that numbers are unavailable for the particular nonimmigrant
classification until the beginning of the next fiscal year.
(9) Approval and validity of petition -- (i) Approval. The director
shall consider all the evidence submitted and such other evidence as he
or she may independently require to assist his or her adjudication. The
director shall notify the petitioner of the approval of the petition on
Form I-797, Notice of Action. The approval shall be as follows:
(A) The approval notice shall include the beneficiary's(ies') name(s)
and classification and the petition's period of validity. A petition
for more than one beneficiary and/or multiple services may be approved
in whole or in part. The approval notice shall cover only those
beneficiaries approved for classification under section 101(a)(15)(H) of
the Act.
(B) The petition may not be filed or approved earlier than six months
before the date of actual need for the beneficiary's services or
training.
(ii) Recording the validity of petitions. Procedures for recording
the validity period of petitions are:
(A) If a new H petition is approved before the date the petitioner
indicates that the services or training will begin, the approved
petition and approval notice shall show the actual dates requested by
the petitioner as the validity period, not to exceed the limits
specified by paragraph (h)(9)(iii) of this section or other Service
policy.
(B) If a new H petition is approved after the date the petitioner
indicates that the services or training will begin, the approved
petition and approval notice shall show a validity period commencing
with the date of approval and ending with the date requested by the
petitioner, as long as that date does not exceed either the limits
specified by paragraph (h)(9)(iii) of this section or other Service
policy.
(C) If the period of services or training requested by the petitioner
exceeds the limit specified in paragraph (h)(9)(iii) of this section,
the petition shall be approved only up to the limit specified in that
paragraph.
(iii) Validity. The initial approval period of an H petition shall
conform to the limits prescribed as follows:
(A) H-1A petition. An approved petition for an alien classified
under section 101(a)(15)(H)(i)(a) of the Act shall be valid for a period
of up to three years.
(B)(1) H-1B petition in a specialty occupation. An approved petition
classified under section 101(a)(15)(H)(i)(b) of the Act for an alien in
a specialty occupation shall be valid for a period of up to three years
but may not exceed the validity period of the labor condition
application.
(2) H-1B petition involving a DOD research and development or
coproduction project. An approved petition classified under section
101(a)(15)(H)(i)(b) of the Act for an alien involved in a DOD research
and development project or a coproduction project shall be valid for a
period of up to five years.
(3) H-1B petition involving an alien of distinguished merit and
ability in the field of fashion modeling. An approved petition
classified under section 101(a)(15)(H)(i)(b) of the Act for an alien of
distinguished merit and ability in the field of fashion modeling shall
be valid for a period of up to three years.
(C) H-2B petition -- (1) Labor certification attached. If a
certification by the Secretary of Labor or the Governor of Guam is
attached to a petition to accord an alien a classification under section
101(a)(15)(H)(ii)(B) of the Act, the approval of the petition shall be
valid for a period of up to one year.
(2) Notice that certification cannot be made attached -- (1)
Countervailing evidence. If a petition is submitted containing a notice
from the Secretary of Labor or the Governor of Guam that certification
cannot be made, and is not accompanied by countervailing evidence, the
petitioner shall be informed that he or she may submit the
countervailing evidence in accordance with paragraphs (h)(6)(iii)(E) and
(h)(6)(iv)(D) of this section.
(ii) Approval. In any case where the director decides that approval
of the H-2B petition is warranted despite the issuance of a notice by
the Secretary of Labor or the Governor of Guam that certification cannot
be made, the approval shall be certified by the Director to the
Commissioner pursuant to 8 CFR 103.4. In emergent situations, the
certification may be presented by telephone to the Chief of the
Administrative Appeals Unit, Central Office. If approved, the petition
is valid for the period of established need not to exceed one year.
There is no appeal from a decision which has been certified to the
Commissioner.
(D)(1) H-3 petition for alien trainee. An approved petition for an
alien trainee classified under section 101(a)(15)(H)(iii) of the Act
shall be valid for a period of up to two years.
(2) H-3 petition for alien participant in a special education
training program. An approved petition for an alien classified under
section 101(a)(15)(H)(iii) of the Act as a participant in a special
education exchange visitor program shall be valid for a period of up to
18 months.
(iv) Spouse and dependents. The spouse and unmarried minor children
of the beneficiary are entitled to H nonimmigrant classification,
subject to the same period of admission and limitations as the
beneficiary, if they are accompanying or following to join the
beneficiary in the United States. Neither the spouse nor a child of the
beneficiary may accept employment unless he or she is the beneficiary of
an approved petition filed in his or her behalf and has been granted a
nonimmigrant classification authorizing his or her employment.
(10) Denial of petition -- (i) Multiple beneficiaries. A petition
for multiple beneficiaries may be denied in whole or in part.
(ii) Notice of intent to deny. When an adverse decision is proposed
on the basis of derogatory inform U.S. ation of which the petitioner is
unaware, the director shall notify the petitioner of the intent to deny
the petition and the basis for the denial. The petitioner may inspect
and rebut the evidence and will be granted a period of 30 days from the
date of the notice in which to do so. All relevant rebuttal material
will be considered in making a final decision.
(iii) Notice of denial. The petitioner shall be notified of the
reasons for the denial, and of his or her right to appeal the denial of
the petition under 8 CFR part 103. There is no appeal from a decision
to deny an extension of stay to the alien.
(11) Revocation of approval of petition -- (i) General. (A) The
petitioner shall immediately notify the Service of any changes in the
terms and conditions of employment of a beneficiary which may affect
eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of
this section. An amended petition on Form I-129 should be filed when
the petitioner continues to employ the beneficiary. If the petitioner
no longer employs the beneficiary, the petitioner shall send a letter
explaining the change(s) to the director who approved the petition.
(B) The director may revoke a petition at any time, even after the
expiration of the petition.
(ii) Automatic revocation. The approval of any petition is
automatically revoked if the petitioner goes out of business or files a
written withdrawal of the petition.
(iii) Revocation on notice -- (A) Grounds for revocation. The
director shall send to the petitioner a notice of intent to revoke the
petition in relevant part if he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the
capacity specified in the petition, or if the beneficiary is no longer
receiving training as specified in the petition; or
(2) The statement of facts contained in the petition was not true and
correct; or
(3) The petitioner violated terms and conditions of the approved
petition; or
(4) The petitioner violated requirements of section 101(a)(15)(H) of
the Act or paragraph (h) of this section; or
(5) The approval of the petition violated pargraph (h) of this
section or involved gross error.
(B) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of receipt of the notice.
The director shall consider all relevant evidence presented in deciding
whether to revoke the petition in whole or in part. If the petition is
revoked in part, the remainder of the petition shall remain approved and
a revised approval notice shall be sent to the petitioner with the
revocation notice.
(12) Appeal of a denial or a revocation of a petition -- (i) Denial.
A petition denied in whole or in part may be appealed under part 103 of
this chapter.
(ii) Revocation. A petition that has been revoked on notice in whole
or in part may be appealed under part 103 of this chapter. Automatic
revocations may not be appealed.
(13) Admission -- (i) General. (A) A beneficiary shall be admitted
to the United States for the validity period of the petition, plus a
period of up to 10 days before the validity period begins and 10 days
after the validity period ends. The beneficiary may not work except
during the validity period of the petition.
(B) When an alien in an H classification has spent the maximum
allowable period of stay in the United States, a new petition under
sections 101(a)(15) (H) or (L) of the Act may not be approved unless
that alien has resided and been physically present outside the United
States, except for brief trips for business or pleasure, for the time
limit imposed on the particular H classification. Brief trips to the
United States for business or pleasure during the required time abroad
are not interruptive, but do not count towards fulfillment of the
required time abroad. The petitioner shall provide information about
the alien's employment, place of residence, and the dates and purposes
of any trips to the United States during the period that the alien was
required to spend time abroad.
(ii) H-1A limitation on admission. An H-1A alien who has spent five,
or in certain extraordinary circumstances, six years in the United
States under section 101(a)(15)(H) of the Act may not seek extension,
change status, or be readmitted to the United States under section
101(a)(15)(H) of the Act unless the alien has resided and been
physically present outside the United States, except for brief trips for
pleasure or business, for the immediate prior year.
(iii) H-1B limitation on admission. (A) Alien in a specialty
occupation or an alien of distinguished merit and ability in the field
of fashion modeling. An H-1B alien in a specialty occupation or an
alien of distinguished merit and ability who has spent six years in the
United States under section 101(a)(15)(H) and/or (L) of the Act may not
seek extension, change status, or be readmitted to the United States
under section 101(a)(15) (H) or (L) of the Act unless the alien has
resided and been physically present outside the United States, except
for brief trips for business or pleasure, for the immediate prior year.
(B) Alien involved in a DOD research and development or coproduction
project. An H-1B alien involved in a DOD research and development or
coproduction project who has spent 10 years in the United States under
section 101(a)(15) (H) and/or (L) of the Act may not seek extension,
change status, or be readmitted to the United States under section
101(a)(15) (H) or (L) of the Act to perform services involving a DOD
research and development project or coproduction project. A new
petition or change of status under section 101(a)(15) (H) or (L) of the
Act may not be approved for such an alien unless the alien has resided
and been physically present outside the United States, except for brief
trips for business or pleasure, for the immediate prior year.
(iv) H-2B and H-3 limitation on admission. An H-2B alien who has
spent three years in the United States under section 101(a)(15) (H)
and/or (L) of the Act or an H-3 alien who has spent 18 months in the
United States under section 101(a)(15) (H) and or (L) of the Act may not
seek extension, change status, or be readmitted to the United States
under section 101(a)(15) (H) and/or (L) of the Act unless the alien has
resided and been physically present outside the United States for the
immediate prior six months.
(v) Exceptions. The limitations in paragraph (h)(13)(ii) through
(h)(13)(iv) of this section shall not apply to H-1A, H-1B, H-2B, and H-3
aliens who did not reside continually in the United States and whose
employment in the United States was seasonal or intermittent or was for
an aggregate of six months or less per year. In addition, the
limitations shall not apply to aliens who reside abroad and regularly
commute to the United States to engage in part-time employment. To
qualify for this exception, the petitioner and the alien must provide
clear and convincing proof that the alien qualifies for such an
exception. Such proof shall consist of evidence such as arrival and
departure records, copies of tax returns, and records of employment
abroad.
(14) Extension of visa petition validity. The petitioner shall file
a request for a petition extension on Form I-129 to extend the validity
of the original petition under section 101(a)(15)(H) of the Act.
Supporting evidence is not required unless requested by the director. A
request for a petition extension may be filed only if the validity of
the original petition has not expired.
(15) Extension of stay -- (i) General. The petitioner shall apply
for extension of an alien's stay in the United States by filing a
petition extension on Form I-129 accompanied by the documents described
for the particular classification in paragraph (h)(15)(ii) of this
section. The petitioner must also request a petition extension. The
dates of extension shall be the same for the petition and the
beneficiary's extension of stay. The beneficiary must be physically
present in the United States at the time of the filing of the extension
of stay. Even though the requests to extend the petition and the
alien's stay are combined on the petition, the director shall make a
separate determination on each. If the alien is required to leave the
United States for business or personal reasons while the extension
requests are pending, the petitioner may request the director to cable
notification of approval of the petition extension to the consular
office abroad where the alien will apply for a visa. When the total
period of stay in an H classification has been reached, no further
extensions may be granted.
(ii) Extension periods -- (A) H-1A extension of stay. An extension
of stay may be authorized for a period of up to two years for a
beneficiary of an H-1A petition. The alien's total period of stay may
not exceed five years, except in extraordinary circumstances. Beyond
five years, an extension of stay not to exceed one year may be granted
under extraordinary circumstances. Extraordinary circumstances shall
exist when the director finds that termination of the alien's services
will impose extreme hardship on the petitioner's business operation or
that the alien's services are required in the national welfare, safety,
or security interests of the United States. Each request for an
extension of stay for the beneficiary of an H-1A petition must be
accompanied by a current copy of the Department of Labor's notice of
acceptance of the petitioner's attestation on Form ETA 9029.
(B) H-1B extension of stay -- (1) Alien in a specialty occupation or
an alien of distinguished merit and ability in the field of fashion
modeling. An extension of stay may be authorized for a period of up to
three years for a beneficiary of an H-1B petition in a specialty
occupation or an alien of distinguished merit and ability. The alien's
total period of stay may not exceed six years. The request for
extension must be accompanied by either a new or a photocopy of the
prior certification from the Department of Labor that the petitioner
continues to have on file a labor condition application valid for the
period of time requested for the occupation.
(2) Alien in a DOD research and development or coproduction project.
An extension of stay may be authorized for a period up to five years for
the beneficiary of an H-1B petition involving a DOD research and
development project or coproduction project. The total period of stay
may not exceed 10 years.
(C) H-2A or H-2B extension of stay. An extension of stay for the
beneficiary of an H-2A or H-2B petition may be authorized for the
validity of the labor certification or for a period of up to one year,
except as provided for in paragraph (h)(5)(x) of this section. The
alien's total period of stay as an H-2A or H-2B worker may not exceed
three years, except that in the Virgin Islands, the alien's total period
of stay may not exceed 45 days.
(D) H-3 extension of stay. An extension of stay may be authorized
for the length of the training program for a total period of stay as an
H-3 trainee not to exceed two years, or for a total period of stay as a
participant in a special education training program not to exceed 18
months.
(16) Effect of approval of a permanent labor certification or filing
of a preference petition on H classification -- (i) H-1A or H-1B
classification. The approval of a permanent labor certification or the
filing of a preference petition for an alien shall not be a basis for
denying an H-1A or H-1B petition or a request to extend such a petition,
or the alien's admission, change of status, or extension of stay. The
alien may legitimately come to the United States for a temporary period
as an H-1A or H-1B nonimmigrant and depart voluntarily at the end of his
or her authorized stay and, at the same time, lawfully seek to become a
permanent resident of the United States.
(ii) H-2A, H-2B, and H-3 classification. The approval of a permanent
labor certification, or the filing of a preference petition for an alien
currently employed by or in a training position with the same
petitioner, shall be a reason, by itself, to deny the alien's extension
of stay.
(17) Effect of a strike -- (i) If the Secretary of Labor certifies to
the Commissioner that a strike or other labor dispute involving a work
stoppage of workers is in progress in the occupation and at the place
where the beneficiary is to be employed or trained, and that the
employment of training of the beneficiary would adversely affect the
wages and working conditions of U.S. citizens and lawful resident
workers:
(A) A petition to classify an alien as a nonimmigrant as defined in
section 101(a)(15)(H) of the Act shall be denied.
(B) If a petition has already been approved, but the alien has not
yet entered the United States, or has entered the United States but has
not commenced the employment, the approval of the petition is
automatically suspended, and the application for admission on the basis
of the petition shall be denied.
(ii) If there is a strike or other labor dispute involving a work
stoppage of workers in progress, but such strike or other labor dispute
is not certified under paragraph (h)(17)(i), the Commissioner shall not
deny a petition or suspend an approved petition.
(iii) If the alien has already commenced employment in the United
States under an approved petition and is participating in a strike or
other labor dispute involving a work stoppage of workers, whether or not
such strike or other labor dispute has been certified by the Department
of Labor, the alien shall not be deemed to be failing to maintain his or
her status solely on account of past, present, or future participation
in a strike or other labor dispute involving a work stoppage of workers,
but is subject to the following terms and conditions:
(A) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act, and regulations promulgated in the
same manner as all other H nonimmigrants;
(B) The status and authorized period of stay of such an alien is not
modified or extended in any way by virtue of his or her participation in
a strike or other labor dispute involving a work stoppage of workers;
and
(C) Although participation by an H nonimmigrant alien in a strike or
other labor dispute involving a work stoppage of workers will not
constitute a ground for deportation, any alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired will be subject to deportation.
(18) Use of approval notice, Form I-797. The Service shall notify
the petitioner on Form I-797 whenever a visa petition, an extension of a
visa petition, or an alien's extension of stay is approved under the H
classification. The beneficiary of an H petition who does not require a
nonimmigrant visa may present a copy of the approval notice at a port of
entry to facilitate entry into the United States. A beneficiary who is
required to present a visa for admission and whose visa will have
expired before the date of his or her intended return may use a copy of
Form I-797 to apply for a new or revalidated visa during the validity
period of the petition. The copy of Form I-797 shall be retained by the
beneficiary and presented during the validity of the petition when
reentering the United States to resume the same employment with the same
petitioner.
(i) Representatives of information media. The admission of an alien
of the class defined in section 101(a)(15)(I) of the Act constitutes an
agreement by the alien not to change the information medium or his or
her employer until he or she obtains permission to do so from the
district director having jurisdiction over his or her residence. An
alien classified as an information media nonimmigrant (I) may be
authorized admission for the duration of employment.
(j) Exchange aliens -- (1) General. (i) Exchange alien means a
nonimmigrant admitted under section 101(a)(15)(J) of the Act or who
acquired such status, or who acquired exchange-visitor status under the
United States Information and Education Exchange Act. Any exchange
alien coming to the United States as a participant in a program
designated under section 101(a)(15)(J) of the Act and accompanying
spouse and minor children shall not be admitted without submitting a
completely executed Form IAP-66. The spouse and minor children
following to join the participant shall not be admitted without a copy
of current Form IAP-66 endorsed by the program sponsor indicating the
expiration of stay date as shown on Form I-94. Any alien seeking to
change nonimmigrant status to exchange visitor status shall file Form
I-506 and attach a valid Form IAP-66.
(ii) Admission. The initial admission of an exchange alien, spouse,
and children may not exceed the period specified on Form IAP-66, plus a
period of 30 days for the purpose of travel. Regulations of the United
States Information Agency published at 22 CFR 514.23 give general
limitations on the length of stay of the various classes of exchange
visitors. A spouse or child (J-2) may not be admitted for longer than
the principal exchange alien (J-1).
(iii) Readmission. An exchange alien may be readmitted to the United
States for the remainder of the time authorized on Form I-94, without
presenting Form IAP-66, if the alien is returning from a visit solely to
foreign contiguous territory or adjacent islands after an absence of
less than 30 days and if the original Form I-94 is presented. All other
exchange aliens must present a valid Form IAP-66. An original Form
IAP-66 or copy three (the pink copy) of a previously issued form
presented by an exchange alien returning from a temporary absence shall
be retained by the exchange alien for re-entries during the balance of
the alien's stay.
(iv) Extensions of Stay. If an exchange alien requires an extension
beyond the initial admission period, the alien shall apply by submitting
a new Form IAP-66 which indicates the date to which the alien's program
is extended. The extension may not exceed the period specified on Form
IAP-66, plus a period of 30 days for the purpose of travel. Extensions
of stay for the alien's spouse and children require, as an attachment to
Form IAP-66, Form I-94 for each dependent, and a list containing the
names of the applicants, dates and places of birth, passport numbers,
issuing countries, and expiration dates. An accompanying spouse or
child may not be granted an extension of stay for longer than the
principal exchange alien.
(v) Employment. (A) The accompanying spouse and minor children of a
J-1 exchange visitor may accept employment only with authorization by
the Immigration and Naturalization Service. A request for employment
authorization must be made on Form I-765, Application for Employment
Authorization, with fee, as required by 8 CFR 274a.12(c)(5), to the
district director having jurisdiction over the J-1 exchange visitor's
temporary residence in the United States. Income from the spouse's or
dependent's employment may be used to support the family's customary
recreational and cultural activities and related travel, among other
things. Employment will not be authorized if this income is needed to
support the J-1 principal alien.
(B) J-2 employment may be authorized for the duration of the J-1
principal alien's authorized stay as indicated on Form I-94 or a period
of four years, whichever is shorter. The employment authorization is
valid only if the J-1 is maintaining status. Where a J-2 spouse or
dependent child has filed a timely application for extension of stay,
only upon approval of the request for extension of stay may he or she
apply for a renewal of the employment authorization on a Form I-765 with
the required fee.
(2) Special reporting requirement. T1 Each exchange alien
participating in a program of graduate medical education or training
shall file Form I-644 (Supplementary Statement for Graduate Medical
Trainees) annually with the Service attesting to the conditions as
specified on the form. The exchange alien shall also submit Form I-644
as an attachment to a completed Form IAP-66 when applying for an
extension of stay.
(3) Alien in cancelled programs. T1 When the approval of an exchange
visitor program is withdrawn by the Director of the United States
Information Agency, the district director shall send a notice of the
withdrawal to each participant in the program and a copy of each such
notice shall be sent to the program sponsor. If the exchange visitor is
currently engaged in activities authorized by the cancelled program, the
participant is authorized to remain in the United States to engage in
those activities until expiration of the period of stay previously
authorized. The district director shall notify participants in cancelled
programs that permission to remain in the United States as an exchange
visitor, or extension of stay may be obtained if the participant is
accepted in another approved program and a Form IAP-66, executed by the
new program sponsor, is submitted. In this case, a release from the
sponsor of the cancelled program will not be required.
(4) Eligibility requirements for section 101(a)(15)(J) classification
for aliens desiring to participate in programs under which they will
receive graduate medical education or training -- (i) Requirements. T1
Any alien coming to the United States as an exchange visitor to
participate in a program under which the alien will receive graduate
medical education or training, or any alien seeking to change
nonimmigrant status to that of an exchange visitor on Form I-506 for
that purpose, must have passed parts of I and II of the National Board
of Medical Examiners Examination (or an equivalent examination as
determined by the Secretary of Health and Human Services), and must be
competent in oral and written English, and shall submit a completely
executed and valid Form IAP-66.
(ii) Exemptions. T1 From January 10, 1978 until December 31, 1983,
any alien who has come to or seeks to come to the United States as an
exchange visitor to participate in an accredited program of graduate
medical education or training, or any alien who seeks to change
nonimmigrant status for that purpose, may be admitted to participate in
such program without regard to the requirements stated in subparagraphs
(A) and (B)(ii)(I) of section 212(j)(1) of the Act if a substantial
disruption in the health services provided by such program would result
from not permitting the alien to participate in the program: Provided
that the exemption will not increase the total number of aliens then
participating in such programs to a level greater than that
participating on January 10, 1978.
(k) Fiancees and fiances of United States citizens -- (1) Petition
and supporting documents. To be classified as a fiance or fiancee as
defined in section 101(a)(15)(K) of the Act, an alien must be the
beneficiary of an approved visa petition filed on Form I-129F. The
petition with supporting documents shall be filed by the petitioner with
the director having administrative jurisdiction over the place where the
petitioner is residing in the United States. A copy of a document
submitted in support of a visa petition filed pursuant to section 214(d)
of the Act and this paragraph may be accepted, though unaccompanied by
the original, if the copy bears a certification by an attorney, typed or
rubber-stamped, in the language set forth in 204.2(j) of this chapter.
However, the original document shall be submitted if requested by the
Service.
(2) Requirement that petitioner and beneficiary have met. The
petitioner shall establish to the satisfaction of the director that the
petitioner and beneficiary have met in person within the two years
immediately preceding the filing of the petition. As a matter of
discretion, the director may exempt the petitioner from this requirement
only if it is established that compliance would result in extreme
hardship to the petitioner or that compliance would violate strict and
long-established customs of the beneficiary's foreign culture or social
practice, as where marriages are traditionally arranged by the parents
of the contracting parties and the prospective bride and groom are
prohibited from meeting subsequent to the arrangement and prior to the
wedding day. In addition to establishing that the required meeting
would be a violation of custom or practice, the petitioner must also
establish that any and all other aspects of the traditional arrangements
have been or will be met in accordance with the custom or practice.
Failure to establish that the petitioner and beneficiary have met within
the required period or that compliance with the requirement should be
waived shall result in the denial of the petition. Such denial shall be
without prejudice to the filing of a new petition once the petitioner
and beneficiary have met in person.
(3) Children of beneficiary. Without the approval of a separate
petition on his or her behalf, a child of the beneficiary (as defined in
section 101(b)(1)(A), (B), (C), (D), or (E) of the Act) may be accorded
the same nonimmigrant classification as the beneficiary if accompanying
or following to join him or her.
(4) Notification. The petitioner shall be notified of the decision
and, if the petition is denied, of the reasons therefor and of the right
to appeal in accordance with the provisions of part 103 of this chapter.
(5) Validity. The approval of a petition under this paragraph shall
be valid for a period of four months. A petition which has expired due
to the passage of time may be revalidated by a director or a consular
officer for a period of four months from the date of revalidation upon a
finding that the petitioner and beneficiary are free to marry and intend
to marry each other within 90 days of the beneficiary's entry into the
United States. The approval of any petition is automatically terminated
when the petitioner dies or files a written withdrawal of the petition
before the beneficiary arrives in the United States.
(6) Adjustment of status from nonimmigrant to immigrant -- (i)
Nonimmigrant visa issued prior to November 10, 1986. If the beneficiary
contracts a valid marriage with the petitioner within 90 days of his or
her admission to the United States pursuant to a valid K-1 visa issued
prior to November 10, 1986, and the beneficiary and his or her minor
children are otherwise admissible, the director shall record their
lawful admission for permanent residence as of the date of their filing
of an application for adjustment of status to lawful permanent resident
(Form I-485). Such residence shall be granted under section 214(d) of
the Act as in effect prior to November 10, 1986 and shall not be subject
to the conditions of section 216 of the Act.
(ii) Nonimmigrant visa issued on or after November 10, 1986. Upon
contracting a valid marriage to the petitioner within 90 days of his or
her admission as a nonimmigrant pursuant to a valid K visa issued on or
after November 10, 1986, the beneficiary and his or her minor children
may apply for adjustment of status to lawful permanent resident under
section 245 of the Act. Upon approval of the application the director
shall record their lawful admission for permanent residence in
accordance with that section and subject to the conditions prescribed in
section 216 of the Act.
(l) Intracompany transferees -- (1) Admission of intracompany
transferees -- (i) General. Under section 101(a)(15)(L) of the Act, an
alien who within the preceding three years has been employed abroad for
one continuous year by a qualifying organization may be admitted
temporarily to the United States to be employed by a parent, branch,
affiliate, or subsidiary of that employer in a managerial or executive
capacity, or in a position requiring specialized knowledge. An alien
transferred to the United States under this nonimmigrant classification
is referred to as an intracompany transferee and the organization which
seeks the classification of an alien as an intracompany transferee is
referred to as the petitioner. The Service has responsibility for
determining whether the alien is eligible for admission and whether the
petitioner is a qualifying organization. These regulations set forth
the standards applicable to these classifications. They also set forth
procedures for admission of intracompany transferees and appeal of
adverse decisions. Certain petitioners seeking the classification of
aliens as intracompany transferees may file blanket petitions with the
Service. Under the blanket petition process, the Service is responsible
for determining whether the petitioner and its parent, branches,
affiliates, or subsidiaries specified are qualifying organizations. The
Department of State or, in certain cases, the Service is responsible for
determining the classification of the alien.
(ii) Definitions -- (A) Intracompany transferee means an alien who,
within three years preceding the time of his or her application for
admission into the United States, has been employed abroad continuously
for one year by a firm or corporation or other legal entity or parent,
branch, affiliate, or subsidiary thereof, and who seeks to enter the
United States temporarily in order to render his or her services to a
branch of the same employer or a parent, affiliate, or subsidiary
thereof in a capacity that is managerial, executive, or involves
specialized knowledge. Periods spent in the United States in lawful
status for a branch of the same employer or a parent, affiliate, or
subsidiary thereof and brief trips to the United States for business or
pleasure shall not be interruptive of the one year of continuous
employment abroad but such periods shall not be counted toward
fulfillment of that requirement.
(B) Managerial capacity means an assignment within an organization in
which the employee primarily:
(1) Manages the organization, or a department, subdivision, function,
or component of the organization;
(2) Supervises and controls the work of other supervisory,
professional, or managerial employees, or manages an essential function
within the organization, or a department or subdivision of the
organization;
(3) Has the authority to hire and fire or recommend those as well as
other personnel actions (such as promotion and leave authorization) if
another employee or other employees are directly supervised; if no
other employee is directly supervised, functions at a senior level
within the organizational hierarchy or with respect to the function
managed; and
(4) Exercises discretion over the day-to-day operations of the
activity or function for which the employee has authority. A first-line
supervisor is not considered to be acting in a managerial capacity
merely by virtue of the supervisor's supervisory duties unless the
employees supervised are professional.
(C) Executive capacity means an assignment within an organization in
which the employee primarily:
(1) Directs the management of the organization or a major component
or function of the organization;
(2) Establishes the goals and policies of the organization,
component, or function;
(3) Exercises wide latitude in discretionary decision-making; and
(4) Receives only general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization.
(D) Specialized knowledge means special knowledge possessed by an
individual of the petitioning organization's product, service, research,
equipment, techniques, management, or other interests and its
application in international markets, or an advanced level of knowledge
or expertise in the organization's processes and procedures.
(E) Specialized knowledge professional means an individual who has
specialized knowledge as defined in paragraph (l)(1)(ii)(D) of this
section and is a member of the professions as defined in section
101(a)(32) of the Immigration and Nationality Act.
(F) New office means an organization which has been doing business in
the United States through a parent, branch, affiliate, or subsidiary for
less than one year.
(G) Qualifying organization means a United States or foreign firm,
corporation, or other legal entity which:
(1) Meets exactly one of the qualifying relationships specified in
the definitions of a parent, branch, affiliate or subsidiary specified
in paragraph (l)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is
not required) as an employer in the United States and in at least one
other country directly or through a parent, branch, affiliate, or
subsidiary for the duration of the alien's stay in the United States as
an intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the
Act.
(H) Doing business means the regular, systematic, and continuous
provision of goods and/or services by a qualifying organization and does
not include the mere presence of an agent or office of the qualifying
organization in the United States and abroad.
(I) Parent means a firm, corporation, or other legal entity which has
subsidiaries.
(J) Branch means an operating division or office of the same
organization housed in a different location.
(K) Subsidiary means a firm, corporation, or other legal entity of
which a parent owns, directly or indirectly, more than half of the
entity and controls the entity; or owns, directly or indirectly, half
of the entity and controls the entity; or owns, directly or indirectly,
50 percent of a 50-50 joint venture and has equal control and veto power
over the entity; or owns, directly or indirectly, less than half of the
entity, but in fact controls the entity.
(L) Affiliate means (1) One of two subsidiaries both of which are
owned and controlled by the same parent or individual, or
(2) One of two legal entities owned and controlled by the same group
of individuals, each individual owning and controlling approximately the
same share or proportion of each entity, or
(3) In the case of a partnership that is organized in the United
States to provide accounting services along with managerial and/or
consulting services and that markets its accounting services under an
internationally recognized name under an agreement with a worldwide
coordinating organization that is owned and controlled by the member
accounting firms, a partnership (or similar organization) that is
organized outside the United States to provide accounting services shall
be considered to be an affiliate of the United States partnership if it
markets its accounting services under the same internationally
recognized name under the agreement with the worldwide coordinating
organization of which the United States partnership is also a member.
(M) Director means a Service Center director with delegated authority
at 8 CFR 103.1.
(2) Filing of petitions -- (i) Except as provided in paragraph
(l)(2)(ii) and (l)(17) of this section, a petitioner seeking to classify
an alien as an intracompany transferee shall file a petition on Form
I-129, Petition for Nonimmigrant Worker, only at the Service Center
which has jurisdiction over the area where the alien will be employed,
even in emergent situations. The petitioner shall advise the Service
whether it has filed a petition for the same beneficiary with another
office, and certify that it will not file a petition for the same
beneficiary with another office, unless the circumstances and conditions
in the initial petition have changed. Failure to make a full disclosure
of previous petitions filed may result in a denial of the petition.
(ii) A United States petitioner which meets the requirements of
paragraph (l)(4) of this section and seeks continuing approval of itself
and its parent, branches, specified subsidiaries and affiliates as
qualifying organizations and, later, classification under section
101(a)(15)(L) of multiple numbers of aliens employed by itself, its
parent, or those branches, subsidiaries, or affiliates may file a
blanket petition on Form I-129 with the director having jurisdiction
over the area where the petitioner is located. The blanket petition
shall be adjudicated and maintained at the appropriate Service Center.
Approved blanket petition files shall be maintained indefinitely by that
Service Center. The petitioner shall be the single representative for
the qualifying organizations with which the Service will deal regarding
the blanket petition.
(3) Evidence for individual petitions. An individual petition filed
on Form I-129 shall be accompanied by:
(i) Evidence that the petitioner and the organization which employed
or will employ the alien are qualifying organizations as defined in
paragraph (l)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive,
managerial, or specialized knowledge capacity, including a detailed
description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of
full-time employment abroad with a qualifying organization within the
three years preceding the filing of the petition.
(iv) Evidence that the alien's prior year of employment abroad was in
a position that was managerial, executive, or involved specialized
knowledge and that the alien's prior education, training, and employment
qualifies him/her to perform the intended services in the United States;
however, the work in the United States need not be the same work which
the alien performed abroad.
(v) If the petition indicates that the beneficiary is coming to the
United States as a manager or executive to open or to be employed in a
new office in the United States, the petitioner shall submit evidence
that:
(A) Sufficient physical premises to house the new office have been
secured;
(B) The beneficiary has been employed for one continuous year in the
three year period preceding the filing of the petition in an executive
or managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the
approval of the petition, will support an executive or managerial
position as defined in paragraphs (l)(1)(ii) (B) or (C) of this section,
supported by information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and to
commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
(vi) If the petition indicates that the beneficiary is coming to the
United States in a specialized knowledge capacity to open or to be
employed in a new office, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been
secured;
(B) The business entity in the United States is or will be a
qualifying organization as defined in paragraph (l)(1)(ii)(G) of this
section; and
(C) The petitioner has the financial ability to remunerate the
beneficiary and to commence doing business in the United States.
(vii) If the beneficiary is an owner or major stockholder of the
company, the petition must be accompanied by evidence that the
beneficiary's services are to be used for a temporary period and
evidence that the beneficiary will be transferred to an assignment
abroad upon the completion of the temporary services in the United
States.
(viii) Such other evidence as the director, in his or her discretion,
may deem necessary.
(4) Blanket petitions -- (i) A petitioner which meets the following
requirements may file a blanket petition seeking continuing approval of
itself and some or all of its parent, branches, subsidiaries, and
affiliates as qualifying organizations if:
(A) The petitioner and each of those entities are engaged in
commercial trade or services;
(B) The petitioner has an office in the United States that has been
doing business for one year or more;
(C) The petitioner has three or more domestic and foreign branches,
subsidiaries, or affiliates; and
(D) The petitioner and the other qualifying organizations have
obtained approval of petitions for at least ten ''L'' managers,
executives, or specialized knowledge professionals during the previous
12 months; or have U.S. subsidiaries or affiliates with combined annual
sales of at least $25 million; or have a United States work force of at
least 1,000 employees.
(ii) Managers, executives, and specialized knowledge professionals
employed by firms, corporations, or other entities which have been found
to be qualifying organizations pursuant to an approved blanket petition
may be classified as intracompany transferees and admitted to the United
States as provided in paragraphs (l) (5) and (11) of this section.
(iii) When applying for a blanket petition, the petitioner shall
include in the blanket petition all of its branches, subsidiaries, and
affiliates which plan to seek to transfer aliens to the United States
under the blanket petition. An individual petition may be filed by the
petitioner or organizations in lieu of using the blanket petition
procedure. However, the petitioner and other qualifying organizations
may not seek L classification for the same alien under both procedures,
unless a consular officer first denies eligibility. Whenever a
petitioner which has blanket L approval files an individual petition to
seek L classification for a manager, executive, or specialized knowledge
professional, the petitioner shall advise the Service that it has
blanket L approval and certify that the beneficiary has not and will not
apply to a consular officer for L classification under the approved
blanket petition.
(iv) Evidence. A blanket petition filed on Form I-129 shall be
accompanied by:
(A) Evidence that the petitioner meets the requirements of paragraph
(l)(4)(i) of this section.
(B) Evidence that all entities for which approval is sought are
qualifying organizations as defined in subparagraph (l)(1)(ii)(G) of
this section.
(C) Such other evidence as the director, in his or her discretion,
deems necessary in a particular case.
(5) Certification and admission procedures for beneficiaries under
blanket petition.
(i) Jurisdiction. United States consular officers shall have
authority to determine eligibility of individual beneficiaries outside
the United States seeking L classification under blanket petitions,
except for visa-exempt nonimmigrants. An application for a visa-exempt
nonimmigrant seeking L classification under a blanket petition or by an
alien in the United States applying for change of status to L
classification under a blanket petition shall be filed with the Service
office at which the blanket petition was filed.
(ii) Procedures. (A) When one qualifying organization listed in an
approved blanket petition wishes to transfer an alien outside the United
States to a qualifying organization in the United States and the alien
requires a visa to enter the United States, that organization shall
complete Form I-129S, Certificate of Eligibility for Intracompany
Transferee under a Blanket Petition, in an original and three copies.
The qualifying organization shall retain one copy for its records and
send the original and two copies to the alien. A copy of the approved
Form I-797 must be attached to the original and each copy of Form
I-129S.
(B) After receipt of Form I-797 and Form I-129S, a qualified employee
who is being transferred to the United States may use these documents to
apply for visa issuance with the consular officer within six months of
the date on Form I-129S.
(C) When the alien is a visa-exempt nonimmigrant seeking L
classification under a blanket petition, or when the alien is in the
United States and is seeking a change of status from another
nonimmigrant classification to L classification under a blanket
petition, the petitioner shall submit Form I-129S, Certificate of
Eligibility, and a copy of the approval notice, Form I-797, to the
Service Center with which the blanket petition was filed.
(D) The consular or Service officer shall determine whether the
position in which the alien will be employed in the United States is
with an organization named in the approved petition and whether the
specific job is for a manager, executive, or specialized knowledge
professional. The consular or Service officer shall determine further
whether the alien's immediate prior year of continuous employment abroad
was with an organization named in the petition and was in a position as
manager, executive, or specialized knowledge professional.
(E) Consular officers may grant ''L'' classification only in clearly
approvable applications. If the consular officer determines that the
alien is eligible for L classification, the consular officer may issue a
nonimmigrant visa, noting the visa classification ''Blanket L-1'' for
the principal alien and ''Blanket L-2'' for any accompanying or
following to join spouse and children. The consular officer shall also
endorse all copies of the alien's Form I-129S with the blanket L-1 visa
classification and return the original and one copy to the alien. When
the alien is inspected for entry into the United States, both copies of
the Form I-129S shall be stamped to show a validity period not to exceed
three years and the second copy collected and sent to the appropriate
Regional Service Center for control purposes. Service officers who
determine eligibility of aliens for L-1 classification under blanket
petitions shall endorse both copies of Form I-129S with the blanket L-1
classification and the validity period not to exceed three years and
retain the second copy for Service records.
(F) If the consular officer determines that the alien is ineligible
for L classification under a blanket petition, the consular officer's
decision shall be final. The consular officer shall record the reasons
for the denial on Form I-129S, retain one copy, return the original of
I-129S to the Service office which approved the blanket petition, and
provide a copy to the alien. In such a case, an individual petition may
be filed for the alien with the director having jurisdiction over the
area of intended employment; the petition shall state the reason the
alien was denied L classification and specify the consular office which
made the determination and the date of the determination.
(G) An alien admitted under an approved blanket petition may be
reassigned to any organization listed in the approved petition without
referral to the Service during his/her authorized stay if the alien will
be performing virtually the same job duties. If the alien will be
performing different job duties, the petitioner shall complete a new
Certificate of Eligibility and send it for approval to the director who
approved the blanket petition.
(6) Copies of supporting documents. The petitioner may submit a
legible photocopy of a document in support of the visa petition, in lieu
of the original document. However, the original document shall be
submitted if requested by the Service.
(7) Approval of petition -- (i) General. The director shall notify
the petitioner of the approval of an individual or a blanket petition
within 30 days after the date a completed petition has been filed. If
additional information is required from the petitioner, the 30 day
processing period shall begin again upon receipt of the information.
Only the Director of a Service Center may approve individual and blanket
L petitions. The original Form I-797 received from the Service with
respect to an approved individual or blanket petition may be duplicated
by the petitioner for the beneficiary's use as described in paragraph
(l)(13) of this section.
(A) Individual petition -- (1) Form I-797 shall include the
beneficiary's name and classification and the petition's period of
validity.
(2) An individual petition approved under this paragraph shall be
valid for the period of established need for the beneficiary's services,
not to exceed three years, except where the beneficiary is coming to the
United States to open or to be employed in a new office.
(3) If the beneficiary is coming to the United States to open or be
employed in a new office, the petition may be approved for a period not
to exceed one year, after which the petitioner shall demonstrate as
required by paragraph (l)(14)(ii) of this section that it is doing
business as defined in paragraph (l) (1)(ii)(H) of this section to
extend the validity of the petition.
(B) Blanket petition -- (1) Form I-797 shall identify the approved
organizations included in the petition and the petition's period of
validity.
(2) A blanket petition approved under this paragraph shall be valid
initially for a period of three years and may be extended indefinitely
thereafter if the qualifying organizations have complied with these
regulations.
(3) A blanket petition may be approved in whole or in part and shall
cover only qualifying organizations.
(C) Amendments. The petitioner shall file an amended petition, with
fee, at the Service Center where the original petition was filed to
reflect changes in approved relationships, additional qualifying
organizations under a blanket petition, change in capacity of employment
(i.e., from a specialized knowledge position to a managerial position),
or any information which would affect the beneficiary's eligibility
under section 101(a)(15)(L) of the Act.
(ii) Spouse and dependents. The spouse and unmarried minor children
of the beneficiary are entitled to L nonimmigrant classification,
subject to the same period of admission and limits as the beneficiary,
if the spouse and unmarried minor children are accompanying or following
to join the beneficiary in the United States. Neither the spouse nor
any child may accept employment unless he or she has been granted
employment authorization.
(8) Denial of petition -- (i) Notice of intent to deny. When an
adverse decision is proposed on the basis of evidence not submitted by
the petitioner, the director shall notify the petitioner of his or her
intent to deny the petition and the basis for the denial. The
petitioner may inspect and rebut the evidence and will be granted a
period of 30 days from the date of the notice in which to do so. All
relevant rebuttal material will be considered in making a final
decision.
(ii) Individual petition. If an individual is denied, the petitioner
shall be notified within 30 days after the date a completed petition has
been filed of the denial, the reasons for the denial, and the right to
appeal the denial.
(iii) Blanket petition. If a blanket petition is denied in whole or
in part, the petitioner shall be notified within 30 days after the date
a completed petition has been filed of the denial, the reasons for the
denial, and the right to appeal the denial. If the petition is denied
in part, the Service Center issuing the denial shall forward to the
petitioner, along with the denial, a Form I-797 listing those
organizations which were found to quality. If the decision to deny is
reversed on appeal, a new Form I-797 shall be sent to the petitioner to
reflect the changes made as a result of the appeal.
(9) Revocation of approval of individual and blanket petitions -- (i)
General. The director may revoke a petition at any time, even after the
expiration of the petition.
(ii) Automatic revocation. The approval of any individual or blanket
petition is automatically revoked if the petitioner withdraws the
petition or the petitioner fails to request indefinite validity of a
blanket petition.
(iii) Revocation on notice. (A) The director shall send to the
petitioner a notice of intent to revoke the petition in relevant part if
he/she finds that:
(1) One or more entities are no longer qualifying organizations;
(2) The alien is no longer eligible under section 101(a)(15)(L) of
the Act;
(3) A qualifying organization(s) violated requirements of section
101(a)(15)(L) and these regulations;
(4) The statement of facts contained in the petition was not true and
correct; or
(5) Approval of the petition involved gross error; or
(6) None of the qualifying organizations in a blanket petition have
used the blanket petition procedure for three consecutive years.
(B) The notice of intent to revoke shall contain a detailed statement
of the grounds for the revocation and the time period allowed for the
petitioner's rebuttal. Upon receipt of this notice, the petitioner may
submit evidence in rebuttal within 30 days of the notice. The director
shall consider all relevant evidence presented in deciding whether to
revoke the petition in whole or in part. If a blanket petition is
revoked in part, the remainder of the petition shall remain approved,
and a revised Form I-797 shall be sent to the petitioner with the
revocation notice.
(iv) Status of beneficiaries. If an individual petition is revoked,
the beneficiary shall be required to leave the United States, unless the
beneficiary has obtained other work authorization from the Service. If
a blanket petition is revoked and the petitioner and beneficiaries
already in the United States are otherwise eligible for L
classification, the director shall extend the blanket petition for a
period necessary to support the stay of those blanket L beneficiaries.
The approval notice, Form I-171C, shall include only the names of
qualifying organizations and covered beneficiaries. No new
beneficiaries may be classified or admitted under this limited
extension.
(10) Appeal of denial or revocation of individual or blanket petition
-- (i) A petition denied in whole or in part may be appealed under 8 CFR
part 103. Since the determination on the Certificate of Eligibility,
Form I-129S, is part of the petition process, a denial or revocation of
approval of an I-129S is appealable in the same manner as the petition.
(ii) A petition that has been revoked on notice in whole or in part
may be appealed under part 103 of this chapter. Automatic revocations
may not be appealed.
(11) Admission. A beneficiary may apply for admission to the United
States only while the individual or blanket petition is valid. The
beneficiary of an individual petition shall not be admitted for a date
past the validity period of the petition. The beneficiary of a blanket
petition may be admitted for three years even though the initial
validity period of the blanket petition may expire before the end of the
three-year period. If the blanket petition will expire while the alien
is in the United States, the burden is on the petitioner to file for
indefinite validity of the blanket petition or to file an individual
petition in the alien's behalf to support the alien's status in the
United States. The admission period for any alien under section
101(a)(15)(L) shall not exceed three years unless an extension of stay
is granted pursuant to paragraph (l)(15) of this section.
(12) L-1 limitation on period of stay -- (i) Limits. An alien who
has spent five years in the United States in a specialized knowledge
capacity or seven years in the United States in a managerial or
executive capacity under section 101(a)(15) (L) and/or (H) of the Act
may not be readmitted to the United States under section 101(a)(15) (L)
or (H) of the Act unless the alien has resided and been physically
present outside the United States, except for brief visits for business
or pleasure, for the immediate prior year. Such visits do not interrupt
the one year abroad, but do not count towards fulfillment of that
requirement. In view of this restriction, a new individual petition may
not be approved for an alien who has spent the maximum time period in
the United States under section 101(a)(15) (L) and/or (H) of the Act,
unless the alien has resided and been physically present outside the
United States, except for brief visits for business or pleasure, for the
immediate prior year. The petitioner shall provide information about
the alien's employment, place of residence, and the dates and purpose of
any trips to the United States for the previous year. A consular or
Service officer may not grant L classification under a blanket petition
to an alien who has spent five years in the United States as a
professional with specialized knowledge or seven years in the United
States as a manager or executive, unless the alien has met the
requirements contained in this paragraph.
(ii) Exceptions. The limitations of paragraph (l)(12)(i) of this
section shall not apply to aliens who do not reside continually in the
United States and whose employment in the United States is seasonal,
intermittent, or consists of an aggregate of six months or less per
year. In addition, the limitations will not apply to aliens who reside
abroad and regularly commute to the United States to engage in part-time
employment. The petitioner and the alien must provide clear and
convincing proof that the alien qualifies for an exception. Clear and
convincing proof shall consist of evidence such as arrival and departure
records, copies of tax returns, and records of employment abroad.
(13) Beneficiary's use of Form I-797 and Form I-129S -- (i)
Beneficiary of an individual petition. The beneficiary of an individual
petition who does not require a nonimmigrant visa may present a copy of
Form I-797 at a port of entry to facilitate entry into the United
States. The copy of Form I-797 shall be retained by the beneficiary and
presented during the validity of the petition (provided that the
beneficiary is entering or reentering the United States) for entry and
reentry to resume the same employment with the same petitioner (within
the validity period of the petition) and to apply for an extension of
stay. A beneficiary who is required to present a visa for admission and
whose visa will have expired before the date of his or her intended
return may use an original Form I-797 to apply for a new or revalidated
visa during the validity period of the petition and to apply for an
extension of stay.
(ii) Beneficiary of a blanket petition. Each alien seeking L
classification and admission under a blanket petition shall present a
copy of Form I-797 and a Form I-129S from the petitioner which
identifies the position and organization from which the employee is
transferring, the new organization and position to which the employee is
destined, a description of the employee's actual duties for both the new
and former positions, and the positions, dates, and locations of
previous L stays in the United States. A current copy of Form I-797 and
Form I-129S should be retained by the beneficiary and used for leaving
and reentering the United States to resume employment with a qualifying
organization during his/her authorized period of stay, for applying for
a new or revalidated visa, and for applying for readmission at a port of
entry. The alien may be readmitted even though reassigned to a
different organization named on the Form I-797 than the one shown on
Form I-129S if the job duties are virtually the same.
(14) Extension of visa petition validity -- (i) Individual petition.
The petitioner shall file a petition extension on Form I-129 to extend
an individual petition under section 101(a)(15)(L) of the Act. Except
in those petitions involving new offices, supporting documentation is
not required, unless requested by the director. A petition extension
may be filed only if the validity of the original petition has not
expired.
(ii) New offices. A visa petition under section 101(a)(15)(L) which
involved the opening of a new office may be extended by filing a new
Form I-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still
qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this
section;
(B) Evidence that the United States entity has been doing business as
defined in paragraph (l)(1)(ii)(H) of this section for the previous
year;
(C) A statement of the duties performed by the beneficiary for the
previous year and the duties the beneficiary will perform under the
extended petition;
(D) A statement describing the staffing of the new operation,
including the number of employees and types of positions held
accompanied by evidence of wages paid to employees when the beneficiary
will be employed in a managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
(iii) Blanket petitions -- (A) Extension procedure. A blanket
petition may only be extended indefinitely by filing a new Form I-129
with a copy of the previous approval notice and a report of admissions
during the preceding three years. The report of admissions shall
include a list of the aliens admitted under the blanket petition during
the preceding three years, including positions held during that period,
the employing entity, and the dates of initial admission and final
departure of each alien. The petitioner shall state whether it still
meets the criteria for filing a blanket petition and shall document any
changes in approved relationships and additional qualifying
organizations.
(B) Other conditions. If the petitioner in an approved blanket
petition fails to request indefinite validity or if indefinite validity
is denied, the petitioner and its other qualifying organizations shall
seek L classification by filing individual petitions until another three
years have expired; after which the petitioner may seek approval of a
new blanket petition.
(15) Extension of stay. (i) In individual petitions, the petitioner
must apply for the petition extension and the alien's extension of stay
concurrently on Form I-129. When the alien is a beneficiary under a
blanket petition, a new certificate of eligibility, accompanied by a
copy of the previous approved certificate of eligibility, shall be filed
by the petitioner to request an extension of the alien's stay. The
petitioner must also request a petition extension. The dates of
extension shall be the same for the petition and the beneficiary's
extension of stay. The beneficiary must be physically present in the
United States at the time the extension of stay is filed. Even though
the requests to extend the visa petition and the alien's stay are
combined on the petition, the director shall make a separate
determination on each. If the alien is required to leave the United
States for business or personal reasons while the extension requests are
pending, the petitioner may request the director to cable notification
of approval of the petition extension to the consular office abroad
where the alien will apply for a visa.
(ii) An extension of stay may be authorized in increments of up to
two years for beneficiaries of individual and blanket petitions. The
total period of stay may not exceed five years for aliens employed in a
specialized knowledge capacity. The total period of stay for an alien
employed in a managerial or executive capacity may not exceed seven
years. No further extensions may be granted. When an alien was
initially admitted to the United States in a specialized knowledge
capacity and is later promoted to a managerial or executive position, he
or she must have been employed in the managerial or executive position
for at least six months to be eligible for the total period of stay of
seven years. The change to managerial or executive capacity must have
been approved by the Service in an amended, new, or extended petition at
the time that the change occurred.
(16) Effect of approval of a permanent labor certification or filing
of a preference petition on L-1 classification. The approval of a
permanent labor certification or the filing of a preference petition for
an alien shall not be a basis for denying an L petition, a request to
extend an L petition, or the alien's application for admission, change
of status, or extension of stay. The alien may legitimately come to the
United States as a nonimmigrant under the L classification and depart
voluntarily at the end of his or her authorized stay, and at the same
time, lawfully seek to become a permanent resident of the United States.
(17) Filing of individual petitions and certifications under blanket
petitions for citizens of Canada under the United States-Canada
Free-Trade Agreement (FTA) -- (i) Individual petitions. Except as
provided in paragraph (1)(2)(ii) of this section (filing of blanket
petitions), a United States or foreign employer seeking to classify a
citizen of Canada as an intracompany transferee may file an individual
petition in duplicate on Form I-129 in conjunction with the application
for admission of the citizen of Canada. Such filing must be made with
an immigration officer at a Class A port of entry, a United States
airport handling international traffic, or at a United States airport
handling international traffic or at a United States
pre-clearance/pre-flight station. The petitioning employer need not
appear, but Form I-129 must bear the authorized signature of the
petitioner.
(ii) Certification of eligibility for intracompany transferree under
the blanket petition. An immigration officer at a location identified
in paragraph (1)(17)(i) of this section may determine eligibility of
individual citizens of Canada seeking L classification under approved
blanket petitions. At these locations, such citizens of Canada shall
present the original and two copies of Form I-129S, Intracompany
Transferee Certificate of Eligibility, prepared by the approved
organization, as well as three copies of Form I-797, Notice of Approval
of Nonimmigrant Visa Petition.
(iii) Nothing in this section shall preclude or discourage the
advance filing of petitions and certificates of eligibility in
accordance with paragraph (l)(2) of this section.
(iv) Deficient or deniable petitions or certificates of eligibility.
If a petition or certificate of eligibility submitted concurrently with
an application for admission is lacking necessary supporting
documentation or is otherwise deficient, the inspecting immigration
officer shall return it to the applicant for admission in order to
obtain the necessary documentation from the petitioner or for the
deficiency to be overcome. The fee to file the petition will be
remitted at such time as the documentary or other deficiency is
overcome. If the petition or certificate of eligibility is clearly
deniable, the immigration officer will accept the petition (with fee)
and the petitioner shall be notified of the denial, the reasons for
denial, and the right of appeal. If a formal denial order cannot be
issued by the port of entry, the petition with a recommendation for
denial shall be forwarded to the appropriate Service Center for final
action. For the purposes of this provision, the appropriate Service
Center will be the one within the same Service region as the location
where the application for admission is made.
(v) Spouse and dependent minor children accompanying or following to
join. (A) The Canadian citizen spouse and Canadian citizen unmarried
minor children of a Canadian citizen admitted under this paragraph shall
be entitled to the same nonimmigrant classification and same length of
stay subject to the same limits as the principal alien. They shall not
be required to present visas, and they shall be admitted under the
classification symbol L-2.
(B) A non-Canadian citizen spouse or non-Canadian citizen unmarried
minor child shall be entitled to the same nonimmigrant classification
and the same length of stay subject to the same limits as the principal,
but shall be required to present a visa upon application for admission
as an L-2 unless otherwise exempt under 212.1 of this chapter.
(C) The spouse and dependent minor children shall not accept
employment in the United States unless otherwise authorized under the
Act.
(m) Students in established vocational or other recognized
nonacademic institutions, other than in language training programs --
(1) Admission of student -- (i) Eligibility for admission. Except as
provided in paragraph (m)(4) of this section, an alien seeking admission
to the United States under section 101(a)(15)(M)(i) of the Act (as an
M-1 student) and the student's accompanying M-2 spouse and minor
children, if applicable, are not eligible for admission unless --
(A) The student presents a Certificate of Eligibility for
Nonimmigrant (M-1) Student Status, Form I-20M-N, properly and completely
filled out by the student and by the designated official of the school
to which the student is destined and the documentary evidence of the
student's financial ability required by that form; and
(B) It is established that the student is destined to and intends to
attend the school specified in the student's visa unless the student is
exempt from the requirement for presentation of a visa.
(ii) Disposition of Form I-20M-N. When a student is admitted to the
United States, the inspecting officer shall forward Form I-20M-N to the
Service's processing center. The processing center shall forward Form
I-20N to the school which issued the form to notify the school of the
student's admission.
(2) Form I-20 ID copy. The first time an M-1 student comes into
contact with the Service for any reason, the student must present to the
Service a Form I-20M-N properly and completely filled out by the student
and by the designated official of the school the student is attending or
intends to attend. The student will be issued a Form I-20 ID copy with
his or her admission number. The student must have the Form I-20 ID
copy with him or her at all times. If the student loses the Form I-20
ID copy, the student must request a new Form I-20 ID copy on Form I-102
from the Service office having jurisdiction over the school the student
was last authorized to attend.
(3) Spouse and minor children following to join student. The M-2
spouse and minor children following to join an M-1 student are not
eligible for admission to the United States unless they present, as
evidence that the student is or will, within sixty days, be enrolled in
a full course of study or is engaged in approved practical training,
either --
(i) A properly endorsed page 4 of Form I-20M-N if there has been no
substantive change in the information on the student's most recent Form
I-20M since the form was initially issued; or
(ii) A new Form I-20M-N if there has been any substantive change in
the information on the student's most recent Form I-20M since the form
was initially issued.
(4) Temporary absence -- (i) General. An M-1 student returning to
the United States from a temporary absence to attend the school which
the student was previously authorized to attend must present either --
(A) A properly endorsed page 4 of Form I-20M-N if there has been no
substantive change in the information on the student's most recent Form
I-20M since the form was initially issued; or
(B) A new Form I-20M-N if there has been any substantive change in
the information on the student's most recent Form I-20M since the form
was initially issued.
(ii) Student who transferred between schools. If an M-1 student has
been authorized to transfer between schools and is returning to the
United States from a temporary absence in order to attend the school to
which transfer was authorized as indicated on the student's Form I-20 ID
copy, the name of the school to which the student is destined does not
need to be specified in the student's visa.
(5) Period of stay. An alien admitted to the United States as an M-1
student is to be admitted for the period of time necessary to complete
the course of study indicated on Form I-20M plus thirty days within
which to depart from the United States or for one year, whichever is
less. An alien granted a change of nonimmigrant classification to that
of an M-1 student is to be given an extension of stay for the period of
time necessary to complete the course of study indicated on Form I-20M
plus thirty days within which to depart from the United States or for
one year, whichever is less.
(6) Conversion to M-1 status of students in established vocational or
other recognized nonacademic institutions, other than in language
training programs, who were F-1 students prior to June 1, 1982. A
student in an established vocational or other recognized nonacademic
institution, other than in a language training program, who is in status
as an F-1 student under section 101(a)(15)(F)(i) of the Act in effect
prior to June 1, 1982 and the student's F-2 spouse and children, if
applicable, are --
(i) Automatically converted to M-1 and M-2 status respectively; and
(ii) Limited to the authorized period of stay shown on their Forms
I-94 plus thirty days within which to depart from the United States or
to an authorized period of stay which expires one year from August 1,
1983, whichever is less.
(7) Period of stay of student already in M-1 status. A student in an
established vocational or other recognized nonacademic institution,
other than in a language training program, who is already in M-1 status
and the student's M-2 spouse and children, if applicable, are limited to
the authorized period of stay shown on their Forms I-94 plus thirty days
within which to depart from the United States or to an authorized period
of stay which expires one year from August 1, 1983, whichever is less.
(8) Issuance of new I-94. A nonimmigrant whose status is affected by
paragraph (m)(6) or (m)(7) of this section need not present Form I-94 to
the Service. Either paragraph constitutes official notification to a
student whose status is affected by it of that status. The Service will
issue a new Form I-94 to an alien whose status is affected by either
paragraph when that alien comes into contact with the Service.
(9) Full course of study. Successful completion of the course of
study must lead to the attainment of a specific educational or
vocational objective. A ''full course of study'' as required by section
101(a)(15)(M)(i) of the Act means --
(i) Study at a community college or junior college, certified by a
school official to consist of at least twelve semester or quarter hours
of instruction per academic term in those institutions using standard
semester, trimester, or quarter-hour systems, where all students
enrolled for a minimum of twelve semester or quarter hours are charged
full-time tuition or considered full-time for other administrative
purposes, or its equivalent (as determined by the district director)
except when the student needs a lesser course load to complete the
course of study during the current term;
(ii) Study at a postsecondary vocational or business school, other
than in a language training program except as provided in
214.3(a)(2)(iv), which confers upon its graduates recognized associate
or other degrees or has established that its credits have been and are
accepted unconditionally by at least three institutions of higher
learning within category (1) and (2) of 214.3(c), and which has been
certified by a designated school official to consist of at least twelve
hours of instruction a week, or its equivalent as determined by the
district director;
(iii) Study in a vocational or other nonacademic curriculum, other
than in a language training program except as provided in
214.3(a)(2)(iv), certified by a designated school official to consist of
at least eighteen clock hours of attendance a week if the dominant part
of the course of study consists of classroom instruction, or at least
twenty-two clock hours a week if the dominant part of the course of
study consists of shop or laboratory work; or
(iv) Study in a vocational or other nonacademic high school
curriculum, certified by a designated school official to consist of
class attendance for not less than the minimum number of hours a week
prescribed by the school for normal progress towards graduation.
(10) Extension of stay -- (i) Eligibility. An M-1 student may be
granted an extension of stay if it is established that the student --
(A) Is a bona fide nonimmigrant currently maintaining student status;
and
(B) Is able to, and in good faith intends to, continue to maintain
that status for the period for which the extension is granted.
(ii) Application. An M-1 student must apply for an extension of stay
on Form I-538. A student's M-2 spouse and children desiring an
extension of stay must be included in the application. A student's M-2
spouse or children are not eligible for an extension of stay unless the
student is granted an extension of stay. The student must submit the
application to the Service office having jurisdiction over the school
the student was last authorized to attend at least fifteen days but not
more than sixty days before the expiration of the student's currently
authorized stay. The application must also be accompanied by the
student's Form I-20 ID copy and the Forms I-94 of the student's spouse
and children, if applicable.
(iii) Period of stay. If an application for extension of stay is
granted, the student and the student's spouse and children, if
applicable, are to be given an extension of stay for the period of time
necessary to complete the course of study plus thirty days within which
to depart from the United States or for one year, whichever is less. An
M-1 student who has been compelled by illness to interrupt or reduce a
course of study may be granted an extension of stay without being
required to change nonimmigrant classification provided that it is
established that the student will pursue a full course of study upon
recovery from the illness.
(11) School transfer -- (i) Eligibility. An M-1 student may not
transfer to another school after six months from the date the student is
first admitted as, or changes nonimmigrant classification to that of, an
M-1 student unless the student is unable to remain at the school to
which the student was initially admitted due to circumstances beyond the
student's control. An M-1 student may be otherwise eligible to transfer
to another school if the student --
(A) Is a bona fide nonimmigrant;
(B) Has been pursuing a full course of study at the school the
student was last authorized to attend;
(C) Intends to pursue a full course of study at the school to which
the student intends to transfer; and
(D) Is financially able to attend the school to which the student
intends to transfer.
(ii) Procedure. An M-1 student must apply for permission to transfer
between schools on Form I-538 accompanied by the student's Form I-20 ID
copy and the Forms I-94 of the student's spouse and children, if
applicable. The Form I-538 must also be accompanied by Form I-20M-N
properly and completely filled out by the student and by the designated
official of the school which the student wishes to attend. The student
must submit the application for school transfer to the Service office
having jurisdiction over the school the student was last authorized to
attend. Sixty days after having filed an application for school
transfer, an M-1 student may effect the transfer subject to approval or
denial of the application. An M-1 student who transfers without
complying with this regulation or whose application is denied after
transfer pursuant to this regulation is considered to be out of status.
If the application is approved, the approval of the transfer will be
retroactive to the date of filing the application, and the student will
be granted an extension of stay for the period of time necessary to
complete the course of study indicated on Form I-20M plus thirty days
within which to depart from the United States or for one year, whichever
is less. The adjudicating officer must endorse the name of the school
to which transfer is authorized on the student's Form I-20 ID copy. The
officer must also endorse Form I-20N to indicate that a school transfer
has been authorized and forward it with Form I-20M to the Service's
processing center for file updating. The processing center shall
forward Form I-20N to the school to which the transfer has been
authorized to notify the school of the action taken.
(iii) Student who has not been pursuing a full course of study. If
an M-1 student who has not been pursuing a full course of study at the
school the student was last authorized to attend desires to attend a
different school, the student must apply for reinstatement to student
status under paragraph (m)(16) of this section.
(12) Change in educational objective. An M-1 student may not change
educational objective.
(13) Employment. Except as provided in paragraph (m)(14) of this
section, M-1 students may not accept employment. A student already in
M-1 status on August 1, 1983 or a student converted to M-1 status under
paragraph (m)(6) of this section who was authorized off-campus
employment under the regulations previously in effect, however, may
continue to work until the date of expiration of the previously
authorized period of employment. The M-2 spouse and children of an M-1
student may not accept employment.
(14) Practical training -- (i) When practical training may be
authorized. Temporary employment for practical training may be
authorized only after completion of the student's course of study.
(ii) Application. An M-1 student must apply for permission to accept
employment for practical training on Form I-765, with the fee required
by 8 CFR 103.7(b)(1), accompanied by his or her I-20 ID endorsed for
practical training by the DSO. The student must submit the application
to the Service office having jurisdiction over the student's place of
residence. (A personal appearance is required before the application
can be approved.) The application must be submitted prior to the
expiration of the student's authorized period of stay and not more than
sixty days before nor more than thirty days after completion of the
course of study. The designated school official must certify on Form
I-538 that --
(A) The proposed employment is recommended for the purpose of
practical training;
(B) The proposed employment is related to the student's course of
study; and
(C) Upon the designated school official's information and belief,
employment comparable to the proposed employment is not available to the
student in the country of the student's foreign residence.
(iii) Duration of practical training. When the student is authorized
to engage in employment for practical training, he or she will be issued
an employment authorization document. The M-1 student may not begin
employment until he or she has been issued an employment authorization
document by the Service. One month of employment authorization will be
granted for each four months of full-time study that the M-1 student has
completed. However, an M-1 student may not engage in more than six
months of practical training in the aggregate. The student will not be
granted employment authorization if he or she cannot complete the
requested practical training within six months.
(iv) Temporary absence of M-1 student granted practical training. An
M-1 student who has been granted permission to accept employment for
practical training and who temporarily departs from the United States,
may be readmitted for the remainder of the authorized period indicated
on the student's Form I-20 ID copy. The student must be returning to
the United States to perform the authorized practical training. A
student may not be readmitted to begin practical training which was not
authorized prior to the student's departure from the United States.
(v) Effect of strike or other labor dispute. Authorization for all
employment for practical training is automatically suspended upon
certification by the Secretary of Labor or the Secretary's designee to
the Commissioner of Immigration and Naturalization or the Commissioner's
designee that a strike or other labor dispute involving a work stoppage
of workers is in progress in the occupation at the place of employment.
As used in this paragraph, ''place of employment'' means wherever the
employer or joint employer does business.
(15) Decision on application for extension, permission to transfer to
another school, or permission to accept employment for practical
training. The district director shall notify the applicant of the
decision and, if the application is denied, of the reason(s) for the
denial. The applicant may not appeal the decision.
(16) Reinstatement to student status -- (i) General. A district
director may consider reinstating to M-1 student status an alien who was
admitted to the United States as, or whose status was changed to that
of, an M-1 student and who has overstayed the authorized period of stay
or who has otherwise violated the conditions of his or her status only
if --
(A) The student establishes to the satisfaction of the district
director that the violation of status resulted from circumstances beyond
the student's control or that failure to receive reinstatement to lawful
M-1 status would result in extreme hardship to the student;
(B) The student makes a written request for reinstatement accompanied
by a properly completed Form I-20M-N from the school the student is
attending or intends to attend and the student's Form I-20 ID copy;
(C) The student is currently pursuing, or intending to pursue, a full
course of study at the school which issued the Form I-20M-N;
(D) The student has not been employed without authorization; and
(E) The student is not deportable on any ground other than section
241(a)(1) (B), (C), or (D) of the Act.
(ii) Decision. If the district director reinstates the student, the
district director shall endorse Form I-20N and the student's Form I-20
ID copy to indicate that the student has been reinstated, return the
Form I-20 ID copy to the student, and forward Form I-20N with Form I-20M
to the Service's processing center for file updating. The processing
center shall forward Form I-20N to the school which the student is
attending or intends to attend to notify the school of the student's
reinstatement. If the district director does not reinstate the student,
the student may not appeal that decision.
(17) School code suffix on Form I-20M-N. Each school system, other
than a secondary school system approved prior to August 1, 1983 for
attendance by M-1 students must assign permanent consecutive numbers to
all schools within its system. The number of the school within the
system which an M-1 student is attending or intends to attend must be
added as a three-digit suffix following a decimal point after the school
file number on Form I-20M-N (e.g. .001). If an M-1 student is attending
or intends to attend a secondary school in a school system or a school
which is not part of a school system, a suffix consisting of a decimal
point followed by three zeros must be added after the school file number
on Form I-20M-N. The Service will assign school code suffixes to those
schools it approves beginning August 1, 1983. No Form I-20M-N will be
accepted after August 1, 1983 without the appropriate three-digit
suffix.
(n) Certain parents and children of section 101(a)(27)(I) special
immigrants. -- (1) Parent of special immigrant. Upon application, a
parent of a child accorded special immigrant status under section
101(a)(27)(I)(i) of the Act may be granted status under section
101(a)(15)(N)(i) of the Act as long as the permanent resident child
through whom eligibility is derived remains a child as defined in
section 101(b)(1) of the Act.
(2) Child of section 101(a)(27)(I) special immigrants and section
101(a)(15)(N)(i) nonimmigrants. Children of parents granted
nonimmigrant status under section 101(a)(15)(N)(i) of the Act, or of
parents who have been granted special immigrant status under section
101(a)(27)(I) (ii), (iii) or (iv) of the Act may be granted status under
section 101(a)(15)(N)(ii) of the Act for such time as each remains a
child as defined in section 101(b)(1) of the Act.
(3) Admission and extension of stay. A nonimmigrant granted (N)
status shall be admitted for not to exceed three years with extensions
in increments up to but not to exceed three years. Status as an (N)
nonimmigrant shall terminate on the date the child described in
paragraph (n)(1) or (n)(2) of this section no longer qualifies as a
child as defined in section 101(b)(1) of the Act.
(4) Employment. A nonimmigrant admitted in or granted (N) status is
authorized employment incident to (N) status without restrictions as to
location or type of employment.
(o) Aliens of extraordinary ability -- (1) Classifications -- (i)
General. Under section 101(a)(15)(O) of the Act, a qualified alien may
be authorized to come to the United States to perform services relating
to an event or events if petitioned for by an employer. Under this
nonimmigrant category, the alien may be classified under section
101(a)(15)(O)(i) of the Act as an alien who has extraordinary ability in
the sciences, arts, education, business, or athletics, or who has a
demonstrated record of extraordinary achievement in the motion picture
or television industry. Under section 101(a)(15)(O)(ii) of the Act, an
alien having a residence in a foreign country which he or she has no
intention of abandoning may be classified as an accompanying alien who
is coming to assist in the artistic or athletic performance of an alien
admitted under section 101(a)(15)(O)(i) of the Act. The spouse or child
of an alien described in section 101(a)(15)(O)(i) or (ii) of the Act who
is accompanying or following to join the alien is entitled to
classification pursuant to section 101(a)(15)(O)(iii) of the Act. These
classifications are called the O-1, O-2, and O-3 categories,
respectively. The petitioner must file a petition with the Service for
a determination of the alien's eligibility for O-1 or O-2 classification
before the alien may apply for a visa or seek admission to the United
States. This paragraph sets forth the standards and procedures
applicable to these classifications.
(ii) Description of classifications -- (A) An O-1 classification
applies to:
(1) An individual alien who has extraordinary ability in the
sciences, arts, education, business, or athletics which has been
demonstrated by sustained national or international acclaim and who is
coming temporarily to the United States to continue work in the area of
extraordinary ability; or
(2) An alien who has a demonstrated record of extraordinary
achievement in motion picture and/or television productions and who is
coming temporarily to the United States to continue work in the area of
extraordinary achievement.
(B) An O-2 classification applies to an accompanying alien who is
coming temporarily to the United States solely to assist in the artistic
or athletic performance by an O-1. The O-2 alien must:
(1) Be an integral part of the actual performances or events and
possess critical skills and experience with the O-1 alien that are not
of a general nature and cannot be performed by others; or
(2) In the case of a motion picture or television production, have
skills and experience with the O-1 alien which are not of a general
nature and which are critical, either based on a pre-existing and
longstanding working relationship or, if in connection with a specific
production only, because significant production (including pre- and
post-production) will take place both inside and outside the United
States and the continuing participation of the alien is essential to the
successful completion of the production.
(2) Filing of petitions. (i) General. A petitioner seeking to
classify an alien as an O-1 or O-2 shall file a petition on Form I-129,
Petition for Nonimmigrant Worker, only with the Service Center which has
jurisdiction in the area where the alien will work. The petition may
not be filed more than six months before the actual need for the alien's
services. An O-1 or O-2 petition shall be adjudicated at the
appropriate Service Center, even in emergent situations. The petition
shall be accompanied by the evidence specified in this section for the
classification. A legible photocopy of a document in support of the
petition may be submitted in lieu of the original. However, the
original document shall be submitted if requested by the director.
(ii) Other filing situations -- (A) Services in more than one
location. A petition which requires the alien to work in more than one
location must include an itinerary with the dates and locations of work
and must be filed with the Service Center which has jurisdiction in the
area where the petitioner is located. The address which the petitioner
specifies as its location on the petition shall be where the petitioner
is located for purposes of this paragraph. If the petitioner is a
foreign employer with no United States location, the petition shall be
filed with the Service Center having jurisdiction over the area where
the work will begin.
(B) Services for more than one employer. If the beneficiary will
work concurrently for more than one employer within the same time
period, each employer must file a separate petition with the Service
Center that has jurisdiction over the area where the alien will perform
services, unless an established agent files the petition.
(C) Change of employer. If an O-1 or O-2 alien in the United States
seeks to change employers, the new employer must file a petition with
the Service Center having jurisdiction over the new place of employment.
An O-2 alien may change employers only in conjunction with a change of
employers by the principal O-1 alien.
(D) Amended petition. The petitioner shall file an amended petition,
with fee, with the Service Center where the original petition was filed
to reflect any material changes in the terms and conditions of
employment or the beneficiary's eligibility as specified in the original
approved petition.
(E) Agents as petitioners. An established United States agent may
file a petition in cases involving an alien who is traditionally
self-employed or uses agents to arrange short-term employment in his or
her behalf with numerous employers, and in cases where a foreign
employer authorizes the agent to act in its behalf. A petition filed by
an agent is subject to the following conditions:
(1) A person or company in business as an agent may file the petition
involving multiple employers as the representative of both the employers
and the beneficiary if the supporting documentation includes a complete
itinerary of the event or events. The itinerary must specify the dates
of each service or engagement, the names and addresses of the actual
employers, and the names and addresses of the establishments, venues, or
locations where the services will be performed. A contract between the
employers and the beneficiary is required. The burden is on the agent
to explain the terms and conditions of the employment and to provide any
required documentation.
(2) An agent performing the function of an employer must provide the
contractual agreement between the agent and the beneficiary which
specify the wage offered and the other terms and conditions of
employment of the beneficiary.
(F) Multiple beneficiaries. More than O-2 accompanying alien may be
included on a petition if they are assisting the same O-1 alien for the
same events or performances, during the same period of time and in the
same location. If the beneficiaries will be applying for visas at more
than one consulate, the petitioner shall submit a separate petition for
each consulate. If the beneficiaries who are exempt from visa
requirements will be applying for admission at more than one port of
entry, the petitioner shall submit a separate petition for each port of
entry.
(3) Petition for alien of extraordinary ability (O-1) -- (i) General.
Extraordinary ability in the sciences, arts, education, business, or
athletics, or extraordinary achievement in the case of an alien in the
motion picture or television industry, must be established for an
individual alien. An O-1 petition must be accompanied by evidence that
the work which the alien is coming to the United States to continue is
in the area of extraordinary ability, and that the alien meets the
criteria in paragraph (o)(3) (iv) or (v) of this section.
(ii) Definitions.
Arts includes any field of creative activity or endeavor such as, but
not limited to, fine arts, visual arts, and performing arts.
Distinction means a high level of achievement in the field of arts
evidenced by a degree of skill and recognition substantially above that
ordinarily encountered to the extent that a person described as
prominent is renowned, leading, or well-known in the field of arts.
Extraordinary ability in the sciences, education, business, or
athletics means a level of expertise indicating that the person is one
of the small percentage who have arisen to the very top of the field of
endeavor. Extraordinary ability in the field of arts means distinction.
Extraordinary achievement with respect to motion picture and
television productions, as commonly defined in the industry, means a
high level of accomplishment in the motion picture or television
industry evidenced by a degree of skill and recognition substantially
above that ordinarily encountered to the extent that the person is
recognized as outstanding, leading, or well-known in the motion picture
or television field.
Peer group means a group or organization which is comprised of
practitioners of the alien's occupation who are of similar standing with
the alien and which is governed by such practitioners. If there is a
collective bargaining representative of an employer's employees in the
occupational classification for which the alien is being sought, such a
representative may be considered the appropriate peer group for purposes
of consultation.
(iii) Standards for establishing that a position requires the
services of an alien of extraordinary ability or achievement. To
establish that a position requires the services of an alien of
extraordinary ability or achievement, the position must meet one of the
following criteria:
(A) The position or services to be performed involve an event(s),
production(s), or an activity(ies) which has a distinguished reputation
or involves a comparable, newly-organized event(s), production(s), or
activity(ies);
(B) The services to be performed are in a lead, starring, or critical
role in an activity for an organization or establishment that thas a
distinguished reputation or record of employing extraordinary persons;
(C) The services primarily involve a scientific or educational
project, conference, convention, lecture, or exhibit sponsored by bona
fide scientific or educational organizations or establishments; or
(D) The services consist of a business project that is appropriate
for an extraordinary executive, manager, or highly technical person due
to the complexity of the business project.
(iv) Standards for an O-1 alien of extraordinary ability in the
fields of science, education, business, or athletics. An alien of
extraordinary ability in the sciences, education, business, or athletics
must demonstrate sustained national or international acclaim and
recognition for achievements in the field or expertise by providing
evidence of:
(A) Receipt of a major, internationally-recognized award, such as the
Nobel Prize; or
(B) At least three of the following forms of documentation:
(1) Documentation of the alien's receipt of nationally or
internationally recognized prizes or awards for excellence in the field
of endeavor;
(2) Documentation of the alien's membership in associations in the
field for which classification is sought, which require outstanding
achievements of their members, as judged by recognized national or
international experts in their disciplines or fields;
(3) Published material in professional or major trade publications or
major media about the alien, relating to the alien's work in the field
for which classification is sought, which shall include the title, date,
and author of such published material, and any necessary translation;
(4) Evidence of the alien's participation on a panel, or
individually, as a judge of the work of others in the same or in an
allied field of specialization to that for which classification is
sought;
(5) Evidence of the alien's original scientific, scholarly, or
business-related contributions of major significance in the field;
(6) Evidence of the alien's authorship of scholarly articles in the
field, in professional journals, or other major media;
(7) Evidence that the alien has been employed in a critical or
essential capacity for organizations and establishments that have a
distinguished reputation;
(8) Evidence that the alien has commanded and now commands a high
salary or other remuneration for services, evidenced by contracts or
other reliable evidence.
(C) If the above standards do not readily apply to the beneficiary's
occupation, the petitioner may submit comparable evidence in order to
establish the beneficiary's eligibility.
(v) Standards for an O-1 alien of extraordinary achievement or an
alien of extraordinary ability in the arts. To qualify as an alien of
extraordinary achievement in the motion picture or television industry
or an alien of extraordinary ability in the field of arts, the alien
must be recognized as having a demonstrated record of extraordinary
achievement as demonstrated by the following:
(A) Evidence that the alien has been nominated for or has been the
recipient of significant national or international awards or prizes in
the particular field such as an Academy Award, an Emmy, a Grammy, or a
Director's Guild Award; or
(B) At least three of the following forms of documentation:
(1) Evidence that the alien has performed and will perform services
as a lead or starring participant in productions or events which have a
distinguished reputation as evidenced by critical reviews,
advertisements, publicity releases, publications contracts, or
endorsements;
(2) Evidence that the alien has achieved national or international
recognition for achievements evidenced by critical reviews or other
published materials by or about the individual in major newspapers,
trade journals, magazines, or other publications;
(3) Evidence that the alien has performed in a lead, starring, or
critical role for organizations and establishments that have a
distinguished reputation evidenced by articles in newspapers, trade
journals, publications, or testimonials;
(4) Evidence that the alien has a record of major commercial or
critically acclaimed successes as evidenced by such indicators as title,
rating, standing in the field, box office receipts, credit for original
research or product development, motion picture or television ratings,
and other occupational achievements reported in trade journals, major
newspapers, or other publications;
(5) Evidence that the alien has received significant recognition for
achievements from organizations, critics, government agencies, or other
recognized experts in the field in which the alien is engaged. Such
testimonials must be in a form which clearly indicates the author's
authority, expertise, and knowledge of the alien's achievements; or
(6) Evidence that the alien has commanded or now commands a high
salary or other substantial remuneration for services in relation to
others in the field, as evidenced by contracts or other reliable
evidence; or
(C) If the above standards do not readily apply to the beneficiary's
occupation, the petitioner may submit comparable evidence in order to
establish the beneficiary's eligibility.
(4) Petition for an O-2 accompanying alien. (i) General. An O-2
accompanying alien provides essential support to an O-1 artist or
athlete. Such aliens may not accompany O-1 aliens in the fields of
science, business, or education. Although the O-2 alien must obtain his
or her own classification, it does not entitle him or her to work
separate and apart from the O-1 alien to whom he or she provides
support. An O-2 alien must be petitioned for in conjunction with the
services of the O-1 alien.
(ii) Standards for qualifying as an O-2 accompanying alien. -- (A)
Alien accompanying an O-1 artist or athlete of extraordinary ability.
To qualify as an O-2 accompanying alien, the alien must be coming to the
United States to assist in the performance of the O-1 alien and be an
integral part of the actual performance and have critical skills and
experience with the O-1 alien which are not of a general nature and
which cannot be performed by a U.S. worker.
(B) Alien accompanying an O-1 alien of extraordinary achievement. To
qualify as an O-2 alien accompanying an O-1 alien involved in a motion
picture or television production, the alien must have skills and
experience with the O-1 alien which are not of a general nature and
which are critical based on a pre-existing longstanding working
relationship or, with respect to the specific production, because
significant production (including pre- and post-production work) will
take place both inside and outside the United States and the continuing
participation of the alien is essential to the successful completion of
the production.
(C) The evidence shall establish the current essentiality, critical
skills, and experience of the O-2 alien with the O-1 alien and that the
alien has substantial experience performing the critical skills and
essential support services for the O-1 alien. In the case of a specific
motion picture or television production, the evidence shall establish
that significant production has taken place outside the United States,
and will take place inside the United States and that the continuing
participation of the alien is essential to the successful completion of
the production.
(5) Consultation -- (i) General -- (A) Consultation with an
appropriate peer group, labor, and/or management organization regarding
the nature of the work to be done and the alien's qualifications is
mandatory before a petition for an O-1 or O-2 classification can be
approved.
(B) Except as provided in paragraph (h)(5)(i)(E) of this section,
evidence of consultation shall be in the form of a written advisory
opinion from a peer group, labor, and/or management organization.
(C) Except as provided in paragraph (h)(5)(i)(E) of this section, the
petitioner shall obtain a written advisory opinion from a peer group,
labor, and/or management organization with expertise in the specific
field involved. The advisory opinion shall be submitted along with the
petition when the petition is filed. The advisory opinion should set
forth a specific statement of facts which supports the conclusion
reached in the opinion. Advisory opinions must be submitted in writing
and must be signed by an authorized official of the group or
organization.
(D) Except as provided in paragraph (h)(5)(i)(E) of this section,
written evidence of consultation shall be included in the record in
every approved O petition. Consultations are advisory in nature only
and are not binding on the Service. If a petition is denied because of
the advisory opinion provided by a peer group, labor, and/or management
organization, a copy of the advisory opinion shall be attached to the
director's decision.
(E) In a case where the alien will be employed in the fields of art,
entertainment, or athletics, and the Service has determined that a
petition merits expeditious handling, the Service shall telephonically
contact the appropriate peer group, labor, and/or management
organization and request an advisory opinion if one is not submitted by
the petitioner. The peer group, labor, and/or management organization
shall have 24 hours to respond telephonically to the Service's request.
The Service shall adjudicate the petition after receipt of the
telephonic response from the peer group, labor, and/or management
organization. The peer group, labor, and/or management organization
shall then furnish the Service with a written advisory opinion within 5
working days of the telephonic request. If the peer group, labor and/or
management organization fails to respond telephonically within 24 hours,
the Service shall render a decision on the petition without the advisory
opinion.
(F) In a routine processing case where the petition is accompanied by
a written opinion from a peer group, and the peer group is not a labor
organization, the director will forward a copy of the petition and all
supporting documentation to the national office of the appropriate labor
organization within 5 days of receipt of the petition. If there is a
collective bargaining representative of an employer's employees in the
occupational classification for which the alien is being sought, that
representative shall be the appropriate labor organization for purposes
of this section. The labor organization will then have 15 days from
receipt of the petition and supporting documents to submit to the
Service a written advisory opinion, comment, or letter of no objection.
Once the 15-day period has expired, the director shall adjudicate the
petition in no more than 14 days. The director may shorten this time in
his or her discretion for emergency reasons if no unreasonable burden
would be imposed on any participant in the process. If the labor
organization does not respond within 15 days, the director will render a
decision on the record without the advisory opinion. If the director
decides to deny the petition based on derogatory information furnished
by the labor organization, the petitioner shall be afforded the
opportunity to supply rebuttal evidence through the procedures described
in 8 CFR 103.2(b)(3)(i).
(G) In those cases where it is established by the petitioner that an
appropriate peer group, including a labor organization, does not exist,
the Service shall render a decision on the evidence of record.
(ii) Consultation requirements for an O-1 alien of extraordinary
ability. -- (A) Content. Consultation with a peer group (which may
include a labor organization) in the area of the alien's ability is
required in an O-1 petition for an alien of extraordinary ability. The
peer group shall be an appropriate association or entity with expertise
in that area. The advisory opinion provided by the peer group must
describe the alien's ability and achievements in the field of endeavor,
described the nature of the duties to be performed, and state whether
the position requires the services of an alien of extraordinary ability.
The written opinion shall contain a statement of facts which support
the conclusion reached in the opinion.
(B) Waiver of consultation of certain aliens of extraordinary ability
in the field of arts. Consultation for an alien of extraordinary
ability in the field of arts shall be waived by the director in those
instances where the alien seeks readmission to the United States to
perform similar services within 2 years of the date of a previous
consultation. The director shall, within 5 days of granting the waiver,
forward a copy of the petition and supporting documentation to the
national office of an appropriate labor organization.
(iii) Consultation requirements for an O-1 alien of extraordinary
achievement. In the case of an alien of extraordinary achievement who
will be working on a motion picture or television production,
consultation shall be made with the appropriate union representing the
alien's occupational peers, and a management organization in the area of
the alien's ability. The advisory opinion from the labor and management
organizations must describe the alien's achievements in the motion
picture or television field and state whether the position requires the
services of an alien of extraordinary achievement.
(iv) Consultation requirements for an O-2 accompanying alien.
Consultation with a labor organization with expertise in the skill area
involved is required for an O-2 alien accompanying an O-1 alien of
extraordinary ability. In the case of an alien seeking entry for a
motion picture or television production, consultation with a labor
organization and a management organization in the area of the alien's
ability is required. The opinion provided by the labor and/or
management organization must describe the alien's essentiality to, and
working relationship with, the O-1 artist or athlete and state whether
there are available U.S workers who can perform the support services.
If the alien will accompany an O-1 alien involved in a motion picture or
television production, the advisory opinion must address the alien's
skills and experience with the O-1 alien and whether the alien has a
pre-existing longstanding working relationship with the O-1 alien, or
whether significant production will take place in the United States and
abroad and if the continuing participation of the alien is essential to
the successful completion of the production. A single advisory opinion
may be submitted in conjunction with multiple accompanying aliens even
though more than one petition is filed on their behalf.
(v) Organizations agreeing to provide advisory opinions. The Service
will list in its Operations Instructions for O classification those peer
groups, labor organizations and/or management organizations which have
agreed to provide advisory opinions to the Service and/or petitioners.
The list will not be an exclusive or exhaustive list. The Service and
petitioners may use other sources, such as publications, to identify
appropriate peer groups, labor organizations, and management
organizations.
(6) General documentary requirements for O classification. The
evidence submitted with an O petition shall conform to the following:
(i) Affidavits, contracts, awards, and similar documentation must
reflect the nature of the alien's achievement and be executed by the
person in charge of the institution, firm, establishment, or
organization where the work was performed.
(ii) Affidavits written by present or former employers or recognized
experts certifying to the recognition and extraordinary ability, or in
the case of a motion picture or television production, the extraordinary
achievement of the alien, which shall specifically describe the alien's
recognition and ability or achievement in factual terms and set forth
the expertise of the affiant and the manner in which the affiant
acquired such information.
(iii) Copies of any written contracts between the petitioner and the
alien beneficiary or, if there is no written contract, a summary of the
terms of the oral agreement under which the alien will be employed.
(iv) An explanation of the nature of the events or activities, the
beginning and ending dates for the events or activities, and a copy of
any itinerary for the events or activities.
(7) Approval and validity of petition. (i) Approval. The director
shall consider all of the evidence submitted and such other evidence as
he or she may independently require to assist his or her adjudication.
The director shall notify the petitioner of the approval of the petition
on Form I-797, Notice of Action. The approval notice shall include the
alien beneficiary's name and classification and the petition's period of
validity.
(ii) Recording the validity of petitions. Procedures for recording
the validity period of petitions are as follows:
(A) If a new O petition is approved after the date the petitioner
indicates the services will begin, the approved petition and approval
notice shall show a validity period commencing with the date of approval
and ending with the date requested by the petitioner, not to exceed the
limit specified by paragraph (o)(7)(iii) of this section or other
Service policy.
(B) If a new O petition is approved after the date the petitioner
indicates the services will begin, the approved petition and approval
notice shall show a validity period commencing with the date of approval
and ending with the date requested by the petitioner, not to exceed the
limit specified by paragraph (o)(7)(iii) of this section or other
Service policy.
(C) If the period of services requested by the petitioner exceeds the
limit specified in paragraph (o)(7)(iii) of this section, the petition
shall be approved only up to the limit specified in that paragraph.
(iii) Validity. An approved petition for an alien classified under
section 101(a)(15)(O)(i) of the Act shall be valid for a period of time
determined by the director to be necessary to accomplish the event or
activity, not to exceed three years.
(A) O-1 petition. An approved petition for an alien classified under
section 101(a)(15)(O)(i) of the Act shall be valid for a period of time
determined by the Director to be necessary to accomplish the event or
activity, not to exceed 3 years.
(B) O-2 petition. An approved petition for an alien classified under
section 101(a)(15)(O)(ii) of the Act shall be valid for a period of time
determined to be necessary to assist the O-1 alien to accomplish the
events or activities, not to exceed 3 years.
(iv) Spouse and dependents. The spouse and unmarried minor children
of the O-1 or O-2 alien beneficiary are entitled to O-3 nonimmigrant
classification, subject to the same period of admission and limitations
as the alien beneficiary, if they are accompanying or following to join
the alien beneficiary in the United States. Neither the spouse nor a
child of the alien beneficiary may accept employment unless he or she
has been granted employment authorization.
(8) Denial of petition -- (i) Notice of intent to deny. When an
adverse decision is proposed on the basis of derogatory information of
which the petitioner is unaware, the director shall notify the
petitioner of the intent to deny the petition and the basis for the
denial. The petitioner may inspect and rebut the evidence and will be
granted a period of 30 days from the date of the notice in which to do
so. All relevant rebuttal material will be considered in making a final
decision.
(ii) Notice of denial. The petitioner shall be notified of the
decision, the reasons for the denial, and the right to appeal the denial
under part 103 of this chapter. There is no appeal from a decision to
deny an extension of stay to the alien.
(9) Revocation of approval of petition. (i) General -- (A) The
petitioner shall immediately notify the Service of any changes in the
terms and conditions of employment of a beneficiary which may affect
eligibility under section 101(a)(15)(O) of the Act and paragraph (o) of
this section. An amended petition should be filed when the petitioner
continues to employ the beneficiary. If the petitioner no longer
employs the beneficiary, the petitioner shall send a letter explaining
the change(s) to the director who approved the petition.
(B) The director may revoke a petition at any time, even after the
validity of the petition has expired.
(ii) Automatic revocation. The approval of an unexpired petition is
automatically revoked if the petitioner goes out of business, files a
written withdrawal of the petition, or notifies the Service that the
beneficiary is no longer employed by the petitioner.
(iii) Revocation on notice -- (A) Grounds for revocation. The
director shall send to the petitioner a notice of intent to revoke the
petition in relevant part if he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the
capacity specified in the petition;
(2) The statement of facts contained in the petition was not true and
correct;
(3) The petitioner violated the terms or conditions of the approved
petition;
(4) The petitioner violated the requirements of section 101(a)(15)(O)
of the Act or paragraph (o) of this section; or
(5) The approval of the petition violated paragraph (o) of this
section or involved gross error.
(B) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of the date of the notice.
The director shall consider all relevant evidence presented in deciding
whether to revoke the petition.
(10) Appeal of a denial or a revocation of a petition -- (i) Denial.
A denied petition may be appealed under part 103 of this chapter.
(ii) Revocation. A petition that has been revoked on notice may be
appealed under part 103 of this chapter. Automatic revocations may not
be appealed.
(11) Admission. A beneficiary may be admitted to the United States
for the validity period of the petition, plus a period of up to 10 days
before the validity period begins and 10 days after the validity period
ends. The beneficiary may not work except during the validity period of
the petition.
(12) Extension of visa petition validity. The petitioner shall file
a request to extend the validity of the original petition under section
101(a)(15)(O) of the Act on Form I-129 in order to continue or complete
the same activities or events specified in the original petition.
Supporting documents are not required unless requested by the director.
A petition extension may be filed only if the validity of the original
petition has not expired.
(13) Extension of stay -- (i) Extension procedure. The petitioner
shall request extension of the alien's stay to continue or complete the
same event or activity by filing Form I-129, accompanied by a statement
explaining the reasons for the extension. The petitioner must also
request a petition extension. The dates of extension shall be the same
for the petition and the beneficiary's extension of stay. The alien
beneficiary must be physically present in the United States at the time
of filing of the extension of stay. Even though the requests to extend
the petition and the alien's stay are combined on the petition, the
director shall make a separate determination on each. If the alien
leaves the United States for business or personal reasons while the
extension requests are pending, the petitioner may request the director
to cable notification of approval of the petition extension to the
consular office abroad where the alien will apply for a visa.
(ii) Extension period. An extension of stay may be authorized in
increments of up to one year for an O-1 or O-2 beneficiary to continue
or complete the same event or activity for which he or she was admitted
plus an additional ten days.
(14) Effect of approval of a permanent labor certification or filing
of a preference petition on O classification. The approval of a
permanent labor certification or the filing of a preference petition for
an alien shall not be a basis for denying an O petition, a request to
extend such a petition, or the alien's application for admission, change
of status, or extension of stay. The alien may legitimately come to the
United States for a temporary period as an O nonimmigrant and depart
voluntarily at the end of his or her authorized stay and, at the same
time, lawfully seek to become a permanent resident of the United States.
(15) Effect of a strike. (i) If the Secretary of Labor certifies to
the Commissioner that a strike or other labor dispute involving a work
stoppage of workers is in progress in the occupation at the place where
the beneficiary is to be employed, and that the employment of the
beneficiary would adversely affect the wages and working conditions of
U.S. citizens and lawful resident workers:
(A) A petition to classify an alien as a nonimmigrant as defined in
section 101(a)(15)(O) of the Act shall be denied; or
(B) If a petition has been approved, but the alien has not yet
entered the United States, or has entered the United States but has not
commenced employment, the approval of the petition is automatically
suspended, and the application for admission on the basis of the
petition shall be denied.
(ii) If there is a strike or other labor dispute involving a work
stoppage of workers in progress, but such strike or other labor dispute
is not certified under paragraph (o)(15)(i) of this section, the
Commission shall not deny a petition or suspend an approved petition.
(iii) If the alien has already commenced employment in the United
States under an approved petition and is participating in a strike or
labor dispute involving a work stoppage of workers, whether or not such
strike or other labor dispute has been certified by the Secretary of
Labor, the alien shall not be deemed to be failing to maintain his or
her status solely on account of past, present, or future participation
in a strike or other labor dispute involving a work stoppage of workers
but is subject to the following terms and conditions:
(A) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act and regulations promulgated
thereunder in the same manner as are all other O nonimmigrants;
(B) The status and authorized period of stay of such an alien is not
modified or extended in any way by virtue of his or her participation in
a strike or other labor dispute involving a work stoppage of workers;
and
(C) Although participation by an O nonimmigrant alien in a strike or
other labor dispute involving a work stoppage of workers will not
constitute a ground for deportation, an alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired will be subject to deportation.
(16) Use of approval notice, Form I-797. The Service shall notify
the petitioner on Form I-797 whenever a visa petition or an extension of
a visa petition is approved under the O classification. The beneficiary
of an O petition who does not require a nonimmigrant visa may present a
copy of the approval notice at a port of entry to facilitate entry into
the United States. A beneficiary who is required to present a visa for
admission and whose visa will have expired before the date of his or her
intended return may use Form I-797 to apply for a new or revalidated
visa during the validity period of the petition. The copy of Form I-797
shall be retained by the beneficiary and presented during the validity
of the petition when reentering the United States to resume the same
employment with the same petitioner.
(17) Return transportation requirement. In the case of an alien who
enters the United States under section 101(a)(15)(O) of the Act and
whose employment terminates for reasons other than voluntary
resignation, the employer whose offer of employment formed the basis of
such nonimmigrant status and the petitioner are jointly and severally
liable for the reasonable cost of return transportation of the alien
abroad. For the purposes of this paragraph, the term abroad means the
alien's last place of residence prior to his or her entry into the
United States.
(p) Artists, athletes, and entertainers -- (1) Classifications -- (i)
General Under section 101(a)(15)(P) of the Act, an alien having a
residence in a foreign country which he or she has no intention of
abandoning may be authorized to come to the United States temporarily to
perform services for an employer or a sponsor. Under this nonimmigrant
category, the alien may be classified under section 101(a)(15)(P)(i) of
the Act as an alien who is coming to the United States to perform
services as an internationally recognized athlete or member of an
internationally recognized entertainment group; under section
101(a)(15)(P)(ii) of the Act, as an alien who is coming to perform as an
artist or entertainer under a reciprocal exchange program; under
section 101(a)(15)(P)(iii) of the Act, as an alien who is coming solely
to perform, teach or coach under a program that is culturally unique;
or under section 101(a)(15)(P)(iv) of the Act, as the spouse or child of
an alien described in section 101(a)(15)(P)(i), (ii), or (iii) of the
Act who is accompanying or following to join the alien. These
classifications are called P-1, P-2, P-3, and P-4 respectively. The
employer or sponsor must file a petition with the Service for review of
the services and for determination of the alien's eligibility for P-1,
P-2, or P-3 classification before the alien may apply for a visa or seek
admission to the United States. This paragraph sets forth the standards
and procedures applicable to these classifications.
(ii) Description of classification (A) A P-1 classification applies
to an alien who is coming temporarily to the United States:
(1) To perform at a specific athletic competition as an athlete,
individually or as part of a group or team, at an internationally
recognized level of performance, or
(2) To perform with, or as an integral and essential part of the
performance of, an entertainment group that has been recognized
internationally as being outstanding in the discipline for a sustained
and substantial period of time, and who has had a sustained and
substantial relationship with the group (ordinarily for at least one
year) and provides functions integral to the performance of the group.
(B) A P-2 classification applies to an alien who is coming
temporarily to the United States to perform as an artist or entertainer,
individually or as part of a group, or to perform as an integral part of
the performance of such a group, and who seeks to perform under a
reciprocal exchange program which is between an organization or
organizations in the United States and an organization or organizations
in one or more foreign states, and which provides for the temporary
exchange of artists and entertainers, or groups of artists and
entertainers.
(C) A P-3 classification applies to an alien artist or entertainer
who is coming temporarily to the United States, either individually or
as part of a group, or as an integral part of the performace of the
group, to perform, teach, or coach under a commercial or noncommercial
program that is culturally unique.
(2) Filing of petitions -- (i) General. A P-1 petition for an
athlete or entertainment group shall be filed by a United States or
foreign employer. A P-2 petition for an artist or entertainer in a
reciprocal exchange program or a P-3 petition for an artist or
entertainer in a culturally unique program shall be filed by the
sponsoring organization or an employer in the United States. Essential
support personnel may not be included on the petition filed for the
principal alien(s); rather, these aliens require a separate petition.
The petitioning employer or sponsoring organization shall file a P
petition on Form I-129, Petition for Nonimmigrant Worker, with the
Service Center which has jurisdiction in the area where the alien will
work. The petition may not be filed more than 6 months before the
actual need for the alien's services. A P-1, P-2, or P-3 petition shall
be adjudicated at the appropriate Service Center, even in emergent
situations. The petition shall be accompanied by the evidence specified
in paragraph (p) of this section. A legible photocopy of a document in
support of the petition may be submitted in lieu of the original.
However, the original document shall be submitted if requested by the
director.
(ii) Other filing situations -- (A) Services in more than one
location. A petition which requires the alien to work in more than one
location (i.e., a tour) must include an itinerary with the dates and
locations of the performances and must be filed with the Service Center
which has jurisdiction in the area where the petitioner is located. The
address which the petitioner specifies as its location on the petition
shall be where the petitioner is located for purposes of this section.
If the petitioner is a foreign employer with no United States location,
the petition shall be filed with the Service office that has
jurisdiction over the area where the employment will begin.
(B) Services for more than one employer. If the beneficiary(ies)
will work for more than one employer within the same time period, each
employer must file a separate petition with the Service Center that has
jurisdiction over the area where the alien will perform the services,
unless an established agent files the petition.
(C) Change of employer. If a P-1, P-2, or P-3 alien in the United
States seeks to change employers or sponsors, the new employer must file
a petition and a request to extend the alien's stay in the United
States.
(D) Amended petition. The petitioner shall file an amended petition,
with fee, with the Service Center where the original petition was filed
to reflect any material changes in the terms and conditions of
employment or the beneficiary's eligibility as specified in the original
approved petition
(E) Agents as petitioners. An established United States agent may
file a petition in cases involving workers who traditionally are
self-employed or use agents to arrange short-term employment on their
behalf with numerous employers, and in cases where a foreign employer
authorizes the agent to act in its behalf. A petition filed by an agent
is subject to the following conditions:
(1) A person or company in business as an agent may file the P
petition involving multiple employers as the representative of both the
employers and the beneficiary(ies) if the supporting documentation
includes a complete itinerary of services or engagements. The itinerary
shall specify the dates of each service or engagement, the names and
addresses of the actual employers, and the names and addresses of the
establishments, venues, or locations where the services will be
performed. In questionable cases, a contract between the employer(s)
and the beneficiary(ies) may be required. The burden is on the agent to
explain the terms and conditions of the employment and to provide any
required documentation.
(2) An agent performing the function of an employer must specify the
wage offered and the other terms and conditions of employment by
contractual agreement with the beneficiary(ies). The agent/employer
must also provide an itinerary of definite employment and information on
any other services planned for the period of time requested.
(F) Multiple beneficiaries. More than one beneficiary may be
included in a P petition if they are members of a group seeking
classification based on the reputation of the group as an entity, or if
they will provide essential support to P-1, P-2, or P-3 beneficiaries
performing in the same location and in the same occupation. If the
beneficiaries will be applying for visas at more than one consulate, the
petitioner shall submit a separate petition for each consulate. If the
beneficiaries who are exempt from visa requirements will be applying for
admission at more than one port of entry, the petitioner shall submit a
separate petition for each port of entry.
(G) Named beneficiaries. Petitions for P classification must include
the names of beneficiaries and other required information at the time of
filing.
(H) Substitution of beneficiaries. Beneficiaries may be substituted
in P-1 petitions for athletic teams, or P-2 and P-3 petitions for
groups. To request substitution, the petitioner shall submit a letter
requesting such substitution, along with a copy of the petitioner's
approval notice, to the consular office at which the alien will apply
for a visa or the port of entry where the alien will apply for
admission.
(3) Definitions:
Arts includes fields of creative activity or endeavor such as, but
not limited to, fine arts, visual arts, and performing arts.
Competition, event, or performance means an activity such as an
athletic competition, athletic season, tournament, tour, exhibit,
project, entertainment event, or engagement. Such activity could
include short vacations, promotional appearances, and stopovers which
are incidental and/or related to the activity. An athletic competition
or entertainment event could include an entire season of performances.
A group of related activities will also be considered an event.
Contract means the written agreement between the petitioner and the
beneficiary(ies) that explains the terms and conditions of employment.
The contract shall describe the services to be performed, and specify
the wages, hours of work, working conditions, and any fringe benefits.
Culturally unique means a style of artistic expression, methodology,
or medium which is unique to a particular country, nation, society,
class, ethnicity, religion, tribe, or other group of persons.
Essential support alien means a highly skilled, essential person
determined by the director to be an integral part of the performance of
a P-1, P-2, or P-3 alien because he or she performs support services
which cannot be readily performed by a United States worker and which
are essential to the successful performance of services by the P-2
alien. Such alien must have appropriate qualifications to perform the
services, critical knowledge of the specific services to be performed,
and experience in providing such support to the P-1, P-2, or P-3 alien.
Group means two or more persons established as one entity or unit to
perform or to provide a service.
Internationally recognized means having a high level of achievement
in a field evidenced by a degree of skill and recognition substantially
above that ordinarily encountered, to the extent that such achievement
is renowned, leading, or well-known in more than one country.
Member of a group means a person who is actually performing the
entertainment services.
Sponsor, as used in this section, means an established organization
in the United States which will not directly employ a P-2 or P-3 alien
but will assume responsibility for the accuracy of the terms and
conditions specified in the petition.
Team means two or more persons organized to peform together as a
competitive unit in a competitive event.
(4) Petition for an internationally recognized athlete or member of
an internationally recognized entertainment group (P-1) --
(i) Types of classification -- (A) P-1 classification as an athlete
in an individual capacity. A P-1 classification may be granted to an
alien who is an internationally recognized athlete based on his or her
own reputation and achievements as an individual. The alien must be
coming to the United States to perform services which require an
internationally recognized athlete.
(B) P-1 classification as a member of an entertainment group or an
athletic team. An entertainment group or athletic team consists of two
or more persons who function as a unit. The entertainment group or
athletic team as a unit must be internationally recognized as
outstanding in the discipline and must be coming to perform services
which require an internationally recognized entertainment group or
athletic team. A person who is a member of an internationally
recognized entertainment group or athletic team may be granted P-1
classification based on that relationship, but may not perform services
separate and apart from the entertainment group or athletic team. An
entertainment group must have been established for a minimum of one year
or more, and 75 per cent of the members of the group must have been
performing entertainment services for such group for a minimum of one
year or more.
(C) P-1 classification as an essential support alien. An essential
support alien as defined in paragraph (p)(3) of this section may be
granted P-1 classification based on a support relationship with an
individual athlete, athletic team, or entertainment group.
(ii) Criteria and documentary requirements for P-1 athletes. -- (A)
General. A P-1 athlete must have an internationally recognized
reputation as an international athlete or he or she must be a member of
a foreign team that is internationally recognized. The athlete or team
must be coming to the United States to participate in an athletic
competition which has a distinguished reputation and which requires
participation of an athlete or athletic team that has an international
reputation.
(B) Standards for an internationally recognized athlete or athletic
team. A petition for an athletic team must be accompanied by evidence
that the team as a unit has achieved international recognition in the
sport. Each member of the team is accorded P-1 classification based on
the international reputation of the team. A petition for an athlete who
will compete individually or as a member of a United States team must be
accompanied by evidence that the athlete has achieved international
recognition in the sport based on his or her reputation. A petition for
a P-1 athlete or athletic team shall include:
(1) A tendered contract with a major United States sports league or
team, or a tendered contract in an individual sport commensurate with
international recognition in that sport, and
(2) Documentation of at least two of the following:
(i) Evidence of having participated to a significant extent in a
prior season with a major United States sports league;
(ii) Evidence of having participated in international competition
with a national team;
(iii) Evidence of having participated to a significant extent in a
prior season for a United States college or university in
intercollegiate competition;
(iv) A written statement from an official of a major United States
sports league or an official of the governing body of the sport which
details how the alien or team is internationally recognized;
(v) A written statement from a member of the sports media or a
recognized expert in the sport which details how the alien or team is
internationally recognized;
(vi) Evidence that the individual or team is ranked if the sport has
international rankings; or
(vii) Evidence that the alien or team has received a significant
honor or award in the sport.
(iii) Criteria and documentary requirements for members of an
internationally recognized entertainment group. -- (A) General. A P-1
classification shall be accorded to an international group to perform as
a unit based on the international reputation of the group. Individual
entertainers shall not be accorded P-1 classification to perform
separate and apart from a group. Except as provided in paragraph
(p)(4)(iii)(C)(2) of this section, it must be established that the group
has been internationally recognized as outstanding in the discipline for
a sustained and substantial period of time. Seventy-five percent of the
members of the group must have had a sustained and substantial
relationship with the group for at least one year and must provide
functions integral to the group's performance.
(B) Standards for members of internationally recognized entertainment
groups. A petition for P-1 classification for the members of an
entertainment group shall be accompanied by:
(1) Evidence that the group, under the name shown on the petition,
has been established and performing regularly for a period of at least
one year;
(2) A statement from the petitioner listing each member of the group
and the exact dates for which each member has been employed on a regular
basis by the group; and
(3) Evidence that the group has been internationally recognized in
the discipline. This may be demonstrated by the submission of evidence
of the group's nomination or receipt of significant international awards
or prizes for outstanding achievement in its field or by three of the
following different types of documentation:
(i) Evidence that the group has performed and will perform as a
starring or leading entertainment group in productions or events which
have a distinguished reputation as evidenced by critical reviews,
advertisements, publicity releases, publications, contracts, or
endorsement;
(ii) Evidence that the group has achieved international recognition
and acclaim for outstanding achievement in its field as evidenced by
reviews in major newspapers, trade journals, magazines, or other
published material;
(iii) Evidence that the group has performed and will perform services
as a leading or starring group for organizations and establishments that
have a distinguished reputation evidenced by articles in newspapers,
trade journals, publications, or testimonials;
(iv) Evidence that the group has a record of major commercial or
critically acclaimed successes, as evidenced by such indicators as
ratings, standing in the field, box office receipts, record, cassette,
or video sales, and other achievements in the field as reported in trade
journals, major newspapers, or other publications;
(v) Evidence that the group has achieved significant recognition for
achievements from organizations, critics, government agencies, or other
recognized experts in the field. Such testimonials must be in a form
that clearly indicates the author's authority, expertise, and knowledge
of the alien's achievements; or
(vi) Evidence that the group has commanded or now commands a high
salary or other substantial remuneration for services comparable to
others similarly situated in the field as evidenced by contracts or
other reliable evidence.
(C) Special provisions for certain entertainment groups. -- (1)
Alien circus personnel. The one-year group membership requirement is
not applicable to alien circus personnel who perform as part of a circus
or circus group, or who constitute an integral and essential part of the
performance of such circus or circus group, provided that the alien or
aliens are coming to join a circus that has been recognized nationally
as outstanding for a sustained and substantial period of time as part of
such a circus.
(2) Certain nationally known entertainment groups. The director may
waive the international recognition requirement in the case of an
entertainment group which has been recognized nationally as being
outstanding in its discipline for a sustained and substantial period of
time in consideration of special circumstances. An example of a special
circumstance would be when an entertainment group may find it difficult
to demonstrate recognition in more than one country due to such factors
as limited access to news media or consequences of geography.
(3) Waiver of one-year relationship in exigent circumstances. The
director may waive the one-year relationship requirement for an alien
who, because of illness or unanticipated and exigent circumstances,
replaces an esential member of a P-1 entertainment group or an alien who
augments the group by performing a critical role.
(5) Petition for an artist or entertainer under a reciprocal exchange
program (P-2). -- (i) General. -- (A) A P-2 classification shall be
accorded to artists or entertainers, individually or as a group, who
will be performing under a reciprocal exchange program which is between
an organization or organizations in the United States and an
organization or organizations in one or more foreign states and which
provides for the temporary exchange of artists and entertainers, or
groups of artists and entertainers.
(B) The exchange of artists or entertainers shall be similar in terms
of caliber of artists or entertainers, terms and conditions of
employment, such as length of employment, and numbers of artists or
entertainers involved in the exchange. However, this requirement does
not preclude individual for group exchanges.
(C) An alien who is an essential support person as defined in
paragraph (p)(3) of this section may be accorded P-2 classification
based on a support relationship to a P-2 artist or entertainer under a
reciprocal exchange program.
(ii) Documentary requirements for petition involving a reciprocal
exchange program. A petition for P-2 classification shall be
accompanied by:
(A) A copy of the formal reciprocal exchange agreement between the
United States organization or organizations which is sponsoring the
aliens and an organization or organizations in a foreign country which
will receive the United States artist or entertainers;
(B) A statement from the sponsoring organization describing the
reciprocal exchange of United States artists or entertainers as it
relates to the specific petition for which P-2 classification is being
sought;
(C) Evidence that an appropriate labor organization in the United
States was involved in negotiating, or has occurred with, the reciprocal
exchange of United States and foreign artists or entertainers; and
(D) Evidence that the aliens for whom P-2 classification is being
sought and the United States artists or entertainers subject to the
reciprocal exchange agreement are experienced artists or entertainers
with comparable skills, that the terms and conditions of employment are
similar.
(6) Petition for an artist or entertainer under a culturally unique
program -- (i) General. (A) A P-3 classification may be accorded to
artists or entertainers, individually or as a group, that are recognized
by governmental agencies, cultural organizations, scholars, arts
administrators, critics, or other experts in the particular field for
excellence in developing, interpreting, representing, coaching, or
teaching a unique or traditional ethnic, folk, cultural, musical,
theatrical, or artistic performance or presentation.
(B) The artist or entertainer must be coming to the United States for
cultural events to further the understanding or development of his or
her art form, and be sponsored primarily by educational, cultural, or
governmental organizations which promote such cultural international
cultural activities and exchanges. The program may be of a commercial
or noncommercial nature.
(ii) Standards for a petition involving a culturally unique program.
A petition for P-3 classification shall be accompanied by two of the
following:
(A) Documentation that the alien or group has performed in, or was
involved in, teaching or coaching productions or events involving the
presentation of culturally unique performances for a substantial period
of time;
(B) Documentation that the alien or group has achieved national or
international recognition or acclaim for excellence in the field as
evidenced by critical reviews in newspapers, journals, or other
published materials; or
(C) Documentation that the alien or group has received recognition
for achievements from organizations, critics, government agencies,
cultural agencies, or other recognized experts in the field.
(iii) Documentary requirements for a petition involving a culturally
unique program. A petition for P-3 classification must be accompanied
by:
(A) Affidavits, testimonials, or letters from recognized experts
attesting to the authenticity and excellence of the alien's or the
group's skills in performing, presenting, coaching, or teaching the
unique or traditional art form, explaining the level of recognition
accorded the alien or group in the native country or another country,
and giving the credentials of the expert, including the basis of his or
her knowledge of the alien's or group's skill and recognition, and
(B) Evidence that most of the performances or presentations will be
culturally unique events sponsored by educational, cultural, or
governmental agencies.
(7) Consultation -- (i) General. (A) Consultation with an
appropriate labor organization regarding the nature of the work to be
done and the alien's qualifications is mandatory before a petition for
P-1, P-2, or P-3 classification can be approved.
(B) Except as provided in paragraph (p)(7)(i)(E) of this section,
evidence of consultation shall be a written advisory opinion from a
labor organization.
(C) Except as provided in paragraph (p)(7)(i)(E) of this section, the
petitioner shall obtain a written advisory opinion from an appropriate
labor organization. The advisory opinion shall be submitted along with
the petition when the petition is filed. The advisory opinion should
set forth a specific statement of facts which support the conclusion
reached in the opinion. Advisory opinions must be submitted in writing
and signed by an authorized official of the organization.
(D) Except as provided in paragraph (p)(7)(i)(E) of this section,
written evidence of consultation shall be included in the record in
every approved petition. Consultations are advisory in nature only and
are not binding on the Service. If a petition is denied because of the
advisory opinion provided by a labor organization, a copy of the opinion
shall be attached to the director's decision.
(E) In a case where the Service has determined that a petition merits
expeditious handling, the Service shall contact the labor organization
telephonically and request an advisory opinion if one is not submitted
by the petitioner. The labor organization shall have 24 hours to
respond telephonically to the Service's request. The Service shall
adjudicate the petition after receipt of the telephonic response from
the labor organization. The labor organization shall then furnish the
Service with a written advisory opinion within 5 working days of the
telephonic request. If the labor organization fails to respond
telephonically within 24 hours, the Service shall render a decision on
the petition without the advisory opinion.
(F) In those cases where it is established by the petitioner that an
appropriate labor organization does not exist, the Service shall render
a decision on the evidence of record.
(G) A single advisory opinion may be submitted in conjunction with
multiple essential support personnel or a group of principal aliens even
though more than one petition is filed on their behalf.
(ii) Consultation requirements for P-1 athletes and entertainment
groups. Consultation with a labor organization that has expertise in
the area of the alien's sport or entertainment field is required in a
P-1 petition. The advisory opinion provided by the labor organization
must evalute and/or describe the alien's or group's ability and
achievements in the field of endeavor, comment on whether the alien or
group is internationally recognized for achievements, and state whether
the services the alien or group is coming to perform are appropriate for
an internationally recognized athlete or entertainment group.
(iii) Consultation requirements for P-2 alien in a reciprocal
exchange program. In P-2 petitions where an artist or entertainer is
coming to the United States under a reciprocal exchange program,
consultation with the appropriate labor organization is required to
verify the existence of a viable exchange program. The advisory opinion
from the labor organization shall comment on the bona fides of the
reciprocal exchange program and specify whether the exchange meets the
requirements of paragraph (p)(5) of this section.
(iv) Consultation requirements for P-3 in a culturally unique
program. Consultation with an appropriate labor organization is
required for P-3 petitions involving aliens in culturally unique
programs. The advisory opinion shall evaluate the cultural uniqueness
of the alien's skills, state whether the events are mostly cultural in
nature, and state whether the event or activity is appropriate for P-3
classification.
(v) Consultation requirements for essential support aliens. Written
consultation on petitions for P-1, P-2, or P-3 essential support aliens
must be made with a labor organization with expertise in the skill area
involved. The advisory opinion provided by the labor organization must
evaluate the alien's essentiality to and working relationship with the
artist or entertainer, and state whether U.S. workers are available who
can perform the support services.
(vi) Labor organizations agreeing to provide consultations. The
Service shall list in its Operations Instructions for P classification
those organizations which have agreed to provide advisory opinions to
the Service and/or petitioners. The list will not be an exclusive or
exhaustive list. The Service and petitioners may use other sources,
such as publications, to identify appropriate labor organizations.
(8) Approval and validity of petition -- (i) Approval. The director
shall consider all the evidence submitted and such other evidence as he
or she may independently require to assist in his or her adjudication.
The director shall notify the petitioner of the approval of the petition
on Form I-797, Notice of Action. The approval notice shall include the
alien beneficiary's name and classification and the petition's period of
validity.
(ii) Recording the validity of petitions. Procedures for recording
the validity period of petitions are:
(A) If a new P petition is approved before the date the petitioner
indicates the services will begin, the approved petition and approval
notice shall show the actual dates requested by the petitioner as the
validity period, not to exceed the limit specified in paragraph
(p)(8)(iii) of this section or other Service policy.
(B) If a new P petition is approved after the date the petitioner
indicates the services will begin, the approved petition and approval
notice shall show a validity period commencing with the date of approval
and ending with the date requested by the petitioner, not to exceed the
limit specified in paragraph (p)(8)(iii) of this section or other
Service policy.
(C) If the period of services requested by the petitioner exceeds the
limit specified in paragraph (p)(8)(iii) of this section, the petition
shall be approved only up to the limit specified in that paragraph.
(iii) Validity. The approval period of a P petition shall conform to
the limits prescribed as follows:
(A) P-1 petition for athletes. An approved petition for an
individual athlete classified under section 101(a)(15)(P)(i) of the Act
shall be valid for a period up to 5 years. An approved petition for an
athletic team classified under section 101(a)(15)(P)(i) of the Act shall
be valid for a period of time determined by the director to complete the
competition or event for which the alien team is being admitted, not to
exceed one year.
(B) P-1 petition for an entertainment group. An approved petition
for an entertainment group classified under section 101(a)(15)(P)(i) of
the Act shall be valid for a period of time determined by the director
to be necessary to complete the performance or event for which the group
is being admitted, not to exceed one year.
(C) P-2 and P-3 petitions for artists or entertainers. An approved
petition for an artist or entertainer under section 101(a)(15)(P) (ii)
or (iii) of the Act shall be valid for a period of time determined by
the director to be necessary to complete the event, activity, or
performance for which the P-2 or P-3 alien is admitted, not to exceed
one year.
(D) Spouse and dependents. The spouse and unmarried minor children
of a P-1, P-2, or P-3 alien beneficiary are entitled to P-4 nonimmigrant
classification, subject to the same period of admission and limitations
as the alien beneficiary, if they are accompanying or following to join
the alien beneficiary in the United States. Neither the spouse nor a
child of the alien beneficiary may accept employment unless he or she
has been granted employment authorization.
(E) Essential support aliens. Petitions for essential support
personnel to P-1, P-2, and P-3 aliens shall be valid for a period of
time determined by the director to be necessary to complete the event,
activity, or performance for which the P-1, P-2, or P-3 alien is
admitted, not to exceed one year.
(iv) P-2 limitation on admission. An alien who has been admitted as
a P-2 nonimmigrant may not be readmitted as a P-2 nonimmigrant unless
the alien has remained outside the United States for at least three
months after the date of his or her most recent admission. The director
may waive this requirement in cases of individual tours where
application of this requirement would cause undue hardship.
(v) Spouse and dependents. The spouse and unmarried minor children
of a P-2 alien beneficiary are entitled to P-2 alien beneficiary are
entitled to P-4 nonimmigrant classification, subject to the same period
of admission and limitations as the alien beneficiary, if they are
accompanying or following to join the alien beneficiary in the United
States. Neither the spouse nor a child of the alien beneficiary may
accept employment unless he or she has been granted employment
authorization.
(9) Denial of petition -- (i)Notice of intent to deny. When an
adverse decision in proposed on the basis of derogatory information of
which the petitioner is unaware, the director shall notify the
petitioner of the intent to deny the petition and the basis for the
denial. The petitioner may inspect and rebut the evidence and will be
granted a period of 30 days from the date of the notice in which to do
so. All relevant rebuttal material will be considered in making a final
decision.
(ii) Notice of denial. The petitioner shall be notified of the
decision, the reasons for the denial, and the right to appeal the denial
under part 103 of this chapter. There is no appeal from a decision to
deny an extension of stay to the alien.
(10) Revocation of approval of petition -- (i) General. (A) The
petitioner shall immediately notify the Service of any changes in the
terms and conditions of employment of a beneficiary which may affect
eligibility under section 101(a)(15)(P) of the Act and paragraph (p) of
this section. An amended petition should be filed when the petitioner
continues to employ the beneficiary. If the petitioner no longer
employs the beneficiary, the petitioner shall send a letter explaining
the change(s) to the director who approved the petition.
(B) The director may revoke a petition at any time, even after the
validity of the petition has expired.
(ii) Automatic revocation. The approval of an unexpired petition is
automatically revoked if the petitioner goes out of business, files a
written withdrawal of the petition, or notifies the Service that the
beneficiary is no longer employed by the petitioner.
(iii) Revocation on notice -- (A) Grounds for revocation. The
director shall send to the petitioner a notice of intent to revoke the
petition in relevant part if he or she finds that:
(1) The beneficiary is no longer employed by the petitioner in the
capacity specified in the petition;
(2) The statement of facts contained in the petition were not true
and correct;
(3) The petitioner violated the terms or conditions of the approved
petition;
(4) The petitioner violated requirements of section 101(a)(15)(P) of
the Act or paragraph (p) of this section; or
(5) The approval of the petition violated paragraph (p) of this
section or involved gross error.
(B) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
time period allowed for the petitioner's rebuttal. The petitioner may
submit evidence in rebuttal within 30 days of the date of the notice.
The director shall consider all relevant evidence presented in deciding
whether to revoke the petition.
(11) Appeal of a denial or a revocation of a petition. (i) Denial.
A denied petition may be appealed under part 103 of this chapter.
(ii) Revocation. A petition that has been revoked on notice may be
appealed under part 103 of this chapter. Automatic revocations may not
be appealed.
(12) Admission. A beneficiary may be admitted to the United States
for the validity period of the petition, plus a period of up to 10 days
before the validity period begins and 10 days after the validity period
ends. The beneficiary may not work except during the validity period of
the petition.
(13) Extension of visa petition validity. The petitioner shall file
a request to extend the validity of the original petition under section
101(a)(15)(P) of the Act on Form I-129 in order to continue or complete
the same activity or event specified in the original petition.
Supporting documents are not required unless requested by the director.
A petition extension may be filed only if the validity of the original
petition has not expired.
(14) Extension of stay -- (i) Extension procedure. The petitioner
shall request extension of the alien's stay to continue or complete the
same event or activity by filing Form I-129, accompanied by a statement
explaining the reasons for the extension. The petitioner must also
request a petition extension. The dates of extension shall be the same
for the petition and the beneficiary's extension of stay. The
beneficiary must be physically present in the United States at the time
the extension of stay is filed. Even though the requests to extend the
petition and the alien's stay are combined on the petition, the director
shall make a separate determination on each. If the alien leaves the
United States for business or personal reasons while the extension
requests are pending, the petitioner may request the director to cable
notification of approval of the petition extension to the consular
office abroad where the alien will apply for a visa.
(ii) Extension periods -- (A) P-1 individual athlete. An extension
of stay for a P-1 individual athlete and his or her essential support
personnel may be authorized for a period up to 5 years for a total
period of stay not to exceed 10 years.
(B) Other P-1, P-2, and P-3 aliens. An extension of stay may be
authorized in increments of one year for P-1 athletic teams,
entertainment groups, aliens in reciprocal exchange programs, aliens in
culturally unique programs, and their essential support personnel to
continue or complete the same event or activity for which they were
admitted.
(ii) Extension periods for P-2 aliens. -- An extension of stay may
be authorized in increments of one year for aliens in reciprocal
exchange programs to continue or complete the same event or activity for
which they were admitted.
(15) Effect of approval of a permanent labor certification or filing
of a preference petition on P classification. The approval of a
permanent labor certification or the filing of a preference petition for
an alien shall not be a basis for denying a P petition, a request to
extend such a petition, or the alien's admission, change of status, or
extension of stay. The alien may legitimately come to the United States
for a temporary period as a P nonimmigrant and depart voluntarily at the
end of his or her authorized stay and, at the same time, lawfully seek
to become a permanent resident of the United States. This provision
does not include essential support personnel.
(16) Effect of a strike. (i) If the Secretary of Labor certifies to
the Commissioner that a strike or other labor dispute involving a work
stoppage of workers is in progress in the occupation at the place where
the beneficiary is to be employed, and that the employment of the
beneficiary would adversely affect the wages and working conditions of
U.S. citizens and lawful resident workers:
(A) A petition to classify an alien as a nonimmigrant as defined in
section 101(a)(15)(P) of the Act shall be denied; or
(B) If a petition has been approved, but the alien has not yet
entered the United States, or has entered the United States but has not
commenced employment, the approval of the petition is automatically
suspended, and the application for admission of the basis of the
petition shall be denied.
(ii) If there is a strike or other labor dispute involving a work
stoppage of workers in progress, but such strike or other labor dispute
is not certified under paragraph (p)(14)(i) of this section, the
Commissioner shall not deny a petition or suspend an approved petition.
(iii) If the alien has already commenced employment in the United
States under an approved petition and is participating in a strike or
labor dispute involving a work stoppage of workers, whether or not such
strike or other labor dispute has been certified by the Secretary of
Labor, the alien shall not be deemed to be failing to maintain his or
her status solely on account of past, present, or future participation
in a strike or other labor dispute involving a work stoppage of workers
but is subject to the following terms and conditions:
(A) The alien shall remain subject to all applicable provisions of
the Immigration and Nationality Act and regulations promulgated
thereunder in the same manner as all other P nonimmigrants;
(B) The status and authorized period of stay of such an alien is not
modified or extended in any way by virtue of his or her participation in
a strike or other labor dispute involving a work stoppage of workers;
and
(C) Although participation by a P nonimmigrant alien in a strike or
other labor dispute involving a work stoppage of workers will not
constitute a ground for deportation, an alien who violates his or her
status or who remains in the United States after his or her authorized
period of stay has expired will be subject to deportation.
(17) Use of approval notice, Form I-797. The Service shall notify
the petitioner on Form I-797 whenever a visa petition or an extension of
a visa petition is approved under the P classification. The beneficiary
of a P petition who does not require a nonimmigrant visa may present a
copy of the approval notice at a port of entry to facilitate entry into
the United States. A beneficiary who is required to present a visa for
admission and whose visa expired before the date of his or her intended
return may use Form I-797 to apply for a new or revalidated visa during
the validity period of the petition. The copy of Form I-797 shall be
retained by the beneficiary and presented during the validity of the
petition when reentering the United States to resume the same employment
with the same petitioner.
(18) Return transportation requirement. In the case of an alien who
enters the United States under section 101(a)(15)(P) of the Act and
whose employment terminates for reasons other than voluntary
resignation, the employer whose offer of employment formed the basis of
such nonimmigrant status and the petitioner are jointly and severally
liable for the reasonable cost of return transportation of the alien
abroad. For the purposes of this paragraph, the term abroad means the
alien's last place of residence prior to his or her entry into the
United States.
(q) International cultural exchange visitor -- (1) Definitions. As
used in this section:
Country of nationality means the country of which the participant was
a national at the time of the petition seeking international cultural
exchange visitor status for him or her.
Doing business means the regular, systematic, and continuous
provision of goods and/or services (including lectures, seminars and
other types of cultural programs) by a qualified employer which has
employees, and does not include the mere presence of an agent or office
of the qualifying employer.
Duration of program means the time in which a qualified employer is
conducting an approved cultural exchange program in the manner as
established by the employer's petition for program approval, provided
that the period of time does not exceed 15 months.
International cultural exchange visitor or cultural visitor means an
alien who has a residence in a foreign country which he or she has no
intention of abandoning, and who is coming temporarily to the United
States to take part in an international cultural exchange program
approved by the Attorney General.
Petitioner means the employer or its designated agent who has been
employed by the qualified employer on a permanent basis in an executive
or managerial capacity. The designated agent must be a United States
citizen, an alien lawfully admitted for permanent residence, or an alien
provided temporary residence status under sections 210 or 245A of the
Act.
Qualified employer means a United States or foreign firm,
corporation, non-profit organization, or other legal entity (including
its U.S. branches, subsidiaries, affiliates, and franchises) which
administers an international cultural exchange program designated by the
Attorney General in accordance with the provisions of section
101(a)(15)(Q) of the Act.
(2) Admission of cultural visitor -- (i) General. A nonimmigrant
alien may be authorized to enter the United States as a participant in
an international cultural exchange program approved by the Attorney
General for the purpose of providing practical training, employment, and
the sharing of the history, culture, and traditions of the country of
the alien's nationality. The period of admission is the duration of the
approved international cultural exchange program or fifteen (15) months,
whichever is shorter. A nonimmigrant alien admitted under this
provision is classifiable as a cultural visitor in Q status.
(ii) Limitation on admission. Any alien who has been admitted into
the United States as a cultural visitor under section 101(a)(15)(Q) of
the Act shall not be readmittted in Q status unless the alien has
resided and been physically present outside the United States for the
immediate prior year. Brief trips to the United States for pleasure or
business during the immediate prior year do not break the continuity of
the one-year foreign residency.
(3) International cultural exchange program -- (i) General. A United
States employer shall petition the Attorney General on Form I-129,
Petition for a Nonimmigrant Worker, for approval of an international
cultural exchange program which is designed to provide an opportunity
for the American public to learn about foreign cultures. The United
States employer must simultaneously petition on the same Form I-129 for
the authorization for one or more individually identified nonimmigrant
aliens to be admitted in Q status. These aliens are to be admitted to
engage in employment or training of which the essential element is the
sharing with the American public, or a segment of the public sharing a
common cultural interest, of the culture of the alien's country of
nationality. The cultural visitor's eligibility for admission will be
considered only if the international cultural exchange program is
approved.
(ii) Program validity. Each petition for an international cultural
exchange program will be approved for the duration of the program, which
may not exceed 15 months, plus 30 days to allow time for the
participants to make travel arrangements. Subsequent to the approval of
the initial petition, a new petition must be filed each time the
qualified employer wishes to bring in additional cultural visitors. A
qualified employer may replace or substitute a participant named on a
previously approved petition for the remainder of the program in
accordance with paragraph (q)(6) of this section. The replacement or
substituting alien may be admitted in Q status until the expiration date
of the approved petition.
(iii) Requirements for program approval. An international cultural
exchange program must meet all of the following requirements:
(A) Accessibility to the public. The international cultural exchange
program must take place in a school, museum, business or other
establishment where the American public, or a segment of the public
sharing a common cultural interest, is exposed to aspects of a foreign
culture as part of a structured program. Activities that take place in
a private home or an isolated business setting to which the American
public, or a segment of the public sharing a common cultural interest,
does not have direct access do not qualify.
(B) Cultural component. The international cultural exchange program
must have a cultural component which is an essential and integral part
of the cultural visitor's employment or training. The cultural
component must be designed, on the whole, to exhibit or explain the
attitude, customs, history, heritage, philosophy, or traditions of the
cultural visitor's country of nationality. A cultural component may
include structured instructional activities such as seminars, courses,
lecture series, or language camps.
(C) Work component. The cultural visitor's employment or training in
the United States may not be independent of the cultural component of
the international cultural exchange program. The work component must
serve as the vehicle to achieve the objectives of the cultural
component. The sharing of the culture of the cultural visitor's country
of nationality must result from his or her employment or training with
the qualified employer in the United States.
(iv) Requirements for cultural visitors. To be eligible for cultural
visitor status, an alien must be a bona fide nonimmigrant who:
(A) Is at least 18 years of age at the time the petition is filed;
(B) Is qualified to perform the service or labor or receive the type
of training stated in the petition;
(C) Has the ability to communicate effectively about the cultural
attributes of his or her country of nationality to the American public;
and
(D) Has resided and been physically present outside of the United
States for the immediate prior year, if he or she was previously
admitted as a cultural visitor.
(4) Supporting documentation -- (i) Documentation by the employer.
To establish eligibility as a qualified employer, the petitioner must
submit with the completed Form I-129 appropriate evidence that the
employer:
(A) Maintains an established international cultural exchange program
in accordance with the requirements set forth in paragraph (q)(3) of
this section;
(B) Has designated a qualified employee as a representative who will
be responsible for administering the international cultural exchange
program and who will serve as liaison with the Immigration and
Naturalization Service;
(C) Is actively doing business in the United States;
(D) Will offer the alien(s) wages and working conditions comparable
to those accorded local domestic workers similarly employed; and
(E) Has the financial ability to remunerate the participant(s).
(ii) Certification by petitioner. (A) The petitioner must give the
date of birth, country of nationality, level of education, position
title, and a brief job description for each cultural visitor included in
the petition. The petitioner must verify and certify that the
prospective participants are qualified to perform the service or labor,
or receive the type of training, described in the petition.
(B) The petitioner must report the cultural visitors' wages and
certify that such cultural exchange visitors are offered wages and
working conditions comparable to those accorded to local domestic
workers similarly employed.
(iii) Supporting documentation as prescribed in paragraphs (q)(4)(i)
and (q)(4)(ii) of this section must accompany a petition filed on Form
I-129 in all cases except where the employer files multiple petitions in
the same calendar year. When petitioning to repeat a previously
approved cultural exchange program, a copy of the initial program
approval notice may be submitted in lieu of the documentation required
under paragraph (q)(4)(i) of this section. The Service will request
additional documentation only when clarification is needed.
(5) Filing of petitions -- (i) General. A United States employer
seeking to bring in cultural visitors must file a petition on Form
I-129, Petition for a Nonimmigrant Worker, with the applicable fee,
along with appropriate documentation. The petition and accompanying
documentation should be filed with either the service center having
jurisdiction over the employer's headquarters or the service center
having jurisdiction over the area where the cultural visitors will
perform services or labor or will receive training. A new petition on
Form I-129, with the applicable fee, must be filed with the appropriate
service center each time a qualified employer wants to bring in
additional cultural visitors. Each person named on an approved petition
will be admitted only for the duration of the approved program.
Replacement or substitution may be made for any person named on an
approved petition as provided in paragraph (q)(6) of this section, but
only for the remainder of the approved program.
(ii) Petition for multiple participants. The petitioner may include
more than one participant on the petition. The petitioner shall include
the name, date of birth, nationality, and other identifying information
required on the petition for each participant. The petitioner must also
indicate the United States consulate at which each participant will
apply for a Q visa. For participants who are visa-exempt under 8 CFR
212.1(a), the petitioner must indicate the port of entry at which each
participant will apply for admission to the United States.
(iii) Service, labor, or training in more than one location. A
petition which requires the cultural visitor to engage in employment or
training (with the same employer) in more than one location must include
an itinerary with the dates and locations of the services, labor, or
training.
(iv) Services, labor, or training for more than one employer. If the
cultural visitor will perform services or labor for, or receive training
from, more than one employer, each employer must file a separate
petition with the service center having jurisdiction over the area where
the alien will perform services or labor, or receive training. The
cultural visitor may work part-time for multiple employers provided that
each employer has an approved petition for the alien.
(v) Change of employers. If a cultural visitor is in the United
States under section 101(a)(15)(Q) of the Act and decides to change
employers, the new employer must file a petition. However, the total
period of time the cultural visitor may stay in the United States
remains limited to fifteen (15) months.
(6) Substitution or replacement of participants. The petitioner may
substitute for or replace a person named on a previously approved
petition for the remainder of the program without filing a new Form
I-129. The substituting cultural visitor must meet the qualification
requirements prescribed in paragraph (q)(3)(iv) of this section. To
request substitution or replacement, the petitioner shall, by letter,
notify the consular office at which the alien will apply for a visa or,
in the case of visa-exempt aliens, the Service office at the port of
entry where the alien will apply for admission. A copy of the
petition's approval notice must be included with the letter. The
petitioner must state the date of birth, country of nationality, level
of education, and position title of each prospective cultural visitor
and must certify that each is qualified to perform the service or labor
or receive the type of training described in the approved petition. The
petitioner must also indicate each cultural visitor's wages and certify
that the cultural visitor is offered wages and working conditions
comparable to those accorded to local domestic workers in accordance
with paragraph (q)(11)(ii) of this section.
(7) Approval of petition -- (i) The director shall consider all the
evidence submitted and request other evidence as he or she may deem
necessary.
(ii) The director shall notify the petitioner and the appropriate
United States consulate(s) of the approval of a petition. For
participants who are visa-exempt under 8 CFR 212.1(a), the director
shall give notice of the approval to the director of the port of entry
at which each such participant will apply for admission to the United
States. The notice of approval shall include the name of the cultural
visitors, their classification, and the petition's period of validity.
(iii) An approved petition for an alien classified under section
101(a)(15)(Q) of the Act is valid for the length of the approved program
or fifteen (15) months, whichever is shorter.
(iv) A petition shall not be approved for an alien who has an
aggregate of fifteen (15) months in the United States under section
101(a)(15)(Q) of the Act, unless the alien has resided and been
physically present outside the United States for the immediate prior
year.
(8) Denial of the petition -- (i) Notice of denial. The petitioner
shall be notified of the denial of a petition, the reasons for the
denial, and the right to appeal the denial under part 103 of this
chapter.
(ii) Multiple participants. A petition for multiple cultural
visitors may be denied in whole or in part.
(9) Revocation of approval of petition -- (i) General. The
petitioner shall immediately notify the appropriate Service center of
any changes in the employment of a participant which would affect
eligibility under paragraph (q) of this section.
(ii) Automatic revocation. The approval of any petition is
automatically revoked if the qualifying employer goes out of business,
files a written withdrawal of the petition, or terminates the approved
international cultural exchange program prior to its expiration date.
(iii) Revocation on notice. The director shall send the petitioner a
notice of intent to revoke the petition in whole or in part if he or she
finds that:
(A) The cultural visitor is no longer employed by the petitioner in
the capacity specified in the petition, or if the cultural visitor is no
longer receiving training as specified in the petition;
(B) The statement of facts contained in the petition was not true and
correct;
(C) The petitioner violated the terms and conditions of the approved
petition; or
(D) The Service approved the petition in error.
(iv) Notice and decision. The notice of intent to revoke shall
contain a detailed statement of the grounds for the revocation and the
period of time allowed for the petitioner's rebuttal. The petitioner
may submit evidence in rebuttal within 30 days of receipt of the notice.
The director shall consider all relevant evidence presented in deciding
whether to revoke the petition in whole or in part. If the petition is
revoked in part, the remainder of the petition shall remain approved and
a revised approval notice shall be sent to the petitioner with the
revocation notice.
(v) Appeal of a revocation of a petition. Revocation with notice of
a petition in whole or in part may be appealed to the Associate
Commissioner for Examinations under part 103 of this chapter. Automatic
revocation may not be appealed.
(10) Extension of stay. An alien's total period of stay in the
United States under section 101(a)(15)(Q) of the Act cannot exceed
fifteen (15) months. The authorized stay of a cultural visitor may be
extended within the 15-month limit if he or she is the beneficiary of a
new petition filed in accordance with paragraph (q)(3) of this section.
The new petition, if filed by the same employer, should include a copy
of the previous petition's approval notice and a letter from the
petitioner indicating any terms and conditions of the previous petition
that have changed.
(11) Employment provisions -- (i) General. An alien classified under
section 101(a)(15)(Q) of the Act may be employed only by the qualified
employer through which the alien attained Q nonimmigrant status. An
alien in this class is not required to apply for an employment
authorization document. Employment outside the specific program
violates the terms of the alien's Q nonimmigrant status within the
meaning of section 241(a)(1)(C)(i) of the Act.
(ii) Wages and working conditions. The wages and working conditions
of a cultural visitor must be comparable to those accorded to domestic
workers similarly employed in the geographical area of the alien's
employment. The employer must certify on the petition that such
conditions are met as in accordance with paragraph (q)(4)(iii)(B) of
this section.
(r) Religious workers -- (1) General. Under section 101(a)(15)(R) of
the Act, an alien who, for at least the two (2) years immediately
preceding the time of application for admission, has been a member of a
religious denomination having a bona fide nonprofit religious
organization in the United States, may be admitted temporarily to the
United States to carry on the activities of a religious worker for a
period not to exceed five (5) years. The alien must be coming to the
United States for one of the following purposes: solely to carry on the
vocation of a minister of the religious denomination; to work for the
religious organization at the request of the organization in a
professional capacity; or to work for the organization, or a bona fide
organization which is affiliated with the religious denomination, at the
request of the organization in a religious vocation or occupation.
(2) Definitions. As used in this section:
Bona fide nonprofit religious organization in the United States means
an organization exempt from taxation as described in section 501(c)(3)
of the Internal Revenue Code of 1986 as it relates to religious
organizations, or one that has never sought such exemption but
establishes to the satisfaction of the Service that it would be eligible
therefor if it had applied for tax exempt status.
Bona fide organization which is affiliated with the religious
denomination means an organization which is both closely associated with
the religious denomination and exempt from taxation as described in
section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to
religious organizations.
Minister means an individual duly authorized by a recognized
religious denomination to conduct religious worship and to perform other
duties usually performed by authorized members of the clergy of that
religion. In all cases, there must be a reasonable connection between
the activities performed and the religious calling of the minister. The
term does not include a lay preacher not authorized to perform such
duties.
Professional capacity means an activity in a religious vocation or
occupation for which the minimum of a United States baccalaureate degree
or a foreign equivalent degree is required.
Religious denomination means a religious group or community of
believers having some form of ecclesiastical government, a creed or
statement of faith, some form of worship, a formal or informal code of
doctrine and discipline, religious services and ceremonies, established
places of religious worship, and religious congregations, or comparable
indicia of a bona fide religious denomination. For the purposes of this
definition, an interdenominational religious organization which is
exempt from taxation pursuant to section 501(c)(3) of the Internal
Revenue Code of 1986 will be treated as a religious denomination.
Religious occupation means an activity which relates to a traditional
religious function. Examples of persons in religious occupations
include, but are not limited to, liturgical workers, religious
instructors, religious conselors, cantors, catechists, workers in
religious hospitals or religious health care facilities, missionaries,
religious translators, or religious broadcasters. This group does not
include janitors, maintenance workers, clerks, fund raisers, or persons
involved solely in the solicitation of donations.
Religious vocation means a calling to religious life evidenced by the
demonstration of commitment practiced in the religious denomination,
such as the taking of vows. Examples of persons with a religious
vocation include, but are not limited to, nuns, monks, and religious
brothers and sisters.
(3) Initial evidence. An alien seeking classification as a
nonimmigrant religious worker shall present to a United States consular
officer, or, if visa exempt, to an immigration officer at a United
States port of entry, documentation which establishes to the
satisfaction of the consular or immigration officer that the alien will
be providing services to a bona fide nonprofit religious organization in
the United States or to an affiliated religious organization as defined
in paragraph (r)(2) of this section, and that the alien meets the
criteria to perform such services. If the alien is in the United States
in another valid nonimmigrant classification and desires to change
nonimmigrant status to classification as a nonimmigrant religious
worker, this documentation should be presented with an application for
change of status (Form I-129, Petition for a Nonimmigrant Worker). The
documentation shall consist of:
(i) Evidence that the organization qualifies as a non-profit
organization, in the form of either:
(A) Documentation showing that it is exempt from taxation in
accordance with section 501(c)(3) of the Internal Revenue Code of 1986
as it relates to religious organizations (in appropriate cases, evidence
of the organization's assets and methods of operation and the
organization's papers of incorporation under applicable state law may be
requested); or
(B) Such documentation as is required by the Internal Revenue Service
to establish eligibility for exemption under section 501(c)(3) of the
Internal Revenue Code of 1986 as it relates to religious organizations;
and
(ii) A letter from an authorized official of the specific
organizational unit of the religious organization which will be
employing the alien or engaging the alien's services in the United
States. If the alien is to be employed, this letter should come from
the organizational unit that will maintain the alien's Form I-9,
Employment Eligibility Verification, that is, the organizational unit
that is either paying the alien a salary or otherwise remunerating the
alien in exchange for services rendered. This letter must establish:
(A) That, if the alien's religious membership was maintained, in
whole or in part, outside the United States, the foreign and United
States religious organizations belong to the same religious
denomination;
(B) That, immediately prior to the application for the nonimmigrant
visa or application for admission to the United States, the alien has
the required two (2) years of membership in the religious denomination;
(C) As appropriate:
(1) That, if the alien is a minister, he or she is authorized to
conduct religious worship for that denomination and to perform other
duties usually performed by authorized members of the clergy of that
denomination, including a detailed description of those duties;
(2) That, if the alien is a religious professional, he or she has at
least a United States baccalaureate degree or its foreign equivalent and
that at least such a degree is required for entry into the religious
profession; or
(3) That, if the alien is to work in another religious vocation or
occupation, he or she is qualified in the religious vocation or
occupation. Evidence of such qualifications may include, but need not
be limited to, evidence establishing that the alien is a monk, nun, or
religious brother or that the type of work to be done relates to a
traditional religious function;
(D) The arrangements made, if any, for remuneration for services to
be rendered by the alien, including the amount and source of any salary,
a description of any other types of remuneration to be received
(including housing, food, clothing, and any other benefits to which a
monetary value may be affixed), and a statement whether such
remuneration shall be in exchange for services rendered;
(E) The name and location of the specific organizational unit of the
religious organization for which the alien will be providing services
within the United States; and
(F) If the alien is to work in a non-ministerial and nonprofessional
capacity for a bona fide organization which is affiliated with a
religious denomination, the existence of the affiliation; and
(iii) Any appropriate additional evidence which the examining officer
may request relating to the religious organization, the alien, or the
affiliated organization. Such additional documentation may include, but
need not be limited to, diplomas, degrees, financial statements, or
certificates of ordination. No prior petition, labor certification, or
prior approval shall be required.
(4) Initial admission. The initial admission of a religious worker,
spouse, and unmarried children under twenty-one years of age shall not
exceed three (3) years. A Form I-94, Arrival-Departure Record, shall be
provided to every alien who qualifies for admission as an R
nonimmigrant. The Form I-94 for the religious worker shall be endorsed
with the name and location of the specific organizational unit of the
religious organization for which the alien will be providing services
within the United States. The admission symbol for the religious worker
shall be R-1; the admission symbol for the worker's spouse and childen
shall be R-2.
(5) Extension of stay. The organizational unit of the religious
organization employing the nonimmigrant religious worker admitted under
this section shall use Form I-129, Petition for a Nonimmigrant Worker,
along with the appropriate fee, to extend the stay of the worker. The
petition shall be filed at the Service Center having jurisdiction over
the place of employment. An extension may be authorized for a period of
up to two (2) years. The worker's total period of stay may not exceed
five (5) years. The petition must be accompanied by a letter from an
authorized official of the organizational unit confirming the worker's
continuing eligibility for classification as an R-1 nonimmigrant.
(6) Change of employers. A different or additional organizational
unit of the religious denomination seeking to employ or engage the
services of a religious worker admitted under this section shall file
Form I-129 with the appropriate fee. The petition shall be filed with
the Service Center having jurisdiction over the place of employment.
The petition must be accompanied by evidence establishing that the alien
will continue to qualify as a religious worker under this section. Any
unauthorized change to a new religious organizational unit will
constitute a failure to maintain status within the meaning of section
241(a)(1)(C)(i) of the Act.
(7) Limitation on stay. An alien who has spent five (5) years in the
United States under section 101(a)(15)(R) of the Act may not be
readmitted to the United States under the R visa classification unless
the alien has resided and been physically present outside the United
States for the immediate prior year, except for brief visits for
business or pleasure. Such visits do not end the period during which an
alien is considered to have resided and been physically present outside
the United States, but time spent during such visits does not count
toward the requirement of this paragraph.
(8) Spouse and children. The religious worker's spouse and unmarried
children under twenty-one years of age are entitled to the same
nonimmigrant classification and length of stay as the religious worker,
if the religious worker will be employed and residing primarily in the
United States, and if the spouse and unmarried minor children are
accompanying or following to join the religious worker in the United
States. Neither the spouse nor any child may accept employment while in
the United States in R-2 nonimmigrant status.
(s)NATO aliens -- (1) General. Aliens classified as NATO-1 through
NATO-4 are members of the armed forces of a country signatory to Article
III of the Status of Forces Agreement (NATO). They are normally exempt
from inspection under 8 CFR 235.1(c). Aliens classified as NATO-5 or -6
are civilian employees of the armed forces of a NATO member and may be
authorized admission for the duration of employment and assignment with
the NATO member in the United States. Aliens classified as NATO-7 who
are employed by NATO-1 through NATO-4 aliens may be admitted for
duration of status; if employed by NATO-5 or -6 aliens, admission may
be authorized for not more than two years.
(2) Extensions of Stay. Any alien classified as a NATO-7 as the
employee of a NATO-5 or -6 may be granted extensions of stay in
increments of not more than one year.
(3) Employment. The dependents of an alien classified NATO-1 through
NATO-7 may request authorization for employment if the state of their
nationality has a reciprocal employment agreement with the Department of
State. The names of the foreign states which have reciprocal employment
agreements are available from the Department of State, Office of
Consular Affairs, and the District Offices of the Service.
(Title VI of the Health Professions Educational Assistance Act of
1976 (Pub. L. 94-484; 90 Stat. 2303); secs. 103 and 214, Immigration
and Nationality Act (8 U.S.C. 1103 and 1184))
(38 FR 35425, Dec. 28, 1973)
Editorial Note: For Federal Register citations affecting 214.2, see
the List of CFR Sections Affected in the Finding Aids section in this
volume.
08 CFR 214.3 Petitions for approval of schools.
(a) Filing petition -- (1) General. A school or school system
seeking approval for attendance by nonimmigrant students under sections
101(a)(15)(F)(i) or 101 (a)(15)(M)(i) of the Act, or both, shall file a
petition on Form I-17 with the district director having jurisdiction
over the place in which the school or school system is located.
Separate petitions are required for different schools in the same school
system located within the jurisdiction of different district directors.
A petition by a school system must specifically identify by name and
address those schools included in the petition. The petition must also
state whether the school or school system is seeking approval for
attendance of nonimmigrant students under section 101(a)(15)(F)(i) or
101(a)(15)(M)(i) of the Act or both.
(2) Approval for F-1 or M-1 classification, or both -- (i) F-1
classification. The following schools may be approved for attendance by
nonimmigrant students under section 101(a)(15)(F)(i) of the Act:
(A) A college or university, i.e., an institution of higher learning
which awards recognized bachelor's, master's doctor's or professional
degrees.
(B) A community college or junior college which provides instruction
in the liberal arts or in the professions and which awards recognized
associate degrees.
(C) A seminary.
(D) A conservatory.
(E) An academic high school.
(F) An elementary school.
(G) An institution which provides language training, instruction in
the liberal arts or fine arts, instruction in the professions, or
instruction or training in more than one of these disciplines.
(ii) M-1 classification. The following schools are considered to be
vocational or nonacademic institutions and may be approved for
attendance by nonimmigrant students under section 101(a)(15)(M)(i) of
the Act:
(A) A community college or junior college which provides vocational
or technical training and which awards recognized associate degrees.
(B) A vocational high school.
(C) A school which provides vocational or nonacademic training other
than language training.
(iii) Both F-1 and M-1 classification. A school may be approved for
attendance by nonimmigrant students under both sections 101(a)(15)(F)(i)
and 101(a)(15)(M)(i) of the Act if it has both instruction in the
liberal arts, fine arts, language, religion, or the professions and
vocational or technical training. In that case, a student whose primary
intent is to pursue studies in liberal arts, fine arts, language,
religion, or the professions at the school is classified as a
nonimmigrant under section 101(a)(15)(F)(i) of the Act. A student whose
primary intent is to pursue vocational or technical training at the
school is classified as a nonimmigrant under section 101(a)(15)(M)(i) of
the Act.
(iv) English language training for a vocational student. A student
whose primary intent is to pursue vocational or technical training who
takes English language training at the same school solely for the
purpose of being able to understand the vocational or technical course
of study is classified as a nonimmigrant under section 101(a)(15)(M)(i)
of the Act.
(b) Supporting documents. A petitioning school or school system
owned and operated as a public educational institution or system by the
United States or a State or a political subdivision thereof shall submit
a certification to that effect signed by the appropriate public official
who shall certify that he is authorized to do so. A petitioning private
or parochial elementary or secondary school system shall submit a
certification signed by the appropriate public official who shall
certify that he is authorized to do so to the effect that it meets the
requirements of the State or local public educational system. Any other
petitioning school shall submit a certification by the appropriate
licensing, approving, or accrediting official who shall certify that he
is authorized to do so to the effect that it is licensed, approved, or
accredited. In lieu of such certification a school which is recognized
by a State-approving agency as an ''Educational institution'' for study
for veterans under the provisions of Pub. L. 550 (82d Congress) may
submit a statement of recognition signed by the appropriate official of
the State approving agency who shall certify that he is authorized to do
so. A charter shall not be considered a license, approval or
accreditation. Except in connection with a petition submitted by a
school or school system owned and operated as a public educational
institution or system by the United States or a State or a political
subdivision thereof, or by a school listed in the current U.S.
Department of Education publications, ''Accredited Postsecondary
Institutions and Programs'' or ''Education Directory, Colleges and
Universities,'' or by a secondary school operated by or as part of a
school so listed, a school catalog, if one is issued, shall also be
submitted with each petition. If not included in the catalogue, or if a
catalogue is not issued, the school shall furnish a written statement
containing information concerning the:
(1) Size of its physical plant; (2) nature of its facilities for
study and training; (3) educational, vocational or professional
qualifications of the teaching staff; (4) salaries of the teachers;
(5) attendance and scholastic grading policy; (6) amount and character
of supervisory and consultative services available to students and
trainees; and (7) finances (including a certified copy of accountant's
last statement of school's net worth, income, and expenses). If the
petitioner is a vocational, business, or language school, or American
institution of research recognized as such by the Attorney General, it
must submit evidence that its courses of study are accepted as
fulfilling the requirements for the attainment of an educational,
professional, or vocational objective, and are not avocational or
recreational in character. If the petitioner is an institution of
higher education and is not within category (1) or (2) of paragraph (c)
of this section, it must submit evidence that it confers upon its
graduates recognized bachelor, master, doctor, professional, or divinity
degrees, or if it does not confer such degrees that its credits have
been and are accepted unconditionally by at least three institutions of
higher learning within category (1) or (2) of paragraph (c) of this
section. If the petitioner is an elementary or secondary school and is
not within category (1) or (3) of paragraph (c) of this section, it must
submit evidence that attendance at the petitioning institution satisfies
the compulsory attendance requirements of the State in which it is
located and that the petitioning school qualifies graduates for
acceptance by schools of higher educational level within category (1),
(2), or (3) of paragraph (c) of this section.
(c) Consultation with U.S. Department of Education. The U.S.
Department of Education has been consulted by the Service and has
advised that each of the following is considered an established
institution of learning or other recognized place of study, is operating
a bona fide school, and has the necessary facilities, personnel, and
finances to instruct in recognized courses: (1) A school (or school
system) owned and operated as a public educational institution by the
United States or a State or political subdivision thereof; (2) a school
listed in the current U.S. Department of Education publications,
''Accredited Postsecondary Institutions and Programs'' or ''Education
Directory, Colleges and Universities''; or (3) a secondary school
operated by or as part of an institution of higher learning listed in
the current U.S. Department of Education publications, ''Accredited
Postsecondary Institutions and Programs'' or ''Education Directory,
Colleges and Universities.'' Before a decision is made on a petition
filed by any other school, the district director shall consult the U.S.
Department of Education by transmitting to that Department the petition,
supporting documents and any report of interview or other inquiry
conducted by the Service, with a request for advice as to whether the
petitioner is an established institution of learning or other recognized
place of study, is operating a bona fide school, and has the necessary
facilities, personnel, and finances to instruct in recognized courses.
(d) Interview of petitioner. An authorized representative of the
petitioner shall appear in person before an immigration officer prior to
the adjudication of the petition to be interviewed under oath concerning
the eligibility of the school for approval. An interview may be waived
by the district director if the school is within the category (1), (2),
or (3) of paragraph (c) of this section.
(e) Approval of petition -- (1) Eligibility. To be eligible for
approval, the petitioner must establish that --
(i) It is a bona fide school;
(ii) It is an established institution of learning or other recognized
place of study;
(iii) It possesses the necessary facilities, personnel, and finances
to conduct instruction in recognized courses; and
(iv) It is, in fact, engaged in in-struction in those courses.
(2) General. Upon approval of a petition, the district director
shall notify the petitioner. An approved school is required to report
immediately to the district director having jurisdication over the
school any material modification to its name, address or curriculum for
a determination of continued eligibility for approval. The approval of
a school is valid as long as the school operates in the manner
represented in the petition. The approval is valid only for the type of
program and student specified in the approval notice. The approval may
be withdrawn in accordance with the provisions of 214.4.
(f) Denial of petition. If the petition is denied, the petitioner
shall be notified of the reasons therefor and of his right to appeal in
accordance with the provisions of part 103 of this chapter.
(g) Recordkeeping and reporting requirements -- (1) Recordkeeping
requirements. An approved school must keep records containing certain
specific information and documents relating to each F-1 or M-1 student
to whom it has issued a Form I-20A or I-20M while the student is
attenidng the school and until the school notifies the Service, in
accordance with the requirements of paragraph (g)(2) of this section,
that the student is not pursuing a full course of study. The school
must keep a record of having complied with the reporting requirements
for at least one year. If a student who is out of status is restored to
status, the school the student is attending is responsible for
maintaining these records following receipt of notification from the
Service that the student has been restored to status. The designated
school official must make the information and documents required by this
paragraph available to and furnish them to any Service officer upon
request. The information and documents which the school must keep on
each student are as follows:
(i) Name.
(ii) Date and place of birth.
(iii) Country of citizenship.
(iv) Address.
(v) Status, i.e., full-time or part-time.
(vi) Date of commencement of studies.
(vii) Degree program and field of study.
(viii) Whether the student has been certified for practical training,
and the beginning and end dates of certification.
(ix) Termination date and reason, if known.
(x) The documents referred to in paragraph (k) of this section.
(xi) The number of credits completed each semester.
(xii) A photocopy of the student's I-20 ID Copy.
A Service officer may request any or all of the above data on any
individual student or class of students upon notice. This notice will
be in writing if requested by the school. The school will have three
work days to respond to any request for information concerning an
individual student, and ten work days to respond to any request for
information concerning a class of students. If the Service requests
information on a student who is being held in custody, the school will
respond orally on the same day the request for information is made, and
the Service will provide a written notification that the request was
made after the fact, if the school so desires. The Service will first
attempt to gain information concerning a class of students from the
Service's record system.
(2) Reporting requirements. At intervals specified by the Service
but not more frequently than once a term or session, the Service's
processing center shall send each school (to the address given on Form
I-17 as that to which the list should be sent) a list of all F-1 and M-1
students who, according to Service records, are attending that school.
A designated school official at the school must note on the list whether
or not each student on the list is pursuing a full course of study and
give, in addition to the above information, the names and current
addresses of all F-1 or M-1 students, or both, not listed, attending the
school and other information specified by the Service as necessary to
identify the students and to determine their immigration status. The
designated school official must comply with the request, sign the list,
state his or her title, and return the list to the Service's processing
center within sixty days of the date of the request.
(h) Review of school approvals. The district director may
periodically review the approval of a school in his or her jurisdiction
for compliance with the reporting requirements of paragraph (g)(2) of
this section and for continued eligibility for approval pursuant to
paragraph (e) of this section. The district director shall also, upon
receipt of notification, evaluate any changes made to the name, address,
or curriculum of an approved school to determine if the changes have
affected the school's eligibility for approval. The district director
may require the school under review to furnish a currently executed Form
I-17 without fee, along with supporting documents, as a petition for
continuation of school approval when there is a question about whether
the school still meets the eligibility requirements. If upon completion
of the review, the district director finds that the approval should not
be continued, he or she shall institute withdrawal proceedings in
accordance with 214.4(b).
(i) Administration of student regulations by the Immigration and
Naturalization Service. District directors in the field shall be
responsible for conducting periodic reviews on the campuses under the
jurisdiction of their offices to determine whether students are
complying with Service regulations including keeping their passports
valid for a period of six months at all times when required. Service
officers shall take appropriate action regarding violations of the
regulations.
(j) Advertising. In any advertisement, catalogue, brochure,
pamphlet, literature, or other material hereafter printed or reprinted
by or for an approved school, any statement which may appear in such
material concerning approval for attendance by nonimmigrant students
shall be limited solely to the following: This school is authorized
under Federal law to enroll nonimmigrant alien students.
(k) Issuance of Certificate of Eligibility. A designated official of
a school that has been approved for attendance by nonimmigrant students
must certify Form I-20A or I-20M, but only after page 1 has been
completed in full. A Form I-20A-B or I-20M-N issued by an approved
school system must state which school within the system the student will
attend. The form must be issued in the United States. Only a
designated official shall issue a Certificate of Eligibility, Form
I-20A-B or I-20M-N, to a prospective student and only after the
following conditions are met:
(1) The prospective student has made a written application to the
school.
(2) The written application, the student's transcripts or other
records of courses taken, proof of financial responsibility for the
student, and other supporting documents have been received, reviewed,
and evaluated at the school's location in the United States.
(3) The appropriate school authority has determined that the
prospective student's qualifications meet all standards for admission.
(4) The official responsible for admission at the school has accepted
the prospective student for enrollment in a full course of study.
(l) Designated official -- (1) Meaning of term ''designated
official''. As used in 214.1(b), 214.2(f), 214.2(m), 214.4 and this
section, a ''designated official'' or ''designated school official''
means a regularly employed member of the school administration whose
office is located at the school and whose compensation does not come
from commissions for recruitment of foreign students. An individual
whose principal obligation to the school is to recruit foreign students
for compensation does not qualify as a designated official. The
president, owner, or head of a school or school system must designate a
designated official. The designated official may not delegate this
designation to any other person. Each school or institution may have up
to five designated officials at any one time. In a multi-campus
institution, each campus may have up to five designated officials at any
one time. In an elementary or secondary school system, however, the
entire school system is limited to five designated officials at any one
time.
(2) Name, title, and sample signature. Petitions for school approval
must include the names, titles, and sample signatures of designated
officials. An approved school must report to the Service office having
jurisdiction over it any changes in designated officials and furnish the
name, title, and sample signature of the new designated official within
thirty days of each change.
(3) Statement of designated official. A petition for school approval
must include a statement by each designated official certifying that the
official has read the Service regulations relating to nonimmigrant
students, namely 214.1(b), 214.2(f), and 214.2(m); the Service
regulations relating to change of nonimmigrant classification for
students, namely 248.1(c), 248.1(d), 248.3(b), and 248.3(d); the
Service regulations relating to school approval, namely this section and
the regulations relating to withdrawal of school approval namely,
214.4; and affirming the official's intent to comply with these
regulations. An approved school must also submit to the Service office
having jurisdiction over it such a statement from any new designated
official within thirty days of each change in designated official.
(30 FR 919, Jan. 29, 1965)
Editorial Note: For Federal Register citations affecting 214.3, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
08 CFR 214.4 Withdrawal of school approval.
(a) General -- (1) Withdrawal on notice. If a school's approval is
withdrawn on notice as provided in paragraphs (b), (c), (d), (e), (f),
(g), (h), (i) (j), and (k) of this section, the school is not eligible
to file another petition for school approval until at least one year
after the effective date of the withdrawal. The approval by the
Service, pursuant to sections 101(a)(15)(F)(i) or 101(a)(15)(M)(i) or
both, of the Act, of a petition by a school or school system for the
attendance of nonimmigrant students will be withdrawn on notice if the
school or school system is no longer entitled to the approval for any
valid and substantive reason including, but not limited to, the
following:
(i) Failure to comply with 214.3(g)(1) without a subpoena.
(ii) Failure to comply with 214.3(g)(2).
(iii) Failure of a designated school official to notify the Service
of the attendance of an F-1 transfer student as required by
214.2(f)(8)(ii).
(iv) Willful issuance by a designated official of a false statement
or certification in connection with a school transfer or an application
for employment or practical training.
(v) Any conduct on the part of a designated official which does not
comply with the regulations.
(vi) The designation as a designated official of an individual who
does not meet the requirements of 214.3(l)(1).
(vii) Failure to provide the Service with the names, titles, and
sample signatures of designated officials as required by 214.3(l)(2).
(viii) Failure to submit statements of designated officials as
required by 214.3(l)(3).
(ix) Issuance of Forms I-20A or I-20M to students without receipt of
proof that the students have met scholastic, language or financial
requirements.
(x) Issuance of Forms I-20A or I-20M to aliens who will not be
enrolled in or carry full courses of study as defined in 214.2(f)(6)
or 214.2(m)(9).
(xi) Failure to operate as a bona fide institution of learning.
(xii) Failure to employ qualified professional personnel.
(xiii) Failure to limit its advertising in the manner prescribed in
214.3(j).
(xiv) Failure to maintain proper facilities for instruction.
(xv) Failure to maintain accreditation or licensing necessary to
qualify graduates as represented in the petition.
(xvi) Failure to maintain the physical plant, curriculum, and
teaching staff in the manner represented in the petition for school
approval.
(xvii) Failure to comply with the procedures for issuance of Forms
1-20A or 1-20M as set forth in 214.3(k).
(xviii) Failure of a designated school official to notify the Service
of material changes to the school's name, address, or curriculum as
required by 214.3(e)(2).
(2) Automatic withdrawal. If an approved school terminates its
operations, approval will be automatically withdrawn as of the date of
termination of the operations. If an approved school changes ownership,
approval will be automatically withdrawn sixty days after the change of
ownership unless the school files a new petition for school approval
within sixty days of that change of ownership. The district director
must review the petition to determine whether the school still meets the
eligibility requirements of 214.3(e). If, upon completion of the
review, the district director finds that the approval should not be
continued, the district director shall institute withdrawal proceedings
in accordance with paragraph (b) of this section. Automatic withdrawal
of a school's approval is without prejudice to consideration of a new
petition for school approval.
(b) Notice. Whenever a district director has reason to believe that
an approved school or school system in his/her district is no longer
entitled to approval, a proceeding shall be commenced by service upon
its designated official a notice of intention to withdraw the approval.
The notice shall inform the designated official of the school or school
system of the grounds upon which it is intended to withdraw its
approval. The notice shall also inform the school or school system that
it may, within 30 days of the date of service of the notice, submit
written representations under oath supported by documentary evidence
setting forth reasons why the approval should not be withdrawn and that
the school or school system may, at the time of filing the answer,
request in writing an interview before the district director in support
of the written answer.
(c) Assistance of counsel. The school or school system shall also be
informed in the notice of intent to withdraw approval that it may be
assisted or represented by counsel of its choice qualified under part
292 of this chapter, at no expense to the Government, in preparation of
its answer or in connection with the interview.
(d) Allegations admitted or no answer filed. If the school or school
system admits all of the allegations in the notice of intent to withdraw
approval, or if the school or school system fails to file an answer
within the 30-day period, the district director shall withdraw the
approval previously granted and he/she shall notify the designated
school official of the decision. No appeal shall lie from the district
director's decision if all allegations are admitted or no answer is
filed within the 30-day period.
(e) Allegations denied. If the school or school system denies the
allegations in the notice of intent to withdraw approval, then the
school or school system shall, in its answer, provide all information or
evidence on which the answer is based.
(f) Interview requested. (1) If in its answer to the notice of
intent to withdraw approval the school or school system requests an
interview, the school or school system shall be given notice of the date
set for the interview.
(2) A summary of the information provided by the school or school
system at the interview shall be prepared and included in the record.
In the discretion of the district director, the interview may be
recorded.
(g) Decision. The decision of the district director shall be in
writing and shall include a discussion of the evidence and findings as
to withdrawal. The decision shall contain an order either withdrawing
approval or granting continued approval. The written decision shall be
served upon the school or school system, together with the notice of the
right to appeal pursuant to part 103 of this chapter.
(h) Appeal. Any appeal shall be taken within 15 days after the
service of the written decision. The reasons for the appeal shall be
stated in the notice of appeal, Form I-290B, and supported by a
statement or brief specifically setting forth the grounds for contesting
the withdrawal of the approval.
(37 FR 17463, Aug. 29, 1972, as amended at 48 FR 14592, Apr. 5, 1983;
48 FR 19867, May 3, 1983; 48 FR 22131, May 17, 1983; 49 FR 41015,
Oct. 19, 1984; 50 FR 9991, Mar. 13, 1985; 54 FR 19544, May 8, 1989;
55 FR 41988, Oct. 17, 1990)
08 CFR 214.5 Libyan and third country nationals acting on behalf of
Libyan entities.
(a) Notwithstanding any other provision of this Title, the
nonimmigrant status of any Libyan national, or of any other foreign
national acting on behalf of a Libyan entity, who is engaging in
aviation maintenance, flight operations, or nuclear-related studies or
training is terminated.
(b) Notwithstanding any other provision of this chapter, the
following benefits will not be available to any Libyan national or any
other foreign national acting on behalf of a Libyan entity where the
purpose is to engage in, or seek to obtain aviation maintenance, flight
operations or nuclear-related studies or training:
(1) Application for school transfer.
(2) Application for extension of stay.
(3) Employment authorization or practical training.
(4) Request for reinstatement of student status.
(5) Application for change of nonimmigrant status.
(Secs. 103, 212, 214, 248; 8 U.S.C. 1103, 1182, 1184, 1258)
(48 FR 10297, Mar. 3, 1983)
08 CFR 214.6 Canadian citizens seeking temporary entry to engage in
business activities at a professional level.
(a) General. Under section 214(e) of the Act, a citizen of Canada
who seeks temporary entry as a business person to engage in business
activities at a professional level may be admitted to the United States
in accordance with the United States-Canada Free-Trade Agreement (FTA).
(b) Definitions. (1) The term Business person, as defined in the
FTA, means a citizen of Canada who is engaged in the trade of goods or
services or in investment activities.
(2) The term Business activities at a professional level means those
undertakings which require that, for successful completion, the
individual has at least a baccalaureate degree or appropriate
credentials demonstrating status as a professional.
(3) The term Temporary entry, as used in the FTA, means entry without
the intent to establish permanent residence.
(c) Application for admission. A citizen of Canada seeking admission
under this section shall make application for admission with an
immigration officer at a United States Class A port of entry, at a
United States airport handling international traffic, or at a United
States pre-clearance/pre-flight station. No prior petition, labor
certification, or prior approval shall be required.
(d) Evidence. A visa shall not be required of a Canadian citizen
seeking admission as a nonimmigrant under section 214(e) of the Act.
Upon application for admission at a United States port of entry, an
applicant under this section shall present the following:
(1) Proof of Canadian citizenship. Unless traveling from outside the
Western Hemisphere, no passport shall be required; however, an
applicant for admission must establish Canadian citizenship.
(2) Documentation demonstrating engagement in business activities at
a professional level and demonstrating professional qualifications --
(i) General. The applicant must present documentation sufficient to
satisfy the immigration officer at the time of application for
admission, that the applicant is seeking entry to the United States to
engage in business activities for a United States employer(s) at a
professional level, and that the applicant meets the criteria to perform
at such a professional level. This documentation may be in the form of
a letter from the prospective employer(s) in the United States or from
the foreign employer and may be required to be supported by licenses,
diplomas, degrees, certificates, or membership in professional
organizations. The documentation shall fully affirm:
(A) The business activity to be engaged in;
(B) The purpose of entry;
(C) The anticipated length of stay;
(D) The educational qualifications or appropriate credentials which
demonstrate that the Canadian citizen has professional level status;
(E) That the Canadian citizen complies with all applicable state laws
and/or licensing requirements for the business activity to be engaged
in; and
(F) The arrangements for remuneration for services to be rendered.
(ii) Schedule 2 to Annex 1502.1 of the FTA. Pursuant to the FTA, an
applicant seeking admission under this section shall demonstrate
business activity at a professional level in one of the professions or
occupations set forth in Schedule 2 to Annex 1502.1. The professions or
occupations in Schedule 2 and the minimum requirements for each are as
follows:
08 CFR 214.6 Schedule 2 (Annotated)
-- Accountant -- baccalaureate degree, C.P.A., C.A., C.G.A., or
C.M.A.
-- Architect -- baccalaureate degree or state/provincial license
/1/
-- Computer Systems Analyst -- baccalaureate degree, or
post-secondary diploma and three years' experience
-- Disaster relief insurance claims adjuster -- baccalaureate
degree or three years' experience in the field of claims adjustment
-- Economist -- baccalaureate degree -- Engineer -- baccalaureate
degree or state/provincial license
/1/
-- Forester -- baccalaureate degree or state/provincial license
/1/
-- Graphic designer -- baccalaureate degree, or post-secondary
diploma and three years' experience
-- Hotel manager -- baccalaureate degree in hotel/restaurant
management, or post-secondary diploma in hotel/restaurant management and
three years' experience in hotel/restaurant management
-- Industrial designer -- baccalaureate degree, or post-secondary
diploma and three years' experience
-- Interior designer -- baccalaureate degree, or post-secondary
diploma and three years' experience
-- Land surveyor -- baccalaureate degree or
state/provincial/federal license /1/
-- Landscape architect -- baccalaureate degree -- Lawyer -- member
of bar in province or state, or L.L.B., J.D.,
L.L.L., or B.C.L.
-- Librarian -- M.L.S., or B.L.S. (for which another
baccalaureate degree was a prerequisite)
-- Management consultant -- baccalaureate degree or five years'
experience in consulting or related field
-- Mathematician -- baccalaureate degree -- Medical Allied
Professionals -- Dentist -- D.D.S., D.M.D., or state/provincial
license /1/ -- Dietitian -- baccalaureate degree or
state/provincial license
/1/
-- Medical laboratory technologist (Canada)/medical technologist
(U.S.) -- baccalaureate degree, or post-secondary diploma and three
years' experience /2/
-- Nutritionist -- baccalaureate degree -- Occupational therapist
-- baccalaureate degree or
state/provincial license /1/
-- Pharmacist -- baccalaureate degree or state/provincial license
/1/
-- Physician (teaching and/or research only) -- M.D. or
state/provincial license /1/
-- Physio/physical therapist -- baccalaureate degree or
state/provincial license /1/
-- Psychologist -- state/provincial license /1/ -- Recreational
therapist -- baccalaureate degree -- Registered nurse --
state/provincial license /1/ -- Veterinarian -- D.V.M., D.M.V., or
state/provincial license
/1/
-- Range manager (range conservationist) -- baccalaureate degree
-- Research assistant (working in a post-secondary educational
institution -- baccalaureate degree
-- Scientific technician/technologist -- Must work in direct
support of professionals in the following
disciplines: Agricultural sciences, astronomy, biology, chemistry,
engineering, forestry, geology, geophysics, meteorology, or physics;
-- Must possess theoretical knowledge of the discipline; and --
Must solve practical problems in the discipline, or apply
principles of the discipline to basic or applied research.
-- Scientist -- Agriculturist (agronomist) -- baccalaureate degree
-- Animal breeder -- baccalaureate degree -- Animal scientist --
baccalaureate degree -- Apiculturist -- baccalaureate degree --
Astronomer -- baccalaureate degree -- Biochemist -- baccalaureate
degree -- Biologist -- baccalaureate degree -- Chemist --
baccalaureate degree -- Dairy scientist -- baccalaureate degree --
Entomologist -- baccalaureate degree -- Epidemiologist --
baccalaureate degree -- Geneticist -- baccalaureate degree --
Geochemist -- baccalaureate degree -- Geologist -- baccalaureate
degree -- Geophysicist -- baccalaureate degree -- Horticulturist
-- baccalaureate degree -- Meteorologist -- baccalaureate degree
-- Pharmacologist -- baccalaureate degree -- Physicist --
baccalaureate degree -- Plant breeder -- baccalaureate degree --
Poultry scientist -- baccalaureate degree -- Soil scientist --
baccalaureate degree -- Zoologist -- baccalaureate degree --
Social worker -- baccalaureate degree -- Sylviculturist (forestry
specialist) -- baccalaureate degree -- Teacher -- College --
baccalaureate degree -- Seminary -- baccalaureate degree --
University -- baccalaureate degree -- Technical publications
writer -- baccalaureate degree, or
post-secondary diploma and three years' experience
-- Urban planner -- baccalaureate degree -- Vocational counselor
-- baccalaureate degree
(e) Procedures for admission. A Canadian citizen who qualifies for
admission under this section shall be provided confirming documentation
(Service Form I-94), and shall be admitted under the classification
symbol TC for a period not to exceed one year. Form I-94 shall bear the
legend ''multiple entry.'' The fee prescribed under 103.7 of this
chapter shall be remitted upon admission to the United States pursuant
to the terms and conditions of the FTA. Upon remittance of the
prescribed fee, the Canadian citizen applicant shall be provided a
Service receipt (Form G-211, Form G-711, or Form I-797).
(f) Readmission. A Canadian citizen in this classification may be
readmitted to the United States for the remainder of the period
authorized on Form I-94, without presentation of the letter or
supporting documentation described in paragraph (d)(2) of this section,
and without remittance of the prescribed fee, provided that the original
intended business activities and employer(s) have not changed. An alien
who seeks readmission to the United States under this section to
continue in business activities at a professional level who is no longer
in possession of a valid, unexpired Form I-94 and whose period of
initial admission has not lapsed, shall present alternate evidence
entitling the alien to readmission as TC. This alternate evidence may
be in the form of a Service fee receipt for admission as TC or a
previously issued admission stamp as TC in a passport, and a confirming
letter from the United States employer(s).
(g) Extension of stay. A Canadian citizen admitted under this
section may apply for an extension of stay on Form I-539, as provided in
214.1(c) of this chapter. Extensions of stay may be granted in
increments of one year. The application shall be accompanied by a
letter(s) from the United States employer(s) confirming the continued
need for the Canadian citizen's services and stating the length of
additional time needed.
(h) Request for change or addition of United States employer(s). A
Canadian citizen admitted under this paragraph who seeks to change or
add a United States employer during the period of admission shall file
an application for extension of stay on Form I-539. The application
shall be accompanied by a letter from the new employer describing the
services to be performed, the time needed to render such services, and
the terms of remuneration for services. Employment with a different or
with an additional employer is not authorized prior to Service approval
of the request for extension of stay. No action shall be required on
the part of a Canadian citizen who is transferred to another location by
the United States employer to perform the same services. Such an
acceptable transfer would be to a branch or office of the employer, not
to a separately incorporated subsidiary or affiliate. In the latter
cases, an application for extension of stay with a new employment letter
is required.
(i) Spouse and unmarried minor children accompanying or following to
join. (1) The terms and conditions set forth under 214.2(b)(1) of this
chapter shall apply to the admission and the extension of temporary stay
of the spouse or unmarried minor child of a Canadian citizen admitted
under this section.
(2) The spouse or unmarried minor child shall be required to present
a valid, unexpired nonimmigrant visa or a valid, unexpired Canadian
border crossing identification card unless otherwise exempt under 212.1
of this chapter.
(3) The spouse and dependent minor children shall be issued
confirming documentation (Form I-94). Form I-94 shall bear the legend
''multiple entry.'' There shall be no fee required for admission of the
spouse and dependent minor children.
(4) The spouse and dependent minor children shall not accept
employment in the United States unless otherwise authorized under the
Act.
(54 FR 48579, Nov. 24, 1989, as amended at 56 FR 482, Jan. 7, 1991;
57 FR 33273, July 28, 1992)
/1/ The terms ''state/provincial license'' and
''state/provincial/federal license'' mean any document issued by a
state, provincial, or federal government as the case may be, or under
its authority, which permits a person to engage in a regulated activity
or profession.
/2/ Must be seeking entry to perform, in a laboratory, chemical,
biological, hematological, immunologic, microscopic or bacteriological
tests and analyses for diagnosis, treatment, or prevention of disease.
08 CFR 214.6 PART 215 -- CONTROLS OF ALIENS DEPARTING FROM THE UNITED
STATES
Sec.
215.1 Definitions.
215.2 Authority of departure-control officer to prevent alien's
departure from the United States.
215.3 Alien whose departure is deemed prejudicial to the interests of
the United States.
215.4 Procedure in case of alien prevented from departing from the
United States.
215.5 Hearing procedure before special inquiry officer.
215.6 Departure from the Canal Zone, the Trust Territory of the
Pacific Islands, or outlying possessions of the United States.
215.7 Instructions from the Administrator required in certain cases.
Authority: Sec. 104, 66 Stat. 174, Proc. 3004, 18 FR 489; 8
U.S.C. 1104, 3 CFR, 1953 Supp. Interpret or apply sec. 215, 66 Stat.
190; (8 U.S.C. 1185).
Source: 45 FR 65516, Oct. 3, 1980, unless otherwise noted.
08 CFR 215.1 Definitions.
For the purpose of this part:
(a) The term alien means any person who is not a citizen or national
of the United States.
(b) The term Commissioner means the Commissioner of Immigration and
Naturalization.
(c) The term regional commissioner means an officer of the
Immigration and Naturalization Service duly appointed or designated as a
regional commissioner, or an officer who has been designated to act as a
regional commissioner.
(d) The term district director means an officer of the Immigration
and Naturalization Service duly appointed or designated as a district
director, or an officer who has been designated to act as a district
director.
(e) The term United States means the several States, the District of
Columbia, the Canal Zone, Puerto Rico, the Virgin Islands, Guam,
American Samoa, Swains Island, the Trust Territory of the Pacific
Islands, and all other territory and waters, continental and insular,
subject to the jurisdiction of the United States.
(f) The term continental United States means the District of Columbia
and the several States, except Alaska and Hawaii.
(g) The term geographical part of the United States means: (1) The
continental United States, (2) Alaska, (3) Hawaii, (4) Puerto Rico, (5)
the Virgin Islands, (6) Guam, (7) the Canal Zone, (8) American Samoa,
(9) Swains Island, or (10) the Trust Teritory of the Pacific Islands.
(h) The term depart from the United States means depart by land,
water, or air: (1) From the United States for any foreign place, or (2)
from one geographical part of the United States for a separate
geographical part of the United States: Provided, That a trip or
journey upon a public ferry, passenger vessel sailing coastwise on a
fixed schedule, excursion vessel, or aircraft, having both termini in
the continental United States or in any one of the other geographical
parts of the United States and not touching any territory or waters
under the jurisdiction or control of a foreign power, shall not be
deemed a departure from the United States.
(i) The term departure-control officer means any immigration officer
as defined in the regulations of the Immigration and Naturalization
Service who is designated to supervise the departure of aliens, or any
officer or employee of the United States designated by the Governor of
the Canal Zone, the High Commissioner of the Trust Territory of the
Pacific Islands, or the governor of an outlying possession of the United
States, to supervise the departure of aliens.
(j) The term port of departure means a port in the continental United
States, Alaska, Guam, Hawaii, Puerto Rico or the Virgin Islands,
designated as a port of entry by the Attorney General or by the
Commissioner, or in exceptional circumstances such other place as the
departure-control officer may, in his discretion, designate in an
individual case, or a port in American Samoa, Swains Island, the Canal
Zone, or the Trust Territory of the Pacific Islands, designated as a
port of entry by the chief executive officer thereof.
(k) The term special inquiry officer shall have the meaning ascribed
thereto in section 101(b)(4) of the Immigration and Nationality Act.
08 CFR 215.2 Authority of departure-control officer to prevent alien's
departure from the United States.
(a) No alien shall depart, or attempt to depart, from the United
States if his departure would be prejudicial to the interests of the
United States under the provisions of 215.3. Any departure-control
officer who knows or has reason to believe that the case of an alien in
the United States comes within the provisions of 215.3 shall
temporarily prevent the departure of such alien from the United States
and shall serve him with a written temporary order directing him not to
depart, or attempt to depart, from the United States until notified of
the revocation of the order.
(b) The written order temporarily preventing an alien, other than an
enemy alien, from departing from the United States shall become final 15
days after the date of service thereof upon the alien, unless prior
thereto the alien requests a hearing as hereinafter provided. At such
time as the alien is served with an order temporarily preventing his
departure from the United States, he shall be notified in writing
concerning the provisions of this paragraph, and shall be advised of his
right to request a hearing if entitled thereto under 215.4. In the case
of an enemy alien, the written order preventing departure shall become
final on the date of its service upon the alien.
(c) Any alien who seeks to depart from the United States may be
required, in the discretion of the departure-control officer, to be
examined under oath and to submit for official inspection all documents,
articles, and other property in his possession which are being removed
from the United States upon, or in connection with, the alien's
departure. The departure-control officer may permit certain other
persons, including officials of the Department of State and
interpreters, to participate in such examination or inspection and may
exclude from presence at such examination or inspection any person whose
presence would not further the objectives of such examination or
inspection. The departure-control officer shall temporarily prevent the
departure of any alien who refuses to submit to such examination or
inspection, and may, if necessary to the enforcement of this
requirement, take possession of the alien's passport or other travel
document.
08 CFR 215.3 Aliens whose departure is deemed prejudicial to the
interests of the United States.
The departure from the United States of any alien within one or more
of the following categories shall be deemed prejudicial to the interests
of the United States.
(a) Any alien who is in possession of, and who is believed likely to
disclose to unauthorized persons, information concerning the plans,
preparation, equipment, or establishments for the national defense and
security of the United States.
(b) Any alien who seeks to depart from the United States to engage
in, or who is likely to engage in, activities of any kind designed to
obstruct, impede, retard, delay or counteract the effectiveness of the
national defense of the United States or the measures adopted by the
United States or the United Nations for the defense of any other
country.
(c) Any alien who seeks to depart from the United States to engage
in, or who is likely to engage in, activities which would obstruct,
impede, retard, delay, or counteract the effectiveness of any plans made
or action taken by any country cooperating with the United States in
measures adopted to promote the peace, defense, or safety of the United
States or such other country.
(d) Any alien who seeks to depart from the United States for the
purpose of organizing, directing, or participating in any rebellion,
insurrection, or violent uprising in or against the United States or a
country allied with the United States, or of waging war against the
United States or its allies, or of destroying, or depriving the United
States of sources of supplies or materials vital to the national defense
of the United States, or to the effectiveness of the measures adopted by
the United States for its defense, or for the defense of any other
country allied with the United States.
(e) Any alien who is subject to registration for training and service
in the Armed Forces of the United States and who fails to present a
Registration Certificate (SSS Form No. 2) showing that he has complied
with his obligation to register under the Universal Military Training
and Service Act, as amended.
(f) Any alien who is a fugitive from justice on account of an offense
punishable in the United States.
(g) Any alien who is needed in the United States as a witness in, or
as a party to, any criminal case under investigation or pending in a
court in the United States: Provided, That any alien who is a witness
in, or a party to, any criminal case pending in any criminal court
proceeding may be permitted to depart from the United States with the
consent of the appropriate prosecuting authority, unless such alien is
otherwise prohibited from departing under the provisions of this part.
(h) Any alien who is needed in the United States in connection with
any investigation or proceeding being, or soon to be, conducted by any
official executive, legislative, or judicial agency in the United States
or by any governmental committee, board, bureau, commission, or body in
the United States, whether national, state, or local.
(i) Any alien whose technical or scientific training and knowledge
might be utilized by an enemy or a potential enemy of the United States
to undermine and defeat the military and defensive operations of the
United States or of any nation cooperating with the United States in the
interests of collective security.
(j) Any alien, where doubt exists whether such alien is departing or
seeking to depart from the United States voluntarily except an alien who
is departing or seeking to depart subject to an order issued in
extradition, exclusion, or deportation proceedings.
(k) Any alien whose case does not fall within any of the categories
described in paragraphs (a) to (j), inclusive, of this section, but
which involves circumstances of a similar character rendering the
alien's departure prejudicial to the interests of the United States.
08 CFR 215.4 Procedure in case of alien prevented from departing from
the United States.
(a) Any alien, other than an enemy alien, whose departure has been
temporarily prevented under the provisions of 215.2, may, within 15
days of the service upon him of the written order temporarily preventing
his departure, request a hearing before a special inquiry officer. The
alien's request for a hearing shall be made in writing and shall be
addressed to the district director having administrative jurisdiction
over the alien's place of residence. If the alien's request for a
hearing is timely made, the district director shall schedule a hearing
before a special inquiry officer, and notice of such hearing shall be
given to the alien. The notice of hearing shall, as specifically as
security considerations permit, inform the alien of the nature of the
case against him, shall fix the time and place of the hearing, and shall
inform the alien of his right to be represented, at no expense to the
Government, by counsel of his own choosing.
(b) Every alien for whom a hearing has been scheduled under paragraph
(a) of this section shall be entitled: (1) To appear in person before
the special inquiry officer, (2) to be represented by counsel of his own
choice, (3) to have the opportunity to be heard and to present evidence,
(4) to cross-examine the witnesses who appear at the hearing, except
that if, in the course of the examination, it appears that further
examination may divulge information of a confidential or security
nature, the special inquiry officer may, in his discretion, preclude
further examination of the witness with respect to such matters, (5) to
examine any evidence in possession of the Government which is to be
considered in the disposition of the case, provided that such evidence
is not of a confidential or security nature the disclosure of which
would be prejudicial to the interests of the United States, (6) to have
the time and opportunity to produce evidence and witnesses on his own
behalf, and (7) to reasonable continuances, upon request, for good cause
shown.
(c) Any special inquiry officer who is assigned to conduct the
hearing provided for in this section shall have the authority to: (1)
Administer oaths and affirmations, (2) present and receive evidence, (3)
interrogate, examine, and cross examine under oath or affirmation both
the alien and witnesses, (4) rule upon all objections to the
introduction of evidence or motions made during the course of the
hearing, (5) take or cause depositions to be taken, (6) issue subpoenas,
and (7) take any further action consistent with applicable provisions of
law, Executive orders, proclamations, and regulations.
08 CFR 215.5 Hearing procedure before special inquiry officer.
(a) The hearing before the special inquiry officer shall be conducted
in accordance with the following procedure:
(1) The special inquiry officer shall advise the alien of the rights
and privileges accorded him under the provisions of 215.4.
(2) The special inquiry officer shall enter of record: (i) A copy of
the order served upon the alien temporarily preventing his departure
from the United States, and (ii) a copy of the notice of hearing
furnished the alien.
(3) The alien shall be interrogated by the special inquiry officer as
to the matters considered pertinent to the proceeding, with opportunity
reserved to the alien to testify thereafter in his own behalf, if he so
chooses.
(4) The special inquiry officer shall present on behalf of the
Government such evidence, including the testimony of witnesses and the
certificates or written statements of Government officials or other
persons, as may be necessary and available. In the event such
certificates or statements are received in evidence, the alien may
request and, in the discretion of the special inquiry officer, be given
an opportunity to interrogate such officials or persons, by deposition
or otherwise, at a time and place and in a manner fixed by the special
inquiry officer: Provided, That when in the judgment of the special
inquiry officer any evidence relative to the disposition of the case is
of a confidential or security nature the disclosure of which would be
prejudicial to the interests of the United States, such evidence shall
not be presented at the hearing but shall be taken into consideration in
arriving at a decision in the case.
(5) The alien may present such additional evidence, including the
testimony of witnesses, as is pertinent and available.
(b) A complete verbatim transcript of the hearing, except statements
made off the record shall be recorded. The alien shall be entitled,
upon request, to the loan of a copy of the transcript, without cost,
subject to reasonable conditions governing its use.
(c) Following the completion of the hearing, the special inquiry
officer shall make and render a recommended decision in the case, which
shall be governed by and based upon the evidence presented at the
hearing and any evidence of a confidential or security nature which the
Government may have in its possession. The decision of the special
inquiry officer shall recommend: (1) That the temporary order
preventing the departure of the alien from the United States be made
final, or (2) that the temporary order preventing the departure of the
alien from the United States be revoked. This recommended decision of
the special inquiry officer shall be made in writing and shall set forth
the officer's reasons for such decision. The alien concerned shall at
his request be furnished a copy of the recommended decision of the
special inquiry officer, and shall be allowed a reasonable time, not to
exceed 10 days, in which to submit representations with respect thereto
in writing.
(d) As soon as practicable after the completion of the hearing and
the rendering of a decision by the special inquiry officer, the district
director shall forward the entire record of the case, including the
recommended decision of the special inquiry officer and any written
representations submitted by the alien, to the regional commissioner
having jurisdiction over his district. After reviewing the record, the
regional commissioner shall render a decision in the case, which shall
be based upon the evidence in the record and on any evidence or
information of a confidential or security nature which he deems
pertinent. Whenever any decision is based in whole or in part on
confidential or security information not included in the record, the
decision shall state that such information was considered. A copy of
the regional commissioner's decision shall be furnished the alien, or
his attorney or representative. No administrative appeal shall lie from
the regional commissioner's decision.
(e) Notwithstanding any other provision of this part, the
Administrator of the Bureau of Security and Consular Affairs referred to
in section 104(b) of the Immigration and Nationality Act, or such other
officers of the Department of State as he may designate, after
consultation with the Commissioner, or such other officers of the
Immigration and Naturalization Service as he may designate, may at any
time permit the departure of an individual alien or of a group of aliens
from the United States if he determines that such action would be in the
national interest. If the Administrator specifically requests the
Commissioner to prevent the departure of a particular alien or of a
group of aliens, the Commissioner shall not permit the departure of such
alien or aliens until he has consulted with the Administrator.
(f) In any case arising under 215.1 to 215.7, the Administrator
shall, at his request, be kept advised, in as much detail as he may
indicate is necessary, of the facts and of any action taken or proposed.
08 CFR 215.6 Departure from the Canal Zone, the Trust Territory of the
Pacific Islands, or outlying possessions of the United States.
(a) In addition to the restrictions and prohibitions imposed by the
provisions of this part upon the departure of aliens from the United
States, any alien who seeks to depart from the Canal Zone, the Trust
Territory of the Pacific Islands, or an outlying possession of the
United States shall comply with such other restrictions and prohibitions
as may be imposed by regulations prescribed, with the concurrence of the
Administrator of the Bureau of Security and Consular Affairs and the
Commissioner, by the Governor of the Canal Zone, the High Commissioner
of the Trust Territory of the Pacific Islands, or by the governor of an
outlying possession of the United States, respectively. No alien shall
be prevented from departing from such zone, territory, or possession
without first being accorded a hearing as provided in 215.4 and 215.5.
(b) The Governor of the Canal Zone, the High Commissioner of the
Trust Territory of the Pacific Islands, or the governor of any outlying
possession of the United States shall have the authority to designate
any employee or class of employees of the United States as hearing
officers for the purpose of conducting the hearing referred to in
paragraph (a) of this section. The hearing officer so designated shall
exercise the same powers, duties, and functions as are conferred upon
special inquiry officers under the provisions of this part. The chief
executive officer of such zone, territory, or possession shall, in lieu
of the regional commissioner, review the recommended decision of the
hearing officer, and shall render a decision in any case referred to
him, basing it on evidence in the record and on any evidence or
information of a confidential or a security nature which he deems
pertinent.
08 CFR 215.7 Instructions from the Administrator required in certain
cases.
In the absence of appropriate instructions from the Administrator of
the Bureau of Security and Consular Affairs, departure-control officers
shall not exercise the authority conferred by 215.2 in the case of any
alien who seeks to depart from the United States in the status of a
nonimmigrant under section 101(a)(15) (A) or (G) of the Immigration and
Nationality Act, or in the status of a nonimmigrant under section 11(3),
11(4), or 11(5) of the Agreement between the United Nations and the
United States of America regarding the Headquarters of the United
Nations (61 Stat. 756): Provided, That in cases of extreme urgency,
where the national security so requires, a departure-control officer may
preliminarily exercise the authority conferred by 215.2 pending the
outcome of consultation with the Administrator, which shall be
undertaken immediately. In all cases arising under this section, the
decision of the Administrator shall be controlling: Provided, That any
decision to prevent the departure of an alien shall be based upon a
hearing and record as prescribed in this part.
08 CFR 215.7 PART 216 -- CONDITIONAL BASIS OF LAWFUL PERMANENT
RESIDENCE STATUS FOR CERTAIN ALIEN SPOUSES AND SONS AND DAUGHTERS
Sec.
216.1 Definition of conditional permanent resident.
216.2 Notification requirements.
216.3 Termination of conditional resident status.
216.4 Petition to remove conditional basis of lawful permanent
resident status.
216.5 Waiver of requirement to file petition to remove conditions.
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a and 8 CFR part 2.
Source: 53 FR 30018, Aug. 10, 1988, unless otherwise noted.
08 CFR 216.1 Definition of conditional permanent resident.
A conditional permanent resident is an alien who has been lawfully
admitted for permanent residence within the meaning of section
101(a)(20) of the Act, except that a conditional permanent resident is
also subject to the conditions and responsibilities set forth in section
216 of the Act and part 216 of this chapter. Unless otherwise
specified, the rights, privileges, responsibilities and duties which
apply to all other lawful permanent residents apply equally to
conditional permanent residents, including but not limited to the right
to apply for naturalization (if otherwise eligible), the right to file
petitions on behalf of qualifying relatives, the privilege of residing
permanently in the United States as an immigrant in accordance with the
immigration laws, such status not having changed; the duty to register
with the Selective Service System, when required; and the
responsibility for complying with all laws and regulations of the United
States. All references within this chapter to lawful permanent
residents apply equally to conditional permanent residents, unless
otherwise specified.
08 CFR 216.2 Notification requirements.
(a) When alien acquires status of conditional permanent resident. At
the time an alien acquires conditional permanent residence through
admission to the United States with an immigrant visa or adjustment of
status under section 245 of the Act, the Service shall notify the alien
of the conditional basis of the alien's status, of the requirement that
the alien apply for removal of the conditions within the ninety days
immediately preceding the second anniversary of the alien's having been
granted such status, and that failure to apply for removal of the
conditions will result in automatic termination of the alien's lawful
status in the United States.
(b) When alien is required to apply for removal of the conditional
basis of lawful permanent resident status. Approximately 90 days before
the second anniversary of the date on which the alien obtained
conditional permanent residence, the Service should notify the alien a
second time of the requirement that the alien and the petitioning spouse
must file a petition to remove the conditional basis of the alien's
lawful permanent residence. Such notification shall be mailed to the
alien's last known address.
(c) Effect of failure to provide notification. Failure of the
Service to provide notification as required by either paragraph (a) or
(b) of this section does not relieve the alien and the petitioning
spouse of the requirement to file a joint petition to remove conditions
within the 90 days immediately preceding the second anniversary of the
date on which the alien obtained permanent residence.
08 CFR 216.3 Termination of conditional resident status.
(a) During the two-year conditional period. The director shall send
a formal written notice to the conditional permanent resident of the
termination of the alien's permanent resident status if the director
determines that any of the conditions set forth in section 216(b)(1) of
the Act are true. Prior to issuing the Notice of Termination, the
director shall provide the alien with an opportunity to review and rebut
the evidence upon which the decision is to be based, in accordance with
103.2(b)(2) of this chapter. The termination of status, and of all
rights and privileges concomitant thereto (including authorization to
accept or continue in employment in this country), shall take effect as
of the date of such determination by the district director, although the
alien may request a review of such determination in deportation
proceedings. In addition to the notice of termination, the district
director shall issue an order to show cause why the alien should not be
deported from the United States, in accordance with part 242 of this
chapter. During the ensuing deportation proceedings, the alien may
submit evidence to rebut the determination of the district director.
The burden of proof shall be on the Service to establish, by a
preponderance of the evidence, that one or more of the conditions in
section 216(b)(1) of the Act are true.
(b) Determination of fraud after two years. If, subsequent to the
removal of the conditional basis of an alien's permanent resident
status, the district director determines that the alien obtained
permanent resident status through a marriage which was entered into for
the purpose of evading the immigration laws, the director may institute
rescission proceedings pursuant to section 246 of the Act (if otherwise
appropriate) or deportation proceedings under section 242 of the Act.
08 CFR 216.4 Petition to remove conditional basis of lawful permanent
resident status.
(a) Filing the petition -- (1) General procedures. Within the 90-day
period immediately preceding the second anniversary of the date on which
the alien obtained permanent residence, the alien and the alien's spouse
who filed the original immigrant visa petition or fiance/fiancee
petition through which the alien obtained permanent residence must file
a Joint Petition to Remove the Conditional Basis of Alien's Permanent
Resident Status (Form I-751) with the Service. The petition shall be
filed within this time period regardless of the amount of physical
presence which the alien has accumulated in the United States. Before
Form I-751 may be considered as properly filed, it must be accompanied
by the fee required under 103.7(b) of this chapter and by documentation
as described in paragraph (a)(5) of this section, and it must be
properly signed by the alien and the alien's spouse. If the joint
petition cannot be filed due to the termination of the marriage through
annulment, divorce, or the death of the petitioning spouse, or if the
petitioning spouse refuses to join in the filing of the petition, the
conditional permanent resident may apply for a waiver of the requirement
to file the joint petition in accordance with the provisions of 216.5
of this part.
(2) Dependent children. Dependent children of a conditional
permanent resident who acquired conditional permanent resident status
concurrently with the parent may be included in the joint petition filed
by the parent and the parent's petitioning spouse. A child shall be
deemed to have acquired conditional residence status concurrently with
the parent if the child's residence was acquired on the same date or
within 90 days thereafter. Children who cannot be included in a joint
petition filed by the parent and parent's petitioning spouse due to the
child's not having acquired conditional resident status concurrently
with the parent, the death of the parent, or other reasons may file an
Application for Waiver of Requirement to File Joint Petition for Removal
of Conditions (Form I-752).
(3) Jurisdiction. Form I-751 shall be filed with the director of the
regional service center having jurisdiction over the alien's place of
residence.
(4) Physical presence at time of filing. A petition may be filed
regardless of whether the alien is physically present in the United
States. However, if the alien is outside the United States at the time
of filing, he or she must return to the United States, with his or her
spouse and dependent children, to comply with the interview requirements
contained in the Act. Furthermore, if the documentation submitted in
support of the petition includes affidavits of third parties having
knowledge of the bona fides of the marital relationship, the petitioner
must arrange for the affiants to be present at the interview, at no
expense to the government. Once the petition has been properly filed,
the alien may travel outside the United States and return if in
possession of documentation as set forth in 211.1(b)(1) of this
chapter, provided the alien and the petitioning spouse comply with the
interview requirements described in 216.4(b). An alien who is not
physically present in the United States during the filing period but
subsequently applies for admission to the United States shall be
processed in accordance with 235.11 of this chapter.
(5) Documentation. Form I-751 shall be accompanied by evidence that
the marriage was not entered into for the purpose of evading the
immigration laws of the United States. Such evidence may include:
(i) Documentation showing joint ownership of property;
(ii) Lease showing joint tenancy of a common residence;
(iii) Documentation showing commingling of financial resources;
(iv) Birth certificates of children born to the marriage;
(v) Affidavits of third parties having knowledge of the bona fides of
the marital relationship, or
(vi) Other documentation establishing that the marriage was not
entered into in order to evade the immigration laws of the United
States.
(6) Termination of status for failure to file petition. Failure to
properly file Form I-751 or Form I-752 within the 90-day period
immediately preceding the second anniversary of the date on which the
alien obtained lawful permanent residence on a conditional basis shall
result in the automatic termination of the alien's permanent residence
status and the initiation of proceedings to remove the alien from the
United States. In such proceedings the burden shall be on the alien to
establish that he or she complied with the requirement to file the joint
petition within the designated period. Form I-751 may be filed after
the expiration of the 90-day period only if the alien establishes to the
satisfaction of the director, in writing, that there was good cause for
the failure to file Form I-751 within the required time period. If the
joint petition is filed prior to the jurisdiction vesting with the
immigration judge in deportation proceedings and the director excuses
the late filing and approves the petition, he or she shall restore the
alien's permanent residence status, remove the conditional basis of such
status and cancel any outstanding order to show cause in accordance with
242.7 of this chapter. If the joint petition is not filed until after
jurisdiction vests with the immigration judge, the immigration judge may
terminate the matter upon joint motion by the alien and the Service.
(b) Interview -- (1) Authority to waive interview. The director of
the regional service center shall review the Form I-751 filed by the
alien and the alien's spouse to determine whether to waive the interview
required by the Act. If satisfied that the marriage was not for the
purpose of evading the immigration laws, the regional service center
director may waive the interview and approve the petition. If not so
satisfied, then the regional service center director shall forward the
petition to the district director having jurisdiction over the place of
the alien's residence so that an interview of both the alien and the
alien's spouse may be conducted. The director must either waive the
requirement for an interview and adjudicate the petition or arrange for
an interview within 90 days of the date on which the petition was
properly filed.
(2) Location of interview. Unless waived, an interview on the Form
I-751 shall be conducted by an immigration examiner or other officer so
designated by the district director at the district office, files
control office or suboffice having jurisdiction over the residence of
the joint petitioners.
(3) Termination of status for failure to appear for interview. If
the conditional resident alien and/or the petitioning spouse fail to
appear for an interview in connection with the joint petition required
by section 216(c) of the Act, the alien's permanent residence status
will be automatically terminated as of the second anniversary of the
date on which the alien obtained permanent residence. The alien shall
be provided with written notification of the termination and the reasons
therefor, and an order to show cause shall be issued placing the alien
under deportation proceedings. The alien may seek review of the
decision to terminate his or her status in such proceedings, but the
burden shall be on the alien to establish compliance with the interview
requirements. If the alien submits a written request that the interview
be rescheduled or that the interview be waived, and the director
determines that there is good cause for granting the request, the
interview may be rescheduled or waived, as appropriate. If the
interview is rescheduled at the request of the petitioners, the Service
shall not be required to conduct the interview within the 90-day period
following the filing of the petition.
(c) Adjudication of petition. The director shall adjudicate the
petition within 90 days of the date of the interview, unless the
interview is waived in accordance with paragraph (b)(1) of this section.
In adjudicating the petition the director shall determine whether --
(1) The qualifying marriage was entered into in accordance with the
laws of the place where the marriage took place;
(2) The qualifying marriage has been judicially annulled or
terminated, other than through the death of a spouse;
(3) The qualifying marriage was entered into for the purpose of
procuring permanent residence status for the alien; or
(4) A fee or other consideration was given (other than a fee or other
consideration to an attorney for assistance in preparation of a lawful
petition) in connection with the filing of the petition through which
the alien obtained conditional permanent residence.
If derogatory information is determined regarding any of these
issues, the director shall offer the petitioners the opportunity to
rebut such information. If the petitioners fail to overcome such
derogatory information the director may deny the joint petition,
terminate the alien's permanent residence and issue an order to show
cause to initiate deportation proceedings. If derogatory information
not relating to any of these issues is determined during the course of
the interview, such information shall be forwarded to the investigations
unit for appropriate action. If no unresolved derogatory information is
determined relating to these issues, the petition shall be aproved and
the conditional basis of the alien's permanent residence status removed,
regardless of any action taken or contemplated regarding other possible
grounds for deportation.
(d) Decision -- (1) Approval. If the director approves the joint
petition he or she shall provide written notice of the decision to the
alien and shall require the alien to report to the appropriate office of
the Service for processing for a new Alien Registration Receipt Card (if
necessary), at which time the alien shall surrender any Alien
Registration Receipt Card previously issued.
(2) Denial. If the director denies the joint petition, he or she
shall provide written notice to the alien of the decision and the
reason(s) therefor and shall issue an order to show cause why the alien
should not be deported from the United States. The alien's lawful
permanent resident status shall be terminated as of the date of the
director's written decision. The alien shall also be instructed to
surrender any Alien Registration Receipt Card previously issued by the
Service. No appeal shall lie from the decision of the director;
however, the alien may seek review of the decision in deportation
proceedings. In such proceedings the burden of proof shall be on the
Service to establish, by a preponderance of the evidence, that the facts
and information set forth by the petitioners are not true and that the
petition was properly denied.
(53 FR 30018, Aug. 10, 1988, as amended at 54 FR 30369, July 20,
1989)
08 CFR 216.5 Waiver of requirement to file petition to remove
conditions.
(a) General. A conditional resident alien who is unable to meet the
requirements for removal of the conditional basis of his or her
permanent residence status may file an Application for Waiver of
Requirement to File Joint Petition for Removal of Conditions (Form
I-752), if the alien was not at fault in failing to meet the filing
requirement and the conditional resident alien is able to establish
that:
(1) Deportation from the United States would result in extreme
hardship;
(2) The marriage upon which his or her status was based was entered
into in good faith by the conditional resident alien, but the marriage
was terminated other than by death, and the conditional resident was not
at fault in failing to file a timely petition; or
(3) The qualifying marriage was entered into in good faith by the
conditional resident but during the marriage the alien spouse or child
was battered by or subjected to extreme cruelty committed by the citizen
or permanent resident spouse or parent.
(b) Fee. Form I-752 shall be accompanied by the appropriate fee
required under 103.7(b) of this Chapter.
(c) Jurisdiction. Form I-752 shall be filed with the regional
service center director having jurisdiction over the alien's place of
residence.
(d) Interview. The regional service center director may refer the
application to the appropriate district, files control office or
suboffice and require that the alien appear for an interview in
connection with the application for a waiver. The director shall deny
the application and initiate deportation proceedings if the alien fails
to appear for the interview as required, unless the alien establishes
good cause for such failure and the interview is rescheduled.
(e) Adjudication of waiver application -- (1) Application based on
claim of hardship. In considering an application for a waiver based
upon an alien's claim that extreme hardship would result from the
alien's deportation from the United States, the director shall take into
account only those factors which arose subsequent to the alien's entry
as a conditional permanent resident. The director shall bear in mind
that any deportation from the United States is likely to result in a
certain degree of hardship, and that only in those cases where the
hardship is extreme should the application for a waiver be granted. The
burden of establishing that extreme hardship exists rests solely with
the applicant.
(2) Application for waiver based upon the alien's claim that the
marriage was entered into in good faith. In considering whether an
alien entered into a qualifying marriage in good faith, the director
shall consider evidence relating to the amount of commitment by both
parties to the marital relationship. Such evidence may include --
(i) Documentation relating to the degree to which the financial
assets and liabilities of the parties were combined;
(ii) Documentation concerning the length of time during which the
parties cohabited after the marriage and after the alien obtained
permanent residence;
(iii) Birth certificates of children born to the marriage; and
(iv) Other evidence deemed pertinent by the director.
(3) Application for waiver based on alien's claim of having been
battered or subjected to extreme mental cruelty. A conditional resident
who entered into the qualifying marriage in good faith, and who was
battered or was the subject of extreme cruelty or whose child was
battered by or was the subject of extreme cruelty perpetrated by the
United States citizen or permanent resident spouse during the marriage,
may request a waiver of the joint filing requirement. The conditional
resident parent of a battered or abused child may apply for the waiver
regardless of the child's citizenship or immigration status.
(i) For the purpose of this chapter the phrase ''was battered by or
was the subject of extreme cruelty'' includes, but is not limited to,
being the victim of any act or threatened act of violence, including any
forceful detention, which results or threatens to result in physical or
mental injury. Psychological or sexual abuse or exploitation, including
rape, molestation, incest (if the victim is a minor) or forced
prostitution shall be considered acts of violence.
(ii) A conditional resident or former conditional resident who has
not departed the United States after termination of resident status or
under an order of deportation may apply for the waiver. The conditional
resident may apply for the waiver regardless of his or her present
marital status. The conditional resident may still be residing with the
citizen or permanent resident spouse, or may be divorced or separated.
(iii) Evidence of physical abuse may include, but is not limited to,
expert testimony in the form of reports and affidavits from police,
judges, medical personnel, school officials and social service agency
personnel. The Service must be satisfied with the credibility of the
sources of documentation submitted in support of the application.
(iv) The Service is not in a position to evaluate testimony regarding
a claim of extreme mental cruelty provided by unlicensed or untrained
individuals. Therefore, all waiver applications based upon claims of
extreme mental cruelty must be supported by the evaluation of a
professional recognized by the Service as an expert in the field. An
evaluation which was obtained in the course of the divorce proceedings
may be submitted if it was provided by a professional recognized by the
Service as an expert in the field.
(v) The evaluation must contain the professional's full name,
professional address and license number. It must also identify the
licensing, certifying, or registering authority. The Service retains
the right to verify the professional's license.
(vi) The Service's decision on extreme mental cruelty waivers will be
based upon the evaluation of the recognized professional. The Service
reserves the right to request additional evaluations from expert
witnesses chosen by the Service. Requests for additional evaluations
must be authorized by the Assistant Regional Commissioner for
Adjudications.
(vii) Licensed clinical social workers, psychologists, and
psychiatrists are professionals recognized by the Service for the
purpose of this section. A clinical social worker who is not licensed
only because the state in which he or she practices does not provide for
licensing will be considered a licensed professional recognized by the
Service if he or she is included in the Register of Clinical Social
Workers published by the National Association of Social Workers or is
certified by the American Board of Examiners in Clinical Social Work.
(viii) As directed by the statute, the information contained in the
application and supporting documents shall not be released without a
court order or the written consent of the applicant; or, in the case of
a child, the written consent of the parent or legal guardian who filed
the waiver application on the child's behalf. Information may be
released only to the applicant, his or her authorized representative, an
officer of the Department of Justice, or any federal or State law
enforcement agency. Any information provided under this part may be
used for the purposes of enforcement of the Act or in any criminal
proceeding.
(f) Decision. The director shall provide the alien with written
notice of the decision on the application for waiver. If the decision
is adverse, the director shall advise the alien of the reasons therefor,
notify the alien of the termination of his or her permanent residence
status, instruct the alien to surrender any Alien Registration Receipt
Card issued by the Service and issue an order to show cause placing the
alien under deportation proceedings. No appeal shall lie from the
decision of the director; however, the alien may seek review of such
decision in deportation proceedings.
(53 FR 30018, Aug. 10, 1988, as amended at 56 FR 22637, May 16, 1991)
08 CFR 216.5 PART 217 -- VISA WAIVER PILOT PROGRAM
Sec.
217.1 Scope.
217.2 Eligibility.
217.3 Maintenance of status.
217.4 Excludability and deportability.
217.5 Designated countries.
217.6 Carrier agreements.
Authority: 8 U.S.C. 1103, 1187; 8 CFR 2.
Source: 53 FR 24901, June 30, 1988, unless otherwise noted.
08 CFR 217.1 Scope.
The Visa Waiver Pilot Program is established solely pursuant to the
provisions of section 217 of the Act and subject to all conditions and
restrictions stipulated in that section, including those relating to the
length of the program and the number of countries which may be
designated as Visa Waiver Pilot Program countries.
08 CFR 217.2 Eligibility.
(a) General. Notwithstanding the provisions of section
212(a)(7)(B)(i)(II) of the Act, a nonimmigrant visa may be waived for an
alien who is a national of a country enumerated in 217.5 of this part
regardless of place of residence or point of embarkation who:
(1) Is classifiable as a visitor as defined in section 101(a)(15)(B)
of the Act;
(2) Seeks admission to the United States for a period not to exceed
ninety days;
(3) Is in possession of a valid passport issued by a designated
country;
(4) Is in possession of a completed and signed Form I-94W,
Nonimmigrant Visa Waiver Arrival/Departure Form;
(5) Waives any right otherwise provided in the Act to administrative
or judicial review or appeal of an immigration officer's determination
as to his or her admissibility other than on the basis of an application
for asylum in the United States as provided in section 208 of the Act;
and
(6) Waives any right to contest any action for deportation, other
than on the basis of an application for asylum in the United States as
provided in section 208 of the Act.
(b) Applicants arriving by air or sea. (1) Applicants must be in
possession of a return trip ticket which will transport the traveler out
of the United States to any other foreign port or place as long as the
trip does not terminate in contiguous territory or an adjacent island;
or will transport the traveler to contiguous territory or an adjacent
island, if the traveler is a resident of the country of destination. A
return trip ticket includes any of the following:
(i) A round trip, non-transferable transportation ticket which is
valid for a period of not less than one year;
(ii) Airline employee passes indicating return passage;
(iii) Individual vouchers;
(iv) Group vouchers for charter flights only; or
(v) Military travel orders which include military dependents for
return to duty stations outside the United States on United States
military flights.
(2) Applicants must arrive in the United States on a carrier which
has entered into an agreement as provided in 217.6 of this part.
(c) Applicants arriving at land border ports of entry. Any applicant
arriving at a land border port of entry must provide evidence to the
immigration officer of financial solvency and a domicile abroad to which
the applicant intends to return.
(d) Aliens in transit. An alien who is in transit through the United
States is eligible to apply for admission under the Visa Waiver Pilot
Program, provided the applicant meets the eligibility criteria set forth
in this section.
(53 FR 24901, June 30, 1988, as amended at 53 FR 50160, Dec. 13,
1988; 56 FR 32953, July 18, 1991)
08 CFR 217.3 Maintenance of status.
(a) Eligibility for immigration benefits. An alien admitted to the
United States under this part may be admitted as a visitor for business
or pleasure for a period not to exceed ninety days. An alien admitted
under this part must maintain his or her status as a visitor as defined
in section 101(a)(15)(B) of the Act and must not engage in activities in
the United States which are inconsistent with that status. An alien
admitted under this part is not eligible for extension of his or her
authorized period of temporary stay in the United States; is not
eligible for adjustment of his or her status to that of an alien
lawfully admitted for permanent residence pursuant to section 245 of the
Act, other than as an immediate relative as defined in section 201(b) of
the Act; and is not eligible for change of nonimmigrant status pursuant
to section 248 of the Act.
(b) Satisfactory departure. If an emergency prevents an alien
admitted under this part from departing from the United States within
his or her period of authorized stay, the district director having
jurisdiction over the place of the alien's temporary stay may, in his or
her discretion, grant a period of satisfactory departure not to exceed
thirty days. If departure is accomplished during this period, the alien
is to be regarded as having satisfactorily accomplished the visit
without overstaying the allotted time.
(c) Readmission after departure to contiguous territory or adjacent
island. An alien admitted to the United States under this part may be
readmitted to the United States in the status of a Visa Waiver Pilot
Program visitor after a departure to foreign contiguous territory or
adjacent island provided that:
(1) His or her authorized period of temporary stay has not expired,
(2) He or she intends to depart the United States prior to the
expiration of his or her authorized period of temporary stay,
(3) He or she presents a valid, unexpired passport which reflects
admission to the United States as a Visa Waiver Pilot Program visitor,
and
(4) He or she continues to meet all criteria set forth in 217.2(a)
of this part with the exception of arrival on a signatory carrier.
(d) Adjacent islands. The term adjacent islands means Anguilla,
Antigua, Aruba, Bahamas, Barbados, Barbuda, Bermuda, Bonaire, British
Virgin Islands, Cayman Islands, Cuba, Curacao, Dominica, the Dominican
Republic, Grenada, Guadeloupe, Haiti, Jamaica, Marie-Galante,
Martinique, Miquelon, Montserrat, Saba, Saint-Barthelemy, Saint
Christopher, Saint Eustatius, Saint Kitts-Nevis, Saint Lucia, Saint
Maarten, Saint Martin, Saint Pierre, Saint Vincent and Grenadines,
Trinidad and Tobago, Turks and Caicos Islands, and other British, French
and Netherlands territory or possession bordering on the Caribbean Sea.
An alien who applies for admission under the provisions of this
section may be admitted to the United States only for the remainder of
the authorized period of temporary stay which he or she was granted upon
arrival in the United States in accordance with the provisions of
217.2(a) of this part. A Visa Waiver Pilot Program visitor who applies
for admission under the provisions of this section is subject to
exclusion from the United States pursuant to section 212 of the Act and
this part. Departure from and readmission to the United States of an
alien under this subsection does not relieve any obligations and
responsibilities of the carrier which initially transported such alien
to the United States for admission under the provisions of this part.
(53 FR 24901, June 30, 1988, as amended at 53 FR 50160, Dec. 13,
1988)
08 CFR 217.4 Excludability and deportability.
(a) Consent to apply for admission. Aliens who have been deported
from the United States require the consent of the Attorney General to
apply for admission to the United States pursuant to section 212(a)(17)
of the Act and may not be admitted to the United States under the
provisions of this part notwithstanding the fact that the required
consent of the Attorney General may have been secured. Such aliens must
secure a visa in order to be admitted to the United States as
nonimmigrants.
(b) Determinations of excludability and inadmissibility. (1) An
alien who applies for admission under the provisions of section 217 of
the Act, who is determined by an immigration officer not to be eligible
for admission under that section or to be excludable from the United
States under one or more of the grounds of excludability listed in
section 212 of the Act (other than for lack of a visa), or who is in
possession of and presents fraudulent or counterfeit travel documents,
will be refused admission into the United States and removed. Such
refusal and removal shall be made at the level of the port director or
officer-in-charge, or an officer acting in that capacity, and shall be
effected without referral of the alien to an immigration judge for
further inquiry, examination, or hearing, except that an alien who
presents himself or herself as an applicant for admission under section
217 of the Act, who applies for asylum in the United States must be
referred to an immigration judge for further inquiry.
(2) The removal of an alien under this section may be deferred if the
alien is paroled into the custody of a Federal, State, or local law
enforcement agency for criminal prosecution or punishment. This section
in no way diminishes the discretionary authority of the Attorney General
enumerated in section 212(d) of the Act.
(c) Determination of deportability. An alien who has been admitted
to the United States under the provisions of section 217 of the Act and
of this part who is determined by an immigration officer to be
deportable from the United States under one or more of the deportation
grounds listed in section 241 of the Act shall be removed from the
United States to his or her country of nationality or last residence.
Such removal for deportation shall be determined by the district
director who has jurisdiction over the place where the alien is found,
and shall be effected without referral of the alien to an immigration
judge for a determination of deportability, except that an alien
admitted as a Visa Waiver Pilot Program visitor who applies for asylum
in the United States must be referred to an immigration judge for a
determination of deportability.
(d)(1) Removal of excludable and deportable aliens who arrived by air
or sea. The carrier which transported to the United States an alien who
is to be removed pursuant to this section will be notified immediately
of the determination to remove such alien by means of Form I-259, Notice
to Detain, Deport, Remove, or Present Aliens. Removal from the United
States under this section may be effected using the return portion of
the round trip passage presented by the alien at the time of entry to
the United States as required in 217.2(b)(1) of this part. Such
removal shall be on the first available means of transportation to the
alien's point of embarkation to the United States. Nothing in this part
absolves the carrier of the responsibility to remove any excludable or
deportable alien at carrier expense, as provided in 217.6 (b) of this
part.
(2) Removal of excludable and deportable aliens who arrived at land
border ports of entry. Removal under this section will be by the first
available means of transportation deemed appropriate by the district
director.
(53 FR 24901, June 30, 1988, as amended at 56 FR 32953, July 18,
1991)
08 CFR 217.5 Designated countries.
(a) Countries. United Kingdom (effective July 1, 1988); Japan
(effective December 15, 1988); France and Switzerland (effective July
1, 1989); Germany and Sweden (effective July 15, 1989); Italy and the
Netherlands (effective July 29, 1989); and Andorra, Austria, Belgium,
Denmark, Finland, Iceland, Liechtenstein, Luxembourg, Monaco, New
Zealand, Norway, San Marino and Spain (effective October 1, 1991) have
been designated as Visa Waiver Pilot Program countries based on the
criteria set forth at sections 217(a)(2)(A) and 217(c) of the Act.
(b) Definitions. For the purposes of this part the term national of
a Visa Waiver Pilot Program country as used in section 217(a)(2) of the
Act when applied to the United Kingdom refers only to British citizens
who have the unrestricted right of permanent abode in the United Kingdom
(England, Scotland, Wales, Northern Ireland, Channel Islands, and the
Isle of Man); it does not refer to British overseas citizens, British
dependent territories citizens, or citizens of British Commonwealth
countries.
(53 FR 24901, June 30, 1988, as amended at 53 FR 50161, Dec. 13,
1988; 54 FR 27120, June 27, 1989; 56 FR 46716, Sept. 13, 1991)
08 CFR 217.6 Carrier agreements.
(a) General. The carrier agreements referred to in section 217(e) of
the Act shall be made by the Commissioner on behalf of the Attorney
General and shall be on Form I-775, Visa Waiver Pilot Program Agreement.
The term ''carrier'' as used in this part refers to the owner,
charterer, lessee or authorized agent of any commercial vessel or
commercial aircraft engaged in transporting passengers to the United
States from a foreign place.
(b) Agreement provisions. (1) To be authorized to transport an alien
to the United States pursuant to section 217 of the Act and this part, a
carrier must enter into an agreement on Form I-775 to transport as an
applicant for admission under section 217 of the Act and this part, only
an alien who:
(i) Is a national of and in possession of a valid passport issued by
a country listed in 217.5 of this part;
(ii) Is in possession of a completed and signed Form I-94W,
Nonimmigrant Visa Waiver Arrival/Departure Form, prior to inspection;
(iii) Seeks admission into the United States for 90 days or less;
(iv) Is in possession of round trip, non-transferable passage that is
valid for one year, issued by a carrier signatory on Form I-775, or by
authorized agents who are subcontractors to such a carrier, and
guaranteeing transportation from the United States;
(v) Agrees that the return portion of such passage may be used to
effect removal from the United States based on a finding of
excludability or deportability under 217.4 of this part;
(vi) Appears otherwise admissible.
(2) The carrier further agrees to:
(i) Submit to the Immigration and Naturalization Service the Form
I-94W as required by 231 of this chapter and section 217(e)(1)(B) of
the Act;
(ii) Remove from the United States any alien transported by the
carrier to the United States for admission under the Visa Waiver Pilot
Program, in the event that the alien is determined by an immigration
officer at the port of entry to be inadmissible or is determined to have
remained unlawfully beyond the 90-day period of admission under the
program;
(iii) Reimburse within 30 days of notice (not pay as a penalty) the
Immigration and Naturalization Service of any and all expenses incurred
in the transportation (from the point of arrival in the United States)
of any alien found inadmissible or deportable under this program;
(iv) Retain the responsibilities and obligations enumerated in this
part should the alien under the Visa Waiver Pilot Program depart
temporarily for a visit to foreign contiguous territory during the
period of authorized stay in the United States;
(v) Transport an alien found inadmissible to the United States or
deportable from the United States after admission under the Visa Waiver
Pilot Program, by accepting as full payment for return passage the
return portion of the transportation ticket as required in
217.6(b)(1)(v) from the original port of arrival in the United States to
point of embarkation.
(vi) Ensure that the form I-94W is completed and signed by the alien
prior to inspection.
(3) For the purposes of this part, a period of validity of one year
need not be reflected on the ticket itself, provided that the carrier
agrees that it will honor the return portion of the ticket at any time,
as provided in 217.6(b)(2)(v) of this part. In addition, for the
purposes of this part, a roundtrip ticket in possession of an applicant
for admission under the Visa Waiver Pilot Program will be considered
qualifying in every respect, as long as the arrival in the United States
under the pilot program is on a participating carrier.
(c) Termination of agreements. The Commissioner, in behalf of the
Attorney General, may terminate any carrier agreement under this part
with five days notice to a carrier for the carrier's failure to meet the
terms of such agreement. As a matter of discretion, the Commissioner
may notify a carrier of the existence of a basis for termination of a
carrier agreement under this part and allow the carrier a period not to
exceed fifteen days within which the carrier may bring itself into
compliance with the terms of the carrier agreement. The agreement shall
be subject to cancellation by either party for any reason upon fifteen
days' written notice to the other party.
(53 FR 24901, June 30, 1988, as amended at 56 FR 32954, July 18,
1991)
08 CFR 217.6 PART 221 -- ADMISSION OF VISITORS OR STUDENTS
Authority: Secs. 101, 103, 221, 66 Stat. 166, 173, 191; 8 U.S.C.
1101, 1103, 1201.
08 CFR 221.1 Admission under bond.
The district director having jurisdiction over the intended place of
residence of an alien may accept a bond on behalf of an alien defined in
section 101(a)(15)(B) or (F) of the Act prior to the issuance of a visa
to the alien or upon receipt of a request directly from a U.S. consular
officer or upon presentation by an interested person of a notification
from the consular officer requiring such a bond; such a bond also may
be accepted by the district director with jurisdiction over the port of
entry or preinspection station where inspection of the alien takes
place. Upon acceptance of such a bond, the district director shall
notify the United States consular officer who requested the bond, giving
the date and place of acceptance and amount of the bond. All bonds
given as a condition of admission of an alien under section 221(g) of
the Act shall be executed on Form I-352. For procedures relating to
bond riders, acceptable sureties, cancellation, or breaching of bonds,
see part 103 of this chapter.
(32 FR 9626, July 4, 1967, as amended at 34 FR 1008, Jan. 23, 1969)
08 CFR 221.1 PART 223 -- REENTRY PERMITS
Sec.
223.1 Application.
223.2 Period of validity.
223.3 Expired permits.
Authority: 66 Stat. 173, 194, 100 Stat. 3537; 8 U.S.C. 1103,
1186a, 1203.
08 CFR 223.1 Application.
An application for a reentry permit under section 223 of the Act
shall be submitted on Form I-131 by an applicant in the United States at
least 30 days prior to the proposed date of departure. The application
shall be accompanied by the applicant's alien registration receipt card
(Form I-151 or I-551, AR-3, or AR-103) or an application for a lost or
destroyed card on Form I-90. If the applicant's name has been changed
by marriage or by order of any court of competent jurisdiction and a
reentry permit or Form I-151 or I-551 has never been issued in the
changed name, the application shall also be accompanied by appropriate
documentary evidence of such change. A reentry permit shall not be
issued unless the alien is in possession of or is being furnished Form
I-151 or I-551. Additional pages for the affixation of foreign visas
may be attached to a valid reentry permit without formal application or
fee. A lawful permanent resident alien entitled to nonimmigrant status
under section 101(a)(15) (A), (E), or (G) of the Act because of
occupational status, may be issued a reentry permit if the applicant
executes and submits with the application, or has previously executed
and submitted, a written waiver on Form I-508 required by section 247(b)
of the Act and part 247 of this chapter and, if applicable, Form I-508F
(election as to tax exemption under the Convention between the United
States and the French Republic) required by part 247 of this chapter. A
reentry permit applicant who is a lawful permanent resident alien and
who is in possession of a refugee travel document issued pursuant to
part 223a of this chapter may be issued a new reentry permit only upon
surrender of the existing refugee travel document to the Service. The
applicant shall be notified of the decision made on the application for
a reentry permit and, if the application is denied, of the reasons
therefor and of the right to appeal in accordance with the provisions of
part 103 of this chapter. A reentry permit shall not be issued to a
lawful permanent resident alien who intends to travel to, in, or through
Libya unless such travel is for journalistic activity by a person who is
regularly employed in such capacity by a newsgathering organization, or
the applicant establishes that his or her trip is justified by urgent
and compelling humanitarian considerations.
(51 FR 12596, Apr. 14, 1986)
08 CFR 223.2 Period of validity.
A reentry permit is valid for a maximum period of two years unless
otherwise restricted. However, a permit issued to an alien who has been
admitted as a lawful permanent resident on a conditional basis pursuant
to section 216 of the Act is not valid for a period which exceeds the
date by which the alien must apply for removal of the conditional basis
of his or her status (i.e., the second anniversary of the date on which
the alien obtained conditional permanent residence) unless and until the
conditions have been removed. The period of validity commences on the
date of issuance and not on the date the application for the permit was
submitted to the Service. A reentry permit cannot be renewed.
(53 FR 30021, Aug. 10, 1988)
08 CFR 223.3 Expired permits.
Upon the expiration of the period of validity of a reentry permit,
the permit shall be surrendered by the holder to the issuing office. If
the expired permit has not been surrendered to the Service, no
subsequent reentry permit shall be issued to the same alien unless the
alien first surrenders the expired permit, or satisfactorily explains
why the permit cannot be surrendered. However, an alien shall be
permitted to retain an expired reentry permit that contains valid visas,
entry stamps or documents necessary for entry into another country. The
expired reentry permit shall be voided by an immigration officer by
clipping the upper left hand corner of the cover and indentification
page prior to returning the document to the alien.
(47 FR 44239, Oct. 7, 1982)
08 CFR 223.3 PART 223a -- REFUGEE TRAVEL DOCUMENT
Sec.
223a.1 Definition of refugee.
223a.2 Definition of refugee travel document.
223a.3 Eligibility.
223a.4 Application.
223a.5 Validity of refugee travel document.
223a.6 Return to the United States.
223a.7 Extension.
223a.8 Surrender of document.
Authority: 66 Stat. 173, 181, 182, 200, 201, 100 Stat. 3537; 8
U.S.C. 1103, 1181, 1182, 1186a, 1225, 1226, 1227, 1251, and Protocol
Relating to the Status of Refugees (TIAS 6577).
Source: 38 FR 8238, Mar. 30, 1973, unless otherwise noted.
08 CFR 223a.1 Definition of refugee.
For the purposes of this part, the term refugee shall be as defined
in section 101(a)(42) of the Act.
(Secs. 101 and 103 of the Immigration and Nationality Act, as
amended, (8 U.S.C. 1101 and 1103))
(49 FR 18996, May 4, 1984)
08 CFR 223a.2 Definition of refugee travel document.
As used in this chapter, the term refugee travel document means a
document issued by the Service on Form I-571 in implementation of
article 28 of the U.N. Convention of July 28, 1951, and in accordance
with the provisions of this part.
08 CFR 223a.3 Eligibility.
Any alien physically present in the United States may apply for a
refugee travel document if he/she believes that he/she is a refugee. A
refugee travel document shall be issued to a refugee whose presence in
the United States is lawful, unless compelling reasons of national
security or public order otherwise require. Lawful presence, as used
herein, does not include brief presence as a transit or crewman, or any
other presence so brief as not to signify residence even of a temporary
nature. A refugee travel document may be issued, in the exercise of
discretion, to any other refugee unless reasons of national security or
public order otherwise require; sympathetic consideration shall be
given to such an application unless the Service intends to expel or
exclude the alien from the United States. An alien who is a lawful
permanent resident and who is in possession of a reentry permit issued
pursuant to section 223 of the Act and part 223 of this chapter may be
issued a new refugee travel document only if he/she surrenders the
existing reentry permit to the Service. For reasons of national
security, a refugee travel document shall not be issued to a lawful
permanent resident alien who intends to travel to, in, or through Libya,
unless such travel is for journalistic activity by a person who is
regularly employed in such capacity by a newsgathering organization, or
the applicant establishes that his or her trip is justified by urgent
and compelling humanitarian considerations.
(51 FR 12596, Apr. 14, 1986)
08 CFR 223a.4 Application.
An application for a refugee travel document shall be submitted on
Form I-570 at least 45 days prior to the proposed date of departure from
the United States. The application shall be submitted to the district
director having jurisdiction over the applicant's place of residence and
shall be accompanied by Form I-94 or Form I-151 or Form I-551. The
applicant shall be notified of the decision on the application. If the
application is approved, the refugee travel document shall be issued and
the immigration status which may be accorded to the alien upon his or
her return to the United States shall be specified therein. Unless the
applicant is in the United States as a conditional entrant or lawful
permanent resident, the status of ''Parolee'' shall be specified. If
the applicant is in the United States as a conditional entrant, that
status shall be specified. If the applicant is a lawful permanent
resident, that status shall be specified. If the applicant is a lawful
permanent resident subject to the conditions of section 216 of the Act,
that status and the conditional basis of that status shall be specified.
If the application is denied, the applicant shall be notified of the
reasons therefor and of the right to appeal in accordance with the
provisions of part 103 of this chapter.
(53 FR 30021, Aug. 10, 1988)
08 CFR 223a.5 Validity of refugee travel document.
(a)(1) General. A refugee travel document shall be valid for not
more than two years from the date of issuance and shall not be
renewable. However, a permit issued to an alien who has been admitted
as a lawful permanent resident on a conditional basis pursuant to
section 216 of the Act may not be valid for a period which exceeds the
date by which the alien must apply for removal of the conditional basis
of his or her status (i.e., the second anniversary of the date on which
the alien obtained permanent residence) unless and until the conditions
have been removed. The document may be used for one or more
applications for admission to the United States. It shall have no
effect under the immigration laws except to show that during the period
of its validity the lawful holder thereof may be accorded the status
specified in the refugee travel document upon returning to the United
States.
(b) Invalidity -- (1) False application. A refugee travel document
shall be invalid if the alien obtained it by making a material false
representation or concealment in his application.
(2) Exclusion or deportation proceedings. A refugee travel document
shall be invalid if the alien is ordered excluded or deported.
(3) Aliens who are no longer refugees. A refugee travel document
shall be invalid if the U.N. Convention of July 28, 1951, shall cease to
apply or shall not apply to the alien as provided in Article 1C, D, E,
or F of the convention.
(Secs. 101 and 103 of the Immigration and Nationality Act, as
amended, (8 U.S.C. 1101 and 1103))
(38 FR 8238, Mar. 30, 1973, as amended at 42 FR 19478, Apr. 14, 1977;
49 FR 18996, May 4, 1984; 53 FR 30021, Aug. 10, 1988)
08 CFR 223a.6 Return to the United States.
(a) General. Every alien returning to the United States who presents
a valid unexpired refugee travel document shall be permitted to come
physically within the territory of the United States to receive
consideration of his application for admission in conformity with
paragraphs (b) and (c) of this section.
(b) Inspection and immigration status. Upon arrival, an alien who
presents a valid unexpired refugee travel document shall be examined as
to his admissibility under the Act, and under the U.N. Convention of
July 28, 1951, and the Protocol of January 31, 1967, except that any
question of admissibility as a lawful permanent resident or as a
conditional entrant shall be determined solely in accordance with the
provisions of the Act. An alien shall be accorded the immigration
status endorsed in his refugee travel document unless he is no longer
eligible therefor or he applies for and is found eligible for some other
immigration status.
(c) Exclusion. If an alien who presents a valid unexpired refugee
travel document appears to the examining immigration officer to be
excludable as provided in 236.3(e) of this chapter, he shall be
referred for proceedings under sections 236 and 237 of the Act. Section
235(c) of the Act shall not be applicable.
08 CFR 223a.7 Extension.
Refugee travel documents may not be extended. However, currently
valid refugee travel documents issued for a one year period without
restrictions, shall be valid for a period of two years from the original
date of issuance.
(Secs. 101 and 103 of the Immigration and Nationality Act, as
amended, (8 U.S.C. 1101 and 1103))
(49 FR 18996, May 4, 1984)
08 CFR 223a.8 Surrender of document.
(a) Expired document. Upon expiration of the period of validity of a
refugee travel document, it shall be surrendered to an immigration
officer or to the issuing office of the Service. If an alien's expired
refugee travel document has not been surrendered to the Service, no
subsequent refugee travel document shall be issued to him unless he
shall first surrender the expired document or satisfactorily account for
his failure to do so. A refugee travel document shall also be
surrendered if the alien's immigration status has changed so that upon
return to the United States he may not be accorded the status endorsed
in the document.
(b) Invalid document. An invalid refugee travel document shall be
surrendered to an immigration officer except that an alien traveling
abroad shall be permitted to retain it until his return to the United
States prior to its expiration date. A refugee travel document shall be
surrendered provisionally upon notification within the United States
that its validity is being investigated or upon notification of
institution of exclusion or deportation proceedings, and it shall be
returned to the alien if the outcome of the investigation is favorable
to him or the final order issued under the instituted proceedings does
not result in the document becoming invalid pursuant to 223a.5(b)(3).
08 CFR 223a.8 PART 231 -- ARRIVAL-DEPARTURE MANIFESTS AND LISTS;
SUPPORTING DOCUMENTS
Sec.
231.1 Arrival manifest for passengers.
231.2 Departure manifest for passengers.
231.3 Exemptions for private vessels and aircraft.
Authority: Secs. 101, 103, 212, 231, 238, 239, 66 Stat. 166, 173,
182, 195, 202, 203; 8 U.S.C. 1101, 1103, 1182, 1221, 1228, 1229.
08 CFR 231.1 Arrival manifest for passengers.
(a) Requirement for manifest. The master, captain, or agent of every
vessel or aircraft arriving in the United States from a foreign place or
outlying possession of the United States shall present an arrival
manifest to the immigration officer at the port of entry. The manifest
must be in the form of a separate Arrival/Departure Record, Form I-94,
prepared on board for each passenger except: United States citizens,
lawful permanent resident aliens of the United States, and immigrants to
the United States. In addition, a properly completed Aircraft/Vessel
Report, Form I-92, must be submitted for each arriving aircraft or
vessel which is transporting passengers. Manifests are not required by
vessels or aircraft arriving directly from Canada on a trip originating
in that country or arriving in the Virgin Islands of the United States
directly from a trip originating in the British Virgin Islands.
(b) In-Transit Passengers. An Arrival/Departure Record, Form I-94,
is not required for an arriving, through-flight passenger at a United
States port provided:
(1) The passenger will depart directly to a foreign place or outlying
possession of the United States on the same flight;
(2) The number of through-flight passengers is noted on the
Aircraft/Vessel Report, Form I-92, for the flight;
(3) The flight is inspected at a port of entry designated in
paragraph 214.2(c) of this chapter;
(4) The carrier is signatory to an Immediate and Continuous Transit
Agreement, Form I-426; and
(5) All through-flight passengers remain on board the aircraft or in
a separate area under the direction and control of the Service during
the ground time.
(c) Progressive Clearance. Inspection of arriving passengers may be
deferred at the request of the carrier to an onward port of debarkation.
Authorization for this progressive clearance may be granted by the
Regional Commissioner when both the initial port of entry and the onward
port are within the same regional jurisdiction, but when the initial
port of entry and onward port are located within different regions,
requests for progressive clearance must be authorized by the Assistant
Commissioner for Inspections. When progressive clearance is requested,
the carrier shall present Form I-92 in duplicate at the initial port of
entry. The original Form I-92 will be processed at the initial port of
entry, and the duplicate noted and returned to the carrier for
presentation at the onward port of debarkation.
(d) Preparation of Arrival/Departure Record, Form I-94. Air and sea
carriers shall be responsible to ensure that a properly completed Form
I-94 is presented to the immigration inspector at the port of entry for
each arriving passenger except those passengers who do not require a
Form I-94 under paragraph (a) of this section. The following classes of
aliens are not required to complete the departure portion of the Form
I-94 if they are entering the U.S. for business or pleasure under
section 101(a)(15)(B) of the Act, and intend to remain in the United
States for less than six months;
(1) Citizens of Canada or British dependent territories citizens,
Bermuda, and
(2) Residents of Canada or Bermuda having common nationality with
Canadian nationals or British dependent territories citizens, Bermuda.
(48 FR 21548, May 13, 1983, as amended at 48 FR 36093, Aug. 9, 1983;
48 FR 40209, Sept. 6, 1983)
08 CFR 231.2 Departure manifest for passengers.
The master, captain, or agent of every vessel or aircraft departing
from the United States for a foreign place or outlying possession of the
United States shall present a departure manifest to the immigration
officer at the port of departure. The manifest must be in the form of a
properly completed departure portion of Form I-94, Arrival/Departure
Record, for each person on board except for United States citizens, and
lawful permanent resident aliens of the United States. No manifest is
required for a vessel or aircraft departing on a trip directly for and
terminating in Canada, or departing from the United States Virgin
Islands driectly to the British Virgin Islands on a trip terminating in
the British Virgin Islands. Whenever possible, the departure Form I-94
used shall be the same form given the alien at the time of arrival in
the United States. Carriers shall endorse the Form I-94 with the
departure information on the reverse of the form. Additionally, a
properly completed Aircraft/Vessel Report, Form I-92, must be completed
for each departing aircraft and each departing vessel which is
transporting passengers. Submission of Forms I-94 and I-92 to the
immigration officer shall normally be accomplished within 48 hours of
the departure, exclusive of Saturdays, Sundays, and legal holidays.
Failure to submit departure manifests within this time period shall be
regarded as failure to comply with section 231(d) of the Act, unless
prior authorization for delayed delivery of the departure manifest is
obtained from the district director. A nonimmigrant alien departing on
an aircraft proceeding directly to Canada on a flight terminating in
that country should surrender any Form I-94 in his/her possession to the
airline agent at the port of departure. Aircraft manifests should not
include I-94 forms for in-transit passengers referred to in paragraph
(b) of 231.1.
(48 FR 21548, May 13, 1983)
08 CFR 231.3 Exemptions for private vessels and aircraft.
The provisions of this part relating to the presentation of arrival
and departure manifests shall not apply to a private vessel or private
aircraft not engaged directly or indirectly in the carriage of persons
or cargo for hire.
(32 FR 9627, July 4, 1967)
08 CFR 231.3 PART 232 -- DETENTION FOR EXAMINATION TO DETERMINE MENTAL
OR PHYSICAL DEFECTS
Authority: 8 U.S.C. 1103 and 1222.
08 CFR 232.1 Detention.
When a district director has reasonable grounds for believing that
persons arriving in the United States should be detained for reasons
specified in section 232 of the Act, he/she shall, after consultation
with the United States Public Health Service at the port of entry,
notify the master or agent of the arriving vessel or aircraft of his/her
intention to effect such detention by serving on the master or agent the
Form I-259C in accordance with 235.3(e) of this chapter.
(54 FR 101, Jan. 4, 1989)
08 CFR 232.1 PART 233 -- (RESERVED)
08 CFR 232.1 PART 234 -- PHYSICAL AND MENTAL EXAMINATION OF ARRIVING
ALIENS
234.1 General.
234.2 Examination in the United States of alien applicants for
benefits under the immigration laws and other aliens.
Authority: Secs. 103, 234, 66 Stat. 173, 198; (8 U.S.C. 1103,
1224).
08 CFR 234.1 General.
The manner in which the physical and mental examination of aliens
shall be conducted is set forth in 42 CFR part 34.
(38 FR 33061, Nov. 30, 1973, as amended at 38 FR 34315, Dec. 13,
1973)
08 CFR 234.2 Examination in the United States of alien applicants for
benefits under the immigration laws and other aliens.
(a) General. When a medical examination is required of an alien who
files an application for status as a permanent resident under section
245 of the Act or part 245 of this chapter, it shall be made by a
selected civil surgeon. Such examination shall be performed in
accordance with 42 CFR part 34 and any additional instructions and
guidelines as may be considered necessary by the U.S. Public Health
Service. In any other case in which the Service requests a medical
examination of an alien, the examination shall be made by a medical
officer of the U.S. Public Health Service, or by a civil surgeon if a
medical officer of the U.S. Public Health Service is not located within
a reasonable distance or is otherwise not available.
(b) Selection of civil surgeons. When a civil surgeon is to perform
the examination, he shall be selected by the district director having
jurisdiction over the area of the alien's residence. The district
director shall select as many civil surgeons, including clinics and
local, county and state health departments employing qualified civil
surgeons, as he determines to be necessary to serve the needs of the
Service in a locality under his jurisdiction. Each civil surgeon
selected shall be a licensed physician with no less than 4 years'
professional experience. Under usual circumstances physicians will be
required to meet the 4 year professional experience criteria. However,
at the district director's discretion other physicians with less
experience can be designated to address unusual or unforeseen situations
as the need arises. Officers of local health departments and medical
societies may be consulted to obtain the names of competent surgeons and
clinics willing to make the examinations. An understanding shall be
reached with respect to the fee which the surgeon or clinic will charge
for the examination. The alien shall pay the fee agreed upon directly
to the surgeon making the examination.
(c) Civil surgeon reports -- (1) Applicants for status of permanent
resident.
(i) When an applicant for status as a permanent resident is found
upon examination to be free of any defect, disease, or disability listed
in section 212(a) of the Act, the civil surgeon shall endorse Form
I-486A, Medical Examination and Immigration Interview, and forward it
with the X-ray and other pertinent laboratory reports to the immigration
office from which the alien was referred, The immigration office may
return the X-ray and laboratory reports to the alien. If the applicant
is found to be afflicted with a defect, disease or disability listed
under section 212(a) of the Act, the civil surgeon shall complete Form
OF-157 in duplicate, and forward it with Form I-486A, X-ray, and other
pertinent laboratory reports to the immigration office from which the
alien was referred.
(ii) If the applicant is found to be afflicted with active
tuberculosis and a waiver is granted under section 212(g) of the Act,
the immigration office will forward a copy of the completed Form I-601
(Application for Waiver of Grounds of Excludability) and a copy of the
Form OF-157 to the Director, Division of Quarantine, Center for
Prevention Sevices, Centers for Disease Control, Atlanta, GA 30333.
(iii) If an alien who if found to be mentally retarded or to have had
one or more previous attacks of insanity, applies for a waiver of
excludability under section 212(g) of the Act, the immigration office
will submit to the Director, Division of Quarantine, Center for
Prevention Services, Centers for Disease Control, Atlanta, GA 30333, the
completed Form I-601, including a copy of the medical report specified
in the instructions attached to that form, and a copy of Form OF-157.
This official shall review the medical report and advise the Service
whether it is acceptable, in accordance with 212.7(b)(4)(ii) of this
chapter.
(iv) In any other case where the applicant has been found to be
afflicted with active or inactive tuberculosis or an infectious or
noninfectious leprosy condition, the immigration office will forward a
copy of Form OF-157 with the applicant's address endorsed on the reverse
to the Director, Division of Quarantine, Center for Prevention Services,
Centers for Disease Control, Atlanta, GA 30333.
(2) Other aliens. The results of the examination of an alien who is
not an applicant for status as a permanent resident shall be entered on
Form I-141, Medical Certificate, in duplicate. This form shall be
returned to the Service office by which the alien was referred.
(d) U.S. Public Health Service hospital and outpatient clinic
reports. When an applicant for a benefit under the immigration laws,
other than an applicant for status as a permanent resident, is examined
by a medical officer of the U.S. Public Health Service, the results of
the examination shall be entered on Form I-141, Medical Certificate, in
duplicate. The form shall be returned to the Service office by which
the alien was referred.
(38 FR 33061, Nov. 30, 1973, as amended at 48 FR 30610, July 5, 1983;
52 FR 16194, May 1, 1987)
08 CFR 234.2 PART 235 -- INSPECTION OF PERSONS APPLYING FOR ADMISSION
Sec.
235.1 Scope of examination.
235.2 Examination postponed.
235.3 Detention and deferred inspection.
235.4 Endorsement of documents.
235.5 Preinspection.
235.6 Referral to immigration judge.
235.7 Referral of certain cases to district director.
235.8 Temporary exclusion.
235.9 Conditional entries.
235.10 U.S. Citizen Identification Card.
235.11 Admission of conditional permanent residents.
235.12 Northern Mariana identification card.
Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225, 1226,
1227, 1228, 1252.
08 CFR 235.1 Scope of examination.
(a) General. Application to enter the United States shall be made in
person to an immigration officer at a U.S. port of entry enumerated in
part 100 of this chapter at a time when the immigration office at the
port is open for inspection.
(b) U.S. citizens. A person claiming U.S. citizenship must establish
that fact to the examining immigration officer's satisfaction and must
present a U.S. passport if such passport is required under the
provisions of 22 CFR part 53. If such an applicant for admission fails
to satisfy the examining immigration officer that he is a U.S. citizen,
he shall thereafter be inspected as an alien.
(c) Alien members of United States Armed Forces and members of a
force of a NATO country. Any alien member of the United States Armed
Forces who is in the uniform of, or bears documents identifying him/her
as a member of, such Armed Forces, and who is coming to or departing
from the United States under official orders or permit of such Armed
Forces is not subject to the exclusion provisions of the Act. A member
of the force of a NATO country signatory to Article III of the Status of
Forces Agreement seeking to enter the United States under official
orders is exempt from the control provision of the Act. Any alien who
is a member of either of the foregoing classes may, upon request, be
inspected under the provisions of the Act, and his/her entry as an alien
may be recorded. If the alien does not appear to the examining
immigration officer to be clearly and beyond a doubt entitled to enter
the United States under the provisions of the Act, the alien shall be so
informed and his/her entry shall not be recorded.
(d) Qualifications for aliens. The following general qualifications
and requirements shall be met by each alien seeking to enter the United
States for permanent, indefinite, or temporary stay, and regardless of
the purpose for which he/she seeks to enter:
(1) He/she shall present whatever documents are required and shall
establish to the satisfaction of the immigration officer that he/she is
not subject to exclusion under the immigration laws, Executive Orders,
or Presidential Proclamations and is entitled under all of the
applicable provisions of the immigration laws and this chapter to enter
the United States.
(2) For the purpose of this part, any alien coming to a United States
port from a foreign port, from an outlying possession of the United
States, from Guam, Puerto Rico, or the Virgin Islands of the United
States, or from another port of the United States at which examination
under this part was not completed, shall be regarded as an arrival.
(3) Any person, including an alien crewman, passing through the Canal
Zone on board a vessel which enters and clears at the Canal Zone port
only to transit the Zone, to refuel, or to land passengers or crewmen
for medical treatment, shall not be regarded as coming from a foreign
port solely by reason of such passage.
(4) Any person including an alien crewman, on board a vessel which
after arrival at a United States port of entry passes the Great Lakes
seaway en route to another United States port and which enters and
clears at points in Canada only to transit the seaway, to refuel, or to
land passengers or crewmen for medical treatment, shall not be regarded
as coming from a foreign port solely by reason of such passage.
(5) Any person seeking to enter the United States, including an alien
crewman, on board a vessel en route from one United States port to
another United States port shall not be regarded as coming from a
foreign port solely by reason of the vessel's stop at Freeport, Bahamas,
for bunkering only.
(6) Any person, including an alien crewman on board a vessel en route
to the United States solely for bunkering purposes or an aircraft en
route to the United States solely for refueling purposes, who does not
seek to enter the United States, shall be regarded as not arriving for
purposes of immigration.
(7) The immigration inspection of any person, including an alien
crewman, on board a vessel or aircraft, may be postponed to an onward
port of arrival, if the vessel or aircraft will only bunker or refuel at
the first port of call.
(e) U.S. citizens, lawful permanent residents of the United States,
Canadian nationals, and other residents of Canada having a common
nationality with Canadians, entering the United States by small craft.
Upon being inspected by an immigration officer and found eligible for
admission as a citizen of the United States, or found eligible for
admission as a lawful permanent resident of the United States, or in the
case of a Canadian national or other resident of Canada having a common
nationality with Canadians being found eligible for admission as a
temporary visitor for pleasure, a person who desires to enter the United
States from Canada in a small pleasure craft of less than 5 net tons
without merchandise may be issued, without application or fee, Form
I-68, Canadian Border Boat Landing Card, and may thereafter enter the
United States along with the immediate shore area of the United States
on the body of water designated on the Form I-68 from time to time for
the duration of that navigation season without further inspection. In
the case of a Canadian national or other resident of Canada having a
common nationality with Canadians, the Form I-68 shall be valid only for
the purpose of visits not to exceed 72 hours and only if the alien will
remain in nearby shopping areas, nearby residential neighborhoods, or
other similar areas adjacent to the immediate shore area of the United
States. If the bearer of Form I-68 seeks to enter the United States by
means other than small craft of less than 5 net tons without
merchandise, or if he or she seeks to enter the United States for other
purposes, or if he or she is an alien, other than a lawful permanent
resident alien of the United States, and intends to proceed beyond an
area adjacent to the immediate shore area of the United States, or
remains in the United States longer than 72 hours, he or she must apply
for admission at a United States port of entry.
(f) Arrival/Departure Record, Form I-94 -- (1) Nonimmigrants. Each
nonimmigrant alien except as indicated below, who is admitted to the
United States shall be issued a completely executed Form I-94 which must
be endorsed to show: date and place of admission, period of admission,
and nonimmigrant classification. A nonimmigrant alien who will be
making frequent entries into the United States over its land borders may
be issued a Form I-94 which is valid for any number of entries during a
specified six-month period. A Form I-94 is not required by:
(i) Any nonimmigrant alien described in 212.1(a) of this chapter and
22 CFR 41.129(a) who is admitted as a visitor for business or pleasure
or admitted to proceed in direct transit through the United States;
(ii) Any nonimmigrant alien residing in the British Virgin Islands
who was admitted only to the U.S. Virgin Islands as a visitor for
business or pleasure under 212.1(b) of this chapter;
(iii) Any Mexican national in possession of a valid nonresident alien
Mexican border crossing card who is admitted as a border crosser or
nonimmigrant visitor at a Mexican border port of entry for a period not
to exceed 72 hours to visit within 25 miles of the border;
(iv) Any Mexican national in possession of a valid Mexican passport
and a multiple-entry nonimmigrant visa issued under section
101(a)(15)(B) of the Act who is admitted at a Mexican border port of
entry as a nonimmigrant visitor for a period not to exceed 72 hours to
visit within 25 miles of the border; or
(v) Any Mexican national eligible for a Mexican Border Visitors
Permit, Form I-444, under paragraph (g) of this section.
(vi) Bearers of Mexican diplomatic or official passports described in
212.1(c-1) of this chapter.
(2) Paroled aliens. Any alien paroled into the United States under
section 212(d)(5) of the Act, including any alien crewmember, shall be
issued a completely executed Form I-94 which must include (i) date and
place of parole, (ii) period of parole, and (iii) conditions under which
the alien is paroled into the United States.
(g) Mexican Border Visitors Permit, Form I-444. (1) Any Mexican
national exempt from issuance of a Form I-94 under paragraph (f) 1 (iii)
or (iv) of this section shall be issued a Mexican Border Visitors
Permit, Form I-444, whenever (i) the period of admission sought is more
than 72 hours but not more than 30 days or (ii) the applicant desires to
travel more than 25 miles from the Mexican border but within the
five-state area of Arizona, California, Nevada, New Mexico, or Texas.
(2) If, after entry and issuance of the Form I-444, the alien seeks
to remain for longer than 30 days or to proceed outside of the
five-state area, the alien must apply for permission at a Service office
located within the five-state area.
(32 FR 9627, July 4, 1967, as amended at 32 FR 11628, Aug. 11, 1967;
45 FR 70428, Oct. 24, 1980; 46 FR 43826, Sept. 1, 1981; 47 FR 49953,
Nov. 4, 1982; 49 FR 33434, Aug. 23, 1984)
08 CFR 235.2 Examination postponed.
Whenever an alien on arrival is found or believed to be suffering
from a disability which renders it impractical to proceed with the
examination under the Act, the examination of such alien, members of his
family concerning whose admissibility it is necessary to have such alien
testify, and any accompanying aliens whose protection or guardianship
will be required should such alien be found inadmissible shall be
deferred for such time and under such conditions as the district
director in whose district the port is located imposes.
(22 FR 9791, Dec. 6, 1957)
08 CFR 235.3 Detention and deferred inspection.
(a) Prior to inspection. All persons arriving at a port in the
United States by vessel or aircraft shall be detained aboard the vessel
or at the airport of arrival by the master, commanding officer, purser,
person in charge, agent, owner, or consignee of such vessel or aircraft
until admitted or otherwise permitted to land by an officer of the
Service. Notice or order to detain shall not be required. The Service
will not be liable for any expenses of a passenger who has not been
presented for inspection and for whom a determination has not been made
concerning admissability by a Service officer.
(b) Aliens with no documentation or false documentation. Any alien
who appears to the inspecting officer to be inadmissible, and who
arrives without documents (except an alien for whom documentary
requirements are waived under 211.1(b)(3) or 212.1 of this chapter) or
who arrives with documentation which appears on its face to be false,
altered, or to relate to another person, or who arrives at a place other
than a designated port of entry, shall be detained in accordance with
section 235(b) of the Act. Parole of such aliens shall only be
considered in accordance with 212.5(a) of this chapter.
(c) Aliens with documents. Any alien who appears to the inspecting
officer to be inadmissible, but who does not fall within paragraph (b)
of this section, may be detained, paroled, or paroled for deferred
inspection by the inspecting officer. In determining whether or not an
alien shall be detained, paroled or paroled for deferred inspection, the
inspecting officer shall consider the likelihood that the alien will
abscond or pose a security risk.
(d) Service custody. The Service will assume custody of any alien
subject to detention under 235.3 (b) or (c) of this section, except in
the case of an alien who is presented as a Transit Without Visa (TWOV)
passenger.
(e) Notice to carriers. In the opinion of the examining immigration
officer, it is not practical to resolve a question of admissability at
the time of arrival of an alien passenger on a vessel or aircraft, the
officer shall execute a Form I-259C to notify the agent, master, or
commanding officer of the vessel or aircraft, if applicable, that the
alien passenger may be excludable from the United States and in the
event the alien is formally ordered excluded and deported, the carrier
will be responsible for detention and transportation expenses to the
last foreign port of embarkation as provided in 237.5 of this chapter.
(f) Detention in Non-Service facility. Whenever an alien is taken
into Service custody and detailed at a facility other than at a Service
Processing Center, the public or private entities contracted to perform
such service shall have been approved for such use by the Service's Jail
Inspection Program or shall be performing such service under contract in
compliance with the Standard Statement of Work for Contract Detention
Facilities. Both programs are administered by the Detention and
Deportation section having jurisdiction over the alien's place of
detention. Under no circumstances shall an alien be detained in
facilities not meeting the four mandatory criteria for usage. These
are: (1) 24-Hour Supervision, (2) Conformance with Safety and Emergency
Codes, (3) Food Service and (4) Availability of Emergency Medical Care.
(47 FR 30046, July 9, 1982, as amended at 47 FR 46494, Oct. 19, 1982;
54 FR 101, Jan. 4, 1989; 54 FR 6365, Feb. 9, 1989)
08 CFR 235.4 Endorsement of documents.
The admitting immigration officer shall, by means of a stamp, record
in each passport required to be presented the word ''Admitted'' and the
date and place of admission. The same information shall, upon
admission, be recorded on any immigrant visa, reentry permit or required
Form I-94. The ''I-94 Departure Record'' part of Form I-94, properly
endorsed, shall be returned to the alien for retention while in the
United States. At the time of departure from the United States, the
alien shall surrender the I-94 Departure Record to a representative of
the carrier transporting the alien.
(48 FR 35349, Aug. 4, 1983)
08 CFR 235.5 Preinspection.
(a) In United States territories and possessions. In the case of any
aircraft proceeding from Guam, Puerto Rico, or the Virgin Islands of the
United States destined directly and without touching at a foreign port
or place to any other of such places or to one of the States of the
United States or the District of Columbia, the examination required by
the act of the passengers and crew may be made prior to the departure of
the aircraft, and in such event, final determination of admissibility
shall be made immediately prior to such departure. The examination
shall be conducted in accordance with sections 234, 235, 236, and 237 of
the act and this part and parts 236 and 237 of this chapter, except that
if it appears to the examining immigration officer that any person in
the United States being examined under this section is prima facie
deportable from the United States, further action with respect to his
examination shall be deferred and further proceedings conducted as
provided in section 242 of the Act and part 242 of this chapter. When
the foregoing inspection procedure is applied to any aircraft, persons
examined and found admissible shall be placed aboard the aircraft, or
kept at the airport separate and apart from the general public until
they are permitted to board the aircraft. No other person shall be
permitted to depart on such aircraft until and unless he is found to be
admissible as provided in this section.
(b) In contiguous territory and adjacent islands. On and after
December 24, 1952, in the case of any aircraft or vessel proceeding
directly from a port or place in foreign contiguous territory or
adjacent islands to a port of entry in the United States, the
examination and inspection of passengers and crew required by the Act
and final determination of admissibility may be made immediately prior
to such departure at the port or place in foreign contiguous territory
or adjacent islands and shall have the same effect under the act as
though made at the destined port of entry in the United States.
(23 FR 3997, June 7, 1958, as amended at 24 FR 2583, Apr. 3, 1959;
50 FR 11842, Mar. 26, 1985; 54 FR 101, Jan. 4, 1989)
08 CFR 235.6 Referral to immigration judge.
(a) Notice. If, in accordance with the provisions of section 235(b)
of the Act, the examining immigration officer detains an alien for
further inquiry before an immigration judge, he shall immediately sign
and deliver to the alien a Notice to Alien Detained for Hearing by an
Immigration Judge (Form I-122). If an asylum officer denies an
application for asylum or withholding of deportation filed by an alien
who is an applicant for admission or has been paroled under 212.5 of
this chapter, this Notice may be signed and delivered to the alien by
the supervisory asylum officer or by the Assistant Commissioner,
Refugees, Asylum and Parole. If the alien is unable to read or
understand the notice, it shall be read and explained to him by an
employee of the Service, through an interpreter, if necessary, prior to
such further inquiry. In addition, the alien shall be advised of his
right to representation by counsel of his choice at no expense to the
Government, and of the availability of free legal services programs
qualified under part 292a of this chapter and organizations recognized
pursuant to 292.2 of this chapter, located in the district where the
alien is being detained. He shall also be furnished with a list of such
programs.
(b) Certification for mental condition; medical appeal. An alien
certified under paragraph (1), (2), (3), (4), or (5) of section 212(a)
of the Act shall be advised by the examining immigration officer that he
may appeal to a board of medical officers of the United States Public
Health Service pursuant to section 234 of the Act. If such an appeal is
taken, the district director shall arrange for the convening of the
medical board.
(24 FR 6477, Aug. 12, 1959, as amended at 44 FR 4653, Jan. 23, 1979;
56 FR 50812, Oct. 9, 1991)
08 CFR 235.7 Referral of certain cases to district director.
If the examining immigration officer has reason to believe that the
cause of an alien's excludability can readily be removed by the posting
of a bond in accordance with section 213 of the Act, or by the exercise
of section 211, section 212(d) (3) or (4), or section 212(c) of the Act,
or by granting permission to reapply for admission after deportation or
removal, he may in lieu of detaining the alien for hearing in accordance
with section 235(b) and section 236 of the Act refer the alien's case to
the district director within whose district the port is located for
consideration of such action and defer further examination pending the
district director's decision. Refusal of a district director to
authorize admission under section 213, or to grant an application for
the benefits of section 211, section 212(d) (3) or (4), or section
212(c), or to grant permission to reapply for admission after
deportation or removal shall be without prejudice to the renewal of such
application or the authorizing of such admission by the special inquiry
officer without additional fee.
(28 FR 4251, Apr. 30, 1963)
08 CFR 235.8 Temporary exclusion.
(a) Report. Any immigration officer who temporarily excludes any
alien under section 235(c) of the Act shall report the action promptly
to the district director who has administrative jurisdiction over the
port at which the alien arrived. The immigration officer shall, if
possible, take a brief sworn question-and-answer statement from the
alien, and the alien shall be notified by personal service of Form I-147
of the action taken and the right to make written representations. If
the subject of the report is an alien who seeks to enter the United
States other than under section 101(a)(15)(D) of the Act, the district
director shall forward the report to the regional commissioner for
further action as provided in paragraph (b) of this section.
(b) Action by regional commissioner. If the regional commissioner is
satisfied that the alien is inadmissible to the United States under
paragraph (27), (28), or (29) of section 212(a) of the Act and if the
regional commissioner, in the exercise of his discretion, concludes that
such inadmissibility is based on information of a confidential nature
the disclosure of which would be prejudicial to the public interest,
safety, or security, he may deny any hearing or further hearing by a
special inquiry officer and order such alien excluded and deported, or
enter such other order in the case as he deems appropriate. In any
other case the regional commissioner may direct that an immigration
officer shall further examine the alien as to his admissibility or that
the alien be given a hearing or further hearing before a special inquiry
officer.
(c) Finality of decision. The decision of the regional commissioner
provided for in paragraph (b) of this section shall be final and no
appeal may be taken therefrom. The decision of the regional
commissioner shall be in writing, signed by him and, unless it contains
confidential matter, a copy shall be served on the alien. If the
decision contains confidential matter, a separate order showing only the
ultimate disposition of the case shall be signed by the regional
commissioner and served on the alien.
(d) Hearing by immigration judge. If the regional commissioner
directs that an alien temporarily excluded be given a hearing or further
hearing before an immigration judge, the hearing and all further
proceedings in the matter shall be conducted in accordance with the
provisions of section 236 and other applicable sections of the Act to
the same extent as though the alien had been referred to an immigration
judge by the examining immigration officer; except, that if
confidential information, not previously considered in the matter, is
adduced supporting the exclusion of the alien under paragraph (27),
(28), or (29) of section 212(a) of the Act, the disclosure of which, in
the discretion of the immigration judge, may be prejudicial to the
public interest, safety, or security, the immigration judge may again
temporarily exclude the alien under the authority of section 235(c) of
the Act and further action shall be taken as provided in this section.
(22 FR 9791, Dec. 6, 1957; 22 FR 9519, Nov. 28, 1957, as amended at
48 FR 8, Jan. 3, 1983; 48 FR 30350, July 1, 1983)
08 CFR 235.9 Conditional entries.
(a) Inspection of conditional entrant and refugee parolee as to
admissibility for permanent residence. Each alien who has been admitted
under section 203(a)(7) as a conditional entrant, or paroled under
section 212(d)(5) of the Act as a refugee prior to September 30, 1980,
and who is not otherwise eligible for retroactive adjustment of status
to permanent resident, shall be required to appear before an immigration
officer within one year following conditional entry or parole. If over
14 years of age, the conditional entrant or parolee shall be
interrogated under oath by an immigration officer and a determination of
admissibility shall be made under parts 235 and 236 of this chapter.
Except as provided in parts 245 and 249 of this chapter, an application
under this part shall be the sole method of requesting the exercise of
discretion under section 212 (g), (h), or (i) of the Act, insofar as it
relates to the excludability of an alien in the United States. Any
alien who is inspected and admitted under this part who is eligible for
and wishes to apply for naturalization immediately shall be processed
under 235.9(b)(3) of this chapter.
(b) Request to ''roll back'' permanent residence date by permanent
resident who was paroled into the United States as a refugee -- (1)
General. A request by a permanent resident who was originally paroled
into the United States as a refugee before September 30, 1980 to ''roll
back'' the date of acquiring permanent residence to the date of original
parole as a refugee shall be made in writing to the district director
having jurisdiction over the applicant's place of residence. Each
request must be accompanied by the Alien Registration Card, Form I-151
or Form I-551, previously issued to the applicant, and completed forms
G-325 and FD-258. Where an applicant is eligible for and wishes to
apply immediately for naturalization, the request must contain a
statement to that effect. The decision on the request shall be made by
the district director. There is no appeal from the district director's
decision.
(2) Applicant for ''roll back'' who is not eligible for or who does
not wish to file an application for naturalization immediately. Where
the recipient of a ''roll back'' would not be immediately eligible to
apply for naturalization, or if eligible, does not wish to do so
immediately, the ''roll back'' request must be accompanied by three
identical color photographs taken within the past thirty days. The
photographs must comply with the requirements for an ADIT card. These
requirements may be obtained from any office of the Immigration and
Naturalization Service. If the request is approved, the applicant shall
be furnished a new Alien Registration Card bearing the new date lawful
admission for permanent residence is recorded.
(3) Where ''roll back'' would make applicant immediately eligible for
naturalization and applicant intends to file the application
immediately. Where a ''roll back'' of the date of permanent residence
under this regulation would make the applicant immediately eligible for
naturalization, and the applicant indicates a desire to file an
application for naturalization immediately, the district director shall
receive the ''roll back'' application and process it. If the ''roll
back'' application is granted, the new date lawful admission for
permanent residence is recorded shall be entered on Form I-181 and
placed in the applicant's file. The applicant shall then be furnished
the appropriate forms and instructions for filing the application for
naturalization. A new Alien Registration Card need not be issued under
these circumstances. Where a new Alien Registration Card is not issued,
Form I-181 will be so noted.
(c) Termination of conditional entrant or refugee parole status.
Whenever a district director has reason to believe that a conditional
entrant under section 203(a)(7) of the Act or an alien paroled or a
refugee under section 212(d)(5) of the Act before September 30, 1980,
whose status has not otherwise been terminated or changed, it or has
become inadmissible to the United States under any provision (except
paragraph (20)) of section 212(a) of the Act, the district director
shall, in the case of a parolee, comply with 212.5(d) of this chapter,
and thereafter serve on either class of alien, Notice to Alien Detained
for Hearing Before Immigration Judge, Form I-122, in accordance with
235.6 of this part. The alien shall be referred for a hearing before an
immigration judge under sections 235, 236, and 237 of the Act and parts
235, 236, and 237 of this chapter. If the immigration judge determines
that the alien is not inadmissible to the United States or, if
inadmissible, that the alien is prima facie eligible for a waiver on the
grounds of excludability under section 212 (g), (h), or (i) of the Act,
the judge shall order the proceedings terminated and refer the matter to
the district director for further proceedings under section 203(g) of
the Act. The order shall be without prejudice to renewing proceedings
or instituting new proceedings under this section. There is no appeal
from a decision by a district director denying an application for a
waiver under section 212 (g), (h), or (i) of the Act, but the denial is
without prejudice to the renewal of the application in proceedings
before an immigration judge. If the immigration judge determines that
the alien is inadmissible to the United States for permanent residence
under any provision of the Act, except section 212(a)(20), and that the
alien is not entitled to the benefits of section 212 (g), (h), or (i) of
the Act, the judge shall order the termination of the alien's
conditional entry and make such further order as may be proper. The
decision of the immigration judge may be appealed under 236.7 of this
chapter.
(48 FR 8, Jan. 3, 1983)
08 CFR 235.10 U.S. Citizen Identification Card.
(a) General. The U.S. Citizen Identification Card, Form I-197, is no
longer issued by the Service but valid existing cards will continue to
be acceptable documentation of U.S. citizenship. Possession of the
identification card is not mandatory for any purpose. A U.S. Citizen
Identification Card remains the property of the United States. Because
the identification card is no longer issued, there are no provisions for
replacement cards.
(b) Surrender and voidance -- (1) Institution of proceeding under
section 236, 242 or 342 of the Act. A U.S. citizen identification card
must be surrendered provisionally to a Service office upon notification
by the district director that a proceeding under section 236, 242 or 342
of the Act is being instituted against the person to whom the card was
issued. The card shall be returned to the person if the final order in
the proceeding does not result in voiding the card under this paragraph.
A U.S. Citizen Identification Card is automatically void if the person
to whom it was issued is determined to be an alien in a proceeding
conducted under section 236 or 242 of the Act, or if a certificate,
document, or record relating to that person is cancelled under section
342 of the Act.
(2) Investigation of validity of identification card. A U.S.
Citizen Identification Card must be surrendered provisionally upon
notification by a district director that the validity of the card is
being investigated. The card shall be returned to the person who
surrendered it if the investigation does not result in a determination
adverse to his or her claim to be a United States citizen. When an
investigation results in a tentative determination adverse to the
applicant's claim to be a United States citizen, the applicant shall be
notified by certified mail directed to his or her last known address.
The notification shall inform the applicant of the basis for the
determination and of the intention of the district director to declare
the card void unless within 30 days the applicant objects and demands an
opportunity to see and rebut the adverse evidence. Any rebuttal,
explanation, or evidence presented by the applicant must be included in
the record of proceeding. The determination whether the applicant is a
United States citizen must be based on the entire record and the
applicant shall be notified of the determination. If it is determined
that the applicant is not a U.S. citizen, the applicant shall be
notified of the reasons, and the card deemed void. There is no appeal
from the district director's decision.
(3) Admission of alienage. A U.S. Citizen Identification Card is
void if the person to whom it was issued admits in a statement signed
before an immigration officer that he or she is an alien and consents to
the voidance of the card. Upon signing the statement the card must be
surrendered to the immigration officer.
(4) Surrender of void card. A void U.S. Citizen Identification Card
which has not been returned to the Service must be surrendered without
delay to an immigration officer or to the issuing office of the Service.
(c) U.S. Citizen Identification Card previously issued on Form I-179.
A valid U.S. Citizen Identification Card issued on Form I-179 continues
to be valid subject to the provisions of this section.
(48 FR 9504, Mar. 7, 1983)
08 CFR 235.11 Admission of conditional permanent residents.
(a) General. An alien seeking admission to the United States with an
immigrant visa as the spouse, son or daughter of a United States citizen
or lawful permanent resident shall be examined to determine whether the
conditions of section 216 of the Act apply. If so, the alien shall be
admitted conditionally for a period of two years. At the time of
admission, the alien shall be notified that the alien and the
petitioning spouse must file a Joint Petition to Remove the Conditional
Basis of Alien's Permanent Residence (Form I-751) within the 90-day
period immediately preceding the second anniversary of the alien's
admission for permanent residence.
(b) Correction of endorsement on immigrant visa. If the alien is
subject to the provisions of section 216 of the Act, but the
classification endorsed on the immigrant visa does not so indicate, the
endorsement shall be corrected and the alien admitted as a lawful
permanent resident on a conditional basis if otherwise admissible.
Conversely, if the alien is not subject to the provisions of section
216, but the visa classification endorsed on the immigrant visa
indicates that the alien is subject thereto (e.g., if the second
anniversary of the marriage upon which the immigrant visa is based
occurred after the issuance of the visa and prior to the alien's
application for admission) the endorsement on the visa shall be
corrected and the alien admitted as a lawful permanent resident without
conditions, if otherwise admissible.
(c) Expired conditional resident alien status. The lawful permanent
resident alien status of a conditional resident automatically terminates
if the conditional basis of such status is not removed by the Service
through approval of a Joint Petition to Remove the Conditional Basis of
Alien's Permanent Resident Status (Form (I-751) or of an Application for
Waiver of Requirement to File Joint Petition for Removal of Conditions
(Form I-752). Therefore, an alien who is seeking admission as a
returning resident subsequent to the second anniversary of the date on
which conditional residence was obtained (except as provided in part
211.1(b)(1) of this Chapter) and whose conditional basis of such
residence has not been removed pursuant to section 216(c) of the Act,
shall be placed under exclusion proceedings. However, exclusion
proceedings may be terminated and the alien admitted as a returning
resident if the required petition is filed jointly by the alien and
petitioning spouse and approved by the Service, or if an Application for
Waiver of Requirement to File Joint Petition for Removal of Conditions
(Form I-752) is filed by the alien and approved by the Service.
(53 FR 30021, Aug. 10, 1988)
08 CFR 235.12 Northern Mariana identification card.
(a) General. A Northern Mariana identification card to identify the
holder as a United States citizen, may be issued to the following
persons and their children under 18 years of age, who were born on or
before November 3, 1986, and were not citizens or nationals of the
United States, and did not owe allegiance to any foreign state on that
date:
(1) A person in the Northern Mariana Islands (NMI), and as of
November 2, 1986, was a citizen of the Trust Territory of the Pacific
Islands and was domiciled as of that date in the Commonwealth of the
Northern Mariana Islands (CNMI) or the United States, or any territory
or possession of the United States; or
(2) A citizen of the Trust Territory of the Pacific Islands on
November 2, 1986, who had been domiciled continuously in the NMI for the
preceeding five years and who, unless under age, registered to vote in
elections for the NMI District legislature or for any municipal election
in the NMI prior to January 1, 1975; or
(3) A person domiciled in the NMI on November 2, 1986, who although
not a citizen of the Trust Territory of the Pacific Islands on that
date, had been continuously domiciled in the NMI beginning prior to
January 1, 1974.
(b) Application. The Form I-777, Application for Issuance or
Replacement of Northern Mariana Card shall be submitted to the Service
office in the United States which has jurisdiction over the applicant's
residence. The initial card application Form I-89 shall be completed
and forwarded to the Immigration Card Facility with the word ''MARIANA''
block printed or stamped in the upper right-hand corner (side 1). A
replacement card application shall be made on Form I-777 for a lost,
mutilated, or destroyed card.
(c) Duration of application period. The Northern Mariana
identification card will be issued during a two year period to end on
July 1, 1990. All cards issued are valid indefinitely subject to the
provisions of this section. Replacement cards shall continue to be
issued upon application on Form I-777.
(53 FR 23380, June 22, 1988)
08 CFR 235.12 PART 236 -- EXCLUSION OF ALIENS
Sec.
236.1 Authority of immigration judges.
236.2 Hearing.
236.3 Applications for asylum or withholding of deportation.
236.4 Renewal of application for adjustment of status under section
245 of the Act.
236.5 Decision of the immigration judge; notice to the applicant.
236.6 Finality of order.
236.7 Appeals.
236.8 Fingerprinting of excluded aliens.
236.9 Visa Waiver Pilot Program.
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.
08 CFR 236.1 Authority of immigration judges.
In determining cases referred for further inquiry as provided in
section 235 of the Act, immigration judges shall have the powers and
authority conferred upon them by the Act and this chapter. Subject to
any specific limitation prescribed by the Act and this chapter,
immigration judges shall also exercise the discretion and authority
conferred upon the Attorney General by the Act as is appropriate and
necessary for the disposition of such cases.
(42 FR 46045, Sept. 14, 1977)
08 CFR 236.2 Hearing.
(a) Opening. Exclusion hearings shall be closed to the public,
unless the alien at his own instance requests that the public, including
the press, be permitted to attend; in that event, the hearing shall be
open, provided that the alien states for the record that he is waiving
the requirement in section 236 of the Act that the inquiry shall be kept
separate and apart from the public. When the hearing is to be open,
depending upon physical facilities, reasonable limitation may be placed
upon the number in attendance at any one time, with priority being given
to the press over the general public. The Immigration Judge shall
ascertain whether the applicant for admission is the person to whom Form
I-122 was previously delivered by the examining immigration officer as
provided in part 235 of this chapter; enter a copy of such form in
evidence as an exhibit in the case; inform the applicant of the nature
and purpose of the hearing; advise him of the privilege of being
represented by an attorney of his own choice at no expense to the
Government, and of the availability of free legal services programs
qualified under part 292a of this chapter and organizations recognized
pursuant to 292.2, of this chapter located in the district where his
exclusion hearing is to be held; and shall ascertain that the applicant
has received a list of such programs; and request him to ascertain then
and there whether he desires representation; advise him that he will
have a reasonable opportunity to present evidence in his own behalf, to
examine and object to evidence against him, and to cross-examine
witnesses presented by the Government; and place the applicant under
oath.
(b) Procedure. The immigration judge shall receive and adduce
material and relevant evidence, rule upon objections, and otherwise
regulate the course of the hearing.
(c) General attorney. The district director shall direct the chief
legal officer to assign a general attorney to each case in which an
applicant's nationality is in issue. The district director may direct
the chief legal officer to assign a general attorney to any case in
which the district director deems such assignment necessary or
advantageous. The duties of the general attorney include, but are not
limited to, the presentation of evidence and the interrogation,
examination, and cross-examination of the applicant and other witnesses.
Nothing contained herein diminishes the authority of an immigration
judge to conduct proceedings under this part.
(d) Depositions. The procedures specified in 242.14(e) of this
chapter shall apply.
(e) Record. The hearing before the immigration judge, including the
testimony and exhibits, the immigration judge's decision, and all
written orders, motions, appeals, and other papers filed in the
proceeding shall constitute the record in the case. The hearing shall
be recorded verbatim except for statements made off the record with the
permission of the immigration judge.
(42 FR 46045, Sept. 14, 1977, as amended at 44 FR 4653, Jan. 23,
1979; 46 FR 43956, Sept. 2, 1981)
08 CFR 236.3 Applications for asylum or withholding of deportation.
(a) If an alien expresses fear of persecution or harm upon return to
his country of origin or to a country to which he may be deported after
exclusion from the United States pursuant to part 237 of this chapter,
the Immigration Judge shall:
(1) Advise the alien that he may apply for asylum in the United
States or withholding of deportation to that other country; and
(2) Make available the appropriate application forms.
(b) An application for asylum or withholding of deportation must be
filed with the Office of the Immigration Judge, pursuant to 208.4(b) of
this chapter. Upon receipt of the application, the Office of the
Immigration Judge shall forward a copy to the Bureau of Human Rights and
Humanitarian Affairs of the Department of State for their comments
pursuant to 208.11 of this chapter, and shall calendar the case for
hearing, which shall be deferred pending receipt of the Department of
State's comments. The reply, if any, from the Department of State,
unless classified under E.O. 12356 (3 CFR, 1982 Comp., p. 166), shall be
given to both the applicant and to the Trial Attorney representing the
government.
(c) Applications for asylum or withholding of deportation so filed
will be decided by the Immigration Judge pursuant to the requirements
and standards established in part 208 of this chapter after an
evidentiary hearing that is necessary to resolve material factual issues
in dispute. An evidentiary hearing extending beyond issues related to
the basis for a mandatory denial of the application pursuant to 8 CFR
208.14 or 208.16 is not necessary once the Immigration Judge has
determined that such a denial is required.
(1) Evidentiary hearings on applications for asylum or withholding of
deportation will be closed to the public unless the applicant expressly
requests that it be open pursuant to 8 CFR 236.2.
(2) Nothing in this section is intended to limit the authority of the
Immigration Judge properly to control the scope of any evidentiary
hearing.
(3) During the exclusion hearing, the applicant shall be examined
under oath on his application and may present evidence and witnesses on
his own behalf. The applicant has the burden of establishing that he is
a refugee as defined in section 101(a)(42) of the Act pursuant to the
standard set forth in 208.13 of this chapter.
(4) The Trial Attorney for the government may call witnesses and
present evidence for the record, including information classified under
E.O. 12356 (3 CFR, 1982 Comp., p. 166), provided the Immigration Judge
or the Board has determined that such information is relevant to the
hearing. When the Immigration Judge receives such classified
information he shall inform the applicant. The agency that provides the
classified information to the Immigration Judge may provide an
unclassified summary of the information for release to the applicant
whenever it determines it can do so consistently with safeguarding both
the classified nature of the information and its source. The summary
should be as detailed as possible, in order that the applicant may have
an opportunity to offer opposing evidence. A decision based in whole or
in part on such classified information shall state that such information
is material to the decision.
(d) The decision of an Immigration Judge to grant or deny asylum or
withholding of deportation shall be communicated to the applicant and to
the Trial Attorney for the government. An adverse decision will state
why asylum or withholding of deportation was denied.
(55 FR 30686, July 27, 1990)
08 CFR 236.4 Renewal of application for adjustment of status under
section 245 of the Act.
An adjustment application by an alien paroled under section 212(d)(5)
of the Act, which has been denied by the district director, may be
renewed in exclusion proceedings under section 236 of the Act before an
immigration judge under the following two conditions: First, the denied
application must have been properly filed subsequent to the applicant's
earlier inspection and admission to the United States; second, the
applicant's later absence from and return to the United States must have
been under the terms of an advance parole authorization on Form I-512
granted to permit the applicant's absence and return to pursue the
previously filed adjustment application.
(43 FR 16445, Apr. 19, 1978)
08 CFR 236.5 Decision of the immigration judge; notice to the
applicant.
(a) Decision. The Immigration Judge shall inform the applicant of
his or her decision in accordance with 3.35 of this chapter.
(b) Advice to alien ordered excluded. An alien ordered excluded
shall be furnished with Form I-296, Notice to Alien Ordered Excluded by
Immigration Judge, at the time of an oral decision by the immigration
judge or upon service of a written decision.
(c) Holders of refugee travel documents. Aliens who are the holders
of valid unexpired refugee travel documents may be ordered excluded only
if they are found to be inadmissible under section 212(a) (9), (10),
(12), (23), (27), (28), (29), or (31) of the Act, and it is determined
that on the basis of the acts for which they are inadmissible there are
compelling reasons of national security or public order for their
exclusion. If the immigration judge finds that the alien is
inadmissible but determines that there are no compelling reasons of
national security or public order for exclusion, the immigration judge
shall remand the case to the district director for parole.
(42 FR 46045, Sept. 14, 1977. Redesignated at 43 FR 16445, Apr. 19,
1978, and amended at 52 FR 2939, Jan. 29, 1987)
08 CFR 236.6 Finality of order.
The decision of the Immigration Judge shall become final in
accordance with 3.37 of this chapter.
(52 FR 2939, Jan. 29, 1987)
08 CFR 236.7 Appeals.
Except as limited by section 236 of the Act, an appeal from a
decision of an Immigration Judge under this part may be taken by either
party pursuant to 3.36 of this chapter.
(52 FR 2939, Jan. 29, 1987)
08 CFR 236.8 Fingerprinting of excluded aliens.
Every alien 14 years of age or older who is excluded from admission
to the United States by an immigration judge shall be fingerprinted,
unless during the preceding year he has been fingerprinted at an
American consular office.
(42 FR 46045, Sept. 14, 1977. Redesignated at 43 FR 16445, Apr. 19,
1978)
08 CFR 236.9 Visa Waiver Pilot Program.
Pursuant to section 217(b)(4)(A) of the Act, an alien who applies for
admission to the United States under the provisions of that section must
waive any right to review or appeal an immigration officer's
determination as to the admissibility of the alien at a port of entry,
other than on the basis of an application for asylum. An alien
applicant for admission under section 217 of the Act shall be removed
from the United States upon a determination by an immigration officer
(port director, officer-in-charge, or officer acting in either capacity)
that the alien is inadmissible in accordance with procedures in
217.4(b) of this chapter except that such an alien who applies for
asylum in the United States shall be referred to an immigration judge
for further inquiry as provided in section 235 of the Act and 236.3 of
this part.
(53 FR 24903, June 30, 1988)
08 CFR 236.9 PART 237 -- DEPORTATION OF EXCLUDED ALIENS
Sec.
237.1 Stay of deportation of excluded alien.
237.2 Notice to surrender for deportation.
237.3 Cost of maintenance not assessed.
237.4 (Reserved)
237.5 Notice to transportation line of alien's exclusion.
237.6 Deportation.
Authority: 8 U.S.C. 1103, 1227, and 1255.
08 CFR 237.1 Stay of deportation of excluded alien.
The district director in charge of the port of arrival may stay the
immediate deportation of an excluded alien pursuant to sections 237 (a)
and (d) of the act under such conditions as he may prescribe.
(23 FR 5818, Aug. 1, 1958)
08 CFR 237.2 Notice to surrender for deportation.
An alien who has been finally excluded pursuant to part 236 of this
chapter may at any time surrender himself to the custody of the Service
and shall surrender himself to such custody upon notice in writing of
the time and place for his surrender. The Service may take the alien
into custody at any time. An alien taken into custody either upon
notice to surrender or by arrest shall not be deported less than 72
hours thereafter without his consent thereto filed in writing with the
district director in charge of the place of his detention. An alien in
foreign contiguous territory shall be informed that he may remain there
in lieu of surrendering to the Service, but that he will be deemed to
have acknowledged the execution of the order of exclusion and
deportation in his case upon his failure to surrender at the time and
place prescribed.
(30 FR 4411, Apr. 6, 1965)
08 CFR 237.3 Cost of maintenance not assessed.
A claim pursuant to section 237(a)(2)(B) of the Act shall be
established to the satisfaction of the district director in charge of
the port of arrival, from whose adverse decision no appeal shall lie.
The district director shall afford the line a reasonable time within
which to submit affidavits and briefs to support its claim.
(23 FR 5818, Aug. 1, 1958. Redesignated at 26 FR 2113, Mar. 11, 1961)
237.4 (Reserved)
08 CFR 237.5 Notice to transportation line of alien's exclusion.
(a) An excluded alien shall, immediately or as promptly as the
circumstances permit, be offered for deportation to the master,
commanding officer, purser, person in charge, agent, owner, or consignee
of the vessel or aircraft on which the alien is to be deported, as
determined by the district director, with a written notice specifying
the cause of exclusion, the class of travel in which such alien arrived
and is to be deported, and with the return of any documentation which
will assist in effecting his deportation. If special care and attention
is required, the provisions of 243.7 of this chapter shall apply.
(b) Failure of the carrier to accept for removal an alien who has
been ordered excluded and deported shall result in the carrier being
assessed any costs incurred by the Service for detention after the
carrier's failure to accept the alien for removal including the cost of
any transportation. The User Fee Account shall not be assessed for
expenses incurred because of the carrier's violation of the provisions
of section 237 of the Immigration and Nationality Act and this
paragraph. The Service will, at the carriers option, retain custody of
the excluded alien for an additional seven days beyond the date of the
deportation/exclusion order. If, after the third day of this additional
seven day period, the carrier has not made all the necessary
transportation arrangements for the excluded alien to be returned to
his/her point of embarkation by the end of the additional seven day
period, the Service will make the arrangements and bill the carrier for
its costs.
(27 FR 1479, Feb. 17, 1962, as amended at 54 FR 102, Jan. 4, 1989)
08 CFR 237.6 Deportation.
(a) Definitions of terms. For the purposes of this section, the
following terms mean:
(1) Adjacent island -- as defined in section 101(b)(5) of the Act.
(2) Foreign contiguous territory -- any country sharing a common
boundary with the United States.
(3) Residence in foreign contiguous territory or adjacent island --
any physical presence, regardless of intent, in a foreign contiguous
territory or an adjacent island if the government of such territory or
island agrees to accept the alien.
(4) Aircraft or vessel -- any conveyance and other mode of travel by
which arrival is effected.
(5) Next available flight -- is to be the carrier's next regularly
scheduled departure to the excluded alien's point of embarkation
regardless of seat availability. If the carrier's next regularly
scheduled departure to the excluded aliens point of embarkation is full,
the carrier has the option of arranging for return transportation on
other carriers which service the excluded aliens point of embarkation.
(b) Place to which deported. Any alien (other than an alien
crewmember or an alien who boarded an aircraft or vessel in foreign
contiguous territory or an adjacent island) who is ordered excluded
shall be deported to the country where the alien boarded the vessel or
aircraft on which the alien arrived in the United States. If that
country refuses to accept the alien, the alien shall be deported to:
(1) The country of which the alien is a subject, citizen, or
national;
(2) The country where the alien was born;
(3) The country where the alien has a residence; or
(4) Any country willing to accept the alien.
(c) Contiguous territory and adjacent islands. Any alien ordered
excluded who boarded an aircraft or vessel in foreign contiguous
territory or in any adjacent island shall be deported to such foreign
contiguous territory or adjacent island if the alien is a native,
citizen, subject, or national of such foreign contiguous territory or
adjacent island, or if the alien has a residence in such foreign
contiguous territory or adjacent island. Otherwise, the alien shall be
deported, in the first instance, to the country in which is located the
port at which the alien embarked for such foreign contiguous territory
or adjacent island.
(d) Land border pedestrian arrivals. Any alien ordered excluded who
arrived at a land border on foot shall be deported in the same manner as
if the alien had boarded a vessel or aircraft in foreign contiguous
territory.
(47 FR 44237, Oct. 7, 1982, as amended at 54 FR 102, Jan. 4, 1989)
08 CFR 237.6 PART 238 -- CONTRACTS WITH TRANSPORTATION LINES
Sec.
238.1 Contracts.
238.2 Transportation lines bringing aliens to the United States from
or through foreign contiguous territory or adjacent islands.
238.3 Aliens in immediate and continuous transit.
238.4 Preinspection outside the United States.
238.5 Aliens entering Guam pursuant to section 14 of Public Law
99-396, ''Omnibus Territories Act''.
Authority: 8 U.S.C. 1103, 1228; 8 CFR part 2.
08 CFR 238.1 Contracts.
The contracts with transportation lines referred to in section 238(a)
of the Act may be entered into by the Executive Associate Commissioner
for Operations, or by an Immigration Officer designated by the Executive
Associate Commissioner for Operations on behalf of the government and
shall be documented on Form I-420. The contracts with transportation
lines referred to in section 238(c) of the Act shall be made by the
Commissioner on behalf of the government and shall be documented on Form
I-426. The contracts with transportation lines desiring their
passengers to be preinspected at places outside the United States shall
be made by the Commissioner on behalf of the government and shall be
documented on Form I-425; except that contracts for irregularly
operated charter flights may be entered into by the Executive Associate
Commissioner for Operations or an Immigration Officer designated by the
Executive Associate Commissioner for Operations and having jurisdiction
over the location where the inspection will take place.
(57 FR 59907, Dec. 17, 1992)
08 CFR 238.2 Transportation lines bringing aliens to the United States
from or through foreign contiguous territory or adjacent islands.
Form I-420 shall be signed in duplicate and forwarded to the
Headquarters Office of Inspections. After acceptance, each Regional
Office of Inspections, the district office and the carrier will be
furnished with one copy of the agreement. The transmittal letter to the
Headquarters Office of Inspections shall indicate whether the signatory
to the agreement is a subsidiary or affiliate of a line which has
already signed a similar agreement. Correspondence regarding ancillary
contracts for office space and other facilities to be furnished by
transportation lines at Service stations in Canada shall be similarly
handled.
(57 FR 59907, Dec. 17, 1992)
08 CFR 238.3 Aliens in immediate and continuous transit.
(a) Form I-246 agreements. A transportation line bringing aliens to
the United States pursuant to 212.1(f)(1) of this chapter shall enter
into an agreement on Form I-426. Such agreement shall be negotiated
directly by the Central Office and the head offices of the
transportation lines.
(b) Signatory lines. Currently effective agreements on Form I-426
exist with the following:
Achille Lauro -- Armatore, Naples, Italy.
Aerlinte Eireann Teoranta (Irish Air Lines).
Aero Coach Aviation International, Inc.
Aeroflot-Soviet Airlines.
Aerolineas Argentinas.
Aerolineas INI and CIA S.A.
Aerolineas Nicaraguenses, S.A. (Aeronica).
Aerolineas Peruanas, S.A.
Aeronaves de Mexico, S.A.
AeroPeru (see Empresa de Transporte Aereo del Peru).
AeroTours Dominicano Airlines.
Aerovias Condor de Colombia Ltda.
Aerovias Interamericanas de Panama, S.A. (Aerovias Panama Airways).
Aerovias Nacionales de Colombia (AVIANCA).
Aerovias Quis-queyana.
Aerovias Venezolanas, S.A. (AVENSA).
Air Afrique.
Air B.V.I. Ltd.
Air Canada.
Air Club International Inc.
Air Espana (dba Air Europa).
Air Florida.
Air-India International Corp.
Air Jamaica (1968) Ltd.
Air Manila, Inc.
Air Micronesia, Inc.
Air Nauru.
Air New Zealand, Ltd.
Air One, Inc.
Air Pacific, Inc.
Air Pacific, Ltd.
Air Panama Internacional.
Air Siam Air Company, Ltd.
Air Specialties Corp. d.b.a. Total Air.
Air Tungaru Corp.
Air West, Inc.
Alaska Airlines, Inc.
''ALCIONE'', Soc. di Navigazione p. A., Palermo.
Alfred C. Toepfer Schiffahrtsgesellschaft M.B.H.
ALIA -- The Royal Jordanian Airline.
All Islands Air Taxi, Inc.
ALM-Dutch Antillean Airlines.
Aloha Airlines, Inc.
American Airlines, Inc.
American Banner Lines, Inc.
American Export Lines, Inc.
American Flyers Airline Corp.
American International Airways, Inc.
American President Lines, Ltd.
American Trans Air, Inc.
ANA All Nippon Airways.
Antone Sylvester Tug Services, Inc.
AREA, Aerovias Ecuatorianas C. Ltda.
''ARETUSA'', Soc. di Navigazione p. A., Palermo.
Argonaut Airways Corp.
Arista International Airlines, Inc.
Arosa Line, Inc., ''Panama.''
Arrow Airways, Inc.
Aspen Airways (dba United Express).
Athina Maritime Co., Ltd.
Atlantic Freighters, Ltd.
Atlantic Gulf Airlines.
Atlantic Oil Carriers, Ltd.
Atlantic Tankers, Ltd.
Atlantis Airlines, Ltd.
AUA Austrian Airlines.
Avensa Airlines
Aviation Services, Ltd. dba Freedom Air.
Aviacion Y Comercio, S.A. (Aviaco Airlines).
BAHAMASAIR.
Bahamas Airways, Ltd.
Balair AG.
Barber-Wilhelmsen Line, F.M.C. No. 7489 (Barber Steamship Lines,
Inc., U.S.A. General Agents).
Belize Airways, Ltd.
Blue Star Line, Inc., The.
Braniff Airways, Inc.
Brazalian International Airlines (Real-Aerovias Brazil, S.A.).
Britannia Airways Limited.
British Airways (British Airways Board).
British Caledonian Airways Limited
British Car Carriers, Ltd., and Nerdrum Lines.
British Midland Airways, Ltd.
British West Indian Airways, Ltd.
Brodin Line.
BWIA International.
Canadian Airlines International, Ltd.
Canadian National Railway Co.
Canadian Pacific Air Lines, Ltd.
Canadian Pacific Railway Co.
Capitol Airways, Inc.
Caribbean Atlantic Airlines, Inc.
Caribbean Express, Inc.
Caribbean International Airways, Ltd.
Catamaran Cruiselines
Cathay Pacific Airways, Ltd.
Cayman Airways, Ltd.
Ceskoslovenske Aerolinie (Czechoslovak Airlines) Chandris America
Lines Inc., as general agents for: Okeania S.A. (Australis), Chandris
America Lines S.A. (Amerikanis), Australian Line S.A. (Ellinis), and
Themistocles Nav. S.A. (Queen Frederica).
Challenge International Airlines.
Chandris (USA) Inc., as agents for Chandris Lines.
Chandris (USA) Inc., as agents for Mariblanca Navegacion S.A. and
Compania Panamena Europea Navegacion Ltda. S.A.
China Airlines, Ltd.
China Merchants Steam Navigation Co., Ltd.
China Navigation Co. Ltd., The
China Union Lines, Ltd.
Compagnia Genovese di Armemento
Compagnie Generale Transatlantique (French Line).
Compagnie Nationale Air France.
Companhia Colonial de Navegacao.
Compania Cubana de Aviacion, S.A.
Compania Dominicana de Aviacion, C. por A.
Compania Mexicana de Aviacion, S.A. (CMA).
Companhia Nacional de Navegacao, S.A.R.L.
Compania Nacional de Turismo Aereo Limitada.
Compania Panamena de Aviacion S.A. (COPA).
Compania Transatlantica Espanola, S.A.
Condor Flugdienst GmbH.
Continental Air Lines, Inc.
Continental/Air Micronesia.
Cunard Steamship Company, Ltd.
Daido Kaiun Kaisha, Ltd., (Daido Line).
Daiwa Navigation Co., Ltd., The.
Dan-Air Services, Ltd.
Delaware and Hudson Railroad Corp.
Delta Air Lines, Inc.
A. Demades & Owners -- SS AXIOS
Den Norske Amerikalinje A/S (See Norwegian America Line).
Ditlev-Simonsen Lines.
Dominion Far East Line (Hong Kong) Ltd.
Dominion Navigation Co., Ltd.
Donaldson International Airways.
Dorado Wings.
East African Airways.
Eastern Airlines, Inc.
Egyptair.
El Al Israel Airlines.
''ELIOS'', Soc. di Navigazione p. A., Palermo.
Ellerman's Wilson Line, Ltd.
Empresa Ecuatoriana de Aviacion.
Empresa de Transporte Aereo del Pero (Aero-Peru).
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines).
Empresa Guatemalteca de Aviacion.
Epirotiki Lines, Inc.
''Erice'', Soc. di Navigazione p.A., Palermo.
Eugenie Maritime Co., Ltd.
Europe-Canada Line.
Evergreen International Airlines, Inc.
Executive Air Charter.
EXPRINTER (SUCRS, S.A.).
Facilities Management Corp.
Faucett Peruvian Airlines
Fern-Ville Lines.
Fiesta Cruise Lines, Inc.
Finnair Oy.
Five Star Airlines.
Flugfelag Islands, H.F. (Iceland Airways).
Flying Tiger Line Inc., The
Furness-Withy and Co., Ltd.
Garuda Indonesia.
General Airways, Inc.
General Steam Navigation Co., Ltd., of Greece -- Greek Line.
German Atlantic Line (North German Lloyd Passenger Agency, Inc.,
for).
Giacomo Costa fu Andrea (Linea ''C''), Genoa.
Global Chartering & Brokerage Co., Inc.
Globe Air Ltd. Basel, Switzerland.
Great Eastern Line.
Gray Coach Lines, Ltd.
Grey Goose Bus Lines, Ltd.
Greyhound Lines-East, Division of Greyhound Lines, Inc.
Grimaldi Siosa Lines Joint Service.
Guest Aerovias Mexico, S.A.
Guy-America Airways, Inc.
Guyana Airways Corp.
Haiti Air.
Hamburg American Line.
Hapag/Lloyd A.G./North German Lloyd Passenger Agency, Inc.
Harbor Airlines, Inc.
Hawaiian Airlines.
Holland-America Line.
Home Lines Agency Inc., as agent for Home Lines Inc.
Horizon Airlines Industries, Inc.
Horn-Linie.
Hugo Stinnes Transozean Schiffahrts, gmbh, Mulheim-Ruhr, Germany.
Iberia Air Lines of Spain.
Iberia Lineas Aereas Espansolas.
Icelandic Airlines, Inc. (Loftleidir, H.F.).
Iiho Kaium Kaisha, Ltd.
Indo-China Steam Navigation Co., Ltd., The.
Inexadria Airways.
Intercontinental, U.S., Inc.
International Aircraft Services, Inc.
International Airlines, Inc.
Interocean Airways, S.A., Luxembourg.
Iran National Airlines Corporation.
Island Aviation Incorporated.
Italian Line, ''Italia'' Societa per Azioni di Navigazione, Genoa.
Jadrolinija Steamship Co.
Japan Airlines.
Japan Airlines Co., Inc.
Jat-Yugoslav Airlines.
Jugoslavenska Linijska Plovidba and/or Jugolinija.
Kambara Kisen Co. Ltd.
Kawasaki Kisen Kaisha, Ltd.
Klaveness Line.
Koninklijke Luchtvaart Maatschappij N. V. (K.L.M. Royal Dutch
Airlines).
Korea Shipping Corp., Ltd., Seoul, Korea.
Korean Air Lines Co., Ltd.
Kulukundis Shipping Agency, Inc.
Laeisz, F., Hamburg, Germany.
Laker Airways Limited.
LAP-Lineas Aereas Paraguayas.
Lauretizen, J.
Leeward Islands Air Transport Services (LIAT).
Linea Aerea del Cobre, S.A. ''LADECO''.
Linea Aerea Nacional, Chile.
Linea Aeropostal Venezolana (LAV).
Lineas Aereas Costarricenses, S.A. (LACSA).
Lineas Aereas de Nicaragua, S.A.
Lineas Aereas Taxader S.A.
Linee Aeree Italiane (ALITALIA).
Livanos Maritime Co., Ltd.
Lloyd Aero Boliviano S.A.
Lloyd International Airways, Ltd.
Lot-Polish Airlines.
LTU Lufttransport Unternehmen KG.
Lufthansa German Airlines (Deutsche Lufthansa Aktiengesellschaft).
Mackey Airlines, Inc.
Malaysian Airline System.
Malev Hungarian Airlines
Mall Airways, Inc.
Marchessini Lines.
Marine Mercante Nicaraguense, S.A. (Mamenic Line).
Maritime Central Airways, Ltd.
Maritime Company of the Philippines.
Martinair Holland, N.V.
Maui Airlines, Inc.
McCormick Shipping Corp.
''MEGRA'' Soc. di Navigazione p.A., Palermo.
Middle East Airlines.
Mitsui Steamship Co., Ltd.
Montana Flugbetrieb.
Murray Hill Limousine Service Ltd.
N. V. Scheepvaart Maatschappij ''Transocean'' (Trans-Ocean Steamship
Co.).
Naess Shipping Co., Inc.
National Airlines, Inc.
NATUMEX Lines -- Naviera Truistica Mexicana S.A.
Nauru Pacific Line.
Naviera Aznar Sociedad Anonima.
Nederland Line.
Netherlands Ministry of Transport and Waterstaad Directorate-General
of Shipping.
New Zealand Shipping Co., Ltd., Norton, Lilly & Co., Inc., General
Agents.
Nigeria Airways Limited.
Nihonkai Kisen Kaisha.
Nippon Cargo Airlines Co., Ltd.
Nippon Yusen Kaisha (N.Y.K. Line).
Nolisair International, Inc. (dba Nationair Canada)
Nordair Ltd.
North Central Airlines Inc.
Northeast Airlines, Inc.
North German Lloyd Passenger Agency, Inc. (see Hapag/Lloyd
A.G./North German Lloyd Passenger Agency, Inc.)
Northwest Airlines, Inc.
Norwegian America Line (Den Norske Amerikalinje A/S).
Norwegian Caribbean Lines.
Ocean Cargo Line, Ltd.
Ocean Tanker Line, Ltd. (Lavino Shipping Co., Philadelphia, Agents).
Ocean Tankers, Ltd.
Oceanic Steamship Co., The
Olsen Line, Fred (Fred Olsen & Co.).
Olympic Airways, S.A.
Ontario Central Airlines, Ltd.
Ontario Express, Ltd. (dba Canadian Partner)
Orient Overseas Line.
Orient Steam Navigation Co., Ltd.
Osaka Shosen Kaisha, Ltd.
Overseas National Airways.
Ozean/Stinnes Linien.
Pacific Australian Direct Line.
Pacific Far East Line, Inc.
Pacific Islands Transport Line A/S THORDAHL.
Pacific Micronesian Line, Inc.
Pacific Ocean Line.
Pacific Shipowners, Ltd., Suva, Fiji.
Pacific Steam Navigation Co.
Pacific Western Airlines, Ltd.
Pakistan International Airlines Corp.
Pan American World Airways, Inc.
Pan Am Express.
Panoceanic Tanker Line, Ltd.
Peninsular & Occidental Steamship Co.
Peninsular & Oriental Steam Navigation Co.
Penn Central Co., The
Phillippine Air Lines.
Piedmont Aviation, Inc.
Pilgrim Aviation & Airlines, Inc., (d/b/a Pilgrim Airlines).
''POLINNIA'' Soc. di Navigazione p.A., Palermo.
Pomair N.V.
President Airlines, Inc.
Presidential Airways, Inc.
P.R. Express.
Pro Air Services.
Provo Air, Inc.
Puerto Rico International Airlines, Inc.
Qantas Empire Airways, Ltd.
REAL S/A -- Transportes Aereos.
Red Carpet Airlines, Inc.
Rederiaktiebolaget Nordstjernan (Johnson Line), Stockholm.
Republic Airlines, Inc.
Resort Commuter, Inc. (dba Resorts)
Rich International Airways, Inc.
Riddle Airlines, Inc.
Royal Air Maroc.
Royal Hawaiian Air Service.
Royal Mail Lines, Ltd.
Royal Netherlands Steamship Co.
Royal Rotterdam Lloyd.
Sabena Belgian Air Lines.
Sahsa Honduras Airlines.
Samoa Airlines.
San Juan Airlines.
Saturn Airways, Inc.
Saudi Arabian Airlines.
Scandinavian Airlines System, Inc.
Scindia Steam Navigation Co., Ltd.
Seven Seas Airlines, Inc.
Shawnee Airlines, Inc.
Shinwa Kaiun Kaisha, Ltd.
Showa Shipping Co., Ltd.
Sicula Oceanica, S.A. (SIOSA Lines).
Singapore Airlines.
Skylink Airlines, Ltd.
Skystar International, Inc.
Skyworld Airlines (dba Ports of Call Air)
Societa Italiana di Armamento ''SIDARMA''.
Societa Italiana Transporti Marittimi of Genoa (Sitmar Line).
South African Airways.
South Pacific Air Lines.
Southern Airways, Inc.
Southern Air Transport, Inc.
Spantax S.A.
Standard Airway, Inc.
States Steamship Co.
Sterling Airways A/S.
SUEDFLUG, Sued-deutsche Fluggesellscharft mbH, Stuttgart.
SUN LAND Air Lines, Inc.
Surinam Airways Ltd.
Swedish American Line.
Swiss Air Transport Co., Ltd. (SWISSAIR).
TACA International Airlines, S.A.
Taiwan Navigation Co., Ltd.
Texas International Airlines, Inc.
Thai Airways International, Ltd.
The Eastern & Australian Steamship Co., Ltd.
Theofano Maritime Co., Ltd.
Time Air, Inc.
Tower Air, Inc.
Toyo Yusen Co., Ltd.
Transair Limited-Winnipeg, Manitoba.
Transamerica Airlines.
Transatlantic Steamship Co., Ltd. (Rederiaktiebolaget Transatlantic).
Trans Caribbean Airways, Inc.
Transavia Holland N.V.
Transcontinental S.A. de Transportes C.El.
Transglobe Airways, Ltd.
Trans Meridian Flying Services, Ltd.
Trans Micronesian Airways.
Transocean Airlines.
Transportation Corp. of America (Trans Caribbean Airways).
Transportes Aeros Nacionales, S.A. (TAN Airlines).
Transportes Aereos Portugueses S.A.R.L.
Trans World Airlines, Inc.
Trent Maritime Co., Ltd.
Triton Shipping, Inc.
Twentieth Century Airlines.
Union de Transports Aeriens -- U.T.A.
United Air Lines, Inc.
United Philippine Line.
United States Lines, Inc.
United States Overseas Airlines, Inc.
United White Shipping Co., Ltd.
Universal Airlines, Inc.
U.S. Air, Inc.
Varig S.A. (Brasilian Airlines).
Venezuelan International Airlines, Inc.
VIA Rail Canada Inc.
Virgin Atlantic Airways, Ltd.
Wardair Canada Inc.
Western Airlines.
Westfal Larsen Line.
White Star Maritime Co., Ltd.
Wien Consolidated Airlines, Inc.
Winchester, J. H., & Co., as agents for Costa Line.
Windward Islands Airways International.
World Airways, Inc.
Wamashita Steamship Co., Ltd.
Ybarra & Co., Inc.
Y. Guahan Airways, Inc./Guam Marianas Air
Zim Israel Navigation Co., Ltd.
(c) Carrier responsibility. Nothing contained within the provisons
of section 286 of the Act shall be deemed to waive the carrier's
liability for detention, transportation, and other expenses incurred in
the bringing of aliens to the United States under the terms of this
section.
(32 FR 9630, July 4, 1967)
Editorial Note: For Federal Register citations affecting 238.3, see
List of CFR Sections Affected in the Finding Aids section of this
volume.
08 CFR 238.4 Preinspection outside the United States.
The following transportation lines have entered into agreements on
Form I-425 for the preinspection of their passengers and crews at places
outside the United States:
Air Florida, Inc.
Air Venturers of Houston, Inc.
American Airlines, Inc. (Charter Flights only).
American Eagle Airlines, Inc.
American Flyers Airline Corp.
Braniff Airways, Inc.
British Airways (British Airways Board).
Capitol Airways, Inc.
Continental Airlines
Delta Air Lines, Inc.
Eastern Air Lines, Inc.
Flying Tiger Line Inc., The.
Furness, Withy and Co., Ltd.
Guest Aerovias Mexico, S.A.
Northeast Airlines, Inc.
Northeastern International Airways, Inc.
Pan American World Airways, Inc.
Piedmont Airlines
Saturn Airways.
Standard Air Ways, Inc.
Swedish American Line Agency, Inc.
Trans International Airlines.
Trans World Airlines, Inc.
United Air Lines.
U.S. Air
World Airways, Inc.
Air Canada
America West Airlines, Inc.
American Airlines, Inc.
Big Sky Airlines.
Canadian Airlines International, Ltd.
Canadian Pacific Airlines.
Cascade Airways, Inc.
Northwest Airlines, Inc.
Pacific Western Airlines, Ltd.
Time Air, Inc.
United Airlines, Inc.
Wardair Canada, Inc.
Western Airlines Inc.
Air Canada.
Canadian Airlines International, Ltd.
Canadian Pacific Airlines.
Continental Airlines.
Delta Airlines, Inc.
Northwest Airlines, Inc.
Pacific Western Airlines.
Republic Airlines.
Wardair Canada, Inc.
Western Air Lines, Inc.
Aerocoach Aviation International, Inc.
Aerostar Airlines, Inc.
Air Florida, Inc.
Airways International, Inc.
Bahamas Air Holdings Ltd.
Caribbean Express, Inc.
Comair, Inc.
Delta Air Lines Inc.
Eastern Air Lines Inc.
Evergreen International Airlines, Inc.
Gulf Air Transport, Inc.
Gull Air, Inc.
Key Airlines, Inc.
Mackey International Airlines.
Midway Airlines.
Northeastern International Airways, Inc.
Pan American World Airways, Inc.
Rich International Airways, Inc.
Sun Country Airlines
U.S. Air, Inc.
United Airlines, Inc.
Air Alliance, Inc.
Air Canada.
Air Florida, Inc.
Air France.
Air Ontario, Limited.
American Airlines, Inc.
American Flyers Airline Corp.
Braniff Airways, Inc.
British Airways (British Airways Board).
Canadian Airlines International, Ltd.
Canadian Pacific Airlines, Ltd.
Capitol Airways, Inc.
Continental Airlines.
Delta Air Lines, Inc.
Deutsche Lufthansa Aktiengesellschaft (Lufthansa German Airlines).
Eagle Airways (Bermuda) Ltd.
Eastern Air Lines, Inc.
Eastern Provincial Airways (1963) Limited.
McCulloch International Airlines.
Nordair Ltee -- Nordair Ltd.
Northeast Airlines, Inc.
Northwest Airlines
Northwest Airlines, Inc.
Odyssey International
Ozark Air Lines, Inc.
Pilgrim Aviation and Airlines, Inc.
Pan American World Airways, Inc.
Piedmont Aviation, Inc.
Quebecair.
Quebec/Air Quebec, Inc., (dba Intercanadian)
Republic Airlines, Inc.
Saturn Airways, Inc.
Trans-Florida Airlines, Inc.
Trans World Airlines, Inc.
Transair Limited.
United Air Lines, Inc.
U.S. Air, Inc.
Wardair Canada, Inc.
Western Skyways, Inc.
World Airways, Inc.
World Wide Airways, Inc.
Worldway Airlines Ltd.
Wright Air Lines Inc.
Aerostar Airlines, Inc.
Air Canada.
Air Venturers of Houston, Inc.
American Flyers Airline Corp.
American International Airways.
American Trans Air
Bahamasair Holdings Ltd.
Bahamas Airways, Ltd.
Best Airlines, Inc.
British Airways (British Airways Board).
Capitol Airways, Inc.
Challenge International Airlines.
Delta Air Lines, Inc.
Eagle Airways (Bermuda), Ltd.
Eastern Air Lines.
Executive Jet Aviation, Inc.
Flying Tiger Line, Inc., The.
Great Lakes Airlines Limited.
International Air Bahama, Ltd.
Mackey International Airlines.
McCormick Shipping Corp., Eastern Shipping Corp. Agents.
Midway Airlines.
Modern Air Transport, Inc.
National Airlines, Inc.
Northeastern International Airways, Inc.
Pan American World Airways, Inc.
Piedmont Airlines
Pro Air Services.
Rich International Airways, Inc.
Sun Country Airlines
Trans Caribbean Airways, Inc.
Trans World Airlines, Inc.
United Air Lines, Inc.
U.S. Air.
World Airways, Inc.
State of Alaska Department of Public Works. Westours, Inc.
Air Canada.
Air Florida, Inc.
Air France.
Air Ontario, Limited.
American Airlines, Inc.
American Flyers Airline Corp.
Braniff Airways, Inc.
British United Airways (Services), Ltd.
British West Indian Airways.
Caledonian Airways (Prestwick), Ltd.
Canadian Airlines International, Ltd.
Canadian Pacific Air Lines, Ltd.
Capitol Airways, Inc.
Dan-Air Services, Ltd.
Eastern Air Lines, Inc.
Eastern Provincial Airways (1963) Limited.
McCulloch International Airlines.
Nolisair International, Inc., (dba Nationair Canada)
Nordair Ltee -- Nordair Ltd.
North Central Airlines, Inc.
Northwest Airlines, Inc.
Odyssey International
Ozark Air Lines, Inc.
Pan American World Airways, Inc.
Piedmont Aviation, Inc.
Pilgrim Aviation and Airlines, Inc.
Quebecair.
Quebec/Air Quebec, Inc., (dba Intercanadian)
Saturn Airways, Inc.
Standard Airways, Inc.
Trans World Airlines, Inc.
Transair Limited.
United Air Lines, Inc.
U.S. Air, Inc.
Vacationair.
Wardair Canada, Inc.
Wright Air Lines.
World Airways, Inc.
Worldways Canada Limited.
Yugoslav Airlines.
American Trans Air
Gulf Air, Inc. (dba TransOcean Airways)
Admiral Cruiselines
AirBC.
AirCal, Inc.
Air Canada.
American Airlines, Inc.
American Flyers Airline Corp.
British Airways (British Airways Board).
Canadian Airlines International, Ltd.
Canadian Pacific Air Lines, Ltd.
Continental Airlines.
Costa Cruise Line.
Delta Airlines, Inc.
Great American Airways, Inc.
Great Northern Airways, Ltd.
Harbor Airlines, Inc.
Holland America Cruises.
International Jet Air, Ltd.
Monarch Cruise Lines, Inc.
Nomads, Inc.
P. & O. Inc.
P & O Lines (North America) Inc.
Pacific Interstate Airlines.
Pacific Western Airlines, Ltd.
Paquet Cruise Lines, Inc.
San Juan Airlines, Inc.
Skylink Airlines
South Pacific Island Airways.
Standard Airways, Inc.
Sundance Cruises, Inc.
Trans World Airlines, Inc.
United Air Lines, Inc.
Universal Airlines, Inc.
VCHC Enterprises, Limited.
Wardair Canada, Inc.
Western Airlines, Inc.
World Airways, Inc.
Airwest Canada
B.C. Stena Line, Ltd.
Black Ball Transport, Inc.
British Columbia Coast Steamship Service.
British Columbia Steamship Co. (1975), Ltd.
Canadian Airlines International, Ltd.
Canadian Pacific Railway Co.
Clipper Navigation, Inc.
Island Jetfoil Corporation.
Northwest Hydrofoil Lines, Inc.
Royal Cruise Line.
Washington State Ferries.
Yarmouth Cruises, Inc.
Aero Trades (Western) Ltd.
Air Canada.
Aspen Airways (dba United Express)
Canadian Airlines International, Ltd.
CP Air.
Frontier Airlines, Inc.
Holiday Air of America.
Nordair Limited.
North Central Airlines.
Northwest Airlines, Inc.
Pacific Western Airlines, Ltd.
Trans Air, Ltd.
Trans World Airlines, Inc.
VCHC Enterprises, Limited.
Wardair Canada, Inc.
(32 FR 9630, July 4, 1967)
Editorial Note: For Federal Register citations affecting 238.4, see
List of CFR Sections Affected in the Finding Aids section of this
volume.
08 CFR 238.5 Aliens entering Guam pursuant to section 14 of Public Law
99-396, ''Omnibus Territories Act''.
(a) Form I-760 agreements. A transportation line bringing aliens to
Guam under the visa waiver provisions of 212.1(e) of this chapter shall
enter into an agreement on Form I-760. Such agreements shall be
negotiated directly by the Central Office and head offices of the
transportation lines.
(b) (Reserved)
(52 FR 48084, Dec. 18, 1987)
08 CFR 238.5 PART 239 -- SPECIAL PROVISIONS RELATING TO AIRCRAFT:
DESIGNATION OF PORTS OF ENTRY FOR ALIENS ARRIVING BY CIVIL AIRCRAFT
Sec.
239.1 Definitions.
239.2 Landing requirements.
239.3 Aircraft; how considered.
239.4 International airports for entry of aliens.
Authority: 8 U.S.C. 1103, 1221, and 1229; 66 Stat. 173, 195, 203.
08 CFR 239.1 Definitions.
(a) Scheduled Airline. This term means any individual, partnership,
corporation, or association engaged in air transportation upon regular
schedules to, over, or away from the United States, or from one place to
another in the United States, and holding a Foreign Air Carrier permit
or a Certificate of Public Convenience and Necessity issued pursuant to
the Federal Aviation Act of 1958 (72 Stat. 731).
(b) International Airport. An international airport is one
designated by the Commissioner for the entry of aliens with the prior
approval of the Secretary of Commerce, Secretary of the Treasury and the
Secretary of Health and Human Services.
(c) Landing Rights Airport. An airport, although not designated as
international, at which permission to land has been granted to aircraft
operated by scheduled airlines by the Commissioner of Customs.
(49 FR 50018, Dec. 26, 1984)
08 CFR 239.2 Landing requirements.
(a) Place of landing. Aircraft carrying passengers or crew required
to be inspected under the Act shall land at the international air ports
of entry enumerated in part 100 of this chapter unless permission to
land elsewhere shall first be obtained from the Commissioner of Customs
in the case of aircraft operated by scheduled airlines, and in all other
cases from the district director of Customs or other Customs officer
having jurisdiction over the Customs port of entry nearest the intended
place of landing. Notwithstanding the foregoing, aircraft carrying
passengers or crew required to be inspected under the Act on flights
originating in Cuba shall land only at Fort Lauderdale-Hollywood
Airport, Fort Lauderdale, Florida, unless advance permission to land
elsewhere has been obtained from the District Director of the
Immigration and Naturalization Service at Miami, Florida.
(b) Advance notice of arrival. Aircraft carrying passengers or crew
required to be inspected under the Immigration and Nationality Act,
except aircraft of a scheduled airline arriving in accordance with the
regular schedule filed with the Service at the place of landing, shall
furnish notice of the intended flight to the immigration officer at or
nearest the intended place of landing, or shall furnish similar notice
to the district director of Customs or other Customs officer in charge
at such place. Such notice shall specify the type of aircraft, the
registration marks thereon, the name of the aircraft commander, the
place of last departure, the airport of entry, or other place at which
landing has been authorized, number of alien passengers, number of
citizen passengers, and the estimated time of arrival. The notice shall
be sent in sufficient time to enable the officers designated to inspect
the aircraft to reach the airport of entry or such other place of
landing prior to the arrival of the aircraft.
(c) Permission to discharge or depart. Aircraft carrying passengers
or crew required to be inspected under the Immigration and Nationality
Act shall not discharge or permit to depart any passenger or crewman
without permission from an immigration officer.
(d) Emergency or forced landing. Should any aircraft carrying
passengers or crew required to be inspected under the Immigration and
Nationality Act make a forced landing in the United States, the
commanding officer or person in command shall not allow any passenger or
crewman thereon to depart from the landing place without permission of
an immigration officer, unless such departure is necessary for purposes
of safety or the preservation of life or property. As soon as
practicable, the commanding officer or person in command, or the owner
of the aircraft, shall communicate with the nearest immigration officer
and make a full report of the circumstances of the flight and of the
emergency or forced landing.
(22 FR 9795, Dec. 6, 1957, as amended at 32 FR 9631, July 4, 1967;
45 FR 29243, May 1, 1980; 49 FR 50019, Dec. 26, 1984; 54 FR 102, Jan.
4, 1989; 54 FR 1050, Jan. 11, 1989)
08 CFR 239.3 Aircraft; how considered.
Except as otherwise specifically provided in the Immigration and
Nationality Act and this chapter, aircraft arriving in or departing from
the continental United States or Alaska directly from or to foreign
contiguous territory or the French island of St. Pierre or Miquelon
shall be regarded for the purposes of the Immigration and Nationality
Act and this chapter as other transportation lines or companies arriving
or departing over the land borders of the United States. Aliens on
aircraft arriving overland in foreign contiguous territory on journeys
which did not begin outside of North or South America or islands
belonging to countries or to political subdivisions of these continents
shall not be held to be subject to section 212(a)(24) of the Immigration
and Nationality Act.
(22 FR 9795, Dec. 6, 1957)
08 CFR 239.4 International airports for entry of aliens.
International airports for the entry of aliens shall be those
airports designated as such by the Commissioner. An application for
designation of an airport as an international airport for the entry of
aliens shall be made to the Commissioner and shall state whether the
airport: (a) Has been approved by the Secretary of Commerce as a
properly equipped airport, (b) has been designated by the Secretary of
the Treasury as a port of entry for aircraft arriving in the United
States from any place outside thereof and for the merchandise carried
thereon, and (c) has been designated by the Secretary of Health,
Education, and Welfare as a place for quarantine inspection. An airport
shall not be so designated by the Commissioner without such prior
approval and designation, and unless it appears to the satisfaction of
the Commissioner that conditions render such designation necessary or
advisable, and unless adequate facilities have been or will be provided
at such airport without cost to the Federal Government for the proper
inspection and disposition of aliens, including office space and such
temporary detention quarters as may be found necessary. The designation
of an airport as an international airport for the entry of aliens may be
withdrawn whenever, in the judgment of the Commissioner, there appears
just cause for such action.
(22 FR 9795, Dec. 6, 1957)
08 CFR 239.4 PART 240 -- TEMPORARY PROTECTED STATUS FOR NATIONALS OF DESIGNATED STATES
08 CFR 239.4 Subpart A -- General Provisions
Sec.
240.1 Definitions.
240.2 Eligibility.
240.3 Applicability of grounds of inadmissibility.
240.4 Ineligible aliens.
240.5 Temporary treatment benefits for eligible aliens.
240.6 Application.
240.7 Filing the application.
240.8 Appearance.
240.9 Evidence.
240.10 Decision by the district director or Administrative Appeals
Unit (AAU).
240.11 Renewal of application; appeal to the Board of Immigration
Appeals.
240.12 Employment authorization.
240.13 Termination of temporary treatment benefits.
240.14 Withdrawal of Temporary Protected Status.
240.15 Travel abroad.
240.16 Confidentiality.
240.17 Annual registration.
240.18 Issuance of charging documents; detention.
240.19 Termination of designation.
240.20 Waiver of fees.
240.21 -- 240.39 (Reserved)
08 CFR 239.4 Subpart B -- Temporary Protected Status for Salvadorans
240.40 General.
240.41 Definitions.
240.42 Eligibility.
240.43 Ineligibility.
240.44 Semiannual registration.
240.45 Employment authorization.
240.46 Travel abroad.
240.47 Departure at time of termination of designation.
Authority: 8 U.S.C. 1103, 1254a, 1254a note.
Source: 56 FR 619, Jan. 7, 1991, unless otherwise noted.
08 CFR 239.4 Subpart A -- General Provisions
08 CFR 240.1 Definitions.
As used in this part:
Act means the Immigration and Nationality Act, as amended by the
Immigration Act of 1990.
Brief, casual, and innocent absence means a departure from the United
States that satisfies the following criteria:
(1) Each such absence was of short duration and reasonably calculated
to accomplish the purpose(s) for the absence;
(2) The absence was not the result of an order of deportation, an
order of voluntary departure, or an administrative grant of voluntary
departure without the institution of deportation proceedings; and
(3) The purposes for the absence from the United States or actions
while outside of the United States were not contrary to law.
Charging document means Form I-221 (Order to Show Cause and Notice of
Hearing), Form I-221S (Order to Show Cause, Notice of Hearing, and
Warrant for Arrest of Alien) or Form I-122 (Notice to Applicant for
Admission Detained for Hearing before Immigration Judge).
Continuously physically present means actual physical presence in the
United States for the entire period specified in the regulations. An
alien shall not be considered to have failed to maintain continuous
physical presence in the United States by virtue of brief, casual, and
innocent absences as defined within this section.
Continuously resided means residing in the United States for the
entire period specified in the regulations. An alien shall not be
considered to have failed to maintain continuous residence in the United
States by reason of a brief, casual and innocent absence as defined
within this section or due merely to a brief temporary trip abroad
required by emergency or extenuating circumstances outside the control
of the alien.
Felony means a crime committed in the United States, punishable by
imprisonment for a term of more than one year, regardless of the term
such alien actually served, if any, except: When the offense is defined
by the State as a misdemeanor and the sentence actually imposed is one
year or less regardless of the term such alien actually served. Under
this exception for purposes of section 244A of the Act, the crime shall
be treated as a misdemeanor.
Misdemeanor means a crime committed in the United States, either:
(1) Punishable by imprisonment for a term of one year or less,
regardless of the term such alien actually served, if any, or
(2) A crime treated as a misdemeanor under the term ''felony'' of
this section.
For purposes of this definition, any crime punishable by imprisonment
for a maximum term of five days or less shall not be considered a felony
or misdemeanor.
Prima facie means eligibility established with the filing of a
completed application for Temporary Protected Status containing factual
information that if unrebutted will establish a claim of eligibility
under section 244A(c) of the Act.
Register means to properly file, with the district director, a
completed application, with proper fee, for Temporary Protected Status
during the registration period designated under section 244A(b) of the
Act.
State means any foreign country or part thereof as designated by the
Attorney General pursuant to section 244A(b) of the Act.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.2 Eligibility.
Except as provided in 240.3 and 240.4, an alien may in the
discretion of the district director be granted Temporary Protected
Status if the alien establishes that he or she:
(a) Is a national, as defined in section 101(a)(21) of the Act, of a
state designated under section 244A(b) of the Act;
(b) Has been continuously physically present in the United States
since the effective date of the most recent designation of that state;
(c) Has continuously resided in the United States since such date as
the Attorney General may designate;
(d) Is admissible as an immigrant except as provided under 240.3;
(e) Is not ineligible under 240.4; and
(f) Timely registers for Temporary Protected Status.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.3 Applicability of grounds of inadmissibility.
(a) Grounds of inadmissibility not to be applied. Paragraphs (14),
(15), (20), (21), (25), and (32) of section 212(a) of the Act shall not
render an alien ineligible for Temporary Protected Status.
(b) Waiver of grounds of inadmissibility. Except as provided in
paragraph (c) of this section, the Service may waive any other provision
of section 212(a) of the Act in the case of individual aliens for
humanitarian purposes, to assure family unity, or when the granting of
such a waiver is in the public interest. If an alien is inadmissible on
grounds which may be waived as set forth in this paragraph, he or she
shall be advised of the procedures for applying for a waiver of grounds
of inadmissibility on Form I-601 (Application for waiver of grounds of
excludability).
(c) Grounds of inadmissibility that may not be waived. The Service
may not waive the following provisions of section 212(a) of the Act:
(1) Paragraphs (9) and (10) (relating to criminals);
(2) Paragraph (23) (relating to drug offenses), except as it relates
to a single offense of simple possession of 30 grams or less of
marijuana;
(3) Paragraphs (27) and (29) (relating to national security); or
(4) Paragraph (33) (relating to those who assisted in the Nazi
persecution).
08 CFR 240.4 Ineligible aliens.
An alien is ineligible for Temporary Protected Status if the alien:
(a) Has been convicted of any felony or two or more misdemeanors, as
defined in 240.1, committed in the United States, or
(b) Is an alien described in section 243(h)(2) of the Act.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.5 Temporary treatment benefits for eligible aliens.
(a) Prior to the registration period. Prior to the registration
period established by the Attorney General, a national of a state
designated by the Attorney General shall be afforded temporary treatment
benefits upon the filing, after the effective date of such designation,
of a completed application for Temporary Protected Status which
establishes the alien's prima facie eligibility for benefits under
section 244A of the Act. This application may be filed without fee.
Temporary treatment benefits, if granted, shall terminate unless the
registration fee is paid or a waiver is sought within the first thirty
days of the registration period designated by the Attorney General. If
the registration fee is paid or a waiver is sought within such thirty
day period, temporary treatment benefits shall continue until terminated
under 240.13. The denial of temporary treatment benefits prior to the
registration period designated by the Attorney General shall be without
prejudice to the filing of an application for Temporary Protected Status
during such registration period.
(b) During the registration period. Upon the filing of an
application for Temporary Protected Status, the alien shall be afforded
temporary treatment benefits, if the application establishes the alien's
prima facie eligibility for Temporary Protected Status. Such temporary
treatment benefits shall continue until terminated under 240.13.
(c) Denied benefits. There shall be no appeal from the denial of
temporary treatment benefits.
(56 FR 619, May 22, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.6 Application.
An application for Temporary Protected Status shall be made in
accordance with 103.2 of this chapter except as provided herein. Each
application must be filed with the fee as provided in 103.7 of this
chapter, by each individual seeking Temporary Protected Status, except
that the fee for Form I-765 will be charged only for those aliens who
are nationals of El Salvador, and are between the ages of 14 and 65
(inclusive), and are requesting work authorization. Each application
must consist of a completed Form I-104, Form I-765, Form I-821, two
completed fingerprint cards (Form FD-258) for every applicant who is
fourteen years of age or older; two identification photographs (1 1/2''
1 1/2''), and, supporting evidence as provided in 240.9.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.7 Filing the application.
(a) An application for Temporary Protected Status shall be filed with
the district director having jurisdiction over the applicant's place of
residence.
(b) An application for Temporary Protected Status must be filed
during the registration period established by the Attorney General.
(c) Each applicant must pay a fee, as determined at the time of the
designation of the foreign state, except as provided in 240.5(a).
(d) If the alien has a pending deportation or exclusion proceeding
before the immigration judge or Board of Immigration Appeals at the time
a state is designated under section 244A(b) of the Act, the alien shall
be given written notice concerning Temporary Protected Status. Such
alien shall have the opportunity to submit an application for Temporary
Protected Status to the district director under 240.7(a) during the
published registration period unless the basis of the charging document,
if established, would render the alien ineligible for Temporary
Protected Status under 240.3(c) or 240.4. Eligibility for Temporary
Protected Status in the latter instance shall be decided by the
Executive Office for Immigration Review during such proceedings.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.8 Appearance.
The applicant may be required to appear in person before an
immigration officer. The applicant may be required to present
documentary evidence to establish his or her eligibility. The applicant
may have a representative as defined in 292.1 of this chapter present
during any examination. Such representative shall not directly
participate in the examination; however, such representative may
consult with and provide advice to the applicant. The record of
examination shall consist of the application, documents relating to the
application, and the decision of the district director.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.9 Evidence.
(a) Documentation. Applicants shall submit all documentation as
required in the instructions or requested by the Service. The Service
may require proof of unsuccessful efforts to obtain documents claimed to
be unavailable. If any required document is unavailable, an affidavit
or other credible evidence may be submitted.
(1) Evidence of identity and nationality. Each application must be
accompanied by evidence of the applicant's identity and nationality, if
available. If these documents are unavailable, the applicant shall file
an affidavit showing proof of unsuccessful efforts to obtain such
identity documents, explaining why the consular process is unavailable,
and affirming that he or she is a national of the designated state. A
personal interview before an immigration officer shall be required for
each applicant who fails to provide documentary proof of identity or
nationality. During this interview, the applicant may present any
secondary evidence that he or she feels would be helpful in showing
nationality. Acceptable evidence in descending order of preference may
consist of:
(i) Passport;
(ii) Birth certificate accompanied by photo identification; and/or
(iii) Any national identity document from the alien's country of
origin bearing photo and/or fingerprint.
(2) Proof of residence. Evidence to establish proof of continuous
residence in the United States during the requisite period of time may
consist of any of the following:
(i) Employment records, which may consist of pay stubs, W-2 Forms,
certification of the filing of Federal, State, or local income tax
returns; letters from employer(s) or, if the applicant has been self
employed, letters from banks, and other firms with whom he or she has
done business. In all of the above, the name of the alien and the name
of the employer or other interested organization must appear on the form
or letter, as well as relevant dates. Letters from employers must be in
affidavit form, and shall be signed and attested to by the employer
under penalty of perjury. Such letters from employers must include:
(A) Alien's address(es) at the time of employment;
(B) Exact period(s) of employment;
(C) Period(s) of layoff; and
(D) Duties with the company.
(ii) Rent receipts, utility bills (gas, electric, telephone, etc.),
receipts, or letters from companies showing the dates during which the
applicant received service;
(iii) School records (letters, report cards, etc.) from the schools
that the applicant or his or her children have attended in the United
States showing name of school and period(s) of school attendance;
(iv) Hospital or medical records showing medical treatment or
hospitalization of the applicant or his or her children, showing the
name of the medical facility or physician as well as the date(s) of the
treatment or hospitalization;
(v) Attestations by churches, unions, or other organizations of the
applicant's residence by letter which:
(A) Identifies applicant by name;
(B) Is signed by an official whose title is also shown;
(C) Shows inclusive dates of membership;
(D) States the address where applicant resided during the membership
period;
(E) Includes the seal of the organization impressed on the letter or
is on the letterhead of the organization, if the organization has
letterhead stationery;
(F) Establishes how the attestor knows the applicant; and
(G) Establishes the origin of the information being attested to.
(vi) Additional documents to support the applicant's claim, which may
include:
(A) Money order receipts for money sent in or out of the country;
(B) Passport entries;
(C) Birth certificates of children born in the United States;
(D) Bank books with dated transactions;
(E) Correspondence between the applicant and other persons or
organizations;
(F) Social Security card;
(G) Selective Service card;
(H) Automobile license receipts, title, vehicle registration, etc;
(I) Deeds, mortgages, contracts to which applicant has been a party;
(J) Tax receipts;
(K) Insurance policies, receipts, or letters; and/or
(L) Any other relevant document.
(3) Evidence of eligibility under section 244A(c)(2) of the Act. An
applicant has the burden of showing that he or she is eligible for
benefits under this part.
(b) Sufficiency of evidence. The sufficiency of all evidence will be
judged according to its relevancy, consistency, credibility, and
probative value. To meet his or her burden of proof the applicant must
provide supporting documentary evidence of eligibility apart from his or
her own statements.
(c) Failure to timely respond. Failure to timely respond to a
request for information, or to appear for a scheduled interview, without
good cause, will be deemed an abandonment of the application and will
result in a denial of the application for lack of prosecution. Such
failure shall be excused if the request for information, or the notice
of the interview was not mailed to the applicant's most recent address
provided to the Service.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.10 Decision by the district director or Administrative
Appeals Unit (AAU).
(a) Temporary treatment benefits. The district director shall grant
temporary treatment benefits to the applicant if the applicant
establishes prima facie eligibility for Temporary Protected Status in
accordance with 240.5.
(b) Temporary Protected Status. Upon review of the evidence
presented, the district director may approve or deny the application for
Temporary Protected Status in the exercise of discretion, consistent
with the standards for eligibility in 240.2, 240.3, and 240.4.
(c) Denial by district director. The decision of the district
director to deny Temporary Protected Status, a waiver of grounds of
inadmissibility, or temporary treatment benefits shall be in writing
served in person or by mail to the alien's most recent address provided
to the Service and shall state the reason(s) for the denial. Except as
otherwise provided in this section, the alien shall be given written
notice of his or her right to appeal a decision denying Temporary
Protected Status. To exercise such right, the alien shall file a notice
of appeal, Form I-290B, with the district director who issued the
denial. If an appeal is filed, the administrative record shall be
forwarded to the AAU for review and decision, pursuant to authority
delegated in 103.1(f)(2), except as otherwise provided in this section.
(1) If the basis for the denial of the Temporary Protected Status
constitutes a ground for deportability or excludability which renders
the alien ineligible for Temporary Protected Status under 240.4 or
inadmissible under 240.3(c), the decision shall include a charging
document which sets forth such ground(s).
(2) If such a charging document is issued, the alien shall not have
the right to appeal the district director's decision denying Temporary
Protected Status as provided in this subsection. The decision shall
also apprise the alien of his or her right to a de novo determination of
his or her eligibility for Temporary Protected Status in deportation or
exclusion proceedings pursuant to 240.11 and 240.18.
(d) Decision by AAU. The decision of the AAU shall be in writing
served in person, or by mail to the alien's most recent address provided
to the Service, and, if the appeal is dismissed, the decision shall
state the reason(s) for the denial.
(1) If the appeal is dismissed by the AAU under 240.18(b), the
decision shall also apprise the alien of his or her right to a de novo
determination of eligibility for Temporary Protected Status in
deportation or exclusion proceedings.
(2) If the appeal is dismissed by the AAU, the district director may
issue a charging document if no charging document is presently filed
with the Office of the Immigration Judge.
(3) If a charging document has previously been filed or is pending
before the Office of the Immigration Judge, either party may move to
recalendar the case after the decision by the AAU.
(e) Grant of temporary treatment benefits.
(1) Temporary treatment benefits shall be evidenced by the issuance
of an employment authorization document. The alien shall be given, in
English and in the language of the designated state or a language that
the alien understands, a notice of the registration requirements for
Temporary Protected Status and a notice of the following benefits:
(i) Temporary stay of deportation; and
(ii) Temporary employment authorization.
(2) Unless terminated under 240.13, temporary treatment benefits
shall remain in effect until a final decision has been made on the
application for Temporary Protected Status.
(f) Grant of temporary protected status. (1) The decision to grant
Temporary Protected Status shall be evidenced by the issuance of an
alien registration document. For those aliens requesting employment
authorization, the employment authorization document will act as alien
registration.
(2) The alien shall be provided with a notice, in English and in the
language of the designated state or a language that the alien
understands, of the following benefits:
(i) The alien shall not be deported while maintaining Temporary
Protected Status;
(ii) Employment authorization;
(iii) The privilege to travel abroad with the prior consent of the
district director as provided in 240.15;
(iv) For the purposes of adjustment of status under section 245 of
the Act and change of status under section 248 of the Act, the alien is
considered as being in, and maintaining, lawful status as a nonimmigrant
while the alien maintains Temporary Protected Status.
(3) The benefits contained in the notice are the only benefits the
alien is entitled to under Temporary Protected Status.
(4) Such notice shall also advise the alien of the following:
(i) The alien must remain eligible for Temporary Protected Status;
(ii) The alien must register annually with the District Office having
jurisdiction over the alien's place of residence; and
(iii) The alien's failure to comply with paragraphs (f)(4) (i) or
(ii) of this section will result in the withdrawal of Temporary
Protected Status, including work authorization granted under this
Program, and may result in the alien's deportation from the United
States.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.11 Renewal of application; appeal to the Board of
Immigration Appeals.
If a charging document is served on the alien with a notice of denial
or withdrawal of Temporary Protected Status, an alien may renew the
application for Temporary Protected Status in deportation or exclusion
proceedings. The decision of the immigration judge as to eligibility
for Temporary Protected Status may be appealed to the Board of
Immigration Appeals pursuant to 3.3 of this chapter. The provisions of
this section do not extend the benefits of Temporary Protected Status
beyond the termination of a state's designation pursuant to 240.19.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23497, May 22, 1991)
08 CFR 240.12 Employment authorization.
(a) Upon approval of an application for Temporary Protected Status,
the district director shall grant an employment authorization document
valid during the initial period of the state's designation (and any
extensions of such period) or twelve (12) months, whichever is shorter.
(b) If the alien's Temporary Protected Status is withdrawn under
240.14, employment authorization expires upon notice of withdrawal or on
the date stated on the employment authorization document, whichever
occurs later.
(c) If Temporary Protected Status is denied by the district director,
employment authorization shall terminate upon notice of denial or at the
expiration of the employment authorization document, whichever occurs
later.
(d) If the application is renewed or appealed in deportation or
exclusion proceedings, or appealed to the Administrative Appeals Unit
pursuant to 240.18(b), employment authorization will be extended during
the pendency of the renewal and/or appeal.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991)
08 CFR 240.13 Termination of temporary treatment benefits.
(a) Temporary treatment benefits terminate upon a final determination
with respect to the alien's eligibility for Temporary Protected Status.
(b) Temporary treatment benefits terminate, in any case, sixty (60)
days after the date that notice is published of the termination of a
state's designation under section 244A(b)(3) of the Act.
08 CFR 240.14 Withdrawal of Temporary Protected Status.
(a) Authority of district director. The district director may
withdraw the status of an alien granted Temporary Protected Status under
section 244A of the Act at any time upon the occurrence of any of the
following:
(1) The alien was not in fact eligible at the time such status was
granted, or at any time thereafter becomes ineligible for such status;
(2) The alien has not remained continuously physically present in the
United States from the date the alien was first granted Temporary
Protected Status under this part. For the purpose of this provision, an
alien granted Temporary Protected Status under this part shall be deemed
not to have failed to maintain continuous physical presence in the
United States if the alien departs the United States after first
obtaining permission from the district director to travel pursuant to
240.15;
(3) The alien fails without good cause to register with the Attorney
General annually within thirty (30) days before the end of each 12-month
period after the granting of Temporary Protected Status.
(b) Decision by district director. (1) Withdrawal of an alien's
status under paragraph (a) of this section shall be in writing and
served by personal service pursuant to 103.5(a) of this chapter. If
the ground for withdrawal is 240.14(a)(3), the notice shall provide
that the alien has thirty (30) days within which to provide evidence of
good cause for failure to register. If the alien fails to respond
within thirty (30) days, Temporary Protected Status shall be withdrawn
without further notice.
(2) Withdrawal of the alien's Temporary Protected Status under
paragraph (b)(1) of this section may subject the applicant to exclusion
or deportation proceedings under section 236 or section 242 of the Act
as appropriate.
(3) If the basis for the withdrawal of Temporary Protected Status
constitutes a ground of deportability or excludability which renders an
alien ineligible for Temporary Protected Status under 240.4 or
inadmissible under 240.3(c), the decision shall include a charging
document which sets forth such ground(s) with notice of the right of a
de novo determination of eligibility for Temporary Protected Status in
deportation or exclusion proceedings. If the basis for withdrawal does
not constitute such a ground, the alien shall be given written notice of
his or her right to appeal to the AAU. Upon receipt of an appeal, the
administrative record will be forwarded to the AAU for review and
decision pursuant to the authority delegated under 103.1(f)(2).
Temporary Protected Status benefits will be extended during the pendency
of an appeal.
(c) Decision by AAU. If a decision to withdraw Temporary Protected
Status is entered by the AAU, the AAU shall notify the alien of the
decision and the right to a de novo determination of eligibility for
Temporary Protected Status in deportation or exclusion proceedings, if
the alien is then deportable or excludable, as provided by 240.10(d).
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991)
08 CFR 240.15 Travel abroad.
(a) After the grant of Temporary Protected Status, the alien must
remain continuously physically present in the United States under the
provisions of section 244A(c)(3)(B) of the Act. The grant of Temporary
Protected Status shall not constitute permission to travel abroad.
Permission to travel may be granted by the district director pursuant to
the Service's advance parole provisions. There is no appeal from a
denial of advance parole.
(b) Failure to obtain advance parole prior to the alien's departure
from the United States may result in the withdrawal of Temporary
Protected Status and/or the institution or recalendering of deportation
or exclusion proceedings against the alien.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991)
08 CFR 240.16 Confidentiality.
The information contained in the application and supporting documents
submitted by an alien shall not be released in any form whatsoever to a
third party requester without a court order, or the written consent of
the alien. For the purpose of this provision, a third party requester
means any requester other than the alien, his or her authorized
representative, an officer of the Department of Justice, or any federal
or State law enforcement agency. Any information provided under this
part may be used for purposes of enforcement of the Act or in any
criminal proceeding.
08 CFR 240.17 Annual registration.
(a) Aliens granted Temporary Protected Status must register annually
with the District Office having jurisdiction over their place of
residence. Such registration will apply to nationals of those countries
designated or redesignated for more than one year by the Attorney
General pursuant to section 244A(b) of the Act. Registration may be
accomplished by mailing or submitting in person, depending on the
practice in place at the District Office, completed Forms I-821 and
I-765 within the thirty (30) day period prior to the anniversary of the
grant of Temporary Protected Status (inclusive of such anniversary
date). Form I-821 will be filed without fee. Form I-765 will be filed
with fee only if the alien is requesting employment authorization.
Completing the block on the I-821 attesting to the continued maintenance
of the conditions of eligibility will generally preclude the need for
supporting documents or evidence. The Service, however, reserves the
right to request additional information and/or documentation on a
case-by-case basis.
(b) Unless the Service determines otherwise, registration by mail
shall suffice to meet the alien's registration requirements. However,
as part of the registration process, an alien will generally have to
appear in person in order to secure a renewal of employment
authorization unless the Service determines that employment
authorization will be extended in another fashion due to operational
need. The Service may also request that an alien appear in person as
part of the registration process. In such cases, failure to appear
without good cause shall be deemed a failure to register under this
chapter.
(c) Failure to register without good cause will result in the
withdrawal of the alien's Temporary Protected Status.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991)
08 CFR 240.18 Issuance of charging documents; detention.
(a) A charging document may be issued against an alien granted
Temporary Protected Status on grounds of deportability or excludability
which would have rendered the alien statutorily ineligible for such
status pursuant to 240.3(c) and 240.4. Aliens shall not be deported
for a particular offense for which the Service has expressly granted a
waiver. If the alien is deportable on a waivable ground, and no such
waiver for the charged offense has been previously granted, then the
alien may seek such a waiver in deportation or exclusion proceedings.
The charging document shall constitute notice to the alien that his or
her status in the United States is subject to withdrawal. A final order
of deportation or exclusion against an alien granted Temporary Protected
Status shall constitute a withdrawal of such status.
(b) The filing of the charging document by the Service with the
Office of the Immigration Judge renders inapplicable any other
administrative, adjudication or review of eligibility for Temporary
Protected Status. The alien shall have the right to a de novo
determination of his or her eligibility for Temporary Protected Status
in the deportation or exclusion proceedings. Review by the Board of
Immigration Appeals shall be the exclusive administrative appellate
review procedure. If an appeal is already pending before the
Administrative Appeals Unit, the district director shall notify the
Administrative Appeals Unit of the filing of the charging document, in
which case the pending appeal shall be dismissed and the record of
proceeding returned to the district where the charging document was
filed.
(c) Upon denial of Temporary Protected Status by the Administrative
Appeals Unit, the Administrative Appeals Unit shall immediately forward
the record of proceeding to the district director having jurisdiction
over the alien's place of residence. The district director shall, as
soon as practicable, file a charging document with the Office of the
Immigration Judge if the alien is then deportable or excludable under
section 241(a) or section 212(a) of the Act, respectively.
(d) An alien who is determined by the Service to be deportable or
excludable upon grounds which would have rendered the alien ineligible
for such status as provided in 240.3(c) and 240.4 may be detained
under the provisions of this chapter pending deportation or exclusion
proceedings. Such alien may be removed from the United States upon
entry of a final order of deportation or exclusion.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991)
08 CFR 240.19 Termination of designation.
Upon the termination of designation of a state, those nationals
afforded temporary Protected Status shall, upon the sixtieth (60th) day
after the date notice of termination is published in the Federal
Register, or on the last day of the most recent extension of designation
by the Attorney General, automatically and without further notice or
right of appeal, lose Temporary Protected Status in the United States.
Such termination of a state's designation is not subject to appeal.
08 CFR 240.20 Waiver of fees.
(a) Any of the fees prescribed in 8 CFR 103.7(b) which relate to
applications to the district director or service center director for
Temporary Protected Status may be waived if the applicant establishes
that he or she is unable to pay the prescribed fee. The applicant will
have established his or her inability to pay when the adjudicating
officer concludes, on the basis of the requisite affidavit and of any
other information submitted, that it is more probable than not that:
(1) The applicant's gross income from all sources for the three-month
period prior to the filing of the fee waiver request, including income
received or earned by any dependent in the United States, was equaled or
exceeded by essential expenditures for such three-month period; and
(2) The applicant does not own, possess, or control assets sufficient
to pay the fee without substantial hardship.
(b) For purposes of this section, essential expenditures are limited
to reasonable expenditures for rent, utilities, food, transportation to
and from employment, and any essential extraordinary expenditures, such
as essential medical expenses, or expenses for clothing, laundry, and
child care, to the extent that the applicant can show that those
expenditures made during the three-month period prior to the filing of
the fee waiver request were reasonable and essential to his or her
physical well-being or to earning a livelihood.
(c) For purposes of this section, the TPS registration fee (including
the fee for employment authorization, if applicable) shall be considered
an essential expenditure. A fee waiver will be granted if the sum of
the fees for TPS registration and employment authorization equals or
exceeds income and assets that remain after deducting other essential
expenditures.
(d) If an adjudicating officer is satisfied that an applicant has
established inability to pay, he or she shall not deny a fee waiver due
to the cost of administering the TPS program.
(e) For purposes of this section, the following documentation shall
be required:
(1) The applicant seeking a fee waiver must submit an affidavit,
under penalty of perjury, setting forth information to establish that he
or she satisfies the requirements of this section. The affidavit shall
individually list:
(i) The applicant's monthly gross income from each source for each of
the three months prior to the filing of the fee waiver request;
(ii) All assets owned, possessed, or controlled by the applicant or
by his or her dependents;
(iii) The applicant's essential monthly expenditures, itemized for
each of the three months prior to the filing of the fee waiver request,
including essential extraordinary expenditures; and
(iv) The applicant's dependents in the United States, his or her
relationship to those dependents, the dependents' ages, any income
earned or received by those dependents, and the street address of each
dependent's place of residence.
(2) The applicant may also submit other documentation tending to
substantiate his or her inability to pay.
(f) If the adjudicating officer concludes based upon the totality of
their circumstances that the information presented in the affidavit and
in any other additional documentation is inaccurate or insufficient, the
adjudicating officer may require that the applicant submit the following
additional documents prior to the adjudication of a fee waiver:
(1) The applicant's employment records, pay stubs, W-2 forms,
letter(s) from employer(s), and proof of filing of a local, state, or
federal income tax return. The same documents may also be required from
the applicant's dependents in the United States.
(2) The applicant's rent receipts, bills for essential utilities (for
example, gas, electricity, telephone, water), food, medical expenses,
and receipts for other essential expenditures.
(3) Documentation to show all assets owned, possessed, or controlled
by the applicant or by dependents of the applicant.
(4) Evidence of the applicant's living arrangements in the United
States (living with relative, living in his or her own house or
apartment, etc.), and evidence of whether his or her spouse, children,
or other dependents are residing in his or her household in the United
States.
(5) Evidence of the applicant's essential extraordinary expenditures
or those of his or her dependents residing in the United States.
(g) The adjudicating officer must consider the totality of the
information submitted in each case before requiring additional
information or rendering a final decision.
(h) All documents submitted by the applicant or required by the
adjudicating officer in support of a fee waiver request are subject to
verification by the Service.
(i) In requiring additional information, the adjudicating officer
should consider that some applicants may have little or no documentation
to substantiate their claims. An adjudicating officer may accept other
evidence, such as an affidavit from a member of the community of good
moral character, but only if the applicant provides an affidavit stating
that more direct documentary evidence in unavailable.
(57 FR 34507, Aug. 5, 1992)
240.21 -- 240.39 (Reserved)
08 CFR 240.20 Subpart B -- Temporary Protected Status for Salvadorans
08 CFR 240.40 General.
Except as provided in this part, the provisions of part 240 of this
chapter shall apply to nationals of El Salvador.
08 CFR 240.41 Definitions.
Continuously physically present as used in section 303 of the Act,
means actual physical presence of a Salvadoran in the United States
since September 19, 1990. Any departure not authorized by the Service
(e.g., under advance parole), including any brief, casual, and innocent
departure, shall be deemed to break an alien's continuous physical
presence.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991)
08 CFR 240.42 Eligibility.
Any alien who is a national of El Salvador, except an alien who is
ineligible for Temporary Protected Status pursuant to 240.43, may be
granted Temporary Protected Status in the discretion of the district
director if the alien:
(a) Establishes by evidence as provided for under 240.9, that he or
she is a national of El Salvador;
(b) Establishes that he or she has been continuously physically
present in the United States since September 19, 1990, as defined in
240.41;
(c) Establishes that he or she is admissible as an immigrant, except
as provided under section 244A(c)(2) of the Act; and
(d) Registers for Temporary Protected Status during the period from
January 2, 1991 until October 31, 1991.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991;
56 FR 41445, Aug. 21, 1991)
08 CFR 240.43 Ineligibility.
An alien is ineligible for Temporary Protected Status under this
section if the alien:
(a) Has not established that he or she is a national of El Salvador;
(b) Has not been continuously physically present in the United States
since September 19, 1990, as defined in 240.41;
(c) Has been convicted of any felony or 2 or more misdemeanors
committed in the United States;
(d) Is an alien described in section 243(h)(2) of the Act, or
(e) Is inadmissible based upon a non-waivable ground of
inadmissibility pursuant to section 244A(c)(2)(A)(iii) of the Act.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991)
08 CFR 240.44 Semiannual registration.
Salvadorans granted Temporary Protected Status shall register in
accordance with 240.17. However, registration under this part shall
take place semiannually, within the thirty (30) day period prior to the
end of each six month period.
08 CFR 240.45 Employment authorization.
Employment authorization shall be granted upon the registration of
the eligible alien in increments of six months, as reflected on the
employment authorization document, until June 30, 1992. Employment
authorization may be renewed by an eligible alien upon re-registration
for Temporary Protected Status within the thirty (30) day period prior
to the expiration of each six month registration period.
08 CFR 240.46 Travel abroad.
Permission to travel abroad shall be granted under 240.15 if the
alien demonstrates to the satisfaction of the district director that
emergency and extenuating circumstances beyond the control of the alien
require the departure of the alien for a brief, temporary trip abroad.
(56 FR 23498, May 22, 1991)
08 CFR 240.47 Departure at time of termination of designation.
(a) At the registration which occurs at the end of the second six
month period as provided for under sections 244A(c)(3)(C) and 303(c)(3)
of the Act, the Service shall serve on the alien a charging document,
consistent with the Act, which establishes a date for exclusion or
deportation proceedings which is after June 30, 1992. The charging
document will be cancelled by the Service if El Salvador is subsequently
designated under section 244A(b) of the Act.
(b) If an alien provided with a charging document under paragraph (a)
of this section fails to appear at such exclusion or deportation
proceedings, the alien may be ordered excluded or deported in absentia
as provided for under section 236 or 242(b) of the Act.
(56 FR 619, Jan. 7, 1991, as amended at 56 FR 23498, May 22, 1991)
08 CFR 240.47 PART 241 -- CONTROLLED SUBSTANCE VIOLATIONS
Authority: 8 U.S.C. 1103, 1251, 1252, 1357; 8 CFR part 2.
08 CFR 241.1 Controlled substance convictions.
In determining the deportability of an alien who has been convicted
of a violation of any law or regulation of a State, the United States,
or a foreign country relating to a controlled substance, the term
controlled substance as used in section 241(a)(2)(B)(i) of the Act,
shall mean the same as that referenced in the Controlled Substances Act,
21 U.S.C. 801, et seq. , and shall include any substance contained in
Schedules I through V of 21 CFR 1308.1, et seq. For the purposes of
this section, the term controlled substance includes controlled
substance analogues as defined in 21 U.S.C. 802(23) and 813.
(53 FR 9282, Mar. 22, 1988. Redesignated at 56 FR 8906, Mar. 4, 1991,
and amended at 56 FR 38333, Aug. 13, 1991)
08 CFR 241.1 PART 242 -- PROCEEDINGS TO DETERMINE DEPORTABILITY OF
ALIENS IN THE UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
Sec.
242.1 Order to show cause and notice of hearing.
242.2 Apprehension, custody, and detention.
242.3 Confined aliens, incompetents, and minors.
242.4 Fingerprints and photographs.
242.5 Voluntary departure prior to commencement of hearing.
242.6 Family Unity Program.
242.7 Cancellation proceedings.
242.7a Waiver of documents; returning residents.
242.8 Immigration judges.
242.9 Trial attorney.
242.10 Representation by counsel.
242.11 Incompetent respondents.
242.12 Interpreter.
242.13 Postponement and adjournment of hearing.
242.14 Evidence.
242.15 Contents of record.
242.16 Hearing.
242.17 Ancillary matters, applications.
242.18 Decision of special inquiry officer.
242.19 Notice of decision.
242.20 Finality of order.
242.21 Appeals.
242.22 Reopening or reconsideration.
242.23 Proceedings under section 242(f) of the Act.
242.24 Detention and release of juveniles.
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note, 1252b,
1254, 1362; 8 CFR part 2.
08 CFR 242.1 Order to show cause and notice of hearing.
(a) Commencement. Every proceeding to determine the deportability of
an alien in the United States is commenced by the filing of an Order to
Show Cause with the Office of the Immigration Judge, except an alien who
has been admitted to the United States under the provisions of section
217 of the Act and part 217 of this chapter other than such an alien who
as applied for asylum in the United States. In the proceeding, the
alien shall be known as the respondent. Orders to show cause may be
issued by:
(1) District directors;
(2) Acting district directors;
(3) Deputy district directors;
(4) Assistant district directors for investigations;
(5) Deputy assistant district directors for investigations;
(6) Assistant district directors for deportation;
(7) Deputy assistant district directors for deportation;
(8) Assistant district directors for examinations;
(9) Deputy assistant district directors for examinations;
(10) Assistant district directors for anti-smuggling;
(11) Officers in charge (except foreign);
(12) Chief patrol agents;
(13) Deputy chief patrol agents;
(14) Associate chief patrol agents;
(15) Assistant chief patrol agents;
(16) The Assistant Commissioner, Investigations;
(17) Service center directors;
(18) Director, Organized Crime Drug Enforcement Task Force (OCDETF);
(19) Assistant Director, Organized Crime Drug Enforcement Task Force
(OCDETF), (New York, NY; Houston, TX; Los Angeles, CA; and Miami,
FL);
(20) The Assistant Commissioner, Refugees, Asylum and Parole;
(21) Supervisory asylum officers.
(b) Statement of Nature of Proceedings. The Order to Show Cause
shall contain a statement of the nature of the proceeding, the legal
authority under which the proceeding is conducted, a concise statement
of factual allegations informing the respondent of the act or conduct
alleged to be in violation of the law, and a designation of the charge
against the respondent and of the statutory provisions alleged to have
been violated. The Order shall require the respondent to show cause why
he should not be deported. The Order shall call upon the respondent to
appear before an Immigration Judge for a hearing at a time and place
which shall be specified by the Office of the Immigration Judge.
(c) Service. Service of the order to show cause may be accomplished
either by personal service or by routine service; however, when routine
service is used and the respondent does not appear for hearing or
acknowledge in writing that he has received the order to show cause, it
shall be reserved by personal service. When personal delivery of an
order to show cause is made by an immigration officer, the contents of
the order to show cause shall be explained and the respondent shall be
advised that any statement he makes may be used against him. He shall
also be advised of his right to representation by counsel of his own
choice at no expense to the Government. He shall also be advised of the
availability of free legal services programs qualified under part 292a
of this chapter and organizations recognized pursuant to 292.2 of this
chapter, located in the district where his deportation hearing will be
held. He shall be furnished with a list of such programs, and a copy of
Form I-618, Written Notice of Appeal Rights, regardless of the manner in
which the service of the order to show cause was accomplished. Service
of these documents shall be noted on Form I-213.
(d) Visa Waiver Pilot Program. Pursuant to section 217(b)(4)(B) of
the Act, an alien who has been admitted to the United States under the
provisions of that section has waived any right to contest any action
against him or her for deportation, other than on the basis of an
application for asylum. An alien admitted to the United States under
section 217 of the Act shall be taken into custody and removed from the
United States upon a determination by an immigration officer (district
director who has jurisdiction over the place where the alien is found)
that the alien is deportable in accordance with procedures in 217.4(c)
of this chapter, and without commencement of a proceeding under this
part, except that such an alien who applies for asylum in the United
States shall be brought into proceedings as otherwise provided in this
part.
(22 FR 9796, Dec. 6, 1957, as amended at 44 FR 4653, Jan. 23, 1979;
52 FR 2939, Jan. 29, 1987; 52 FR 3098, Jan. 30, 1987; 52 FR 5616, Feb.
25, 1987; 53 FR 24903, June 30, 1988; 55 FR 1579, Jan. 17, 1990; 55
FR 12627, Apr. 5, 1990; 56 FR 18502, Apr. 23, 1991; 56 FR 50812, Oct.
9, 1991)
08 CFR 242.2 Apprehension, custody, and detention.
(a) Detainers in general. (1) Only an immigration officer as defined
in section 101(a)(18) of the Act, or 103.1(q) of this chapter is
authorized to issue a detainer. Detainers may be issued only in the
case of an alien who is amenable to exclusion or deportation proceedings
under any provision of law.
(2) Availability of records. In order for the Service to accurately
determine the propriety of issuing a detainer, serving an order to show
cause, or taking custody of an alien in accordance with this section,
the criminal justice agency requesting such action or informing the
Service of a conviction or act which renders an alien excludable or
deportable under any provision of law shall provide the Service with all
documentary records and information available from the agency which
reasonably relates to the alien's status in the United States, or which
may have an impact on conditions of release.
(3) Telephonic detainers. Issuance of a detainer in accordance with
this section may be authorized telephonically, provided such
authorizations are confirmed in writing on Form I-247, or by electronic
communications transfer media (e.g. the National Law Enforcement
Telecommunications System (NLETS)) within twenty-four hours of the
telephonic authorization. The contents of the electronic transfer shall
contain substantially the same language as the Form I-247.
(4) Temporary detention at Service request. Upon a determination by
the Service to issue a detainer for an alien not otherwise detained by a
criminal justice agency, such agency shall maintain custody of the alien
for a period not to exceed forty-eight hours, in order to permit
assumption of custody by the Service.
(5) Financial responsibility for detention. No detainer issued as a
result of a determination made under this chapter shall incur any fiscal
obligation on the part of the Service, until actual assumption of
custody by the Service, except as provided in paragraph (a)(4) of this
section.
(b) Use of convictions. The term conviction as used in section
242(i) of the Act means that --
(1) There has been a conviction by a court of competent jurisdiction;
and
(2) All direct appeal rights have been exhausted or waived; or
(3) The appeal period has lapsed.
(c) Warrant of arrest. (1) At the time of issuance of the Order to
Show Cause, or at any time thereafter and up to the time the respondent
becomes the subject of a duly issued warrant of deportation, the
respondent may be arrested and taken into custody under the authority of
a warrant of arrest, provided that, in the case of a respondent
convicted on or after November 18, 1988, of an aggravated felony as
defined in section 101(a)(43) of the Act, the respondent shall not be
released from custody unless a determination is made by the District
Director that the respondent's departure cannot be effected, or until
respondent becomes subject to supervision under the authority contained
in section 242(d) of the Act. However, such warrant may be issued by no
other than a:
(i) District director;
(ii) Acting district director;
(iii) Deputy district director;
(iv) Assistant district director for investigations;
(v) Deputy assistant district director for investigations;
(vi) Assistant district director for deportation;
(vii) Deputy assistant district director for deportation;
(viii) Assistant district director for examinations;
(ix) Deputy assistant district director for examinations;
(x) Assistant district director for anti-smuggling;
(xi) Officer in charge (except foreign);
(xii) Chief patrol agent;
(xiii) Deputy chief patrol agent;
(xiv) Associate chief patrol agent;
(xv) Assistant chief patrol agent;
(xvi) The Assistant Commissioner, Investigations;
(xvii) Director, Organized Crime Drug Enforcement Task Force
(OCDETF);
(xviii) Assistant Director, Organized Crime Drug Enforcement Task
Force (OCDETF), (New York, NY; Houston, TX; Los Angeles, CA; and
Miami, FL).
(2) If, after the issuance of a warrant of arrest, a determination is
made not to serve it, any officer authorized to issue such warrant may
authorize its cancellation. When a warrant of arrest is served under
this part, the respondent shall have explained to him/her the contents
of the order to show cause, the reason for the arrest and the right to
be represented by counsel of his/her own choice at no expense to the
Government. He/she shall also be advised of the availability of free
legal services programs qualified under part 292a of this chapter and
organizations recognized pursuant to 292.2 of this chapter, located in
the district where the deportation hearing will be held. The respondent
shall be furnished with a list of such programs, and a copy of Form
I-618, Written Notice of Appeal Rights. Service of these documents
shall be noted on Form I-213. The respondent shall be advised that any
statement made may be used against him/her. He/she shall also be
informed whether custody is to be continued or, if release from custody
has been authorized, of the amount and conditions of the bond or the
conditions of release. Except in cases involving an alien convicted on
or after November 18, 1988, of an aggravated felony as defined in
section 101(a)(43) of the Act, a respondent on whom a warrant of arrest
has been served may apply to any officer authorized by this section to
issue such a warrant for release or for amelioration of the conditions
under which he/she may be released. When serving the warrant of arrest
and when determining any application pertaining thereto, the authorized
officer shall furnish the respondent with a notice of decision, which
may be on Form I-286, indicating whether custody will be continued or
terminated, specifying any conditions under which release is permitted,
and advising the respondent appropriately whether he/she may apply to an
immigration judge pursuant to paragraph (d) of this section for release
or modification of the conditions of release or whether he/she may
appeal to the Board. A direct appeal to the Board from a determination
by an officer authorized by this section to issue warrants shall not be
allowed except as authorized by paragraph (d) of this section.
(d) Authority of the Immigration Judge; Appeals. After an initial
determination pursuant to paragraph (c) of this section, and at any time
before a deportation order becomes administratively final, upon
application by the respondent for release from custody or for
amelioration of the conditions under which he or she may be released, an
Immigration Judge may exercise the authority contained in section 242 of
the Act to continue to detain a respondent in custody, or to release a
respondent from custody, and to determine whether a respondent shall be
released under bond, and the amount of the bond, if any. Application
for the exercise of such authority shall be made pursuant to 3.19 of
this chapter. In connection with such application, the Immigration
Judge shall advise the respondent of his or her right to representation
by counsel of his or her choice at no expense to the government. He or
she shall also be advised of the availability of free legal services
programs qualified under part 292a of this chapter and organizations
recognized pursuant to 292.2 of this chapter, located in the district
where his or her application is heard. The Immigration Judge shall
ascertain that the respondent has received a list of such programs and a
copy of Form I-618 Written Notice of Appeal Right. Moreover, if the
respondent has been released from custody, an application for
amelioration of conditions must be made within seven (7) days after the
date of such release. Thereafter, application by a released respondent
for modification of the terms of release may be made only to the
District Director. Upon rendering a decision on an application under
this section, the Immigration Judge (or the district director if he
renders the decision) shall advise the alien of his or her appeal rights
under this section. The alien and the Service may appeal to the Board
of Immigration Appeals from any determination of the Immigration Judge
as to custody status or bond, pursuant to 3.38 of this chapter. If the
determination is appealed, a written memorandum shall be prepared by the
Immigration Judge giving reasons for the decision. After a deportation
order becomes administratively final, or if recourse to the Immigration
Judge is no longer available because the seven day period established by
this paragraph has expired, the respondent may appeal directly to the
Board from a determination by the District Director, Acting District
Director, Deputy District Director, Assistant District Director for
Investigations, or Officer in charge of an office enumerated in
242.1(a). Such an appeal shall be perfected by filing a notice of appeal
with the District Director within 10 days after the date when written
notification of the determination is served upon the respondent and the
Service, except that no appeal shall be allowed when the Service
notifies the alien that it is ready to execute the order of deportation
and takes him into custody for that purpose. Upon the filing of a
notice of appeal from a District Director's determination, the District
Director shall immediately transmit to the Board all records and
information pertaining to that determination. The filing of an appeal
from a determination of an Immigration Judge or a District Director
shall not operate to delay compliance, during the pendency of the
appeal, with the custody directive from which the appeal is taken, or to
stay the administrative proceedings or deportation.
(e) Revocation. When an alien who, having been arrested and taken
into custody, has been released, such release may be revoked at any time
in the discretion of the district director, acting district director,
deputy district director, assistant district director for
investigations, or officer in charge of an office enumerated in
242.1(a), in which event the alien may be taken into physical custody
and detained. If detained, unless a breach has occurred, any
outstanding bond shall be revoked and cancelled. The provisions of
paragraph (d) of this section shall govern availability to the
respondent of recourse to other administrative authority for release
from custody.
(f) Supervision. Until an alien against whom a final order of
deportation has been outstanding for more than six months is deported,
he shall be subject to supervision by a district director, acting
district director, deputy district director, assistant district director
for investigations, or officer in charge of an office enumerated in
242.1(a), and required to comply with the provisions of section 242(d)
of the Act relating to his availability for deportation.
(g) Privilege of communication. Every detained alien shall be
notified that he may communicate with the consular or diplomatic
officers of the country of his nationality in the United States.
Existing treaties require immediate communication with appropriate
consular or diplomatic officers whenever nationals of the following
countries are detained in exclusion or expulsion proceedings, whether or
not requested by the alien, and, in fact, even if the alien requests
that no communication be undertaken in his behalf:
Algeria3
Argentina3
Australia3
Austria3
Belgium3
Bolivia3
Brazil3
Cameroon3
Canada3
Chile3
China, People's Rep. of6
China, Rep. of
Colombia3
Costa Rica
Cuba3
Czechoslovakia3
Cyprus
Denmark3
Dominican Republic3
Ecuador3
Egypt3
El Salvador3
Fiji3
France3
Gabon3
Gambia
Germany, Fed Rep.3
Ghana
Guatemala3
Guyana3
Holy See3
Honduras3
Hungarian People's Rep.5
Iraq3
Ireland1
Italy3
Jamaica
Jordan3
Kenya
Kuwait
Laos3
Lesotho3
Liechtenstein3
Luxembourg3
Madagascar3
Malawi
Malaysia
Mali3
Malta
Mauritius3
Mexico3
Nepal3
New Zealand3
Niger3
Nigeria
Oman3
Pakistan3
Panama3
Paraguay3
Philippines
Poland2
Portugal3
Romania4
Rwanda3
Senegal3
Sierra Leone
Singapore
Somalia3
Spain3
Sweden3
Switzerland3
Tanzania
Tonga3
Trinidad & Tobago
Tunisia3
Uganda
United Kingdom
England
Northern Ireland
Scotland
Southern Rhodesia
Wales
Union of Soviet Socialist Rep. (USSR)
Uruguay3
Upper Volta3
Venezuela3
Viet-Nam, Rep.3
Yugoslavia3
Zambia
1Unless national requests that such information not be transmitted.
2If national is an alien admitted to lawful permanent residence,
communication will be made with Polish consulate only upon the request
of such national.
3If national requests his government be notified, INS must notify
immediately.
4Notification must be made within two days.
5Notification must be made within three days.
6Notification must be made within four days.
(h) Custody issues; release procedures. (1) A lawful permanent
resident alien convicted of an aggravated felony may be released from
custody, after having completed serving the sentence for such
conviction, if the Attorney General determines that he or she is not a
danger to the community and that he or she is likely to appear for all
scheduled hearings. Review of each case to determine custody or release
conditions shall include, but need not be limited to, consideration of
the following factors:
(i) Seriousness of the crime(s) of which convicted;
(ii) Prior criminal history, especially the nature of the crimes and
number of arrests;
(iii) Sentence(s) imposed and time actually served;
(iv) History of failures to appear for court (defaults);
(v) Probation history;
(vi) Evidence of rehabilitative effort or recidivism;
(vii) Equities in the United States;
(viii) Availability of relief from deportation and the likelihood of
its being granted; and
(ix) Prior immigration violations and history.
(2) If, after consideration of all factors listed in paragraph (h)(1)
of this section, it is determined that the alien is not a threat to
public safety and is likely to appear for all scheduled hearings, he or
she may be released from custody under such conditions as the Attorney
General may prescribe, including the giving of a bond. If an appearance
bond is prescribed as a condition of such release, it shall be in an
appropriate and sufficient amount to encourage compliance with demands
for appearance and with any other conditions of release.
(i) Notification to Executive Office for Immigration Review of change
in custody status. The Service shall notify the Office of the
Immigration Judge having administrative control over the Record of
Proceeding of any change in custody location or of release from, or
subsequent taking into, Service custody of a respondent/applicant
pursuant to 8 CFR 3.19(g).
(28 FR 8280, Aug. 13, 1963, as amended at 39 FR 20367, June 10, 1974;
39 FR 20959, June 17, 1974; 40 FR 30470, July 21, 1975; 48 FR 31005,
July 6, 1983; 51 FR 34081, Sept. 25, 1986; 52 FR 2939, Jan. 29, 1987;
52 FR 16372, May 5, 1987; 53 FR 9283, Mar. 22, 1988; 55 FR 1579, Jan.
17, 1990; 55 FR 24859, June 19, 1990; 55 FR 43327, Oct. 29, 1990; 56
FR 18503, Apr. 23, 1991; 56 FR 23214, May 21, 1991; 57 FR 11573, Apr.
6, 1992; 57 FR 30898, July 13, 1992)
See footnotes at end of table.
08 CFR 242.3 Confined aliens, incompetents, and minors.
(a) Service. If the respondent is confined, or if he is an
incompetent, or a minor under the age of 14, the order to show cause,
and the warrant of arrest, if issued, shall be served in the manner
prescribed in 242.1(c) upon the person or persons named in 103.5a(c)
of this chapter.
(b) Service custody; cost of maintenance. An alien confined because
of physical or mental disability in an institution or hospital shall not
be accepted into physical custody by the Service until an order of
deportation has been entered and the Service is ready to deport the
alien. When such an alien is an inmate of a public or private
institution at the time of the commencement of the deportation
proceedings, expenses for the maintenance of the alien shall not be
incurred by the Government until he is taken into physical custody by
the Service.
(22 FR 9796, Dec. 6, 1957, as amended at 37 FR 11470, June 8, 1972;
43 FR 48620, Oct. 19, 1978)
08 CFR 242.4 Fingerprints and photographs.
Every alien 14 years of age or older against whom proceedings are
commenced under this part shall be fingerprinted. Any such alien,
regardless of his age, shall be photographed if a photograph is required
by the district director, acting district director, deputy district
director, or officer in charge authorized to issue an order to show
cause.
(28 FR 9504, Aug. 30, 1963)
08 CFR 242.5 Voluntary departure prior to commencement of hearing.
(a)(1) Authorized officers. The authority contained in section
242(b) of the act to permit aliens to depart voluntarily from the United
States may be exercised by district directors, district officers who are
in charge of investigations, officers in charge, chief patrol agents,
and service center directors, assistant district directors for
Examinations, Director, Organized Crime Drug Enforcement Task Force, or
Assistant Director, Organized Crime Drug Enforcement Task Force, (New
York, NY; Houston, TX; Los Angeles, CA; and Miami, FL).
(2) Authorization. Notwithstanding any other provision of this
section, an alien convicted on or after November 18, 1988, of an
aggravated felony as defined in section 101(a)(43) of the Act, shall not
be eligible for voluntary departure prior to commencement of hearing.
Voluntary departure may be granted to any alien who is statutorily
eligible: (i) Who is a native of a foreign contiguous territory and not
within the purview of class (vi) of this paragraph; or (ii) whose
application for extension of stay as a nonimmigrant is being denied; or
(iii) who has voluntarily surrendered himself to the Service; or (iv)
who presents a valid travel document and confirmed reservation for
transportation out of the United States within 30 days; or (v) who is
an F-1, F-2, J-1, or J-2 nonimmigrant and who has lost such status
solely because of a private bill introduced in his/her behalf; or (vi)
who is admissible to the United States as an immigrant and: (A) Who is
an immediate relative of a U.S. citizen, or (B) is otherwise exempt from
the numerical limitation on immigrant visa issuance, or (C) has a
priority date for an immigrant visa not more than 60 days later than the
date show in the latest Visa Office Bulletin and has applied for an
immigrant visa at an American Consulate which has accepted jurisdiction
over the case, or (D) who is a third-preference alien with a priority
date earlier than August 9, 1978, or (E) who is the beneficiary of an
approved sixth-preference petition who satisfies Examinations without
another petition that he/she can qualify for third preference and who
cannot obtain a visa solely because a visa number is unavailable, and
who has a priority date earlier than August 9, 1978; or (vii) who has
been granted asylum and has not been granted parole status or a stay of
deportation; or (viii) in whose case the district director has
determined there are compelling factors warranting grant of voluntary
departure.
(3) Periods of time. Except for classes (v), (vi), (vii), and (viii)
of paragraph (a)(2) of this section, any grant of voluntary departure
shall contain a time limitation of usually not more than 30 days, and an
extension of the original voluntary departure time shall not be
authorized except under meritorious circumstances. Upon failure to
depart, deportation proceedings will be pursued. Class (v) may be
granted voluntary departure in increments of 1 year conditioned upon the
F-1 or J-1 alien maintaining a full course of study at an approved
institution of learning, or upon abiding by the terms and conditions of
the exchange program within the limitations imposed by 22 CFR 514.23.
Classes (vi) (A), (B), and (C) may be granted voluntary departure until
the American consul is ready to issue an immigrant visa and, in the
discretion of the district director, may be in increments of 30 days,
conditioned upon continuing availability of an immigrant visa as shown
in the latest Visa Office Bulletin and upon the alien's diligent pursuit
of efforts to obtain the visa. Classes (vi) (D) and (E) may be granted
voluntary departure, conditioned upon the approved third- or
sixth-preference petition as appropriate, remaining valid as well as the
alien's retention of the status established in the petition, for an
indefinite period until an immigrant visa is available. Classes (vii)
and (viii) may be granted voluntary departure in increments of time, not
to exceed 1 year, as determined by the district director to be
appropriate in the case. Form I-94 issued to an alien granted voluntary
departure, who is within class (v), (vi), (vii), or (viii) of paragraph
(a)(2) of this section may be stamped with the legend ''Employment
Authorized'' if the alien seeks some indication from the Service that he
is entitled to be employed.
(b) Application. Any alien who believes himself or herself to be
eligible for voluntary departure under section 242(b) of the Act may
apply therefore at any office of the Service any time prior to the
commencement of deportation proceedings against him or her. The
officers designated in paragraph (a) of this section may deny or grant
the application and determine the conditions under which the alien's
departure shall be effected. An appeal shall not lie from a denial of
an application for voluntary departure under this section, but the
denial shall be without prejudice to the alien's right to apply for
relief from deportation under any provision of law.
(c) Revocation. If, subsequent to the granting of an application for
voluntary departure under this section, it is ascertained that the
application should not have been granted, that grant may be revoked
without notice by any district director, district officer in charge of
investigations, officer in charge, chief patrol agent, Director,
Organized Crime Drug Enforcement Task Force, or Assistant Director,
Organized Crime Drug Enforcement Task Force, (New York, NY; Houston,
TX; Los Angeles, CA; and Miami, FL).
(23 FR 9123, Nov. 26, 1958, as amended at 29 FR 13242, Sept. 24,
1964; 35 FR 16362, Oct. 20, 1970; 43 FR 29528, July 10, 1978; 45 FR
27917, Apr. 25, 1980; 46 FR 25598, May 8, 1981; 47 FR 49954, Nov. 4,
1982; 52 FR 2940, Jan. 29, 1987; 55 FR 12627, Apr. 5, 1990; 55 FR
24859, June 19, 1990; 56 FR 18503, Apr. 23, 1991)
08 CFR 242.6 Family Unity Program.
(a) General. Except as otherwise specifically provided in paragraph
(b) of this section, the definitions contained in the Immigration and
Nationality Act shall apply to the administration of this section.
(b) Definitions. As used in this section:
Eligible immigrant means a qualified immigrant who is the spouse or
unmarried child of a legalized alien.
Legalized alien means an alien who:
(1) Is a temporary or permanent resident under section 210 or 245A of
the Immigration and Nationality Act; or
(2) Is a permanent resident under section 202 of the Immigration
Reform and Control Act of 1986 (Cuban/Haitian Adjustment).
(c) Eligibility -- (1) General. An alien who is not a lawful
permanent resident is eligible to apply for benefits under the Family
Unity Program if he or she establishes:
(i) That he or she entered the United States on or before May 5,
1988, and has been residing in the United States since that date; and
(ii) That on May 5, 1988, he or she was the spouse or unmarried child
of a legalized alien, and that he or she has been eligible continuously
since that time for family-sponsored second preference immigrant status
under section 203(a)(2) of the Immigration and Nationality Act based on
the same relationship.
(2) Legalization application pending as of May 5, 1988. An alien
whose 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.
(d) 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 241(a)
of the Act, except paragraphs (1)(A), (1)(B), (1)(C)(i), (1)(D), and
(3); provided that an alien who is deportable under paragraph (1)(A) is
also ineligible for benefits under the Family Unity Program if
deportability is based upon an exclusion ground described in section
212(a), paragraphs (2)(A), (2)(B), (2)(C), (3)(A), (3)(B), (3)(C),
(3)(D) or (3)(E) of the Act;
(2) An alien who has been convicted of a felony or three or more
misdemeanors in the United States; or
(3) An alien described in section 243(h)(2) of the Immigration and
Nationality Act.
(e) Filing -- (1) General. An application for voluntary departure
under the Family Unit Program must be filed at the Service Center having
jurisdiction over the alien's place of residence, on Form I-817,
Application for Voluntary Departure under the Family Unity Program,
along with the fee required in 103.7 of this chapter and the initial
evidence required on the application form. A separate application must
be filed by each person claiming eligibility.
(2) Decision. Jurisdiction to decide an application for benefits
under the Family Unity Program lies exclusively with the Service Center
director. The director will provide the applicant with specific reasons
for any decision to deny an application. Denial of an application may
not be appealed. An applicant who believes that the grounds for denial
have been overcome may submit another application with the appropriate
fee and evidence.
(3) Referral of denied cases for consideration of issuance of Order
to Show Cause. 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 an Order to Show Cause
(OSC). The first case denied for an applicant will not be referred for
an OSC 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.
(4) Grant of voluntary departure. An alien whose application for
benefits under the Family Unity Program is granted will receive a
two-year period of voluntary departure. The two-year period will begin
on the date the Service grants the application.
(5) Employment authorization. An alien granted benefits under the
Family Unity Program is authorized to be employed in the United States
and may apply for an employment authorization document on Form I-765,
Application for Employment Authorization. The application must be filed
with the district director having jurisdiction over the alien's place of
residence. The application must be accompanied by the correct fee
required by 103.7 of this chapter. The alien must present Form I-797,
Notice of Action, reflecting the grant of voluntary departure under the
Family Unity Program, and a document issued by a legitimate agency of
the United States or a foreign government which reasonably establishes
the alien's identity, along with his or her application. The validity
period of the employment authorization will coincide with the period of
voluntary departure.
(6) 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 an alien
granted family unity benefits rests solely with the district director.
An alien who is granted advance authorization and returns to the United
States in accordance with such authorization, and who is found not to be
excludable on a ground of exclusion referred to in section 301(a)(1) of
the Immigration Act of 1990, shall be inspected and admitted in the same
immigration condition the alien had at the time of departure for the
remainder of the two-year period granted under the Family Unity Program.
(7) Extension of voluntary departure. An application for an
extension of voluntary departure under the Family Unity Program must be
filed by the alien on Form I-817, along with the fee required in 103.7
of this chapter and the initial evidence required on the application
form. An extension may be granted if the alien's eligibility for
benefits under the Family Unity Program continues. However, an
extension may not be approved if a petition for family-sponsored
immigrant status has not been filed on behalf of the applicant during
the initial period of voluntary departure under the Family Unity
Program. In such case the Service will notify the alien of the reason
for the denial and afford him or her the oportunity to file another Form
I-817 once the petition, Form I-130, has been filed in behalf of him or
her. No charging document will be issued for a period of 90 days.
(f) Effect on eligibility for benefits from financial assistance
programs furnished under federal law. An alien granted Family Unity
Program benefits based on a relationship to a legalized alien as defined
in paragraph (b)(1) of this section is ineligible for public welfare
assistance in the same manner and for the same period as the legalized
alien is ineligible for such assistance under sections 245A(h) or
210(f), respectively, of the Act.
(g) Termination. (1) Automatic termination. (Reserved)
(2) Termination after notice. After notice, the Service may
terminate benefits under the Family Unity Program when the necessity for
the termination comes to the attention of the Service. Such grounds
will exist in situations including, but not limited to, those in which:
(i) A determination is made that Family Unity Program benefits were
acquired as the result of fraud or willful misrepresentation of a
material fact;
(ii) The alien commits an act or acts which render him or her
inadmissible as an immigrant or ineligible for benefits under the Family
Unity Program;
(iii) The legalized alien upon whose status benefits under the Family
Unity Program were based loses his or her legalized status;
(iv) The alien is the subject of a final order of deportation issued
subsequent to the grant of benefits on any ground of deportability or
excludability that would have rendered the alien ineligible for benefits
under 242.6(d)(1) of this chapter, regardless of whether the facts
giving rise to such ground occurred before or after the benefits were
granted; or
(v) A qualifying relationship to a legalized alien no longer exists.
A person who qualified as the unmarried child of legalized alien on May
5, 1988 shall not be considered ineligible for benefits under the Family
Unity Program solely as a result of having reached the age of 21.
(3) Notice procedure. Notice of intent to terminate and of the
grounds thereof shall be sent pursuant to the provisions of 103 of this
chapter. The alien shall be given 30 days to respond to the notice and
may submit to the Service additional evidence in rebuttal. Any final
decision of termination shall also be sent pursuant to the provisions of
103 of this chapter. Upon termination, the case will be referred to
the district director with jurisdiction over the alien's place of
residence for consideration of whether to issue an Order to Show Cause.
(4) Effect of termination. Termination of benefits under the Family
Unity Program, other than as a result of a final order of deportation or
exclusion, shall render the alien amenable to exclusion or deportation
proceedings under sections 236 or 242 of the Act, as appropriate.
(57 FR 6461, Feb. 25, 1992)
08 CFR 242.7 Cancellation proceedings.
(a) Cancellation of an order to show cause. Any officer authorized
by 242.1(a) of this part to issue an order to show cause may cancel an
order to show cause prior to jurisdiction vesting with the Immigration
Judge pursuant to 3.14 of this chapter provided the officer is
satisfied that:
(1) The respondent is a national of the United States;
(2) The respondent is not deportable under immigration laws;
(3) The respondent is deceased;
(4) The respondent is not in the United States;
(5) The respondent was placed under proceedings for failure to file a
timely petition as required by section 216(c) of the Act, but his or her
failure to file a timely petition was excused in accordance with section
216(d)(2)(B) of the Act; or
(6) The Order to Show Cause was improvidently issued.
(b) Motion to dismiss. After commencement of proceedings pursuant to
3.14 of this chapter, any officer enumerated in paragraph (a) of this
section may move for dismissal of the matter on the grounds set out
under paragraph (a) of this section. Dismissal of the matter shall be
without prejudice to the alien or the Service.
(c) Motion for remand. After commencement of the hearing, any
officer enumerated in paragraph (a) of this section may move for remand
of the matter to district jurisdiction on the ground that the foreign
relations of the United States are involved and require further
consideration. Remand of the matter shall be without prejudice to the
alien or the Service.
(d) Warrant of arrest. When an order to show cause is cancelled or
proceedings are terminated under this section any outstanding warrant of
arrest is cancelled.
(e) Termination of deportation proceedings by immigration judge. An
immigration judge may terminate deportation proceedings to permit the
respondent to proceed to a final hearing on a pending application or
petition for naturalization when the respondent has established prima
facie eligibility for naturalization and the matter involves
exceptionally appealing or humanitarian factors; in every other case,
the deportation hearing shall be completed as promptly as possible
notwithstanding the pendency of an application for naturalization during
any state of the proceedings.
(47 FR 49954, Nov. 4, 1982; 47 FR 51351, Nov. 15, 1982, as amended
at 52 FR 2940, Jan. 29, 1987; 52 FR 3099, Jan. 30, 1987; 52 FR 5616,
Feb. 25, 1987; 53 FR 30022, Aug. 10, 1988)
08 CFR 242.7a Waiver of documents; returning residents.
Pursuant to the authority contained in section 211(b) of the Act, an
alien previously lawfully admitted to the United States for permanent
residence who, upon return from a temporary absence was excludable
because of failure to have or to present a valid passport, immigrant
visa, reentry permit, border crossing card, or other document required
at the time of entry, may be granted a waiver of such requirement in the
discretion of the district director: Provided, That such alien (a) was
not otherwise excludable at the time of entry, or (b) having been
otherwise excludable at the time of entry is with respect thereto
qualified for an exemption from deportability under section 241(a)(1)(H)
of the Act, and (c) is not otherwise subject to deportation. Denial of
a waiver by the district director shall not be appealable but shall be
without prejudice to renewal of an application and reconsideration in
proceedings before the immigration judge.
(29 FR 6002, May 7, 1964, as amended at 56 FR 38333, Aug. 13, 1991)
08 CFR 242.8 Immigration judges.
(a) Authority. In any proceeding conducted under this part the
immigration judge shall have the authority to determine deportability
and to make decisions, including orders of deportation, as provided by
section 242(b) and 242B of the Act; to reinstate orders of deportation
as provided by section 242(f) of the Act; to determine applications
under sections sections 208, 212(k), 241(a)(1)(E)(ii), 241(a)(1)(H),
244, 245 and 249 of the Act; to determine the country to which an
alien's deportation will be directed in accordance with section 243(a)
of the Act; to order temporary withholding of deportation pursuant to
section 243(h) of the Act; and to take any other action consistent with
applicable law and regulations as may be appropriate. An immigration
judge may certify his or her decision in any case to the Board of
Immigration Appeals when it involves an unusually complex or novel
question of law or fact. Nothing contained in this part shall be
construed to diminish the authority conferred on immigration judges
under section 103 of the Act.
(b) Withdrawal and substitution of special inquiry officers. The
special inquiry officer assigned to conduct the hearing shall at any
time withdraw if he deems himself disqualified. If a hearing has begun
but no evidence has been adduced other than by the respondent's pleading
pursuant to 242.16(b), or if a special inquiry officer becomes
unavailable to complete his duties within a reasonable time, or if at
any time the respondent consents to a substitution, another special
inquiry officer may be assigned to complete the case. The new special
inquiry officer shall familiarize himself with the record in the case
and shall state for the record that he has done so.
(22 FR 9797, Dec. 6, 1957, as amended at 47 FR 44237, Oct. 7, 1982;
56 FR 38333, Aug. 13, 1991; 57 FR 11574, Apr. 6, 1992)
08 CFR 242.9 Trial attorney.
(a) Authority. When an additional immigration officer is assigned to
a proceedings under this part to perform the duties of a trial attorney,
he shall present on behalf of the Government evidence material to the
issues of deportability and any other issues which may require
disposition by the special inquiry officer. The trial attorney is
authorized to appeal from a decision of the special inquiry officer
pursuant to 242.21 and to move for reopening or reconsideration
pursuant to 242.22.
(b) Assignment. The district director shall direct the chief legal
officer to assign a general attorney to each case within the provisions
of 242.16(c) of this part, and to each case in which an unrepresented
respondent is incompetent or under 16 years of age, and is not
accompanied by a guardian, relative or friend. A general attorney shall
be assigned to every case in which the Commissioner approves the
submission of nonrecord information under 242.17(a) of this part. In
his discretion, whenever he deems such assignment necessary or
advantageous, the district director may direct the chief legal officer
to assign a general attorney to any other case at any stage of the
proceeding.
(27 FR 9646, Sept. 29, 1962, as amended at 32 FR 9631, July 4, 1967;
46 FR 43956, Sept. 2, 1981)
08 CFR 242.10 Representation by counsel.
The respondent may be represented at the hearing by an attorney or
other representative qualified under part 292 of this chapter.
(22 FR 9797, Dec. 6, 1957)
08 CFR 242.11 Incompetent respondents.
When it is impracticable for the respondent to be present at the
hearing because of mental incompetency, the guardian, near relative, or
friend who was served with a copy of the order to show cause shall be
permitted to appear on behalf of the respondent. If such a person
cannot reasonably be found or fails or refuses to appear, the custodian
of the respondent shall be requested to appear on behalf of the
respondent.
(22 FR 9797, Dec. 6, 1957)
08 CFR 242.12 Interpreter.
Any person acting as interpreter in a hearing before an Immigration
Judge under this part shall be sworn to interpret and translate
accurately, unless the interpreter is an employee of the United States
Government, in which event no such oath shall be required.
(52 FR 2940, Jan. 29, 1987)
08 CFR 242.13 Postponement and adjournment of hearing.
After the commencement of the hearing, the Immigration Judge may
grant a reasonable adjournment either at his or her own instance or, for
good cause shown, upon application by the respondent or the Service.
(52 FR 2940, Jan. 29, 1987)
08 CFR 242.14 Evidence.
(a) Sufficiency. A determination of deportability shall not be valid
unless it is found by clear, unequivocal and convincing evidence that
the facts alleged as grounds for deportation are true.
(b) (Reserved)
(c) Use of prior statements. The special inquiry officer may receive
in evidence any oral or written statement which is material and relevant
to any issue in the case previously made by the respondent or any other
person during any investigation, examination, hearing, or trial.
(d) Testimony. Testimony of witnesses appearing at the hearing shall
be under oath or affirmation administered by the special inquiry
officer.
(e) Depositions. The Immigration Judge may order the taking of
depositions pursuant to 3.33 of this chapter.
(22 FR 9797, Dec. 6, 1957, as amended at 32 FR 2883, Feb. 15, 1967;
52 FR 2940, Jan. 29, 1987)
08 CFR 242.15 Contents of record.
The hearing before the special inquiry officer, including the
testimony, exhibits, applications and requests, the special inquiry
officer's decision, and all written orders, motions, appeals, briefs,
and other papers filed in the proceedings shall constitute the record in
the case. The hearing shall be recorded verbatim except for statements
made off the record with the permission of the special inquiry officer.
In his discretion, the special inquiry officer may exclude from the
record any arguments made in connection with motions, applications,
requests, or objections, but in such event the person affected may
submit a brief.
(26 FR 12112, Dec. 19, 1961)
08 CFR 242.16 Hearing.
(a) Opening. The Immigration Judge shall advise the respondent of
his right to representation, at no expense to the Government, by counsel
of his own choice authorized to practice in the proceedings and require
him to state then and there whether he desires representation; advise
the respondent of the availability of free legal services programs
qualified under part 292a of this chapter and organizations recognized
pursuant to 292.2 of this chapter, located in the district where the
deportation hearing is being held; ascertain that the respondent has
received a list of such programs, and a copy of Form I -- 618, Written
Notice of Appeal Rights; advise the respondent that he will have a
reasonable opportunity to examine and object to the evidence against
him, to present evidence in his own behalf and to cross-examine
witnesses presented by the Government; place the respondent under oath;
read the factual allegations and the charges in the order to show cause
to the respondent and explain them in nontechnical language, and enter
the order to show cause as an exhibit in the record. Deportation
hearings shall be open to the public, except that the Immigration Judge
may, in his discretion and for the purpose of protecting witnesses,
respondents, or the public interest, direct that the general public or
particular individuals shall be excluded from the hearing in any
specific case. Depending upon physical facilities, reasonable
limitation may be placed upon the number in attendance at any one time,
with priority being given to the press over the general public.
(b) Pleading by respondent. The special inquiry officer shall
require the respondent to plead to the order to show cause by stating
whether he admits or denies the factual allegations and his
deportability under the charges contained therein. If the respondent
admits the factual allegations and admits his deportability under the
charges and the special inquiry officer is satisfied that no issues of
law or fact remain, the special inquiry officer may determine that
deportability as charged has been established by the admissions of the
respondent. The special inquiry officer shall not accept an admission
of deportability from an unrepresented respondent who is incompetent or
under age 16 and is not accompanied by a guardian, relative, or friend;
nor from an officer of an institution in which a respondent is an inmate
or patient. When, pursuant to this paragraph, the special inquiry
officer may not accept an admission of deportability, he shall direct a
hearing on the issues.
(c) Issues of deportability. When deportability is not determined
under the provisions of paragraph (b) of this section, the special
inquiry officer shall request the assignment of a trial attorney, and
shall receive evidence as to any unresolved issues, except that no
further evidence need be received as to any facts admitted during the
pleading. The respondent shall provide a court certified copy of a
Judicial Recommendation Against Deportation to the special inquiry
officer when such recommendation will be the basis of denying any
charge(s) brought by the Service in the proceedings against the
respondent. No Judicial Recommendation Against Deportation is effective
against a charge of deportability under section 241(a)(11) of the Act or
if the Judicial Recommendation Against Deportation was granted on or
after November 29, 1990.
(d) Additional charges. The Service may at any time during a hearing
lodge additional charges of deportability, including factual
allegations, against the respondent. Copies of the additional factual
allegations and charges shall be submitted in writing for service on the
respondent and entry as an exhibit in the record. The Immigration Judge
shall read the additional factual allegations and charges to the
respondent and explain them to him or her. The special inquiry officer
shall advise the respondent if he is not represented by counsel that he
may be so represented and also that he may have a reasonable time within
which to meet the additional factual allegations and charges. The
respondent shall be required to state then and there whether he desires
a continuance for either of these reasons. Thereafter, the provisions
of paragraph (b) of this section shall apply to the additional factual
allegations and lodged charges.
(27 FR 9646, Sept. 29, 1962, as amended at 29 FR 13243, Sept. 24,
1964; 32 FR 9632, July 4, 1967; 44 FR 4654, Jan. 23, 1979; 52 FR
2940, Jan. 29, 1987; 56 FR 8907, Mar. 4, 1991)
08 CFR 242.17 Ancillary matters, applications.
(a) Creation of the status of an alien lawfully admitted for
permanent residence. The respondent may apply to the immigration judge
for suspension of deportation under section 244(a) of the Act; for
adjustment of status under section 245 of the Act, or under section 1 of
the Act of November 2, 1966, or under section 101 or 104 of the Act of
October 28, 1977; or for the creation of a record of lawful admission
for permanent residence under section 249 of the Act. The application
shall be subject to the requirements of parts 244, 245 and 249 of this
chapter. The approval of any application made to the immigration judge
under section 245 of the Act by an alien spouse (as defined in section
216(g)(1) of the Act), shall result in the alien's obtaining the status
of lawful permanent resident on a conditional basis in accordance with
the provisions of section 216 of the Act. However, the Joint Petition
to Remove the Conditional Basis of Alien's Permanent Resident Status
required by section 216(c) of the Act shall be made to the director in
accordance with part 216 of this chapter. In conjunction with any
application for creation of status of an alien lawfully admitted for
permanent residence made to an immigration judge, if the respondent is
inadmissible under any provision of section 212(a) of the Act and
believes he meets the eligibility requirements for a waiver of the
ground of inadmissibility, he may apply to the immigration judge for
such waiver. The immigration judge shall inform the respondent of his
or her apparent eligibility to apply for any of the benefits enumerated
in this paragraph and shall afford the respondent an opportunity to make
application therefor during the hearing. In exercising discretionary
power when considering an application under this paragraph, the
immigration judge may consider and base the decision on information not
contained in the record and not made available for inspection by the
respondent, provided the Commissioner has determined that such
information is relevant and is classified under Executive Order No.
12356 (47 FR 14874, April 6, 1982) as requiring protection from
unauthorized disclosure in the interest of national security. Whenever
the immigration judge believes he or she can do so consistently with
safeguarding both the information and its source, the immigration judge
should inform the respondent of the general nature of the information in
order that the respondent may have an opportunity to offer opposing
evidence. A decision based in whole or in part on such classified
information shall state that the information is material to the
decision.
(b) Voluntary departure. The respondent may apply to the special
inquiry officer for voluntary departure in lieu of deportation pursuant
to section 244(e) of the Act and part 244 of this chapter.
(c) Applications for asylum or withholding of deportation. (1) The
Immigration Judge shall notify the respondent that if he is finally
ordered deported his deportation will in the first instance be directed
pursuant to section 243(a) of the Act to the country designated by the
respondent and shall afford him an opportunity then and there to make
such designation. The Immigration Judge shall then specify and state
for the record the country, or countries in the alternative, to which
respondent's deportation will be directed pursuant to section 243(a) of
the Act if the country of his designation will not accept him into its
territory, or fails to furnish timely notice of acceptance, or if the
respondent declines to designate a country.
(2) If the alien expresses fear of persecution or harm upon return to
any of the countries to which he might be deported pursuant to paragraph
(c)(1) of this section, the Immigration Judge shall:
(i) Advise the alien that he may apply for asylum in the United
States or withholding of deportation to those countries; and
(ii) Make available the appropriate application forms.
(3) An application for asylum or withholding of deportation must be
filed with the Office of the Immigration Judge, pursuant to 208.4(b) of
this chapter. Upon receipt of the application, the Office of the
Immigration Judge shall forward a copy to the Bureau of Human Rights and
Humanitarian Affairs of the Department of State for their comments
pursuant to 208.11 of this chapter, and shall calendar the case for
hearing, which shall be deferred pending receipt of the Department of
State's comments. The reply, if any, of the Department of State, unless
classified under E.O. 12356 (3 CFR, 1982 Comp., p. 166), shall be given
to both the applicant and to the Trial Attorney representing the
government.
(4) Applications for asylum or withholding of deportation so filed
will be decided by the Immigration Judge pursuant to the requirements
and standards established in part 208 of this chapter after an
evidentiary hearing that is necessary to resolve factual issues in
dispute. An evidentiary hearing extending beyond issues related to the
basis for a mandatory denial of the application pursuant to 8 CFR 208.14
or 208.16 is not necessary once the Immigration Judge has determined
that such a denial is required.
(i) Evidentiary hearings on applications for asylum or withholding of
deportation will be open to the public unless the applicant expressly
requests that it be closed.
(ii) Nothing in this section is intended to limit the authority of
the Immigration Judge properly to control the scope of any evidentiary
hearing.
(iii) During the deportation hearing, the applicant shall be examined
under oath on his application and may present evidence and witnesses in
his own behalf. The applicant has the burden of establishing that he is
a refugee as defined in section 101(a)(42) of the Act pursuant to the
standard set forth in 208.13 of this chapter.
(iv) The Trial Attorney for the government may call witnesses and
present evidence for the record, including information classified under
E.O. 12356 (3 CFR, 1982 Comp., p. 166), provided the Immigration Judge
or the Board has determined that such information is relevant to the
hearing. When the Immigration Judge receives such classified
information he shall inform the applicant. The agency that provides the
classified information to the Immigration Judge may provide an
unclassified summary of the information for release to the applicant,
whenever it determines it can do so consistently with safeguarding both
the classified nature of the information and its source. The summary
should be as detailed as possible, in order that the applicant may have
an opportunity to offer opposing evidence. A decision based in whole or
in part on such classified information shall state whether such
information is material to the decision.
(5) The decision of an Immigration Judge to grant or deny asylum or
withholding of deportation shall be communicated to the applicant and to
the Trial Attorney for the government. An adverse decision will state
why asylum or withholding of deportation was denied.
(d) Application for relief under sections 241(a)(1)(H) and
241(a)(1)(E)(ii). The respondent may apply to the immigration judge for
relief from deportation under sections 241(a)(1)(H) and 241(a)(1)(E)(ii)
of the Act.
(e) General. An application under this section shall be made only
during the hearing and shall not be held to constitute a concession of
alienage or deportability in any case in which the respondent does not
admit his alienage or deportability. The respondent shall have the
burden of establishing that he is eligible for any requested benefit or
privilege and that it should be granted in the exercise of discretion.
The respondent shall not be required to pay a fee on more than one
application within paragraphs (a) and (c) of this section, provided that
the minimum fee imposed when more than one application is made shall be
determined by the cost of the application with the highest fee. Nothing
contained herein is intended to foreclose the respondent from applying
for any benefit or privilege which he believes himself eligible to
receive in proceedings under this part.
(26 FR 12112, Dec. 19, 1961, as amended at 34 FR 13921, Aug. 30,
1969; 39 FR 25642, July 12, 1974; 39 FR 43055, Dec. 10, 1974; 43 FR
18644, May 2, 1978; 45 FR 41393, June 19, 1980; 47 FR 12133, Mar. 22,
1982; 47 FR 44237, Oct. 7, 1982; 47 FR 44990, Oct. 13, 1982; 53 FR
30022, Aug. 10, 1988; 55 FR 30687, July 27, 1990; 56 FR 38333, Aug.
13, 1991)
08 CFR 242.18 Decision of special inquiry officer.
(a) Contents. The decision of the special inquiry officer may be
oral or written. Except when deportability is determined on the
pleadings pursuant to 242.16(b), the decision of the special inquiry
officer shall include a discussion of the evidence and findings as to
deportability. The formal enumeration of findings is not required. The
decision shall also contain a discussion of the evidence pertinent to
any application made by the respondent under 242.17 and the reasons for
granting or denying the request. The decision shall be concluded with
the order of the special inquiry officer.
(b) Summary decision. Notwithstanding the provisions of paragraph
(a) of this section, in any case where deportability is determined on
the pleadings pursuant to 242.16(b) and the respondent does not make an
application under 242.17, or the respondent applies for voluntary
departure only and the special inquiry officer grants the application,
the special inquiry officer may enter a summary decision on Form I-38,
if deportation is ordered, or on Form I-39, if voluntary departure is
granted with an alternate order of deportation.
(c) Order of the special inquiry officer. The order of the special
inquiry officer shall direct the respondent's deportation, or the
termination of the proceedings, or such other disposition of the case as
may be appropriate. When deportation is ordered, the special inquiry
officer shall specify the country, or countries in the alternate, to
which respondent's deportation shall be directed. The special inquiry
officer is authorized to issue orders in the alternative or in
combination as he may deem necessary.
(26 FR 12112, Dec. 19, 1961)
08 CFR 242.19 Notice of decision.
(a) Written decision. A written decision shall be served upon the
respondent and the trial attorney, together with the notice referred to
in 3.3 of this chapter. Service by mail is complete upon mailing.
(b) Oral decision. An oral decision shall be stated by the special
inquiry officer in the presence of the respondent and the trail
attorney, if any, at the conclusion of the hearing. Unless appeal from
the decision is waived, the respondent shall be furnished with Notice of
Appeal, Form I-290A, and advised of the provisions of 242.21. A
typewritten copy of the oral decision shall be furnished at the request
of the respondent or the trial attorney.
(c) Summary decision. When the special inquiry officer renders a
summary decision as provided in 242.18(b), he shall serve a copy
thereof upon the respondent at the conclusion of the hearing. Unless
appeal from the decision is waived, the respondent shall be furnished
with Notice of Appeal, Form I-290A, and advised of the provisions of
242.21.
(26 FR 12212, Dec. 19, 1961, as amended at 27 FR 9647, Sept. 29,
1962)
08 CFR 242.20 Finality of order.
The decision of the Immigration Judge shall become final in
accordance with 3.37 of this chapter.
(52 FR 2941, Jan. 29, 1987)
08 CFR 242.21 Appeals.
(a) Pursuant to part 3 of this chapter an appeal shall lie from a
decision of a special inquiry officer under this part to the Board of
Immigration Appeals. An appeal shall be taken within 10 days after the
mailing of a written decision, or the stating of an oral decision, or
the service of a summary decision on Form I-38 or Form I-39. The
reasons for the appeal shall be stated briefly in the Notice of Appeal,
Form I-290A; failure to do so may constitute a ground for dismissal of
the appeal by the Board. When service of the decision is made by mail,
as authorized by this section, 3 days shall be added to the period
prescribed for the taking of an appeal.
(b) Prohibited appeals; legalization or applications. An alien
respondent defined in 245a.2(c) (6) or (7) of this chapter who fails to
file an application for adjustment of status to that of a temporary
resident within the prescribed period(s), and who is thereafter found to
be deportable by decision of an immigration judge, shall not be
permitted to appeal the finding of deportability based solely on refusal
by the immigration judge to entertain such an application in deportation
proceedings.
(29 FR 7236, June 3, 1964, as amended at 52 FR 16194, May 1, 1987;
53 FR 10064, Mar. 29, 1988; 54 FR 29439, July 12, 1989)
08 CFR 242.22 Reopening or reconsideration.
Except as otherwise provided in this section, a motion to reopen or
reconsider shall be subject to the requirements of 103.5 of this
chapter. The immigration judge may upon his/her own motion, or upon
motion of the trial attorney or the respondent, reopen or reconsider any
case in which he/she had made a decision, unless jurisdiction in the
case is vested in the Board of Immigration Appeals under part 3 of this
chapter. An order by the immigration judge granting a motion to reopen
may be made on Form I-328. A motion to reopen will not be granted
unless the immigration judge is satisfied that evidence sought to be
offered is material and was not available and could not have been
discovered or presented at the hearing; nor will any motion to reopen
for the purpose of providing the respondent with an opportunity to make
an application under 242.17 be granted if respondent's rights to make
such application were fully explained to him/her by the immigration
judge and he/she was afforded an opportunity to do so at the hearing,
unless circumstances have arisen thereafter on the basis of which the
request is being made. The filing of a motion under this section with
an immigration judge shall not serve to stay the execution of an
outstanding decision; execution shall proceed unless the immigration
judge who has jurisdiction over the motion specifically grants a stay of
deportation. The immigration judge may stay deportation pending his/her
determination of the motion and also pending the taking and disposition
of an appeal from such determination.
(52 FR 26470, July 15, 1987)
08 CFR 242.23 Proceedings under section 242(f) of the Act.
(a) Order to show cause. In the case of an alien within the
provisions of section 242(f) of the Act, the order to show cause shall
charge him with deportability under section 242(f) of the Act. The
prior order of deportation and evidence of the execution thereof,
properly identified, shall constitute prima facie cause for
deportability under this section.
(b) Applicable procedure. Except as otherwise provided in this
section, proceedings under section 242(f) of the Act shall be conducted
in general accordance with the rules prescribed in this part.
(c) Deportability. In determining the deportability of an alien
alleged to be within the purview of paragraph (a) of this section, the
issues shall be limited solely to a determination of the identity of the
respondent, i.e., whether the respondent is in fact an alien who was
previously deported, or who departed while an order of deportation was
outstanding; whether the respondent was previously deported as a member
of any of the classes described in paragraph (2), (3) or (4) of section
241(a) of the Act; and whether respondent has unlawfully reentered the
United States.
(d) Order. If deportability as charged in the order to show cause is
established, the Immigration Judge shall order that the respondent be
deported under the previous order of deportation in accordance with
section 242(f) of the Act.
(e) Trial attorney; additional charges. When a trial attorney is
assigned to a proceeding under this section and additional charges are
lodged against the respondent, the provisions of paragraphs (c) and (d)
of this section shall cease to apply.
(26 FR 12282, Dec. 28, 1961, as amended at 27 FR 9647, Sept. 29,
1962; 30 FR 2021, Feb. 13, 1965; 56 FR 38333, Aug. 13, 1991)
08 CFR 242.24 Detention and release of juveniles.
(a) Juveniles. A juvenile is defined as an alien under the age of
eighteen (18) years.
(b) Release. Juveniles for whom bond has been posted, for whom
parole has been authorized, or who have been ordered released on
recognizance, shall be released pursuant to the following guidelines:
(1) Juveniles shall be released, in order of preference, to: (i) A
parent; (ii) legal guardian; or (iii) adult relative (brother, sister,
aunt, uncle, grandparent) who are not presently in INS detention, unless
a determination is made that the detention of such juvenile is required
to secure his timely appearance before the Service or the immigration
court or to ensure the juvenile's safety or that of others.
In cases where the parent, legal guardian or adult relative resides
at a location distant from where the juvenile is detained, he or she may
secure release at an INS office located near the parent, legal guardian,
or adult relative.
(2) If an individual specified in paragraph (b)(1) of this section
cannot be located to accept custody of a juvenile, and the juvenile has
identified a parent, legal guardian, or adult relative in INS detention,
simultaneous release of the juvenile and the parent, legal guardian, or
adult relative shall be evaluated on a discretionary case-by-case basis.
(3) In cases where the parent or legal guardian is in INS detention
or outside the United States, the juvenile may be released to such
person as designated by the parent or legal guardian in a sworn
affidavit, executed before an immigration officer or consular officer,
as capable and willing to care for the juvenile's well-being. Such
person must execute an agreement to care for the juvenile and to ensure
the juvenile's presence at all future proceedings before the Service or
an immigration judge.
(4) In unusual and compelling circumstances and in the discretion of
the district director or chief patrol agent, a juvenile may be released
to an adult, other than those identified in paragraph (b)(1) of this
section, who executes an agreement to care for the juvenile's well-being
and to ensure the juvenile's presence at all future proceedings before
the INS or an immigration judge.
(c) Juvenile Coordinator. The case of a juvenile for whom detention
is determined to be necessary should be referred to the Juvenile
Coordinator, whose responsibilities should include, but not be limited
to, finding suitable placement of the juvenile in a facility designated
for the occupancy of juveniles. These may include juvenile facilities
contracted by the INS, state or local juvenile facilities, or other
appropriate agencies authorized to accommodate juveniles by the laws of
the state or locality.
(d) Detention. In the case of a juvenile for whom detention is
determined to be necessary, for such interim period of time as is
required to locate suitable placement for the juvenile, whether such
placement is under paragraph (b) or (c) of this section, the juvenile
may be temporarily held by INS authorities or placed in any INS
detention facility having separate accommodations for juveniles.
(e) Refusal of release. If a parent of a juvenile detained by the
INS can be located, and is otherwise suitable to receive custody of the
juvenile, and the juvenile indicates a refusal to be released to his/her
parent, the parent(s) shall be notified of the juvenile's refusal to be
released to the parent(s), and shall be afforded an opportunity to
present their views to the district director, chief patrol agent or
immigration judge before a custody determination is made.
(f) Notice to parent of application for relief. If a juvenile seeks
release from detention, voluntary departure, parole, or any form of
relief from deportation, where it appears that the grant of such relief
may effectively terminate some interest inherent in the parent-child
relationship and/or the juvenile's rights and interests are adverse with
those of the parent, and the parent is presently residing in the United
States, the parent shall be given notice of the juvenile's application
for relief, and shall be afforded an opportunity to present his or her
views and assert his or her interest to the district director or
immigration judge before a determination is made as to the merits of the
request for relief.
(g) Voluntary departure. Each juvenile apprehended in the immediate
vicinity of the border who resides permanently in Mexico or Canada,
shall be informed, prior to presentation of the voluntary departure
form, that he or she may make a telephone call to a parent, close
relative, a friend, or to an organization found on the free legal
services list. Each other juvenile apprehended shall be provided access
to a telephone and must in fact communicate with either a parent, adult
relative, friend, or with an organization found on the free legal
services list prior to presentation of the voluntary departure form. If
the juvenile, of his or her own volition, asks to contact a consular
officer, and does in fact make such contact the requirements of this
section are satisfied.
(h) Notice and Request for Disposition. When a juvenile alien is
apprehended, he or she must be given a Notice and Request for
Disposition. If the juvenile is under fourteen years of age or unable
to understand the notice, the notice shall be read and explained to the
juvenile in a language the juvenile understands. In the event a
juvenile who has requested a hearing pursuant to the Notice subsequently
decides to accept voluntary departure, a new Notice and Request for
Disposition shall be given to, and signed by the juvenile.
(53 FR 17450, May 17, 1988)
08 CFR 242.24 PART 243 -- DEPORTATION OF ALIENS IN THE UNITED STATES
Sec.
243.1 Final order of deportation.
243.2 Warrant of deportation.
243.3 Expulsion.
243.4 Stay of deportation.
243.5 Self-deportation.
243.6 Notice to transportation line.
243.7 Special care and attention for aliens.
243.8 Imposition of sanctions.
Authority: 8 U.S.C. 1103, 1253.
Source: 26 FR 12113, Dec. 19, 1961, unless otherwise noted.
08 CFR 243.1 Final order of deportation.
Except as otherwise required by section 242(c) of the Act for the
specific purposes of that section, an order of deportation, including an
alternate order of deportation coupled with an order of voluntary
departure, made by the special inquiry officer in proceedings under part
242 of this chapter shall become final upon dismissal of an appeal by
the Board of Immigration Appeals, upon waiver of appeal, or upon
expiration of the time allotted for an appeal when no appeal is taken;
or, if such an order is issued by the Board or approved by the Board
upon certification, it shall be final as of the date of the Board's
decision.
08 CFR 243.2 Warrant of deportation.
A Form I-205, Warrant of deportation, based upon the final
administrative order of deportation in the alien's case shall be issued
by a district director. The district director shall exercise the
authority contained in section 243 of the Act to determine at whose
expense the alien shall be deported and whether his/her mental or
physical condition requires personal care and attention en route to
his/her destination.
(54 FR 39337, Sept. 26, 1989)
08 CFR 243.3 Expulsion.
(a) Execution of Order. Except in the exercise of discretion by the
district director, and for such reasons as are set forth in 212.5(a) of
this chapter, once an order of deportation becomes final, an alien shall
be taken into custody and the order shall be executed. For the purposes
of this part, an order of deportation is final and subject to execution
upon the date when any of the following occurs:
(1) A grant of voluntary departure expires;
(2) An immigration judge enters an order of deportation without
granting voluntary departure or other relief, and the alien respondent
waives his or her right to appeal;
(3) The Board of Immigration Appeals enters an order of deportation
on appeal, without granting voluntary departure or other relief; or
(4) A federal district or appellate court affirms an administrative
order of deportation in a petition for review or habeas corpus action.
(b) Service of decision. In the case of an order entered by any of
the authorities enumerated above, the order shall be executed no sooner
than 72 hours after service of the decision, regardless of whether the
alien is in Service custody, provided that such period may be waived on
the knowing and voluntary request of the alien. Nothing in this
paragraph shall be construed, however, to preclude assumption of custody
by the Service at the time of issuance of the final order.
(51 FR 23042, June 25, 1986)
08 CFR 243.4 Stay of deportation.
Any request of an alien under a final administrative order of
deportation for a stay of deportation, except a request for withholding
of deportation pursuant to section 243(h) of the Act, shall be filed on
Form I-246 with the district director having jurisdiction over the place
where the alien is at the time of filing. The district director, in his
discretion, may grant a stay of deportation for such time and under such
conditions as he may deem appropriate. Written notice of the
disposition of the alien's request shall be served upon him and any
notice of denial shall include specific reasons therefor; however,
neither the making of the request nor the failure to receive notice of
disposition of the request shall relieve the alien from strict
compliance with any outstanding notice to surrender for deportation.
Denial by the district director of a request for a stay is not
appealable but such denial shall not preclude the Board from granting a
stay in connection with a motion to reopen or a motion to reconsider as
provided in part 3 of this chapter, nor such denial preclude the special
inquiry officer, in his discretion, from granting a stay in connection
with, and pending his determination of, a motion to reopen or a motion
to reconsider a case falling within his jurisdiction pursuant to 242.22
of this chapter, and also pending an appeal from such determination.
(40 FR 50702, Oct. 31, 1975)
08 CFR 243.5 Self-deportation.
A district director may permit an alien ordered deported to depart at
his own expense to a destination of his own choice. Any alien who has
departed from the United States while an order of deportation is
outstanding shall be considered to have been deported in pursuance of
law, except that an alien who departed before the expiration of the
voluntary departure time granted in connection with an alternate order
of deportation shall not be considered to have been so deported.
(29 FR 6485, May 19, 1964)
08 CFR 243.6 Notice to transportation line.
When a transportation line is responsible for the expenses of an
alien's deportation, notification shall be made to such line on Form
I-284, when applicable, and Form I-288. If special care and attention
is required, notification to this effect shall be placed on Form I-288.
08 CFR 243.7 Special care and attention for aliens.
When a transportation line is responsible for the expenses of an
alien's deportation, the alien shall be delivered to the master,
commanding officer, or the officer in charge of the vessel or aircraft
on which the alien will be deported, who shall be given Forms I-287,
I-287A, and I-287B. The reverse of Form I-287A shall be signed by the
officer of the vessel or aircraft to whom the alien has been delivered
and immediately returned to the immigration officer effecting delivery.
Form I-287B shall be retained by the receiving officer and subsequently
filled out by the agents or persons therein designated and returned by
mail to the district director named on the form. The transportation
line shall at its own expense forward the alien from the foreign port of
disembarkation to the final destination specified on Form I-287. The
special care and attention shall be continued to such final destination,
except when the foreign public officers decline to allow such attendant
to proceed and themselves take charge of the alien, in which case this
fact shall be recorded by the transportation line on the reverse of Form
I-287B. If the transportation line fails, refuses, or neglects to
provide the necessary special care and attention or comply with the
directions of Form I-287, the district director shall thereafter and
without notice employ suitable persons, at the expense of the
transportation line, and effect such deportation.
08 CFR 243.8 Imposition of sanctions.
The provisions of section 243(g) of the Act have been applied to
residents of the Union of Soviet Socialist Republics (USSR),
Czechoslovakia, and Cuba. These provisions do not apply to an alien who
is residing in Estonia, Latvia, or Lithuania who is not a national,
citizen, or subject of the Union of Soviet Socialist Republics. These
provisons also do not apply to an alien who is residing in Cuba and can
be classified as an immediate relative as defined in section 201(b) or a
returning resident as defined in section 101(a)(27)(A). The sanctions
imposed on residents of the Union of Soviet Socialist Republics,
Czechoslovakia pursuant to section 243(g) may be waived in an individual
case for the beneficiary of a petition accorded a status under section
201(b) or section 203(a) of the Act. The sanctions upon the USSR,
Czechoslovakia may be waived upon an individual request by the
Department of State in behalf of a visa applicant. Upon approval of a
visa petition or upon an individual request by the Department of State
in behalf of a visa applicant, the district director shall determine
whether sanctions shall be waived. However, the regional commissioner
or the Deputy Commissioner, may direct that any case or class of cases
be referred to him or her for any such determination. The consular
officer shall be notified of any determination made with respect to the
waiver of sanctions if a visa petition is approved. If the sanctions
are not waived, the notice informing the petitoner that the petition has
been approved shall also notfiy him or her that the sanctions imposed by
section 243(g) of the Act have not been waived.
(48 FR 39034, Aug. 29, 1983, as amended at 56 FR 48730, Sept. 26,
1991)
08 CFR 243.8 PART 244 -- SUSPENSION OF DEPORTATION AND VOLUNTARY
DEPARTURE
Sec.
244.1 Application.
244.2 Extension of time to depart.
Authority: 8 U.S.C. 1103, 1252, 1254; 8 CFR part 2.
08 CFR 244.1 Application.
Notwithstanding any other provision of this chapter, an alien who is
deportable because of a conviction on or after November 18, 1988, for an
aggravated felony as defined in section 101(a)(43) of the Act, shall not
be eligible for voluntary departure as prescribed in part 242 of this
chapter and section 244 of the Act. Pursuant to part 242 of this
chapter and section 244 of the Act an immigration judge may authorize
the suspension of an alien's deportation; or, if the alien establishes
that he/she is willing and has the immediate means with which to depart
promptly from the United States, an immigration judge may authorize the
alien to depart voluntarily from the United States in lieu of
deportation within such time as may be specified by the immigration
judge when first authorizing voluntary departure, and under such
conditions as the district director shall direct. An application for
suspension of deportation shall be made on Form I-256A.
(46 FR 25598, May 8, 1981, as amended at 55 FR 24859, June 19, 1990)
08 CFR 244.2 Extension of time to depart.
Authority to reinstate or extend the time within which to depart
voluntarily specified initially by an immigration judge or the Board is
within the sole jurisdiction of the district director, except that an
immigration judge or the Board may reinstate voluntary departure in a
deportation proceeding that has been reopened for a purpose other than
solely making an application for voluntary departure. A request by an
alien for reinstatement or an extension of time within which to depart
voluntarily shall be filed with the district director having
jurisdiction over the alien's place of residence. Written notice of the
district director's decision shall be served upon the alien and no
appeal may be taken therefrom.
(52 FR 24982, July 2, 1987)
08 CFR 244.2 PART 245 -- ADJUSTMENT OF STATUS TO THAT OF PERSON
ADMITTED FOR PERMANENT RESIDENCE
Sec.
245.1 Eligibility.
245.2 Application.
245.3 Adjustment of status under section 13 of the Act of September
11, 1957, as amended.
245.4 Documentary requirements.
245.5 Medical examination.
245.6 Interview.
245.7 Adjustment of status of certain Soviet and Indochinese parolees
under the Foreign Operations Appropriations Act for Fiscal Year 1990
(Pub. L. 101-167).
245.8 Adjustment of status as a special immigrant under section
101(a)(27)(K) of the Act.
Authority: 8 U.S.C. 1101, 1103, 1182, 1255, and 8 CFR part 2.
08 CFR 245.1 Eligibility.
(a) General. Any alien who was inspected and admitted or paroled
into the United States, except an alien who is ineligible to apply for
adjustment of status as noted in paragraph (b) of this section, may
apply for adjustment of status to permanent resident if the applicant is
eligible to receive an immigrant visa and an immigrant visa is
immediately available at the time of filing of the application.
(b) Ineligible aliens. The following categories of aliens are
ineligible to apply for adjustment of status to that of a lawful
permanent resident alien under section 245 of the Act:
(1) Any alien who entered the United States in transit without a
visa;
(2) Any alien who, on arrival in the United States, was serving in
any capacity on board a vessel or aircraft or was destined to join a
vessel or aircraft in the United States to serve in any capacity
thereon;
(3) Any alien who was not admitted or paroled following inspection by
an immigration officer;
(4) Any alien who, on or after January 1, 1977, was employed in the
United States without authorization prior to filing an application for
adjustment of status. This restriction shall not apply to an alien who
is:
(i) An immediate relative as defined in section 201(b) of the Act;
(ii) A special immigrant as defined in section 101(a)(27)(H) of the
Act;
(iii) Eligible for the benefits of Public Law 101-238 (the
Immigration Nursing Relief Act of 1989) and files an application for
adjustment of status on or before October 17, 1991; or
(iv) Eligible for the benefits of Public Law 101-238 (the Immigration
Nursing Relief Act of 1989), and has not entered into or continued in
unauthorized employment on or after November 29, 1990.
(5) Any alien who on or after November 6, 1986 is not in lawful
immigration status on the date of filing his or her application for
adjustment of status, except an applicant who is an immediate relative
as defined in section 201(b) or a special immigrant as defined in
section 101(a)(27) (H) or (I);
(6) Any alien who files an application for adjustment of status on or
after November 6, 1986, who has failed (other than through no fault of
his or her own or for technical reasons) to maintain continuously a
lawful status since entry into the United States, except an applicant
who is an immediate relative as defined in section 201(b) of the Act or
a special immigrant as defined in section 101(a)(27) (H) or (I) of the
Act;
(7) Any nonpreference alien who is seeking or engaging in gainful
employment in the United States who is not the beneficiary of a valid
individual or blanket labor certification issued by the Secretary of
Labor or who is not exempt from certification requirements under
212.8(b) of this chapter;
(8) Except for an alien who is applying for residence under the
provisions of section 133 of the Immigration Act of 1990, any alien who
has or had the status of an exchange visitor under section 101(a)(15)(J)
of the Act and who is subject to the foreign residence requirement of
section 212(e) of the Act, unless the alien has complied with the
foreign residence requirement or has been granted a waiver of that
requirement, under that section;
(9) Any alien who has nonimmigrant status under paragraph (15)(A),
(15)(E), or (15)(G) of section 101(a) of the Act, or has an occupational
status which would, if the alien were seeking admission to the United
States, entitle the alien to nonimmigrant status under those paragraphs,
unless the alien first executes and submits the written waiver required
by section 247(b) of the Act and part 247 of this chapter; and
(10) Any alien who claims immediate relative status under section
201(b) or preference status under sections 203(a) or 203(b) of the Act,
unless the applicant is the beneficiary of a valid unexpired visa
petition filed in accordance with part 204 of this chapter.
(11) Any alien admitted as a visitor under the visa waiver provisions
of 212.1(e) of this chapter.
(12) Any alien who is already an alien lawfully admitted to the
United States for permanent residence on a conditional basis pursuant to
section 216 or 216A of the Act, regardless of any other quota or
non-quota immigrant visa classification for which the alien may
otherwise be eligible.
(13) Any alien admitted to the United States as a nonimmigrant fiance
as defined in section 101(a)(15)(K) of the Act, unless the alien is
applying for adjustment of status based upon a marriage which was
contracted within 90 days of entry with the United States citizen who
filed a petition on behalf of the alien pursuant to 214.2(k) of this
chapter.
(14) Any alien who seeks to adjust status based upon a marriage which
occurred on or after November 10, 1986, and while the alien was in
deportation or exclusion proceedings, or judicial proceedings relating
thereto.
(i) Commencement of proceedings. The period during which the alien
is in deportation or exclusion proceedings, or judicial proceedings
relating thereto commences:
(A) With the issuance of the Order to Show Case and Notice of Hearing
(Form I-221) prior to June 20, 1991;
(B) With the filing of the Order to Show Cause and Notice of Hearing
(Form I-221) issued on or after June 20, 1991 with the Office of the
Immigration Judge; or
(C) With the issuance of the Notice to Applicant for Admission
Detained for Hearing before Immigration Judge (Form I-122).
(ii) Termination of Proceedings. The period during which the alien
is in deportation or exclusion proceedings, or judicial proceedings
relating thereto terminates:
(A) When the alien departs from the United States while an order of
deportation is outstanding or before the expiration of the voluntary
departure time granted in connection with an alternate order of
deportation under 8 CFR 243.5;
(B) When the alien departs from the United States pursuant to an
order of exclusion;
(C) When the alien is found not to be excludable or deportable from
the United States;
(D) When the Order to Show Cause is canceled pursuant to 8 CFR
242.7(a);
(E) When the proceedings are terminated by the immigration judge or
the Board of Immigration Appeals; or
(F) When a petition for review or an action for habeas corpus is
granted by a Federal Court on judicial review.
(iii) Exemptions. This prohibition shall no longer apply if:
(A) The alien is found not to be excludable or deportable from the
United States;
(B) The Order to Show Cause is canceled pursuant to 8 CFR 242.7(a);
(C) Proceedings are terminated by the immigration judge or Board of
Immigration Appeals;
(D) A petition for review or an action for habeas corpus is granted
by a Federal Court on judicial review;
(E) The alien has resided outside the United States for two or more
years following the marriage; or
(F) The alien establishes that the marriage is bona fide by providing
clear and convincing evidence that the marriage was entered into in good
faith and in accordance with the laws of the place where the marriage
took place, was not entered into for the purpose of procuring the
alien's entry as an immigrant, and no fee or other consideration was
given (other than to an attorney for assistance in preparation of a
lawful petition) for the filing of a petition.
(iv) Request for exemption. No application or fee is required to
request the exemption under section 245(e) of the Act. The request must
be made in writing and submitted with the Form I-485. Application for
Permanent Residence. The request must state the basis for requesting
consideration for the exemption and must be supported by documentary
evidence establishing eligibility for the exemption.
(v) Evidence to establish eligibility for the bona fide marriage
exemption. Section 204(g) of the Act provides that certain visa
petitions based upon marriages entered into during deportation,
exclusion or related judicial proceedings may be approved only if the
petitioner provides clear and convincing evidence that the marriage is
bona fide. Evidence that a visa petition based upon the same marriage
was approved under the bona fide marriage exemption to section 204(g) of
the Act will be considered primary evidence of eligibility for the bona
fide marriage exemption provided in this part. The applicant will not
be required to submit additional evidence to qualify for the bona fide
marriage exemption provided in this part, unless the district director
determines that such additional evidence is needed. In cases where the
district director notifies the applicant that additional evidence is
required, the applicant must submit documentary evidence which clearly
and convincingly establishes that the marriage was entered into in good
faith and not entered into for the purpose of procuring the alien's
entry as an immigrant. Such evidence may include:
(A) Documentation showing joint ownership of property;
(B) Lease showing joint tenancy of a common residence;
(C) Documentation showing commingling of financial resources;
(D) Birth certificates of children born to the applicant and his or
her spouse;
(E) Affidavits of third parties having knowledge of the bona fides of
the marital relationship, or
(F) Other documentation establishing that the marriage was not
entered into in order to evade the immigration laws of the United
States.
(vi) Decision. An application for adjustment of status filed during
the prohibited period shall be denied, unless the applicant establishes
eligibility for an exemption from the general prohibition.
(vii) Denials. The denial of an application for adjustment of status
because the marriage took place during the prohibited period shall be
without prejudice to the consideration of a new application or a motion
to reopen a previously denied application, if deportation or exclusion
proceedings are terminated while the alien is in the United States. The
denial shall also be without prejudice to the consideration of a new
application or motion to reopen the adjustment of status application, if
the applicant presents clear and convincing evidence establishing
eligibility for the bona fide marriage exemption contained in this part.
(viii) Appeals. An application for adjustment of status to lawful
permanent resident which is denied by the district director solely
because the applicant failed to establish eligibility for the bona fide
marriage exemption contained in this part may be appealed to the
Associate Commissioner, Examinations, in accordance with 8 CFR part 103.
The appeal to the Associate Commissioner, Examinations, shall be the
single level of appellate review established by statute.
(15) Any alien admitted as a Visa Waiver Pilot Program visitor under
the provisions of section 217 of the Act and part 217 of this chapter
other than an immediate relative as defined in section 201(b) of the
Act.
(c) Definitions -- (1) Lawful Immigration Status. For purposes of
section 245(c)(2) of the Act, the term ''lawful immigration status''
will only describe the immigration status of an individual who is:
(i) In lawful permanent resident status;
(ii) An alien admitted to the United States in nonimmigrant status as
defined in section 101(a)(15) of the Act, whose initial period of
admission has not expired or whose nonimmigrant status has been extended
in accordance with part 214 of this chapter;
(iii) In refugee status under section 207 of the Act, such status not
having been revoked;
(iv) In asylee status under section 208 of the Act, such status not
having been revoked;
(v) In parole status which has not expired, been revoked or
terminated; or
(vi) Eligible for the benefits of Public Law 101-238 (the Immigration
Nursing Relief Act of 1989) and files an application for adjustment of
status on or before October 17, 1991.
(2) No fault of the applicant or for technical reasons. The
parenthetical phrase other than through no fault of his or her own or
for technical reasons shall be limited to:
(i) Inaction of another individual or organization designated by
regulation to act on behalf of an individual and over whose actions the
individual has no control, if the inaction is acknowledged by that
individual or organization (as, for example, where a designated school
official certified under 214.2(f) of this chapter or an exchange
propram sponsor under 214.2(j) of this chapter did not provide required
notification to the Service of continuation of status, or did not
forward a request for continuation of status to the Service); or
(ii) A technical violation resulting from inaction of the Service (as
for example, where an applicant establishes that he or she properly
filed a timely request to maintain status and the Service has not yet
acted on that request). An individual whose refugee or asylum status
has expired through passage of time, but whose status has not been
revoked, will be considered to have gone out of status for a technical
reason.
(iii) A technical violation caused by the physical inability of the
applicant to request an extension of nonimmigrant stay from the Service
either in person or by mail (as, for example, an individual who is
hospitalized with an illness at the time nonimmigrant stay expires).
The explanation of such a technical violation shall be accompanied by a
letter explaining the circumstances from the hospital or attending
physician.
(iv) A technical violation resulting from the Service's application
of the maximum five/six year period of stay for certain H-1 nurses only
if the applicant was subsequently reinstated to H-1 status in accordance
with the terms of Public Law 101-656 (Immigration Amendments of 1988).
(3) Effect of departure. The departure and subsequent reentry of an
individual who was employed without authorization in the United States
after January 1, 1977 does not erase the bar to adjustment of status in
section 245(c)(2) of the Act. Similarly, the departure and subsequent
reentry of an individual who has not maintained a lawful immigration
status on any previous entry into the United States does not erase the
bar to adjustment of status in section 245(c)(2) of the Act for any
application filed on or after November 6, 1986.
(d) Special categories -- (1) Alien medical graduates. Any alien who
is a medical graduate qualified for special immigrant classification
under section 101(a)(27)(H) of the Act and is the beneficiary of an
approved petition as required under section 204(a)(1)(E)(i) of the Act
is eligible for adjustment of status. An accompanying spouse and
children also may apply for adjustment of status under this section.
Temporary absences from the United States for 30 days or less, during
which the applicant was practicing or studying medicine, do not
interrupt the continuous presence requirement. Temporary absences
authorized under the Service's advance parole procedures will not be
considered interruptive of continuous presence when the alien applies
for adjustment of status.
(2) Adjustment of certain nurses who were in H-1 nonimmigrant status
on September 1, 1989 (Pub. L. 101-238) -- (i) Eligibility. An alien is
eligible to apply for adjustment of status without regard to the
numerical limitations of sections 201 and 202 of the Act if:
(A) The applicant was admitted to the United States in, or had been
granted a change of status to, nonimmigrant status under section
101(a)(15)(H)(i) of the Act on or before September 1, 1989, to perform
services as a registered nurse (regardless of the date upon which the
applicant's authorization to remain in the United States expired or will
expire), and the applicant had not thereafter been granted a change to
status to any other nonimmigrant classification prior to September 1,
1989,
(B) The applicant has been employed in the United States as a
registered nurse for an aggregate of three years prior to the date of
application for adjustment of status,
(C) The applicant's continued employment as a registered nurse meets
the standards established for certification described in section
212(a)(5)(A)(i) of the Act,
(D) The applicant is the beneficiary of:
(1) A valid, unexpired visa petition filed prior to October 1, 1991,
which has been approved to grant the applicant preference status under
section 202(a) (3) or (6) of the Act (as in effect prior to October 1,
1991), and is deemed by operation of the automatic conversion provisions
of section 4 of Public Law 102-110 (the Armed Forces Immigration
Adjustment Act of 1991), to be effective to grant the applicant
preference status under section 203(b) (2) or (3) of the Act (as in
effect on and after October 1, 1991) because of his or here occupation
as a registered nurse, provided the application for adjustment of status
is approved no later than October 1, 1993, or
(2) A valid, unexpired visa petition filed on or after October 1,
1991, which has been approved to grant the applicant preference, status
under section 203(b) (1), (2), or (3) of this Act (as in effect on and
after October 1, 1991) because of his or her occupation as a registered
nurse, and
(E) The applicant properly files an application for adjustment of
status under the provisions of section 245 of the Act.
(ii) Application period. To benefit from the provisions of Public
Law 101-238, an alien must properly file an application for adjustments
of status under section 245 of the Act on or before March 20, 1995.
(iii) Application. An applicant for the benefits of Public Law
101-238 must file an application for adjustment of status on Form I-485,
accompanied by the fee and supporting documents described in 245.2 of
this part. Beneficiaries of Public Law 101-238 must also submit:
(A) Evidence that the applicant is the beneficiary of:
(1) A valid, unexpired visa petition filed prior to October 1, 1991,
which has been approved to grant the applicant preference status under
section 203(a) (3) or (6) of the Act (as in effect prior to October 1,
1991) and is deemed by operation of the automatic conversion provisions
of section 4 of Public Law 101-110 to be effective to grant the
applicant preference status under section 203(b) (2) or (3) of the Act
(as in effect on and after October 1, 1991) because of his or her
occupation as a registered nurse, provided the application for
adjustment of status is approved no later than October 1, 1993, or
(2) A valid, unexpired visa petition filed on or after October 1,
1991, which has been approved to grant the applicant preference status
under section 203(b) (1), (2), or (3) of the Act (as in effect on and
after October 1, 1991) because of his or her occupation as a registered
nurse, and
(B) A request, made on Form ETA 750 submitted in duplicate, for a
determination by the district director that the alien is qualified for
and will engage in the occupation of registered nurse, as currently
listed on Schedule A (20 CFR part 656),
(C) Evidence showing that the applicant has been employed in the
United States as a registered nurse for an aggregate of three years
prior to the date the application for adjustment of status is filed, in
the form of:
(1) Letters from employers stating the beginning and ending dates of
employment as a registered nurse, or
(2) Other evidence of employment as a registered nurse, such as pay
receipts supported by affidavits of co-workers, which is accompanied by
evidence that the nurse has made reasonable efforts to obtain employment
letter(s), but has been unable to do so because the current or former
employer refuses to issue the letter or has gone out of business,
(D) Evidence that the applicant was licensed, either temporarily or
permanently, as a registered nurse during all periods of qualifying
employment, and
(E) Evidence which establishes that the applicant was in the United
States in H-1 nonimmigrant status for the purpose of performing services
as a registered nurse on September 1, 1989.
(iv) Effect of section 245(c)(2). An applicant for the benefits of
the adjustment of status provisions of Public Law 101-238 must establish
eligibility for adjustment of status under all provisions of section 245
unless those provisions have specifically been waived.
(A) Application for adjustment of status filed on or before October
17, 1991. An applicant who qualifies for the benefits of Public Law
101-238, who properly files an application for adjustment of status on
or before October 17, 1991, may be granted adjustment of status even
though the alien has engaged or is engaging in unauthorized employment.
For purposes of adjustment of status, the applicant will be considered
to have continuously maintained a lawful nonimmigrant status throughout
his or her stay in the United States as a nonimmigrant and to be in
lawful nonimmigrant status at the time the application is filed.
(B) Application for adjustment of status filed after October 17,
1991. An alien who files an application for adjustment of status after
October 17, 1991, will not automatically be considered as having
maintained lawful nonimmigrant status. An alien who files for
adjustment after this date will be subject to the statutory bar of
section 245(c)(2) of the Act and will be ineligible to apply for
adjustment of status if he or she has failed to continuously maintain
lawful nonimmigrant status (other than through no fault of his or her
own or for technical reasons); if he or she was not in lawful
nonimmigrant status at the time the application was filed; or if he or
she was employed without authorization on or after November 29, 1990.
Unauthorized employment which has been waived as a basis for
ineligibility for adjustment of status may not be used as the basis of a
determination that the applicant is ineligible for adjustment of status
due to failure to continuously maintain lawful nonimmigrant status.
(C) Motions to reopen. Public Law 101-649 (the Immigration Act of
1990), which became law on November 29, 1990, retroactively amended
Public Law 101-238 (the Immigration Nursing Relief Act of 1989). An
alien whose application for adjustment of status under the provisions of
Public Law 101-238 was denied by the district director before November
29, 1990, because of unauthorized employment, failure to continuously
maintain a lawful nonimmigrant status, or not being in lawful
immigration status at the time of filing, may file a motion to reopen
the adjustment application. The motion to reopen must be made in
accordance with the provisions of 8 CFR 103.5. The district director
will reopen the application for adjustment of status and enter a new
decision based upon the provisions of Public Law 101-238, as amended by
Public Law 101-649. Any other alien whose application for adjustment of
status was denied may file a motion to reopen or reconsider in
accordance with normal statutory and regulatory provisions.
(v) Description of qualifying employment. Qualifying employment as a
registered nurse may have taken place at any time before the alien files
the application for adjustment of status. It may have occurred before,
on, or after the enactment of Public Law 101-238. All qualifying
employment must have occurred in the United States. The qualifying
employment as a registered nurse may have occurred while the alien was
in any immigration status, provided that the alien had been admitted in
or changed to H-1 status for the purpose of performing services as a
registered nurse on or before September 1, 1989, and had not thereafter
changed from H-1 status to any other status before September 1, 1989.
The employment need not have been continuous, provided the applicant can
establish that he or she engaged in qualifying employment for a total of
three or more years. Qualifying employment may include periods when the
applicant possessed a provisional, temporary, interim, or other permit
or license authorizing the applicant to perform services as a registered
nurse; provided the license or permit was issued or recognized by the
State Board of Nursing of the state in which the employment was
performed. Qualifying employment may not include periods when the
applicant performed duties as a registered nurse in violation of any
state law regulating the employment of registered nurses in that state.
(vi) Effect of enactment on spouse or child -- (A) Spouse or child
accompanying principal alien. The accompanying spouse or child of an
applicant for adjustment of status who benefits from Public Law 101-238,
may also apply for adjustment of status. All benefits and limitations
of this section, including those resulting from the implementation of
the adjustment of status provisions of section 162(f) of Public Law
101-649, apply equally to the principal applicant and his or her
accompanying spouse or child.
(B) Spouse or child residing outside the United States or ineligible
for adjustment of status. A spouse or child who is ineligible to apply
for adjustment of status as an accompanying spouse or child is not
immediately eligible for issuance of an immigrant visa under the
provisions of Public Law 101-238. However, the spouse or child may be
eligible for visa issuance under other provisions of the Act.
(1) Existing relationship. A spouse or child acquired by the
principal alien prior to the approval of the principal's adjustment of
status application may be accorded the derivative priority date and
preference category of the principal alien. The spouse or child may use
the priority date and category when it becomes current, in accordance
with existing limitations outlined in sections 201 and 202 of the Act.
The priority date is not considered immediately available for these
family members under Public Law 101-238.
(2) Relationship entered into after adjustment of status is approved.
An alien who acquires lawful permanent residence under the provisions
of Public Law 101-238 may file a petition under section 204 of the Act
for an alien spouse, unmarried son or unmarried daughter in accordance
with existing laws and regulations. The priority date is not considered
immediately available for these family members under Public Law 101-238.
(e) Concurrent applications to overcome exclusionary grounds. Except
as provided in parts 235 and 249 of this chapter, an application under
this part shall be the sole method of requesting the exercise of
discretion under section 212 (g), (h), (i), and (k) of the Act, as they
relate to the excludability of an alien in the United States. Any
applicant for adjustment under this part may also apply for the benefits
of section 212(c) of the Act, for permission to reapply after
deportation or removal under section 212(a)(17) of the Act, and for the
benefits of section 212(a)(28)(I)(ii) of the Act. No fee is required
for filing an application to overcome the exclusionary grounds of the
Act if filed concurrently with an application for adjustment of status
under the provisions of the Act of October 28, 1977, and of this part.
(f) Availability of immigrant visas under section 245 and priority
dates -- (1) Availability of immigrant visas under section 245. An
alien is ineligible for the benefits of section 245 of the Act unless an
immigrant visa is immediately available to him or her at the time the
application is filed. If the applicant is a preference alien, the
current Department of State Visa Office Bulletin on Availability of
Immigrant Visa Numbers will be consulted to determine whether an
immigrant visa is immediately available. An immigrant visa is
considered available for accepting and processing the application Form
I-485 if the preference category applicant has a priority date on the
waiting list which is not later than the date shown in the Bulletin (or
the Bulletin shows that numbers for visa applicants in his or her
category are current), and (if the applicant is seeking status pursuant
to section 203(b) of the Act) the applicant presents evidence that the
appropriate petition filed on his or her behalf has been approved. An
immigrant visa is also considered immediately available if the applicant
establishes eligibility for the benefits of Public Law 101-238.
Information concerning the immediate availability of an immigrant visa
may be obtained at any Service office.
(2) Priority dates. The priority date of an applicant who is seeking
the allotment of an immigrant visa number under one of the preference
classes specified in section 203(a) or 203(b) of the Act by virtue of a
valid visa petition approved in his or her behalf shall be fixed by the
date on which such approved petition was filed.
(g) Conditional basis of status. Whenever an alien spouse (as
defined in section 216(g)(1) of the Act), an alien son or daughter (as
defined in section 216(g)(2) of the Act), an alien entrepreneur (as
defined in section 216A(f)(1) of the Act), or an alien spouse or child
(as defined in section 216A(f)(2) of the Act) is granted adjustment of
status to that of lawful permanent residence, the alien shall be
considered to have obtained such status on a conditional basis subject
to the provisions of section 216 or 216A of the Act, as appropriate.
(Title I of Pub. L. 95-145 enacted Oct. 28, 1977 (91 Stat. 1223),
sec. 103 of the Immigration and Nationality Act (8 U.S.C. 1103).
Interpret or apply secs. 101, 212, 242 and 245 (8 U.S.C. 1101, 1182,
1252 and 1255))
(30 FR 14778, Nov. 30, 1965)
Editorial Note: For Federal Register citations affecting 245.1, see
the List of Sections Affected in the Finding Aids section of this
volume.
08 CFR 245.2 Application.
(a) General -- (1) Jurisdiction. An alien who believes he meets the
eligibility requirements of section 245 of the Act or section 1 of the
Act of November 2, 1966, and 245.1 of this chapter shall apply to the
district director having jurisdiction over his place of residence.
After an alien has been served with an order to show cause or warrant of
arrest, his application for adjustment of status under section 245 of
the Act or section 1 of the Act of November 2, 1966 shall be made and
considered only in proceedings under part 242 of this chapter. An
adjustment application by an alien paroled under section 212(d)(5) of
the Act, which has been denied by the district director, may be renewed
in exclusion proceedings under section 236 of the Act only under the
following two conditions: First, the denied application must have been
properly filed subsequent to the applicant's earlier inspection and
admission to the United States; second, the applicant's later absence
from and return to the United States must have been under the terms of
an advance parole authorization on Form I-512 granted to permit the
applicant's absence and return to pursue the previously filed adjustment
application.
(2) Proper filing of application --
(i) Under section 245. Before an application for adjustment of
status under section 245 of the Act may be considered properly filed, a
visa must be immediately available. If a visa would be immediately
available upon approval of a visa petition, the application will not be
considered properly filed unless such petition has first been approved.
If an immediate relative petition filed for classification under section
201(b)(2)(A)(i) of the Act or a preference petition filed for
classification under section 203(a) of the Act is submitted
simultaneously with the adjustment application, the adjustment
application shall be retained for processing only if approval of the
visa petition would make a visa immediately available at the time of
filing the adjustment application. If the visa petition is subsequently
approved, the date of filing the adjustment application shall be deemed
to be the date on which the accompanying petition was filed.
(ii) Under the Act of November 2, 1966. An application for the
benefits of section 1 of the Act of November 2, 1966 is not properly
filed unless the applicant was inspected and admitted or paroled into
the United States subsequent to January 1, 1959. An applicant is
ineligible for the benefits of the Act of November 2, 1966 unless he or
she has been physically present in the United States for one year
(amended from two years by the Refugee Act of 1980).
(3) Submission of documents -- (i) General. A separate application
shall be filed by each applicant for benefits under section 245, or the
Act of November 2, 1966. Each application shall be accompanied by an
executed Form G-325A, if the applicant has reached his or her 14th
birthday. Form G-325A shall be considered part of the application. An
application under this part shall be accompanied by the document
specified in the instructions which are attached to the application.
(ii) Under section 245. An application for adjustment of status is
submitted on Form I-485, Application for Permanent Residence. The
application must be accompanied by the appropriate fee as explained in
the instructions to the application.
(iii) Under the Act of November 2, 1966. An application for
adjustment of status is made on Form I-485A. The application must be
accompanied by Form I-643, Health and Human Services Statistical Data
Sheet. The application must include a clearance from the local police
jurisdiction for any area in the United States when the applicant has
lived for six months or more since his or her 14th birthday.
(4) Effect of departure -- (i) General. The effect of a departure
from the United States is dependent upon the law under which the
applicant is applying for adjustment.
(ii) Under section 245. The departure from the United States of an
applicant who is under deportation proceedings shall be deemed an
abandonment of the application constituting grounds for termination of
the deportation proceeding by reason of the departure. The departure of
an applicant who is not under deportation proceedings shall be deemed an
abandonment of his or her application constituting grounds for
termination, unless the applicant was previously granted advance parole
by the Service for such absence, and was inspected upon returning to the
United States. If the application of an individual granted advance
parole is subsequently denied, the applicant will be subject to the
exclusion provisions of section 236 of the Act. No alien granted
advance parole and inspected upon return shall be entitled to a
deportation hearing.
(iii) Under the Act of November 2, 1966. If an applicant who was
admitted or paroled subsequent to January 1, 1959, later departs from
the United States temporarily with no intention of abandoning his or her
residence, and is readmitted or paroled upon return, the temporary
absence shall be disregarded for purposes of the applicant's ''last
arrival'' into the United States in regard to cases filed under section
1 of the Act of November 2, 1966.
(5) Decision -- (i) General. The applicant shall be notified of the
decision of the district director and, if the application is denied, the
reasons for the denial.
(ii) Under section 245. If the application is approved, the
applicant's permanent residence shall be recorded as of the date of the
order approving the adjustment of status. An application for adjustment
of status as a preference alien shall not be approved until an immigrant
visa number has been allocated by the Department of State, except when
the applicant has established eligibility for the benefits of Public Law
101-238. No appeal lies from the denial of an application by the
district director, but the applicant retains the right to renew his or
her application in proceedings under part 242 of this chapter, or under
part 236 if the applicant is a parolee and meets the two conditions
outlined in 245.2(a)(1). At the time of renewal of the application, an
applicant does not need to meet the statutory requirement of section
245(c) of the Act, or the regulatory requirements of 245.1(f), if in
fact those requirements were met at the time the renewed application was
initially filed with the district director.
(iii) Under the Act of November 2, 1966. If the application is
approved, the applicant's permanent residence shall be recorded in
accordance with the provisions of section 1. No appeal lies from the
denial of an application by the district director, but the applicant
retains the right to renew his or her application in proceedings under
part 242 of this chapter, or under part 236, if the applicant is a
parolee and meets the two conditions outlined in paragraph 1 of
245.2(a)(1).
(b) Application under section 2 of the Act of November 2, 1966. An
application by a native or citizen of Cuba or by his spouse or child
residing in the United States with him, who was lawfully admitted to the
United States for permanent residence prior to November 2, 1966, and who
desires such admission to be recorded as of an earlier date pursuant to
section 2 of the Act of November 2, 1966, shall be made on Form I-485A.
The application shall be accompanied by the Alien Registration Receipt
Card, Form I-151 or I-551, issued to the applicant in connection with
his lawful admission for permanent residence, and shall be submitted to
the district director having jurisdiction over the applicant's place of
residence in the United States. The decision on the application shall
be made by the district director. No appeal shall lie from his
decision. If the application is approved, the applicant will be
furnished with a replacement of his Form I-151 or I-551 bearing the new
date as of which the lawful admission for permanent residence has been
recorded.
(c) Application under section 214(d). An application for permanent
resident status pursuant to section 214(d) of the Act shall be filed on
Form I-485 with the district director having jurisdiction over the
applicant's place of residence. A separate application shall be filed
by each applicant. If the application is approved, the district
director shall record the lawful admission of the applicant as of the
date of approval. The fee previously paid for filing the application
shall be considered payment of the required visa fees, as of the date of
the approval of the application. The applicant shall be notified of the
decision and, if the application is denied, of the reasons therefor. No
appeal shall lie from the denial of an application by the district
director but such denial shall be without prejudice to the alien's right
to renew his application in proceedings under part 242 of this chapter.
(30 FR 14778, Nov. 30, 1965)
Editorial Note: For Federal Register citations affecting 245.2, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
08 CFR 245.3 Adjustment of status under section 13 of the Act of
September 11, 1957, as amended.
Any application for benefits under section 13 of the Act of September
11, 1957, as amended, must be filed on Form I-485 with the district
director having jurisdiction over the applicant's place of residence.
The benefits under section 13 are limited to aliens who were admitted
into the United States under section 101, paragraphs (a)(15)(A)(i),
(a)(15)(A)(ii), (a)(15)(G)(i), or (a)(15)(G)(ii) of the Immigration and
Nationality Act who performed diplomatic or semi-diplomatic duties and
to their immediate families, and who establish that there are compelling
reasons why the applicant or the member of the applicant's immediate
family is unable to return to the country represented by the government
which accredited the applicant and that adjustment of the applicant's
status to that of an alien lawfully admitted for permanent residence
would be in the national interest. Aliens whose duties were of a
custodial, clerical, or menial nature, and members of their immediate
families, are not eligible for benefits under section 13. In view of
the annual limitation of 50 on the number of aliens whose status may be
adjusted under section 13, any alien who is prima facie eligible for
adjustment of status to that of a lawful permanent resident under
another provision of law shall be advised to apply for adjustment
pursuant to such other provision of law. An applicant for the benefits
of section 13 shall not be subject to the labor certification
requirement of section 212(a)(14) of the Immigration and Nationality
Act. The applicant shall be notified of the decision and, if the
application is denied, of the reasons for the denial and of the right to
appeal under the provisions of part 103 of this chapter. Any
applications pending with the Service before December 29, 1981 must be
resubmitted to comply with the requirements of this section.
(Secs. 103, 245, of the Immigration and Nationality Act, as amended;
71 Stat. 642, as amended, sec. 17, Pub. L. 97-116, 95 Stat. 1619 (8
U.S.C. 1103, 1255, 1255b))
(47 FR 44238, Oct. 7, 1982)
08 CFR 245.4 Documentary requirements.
The provisions of part 211 of this chapter relating to the
documentary requirements for immigrants shall not apply to an applicant
under this part.
(Secs. 103, 214, 245 Immigration and Nationality Act, as amended; (8
U.S.C. 1103, 1184, 8 U.S.C. 1255, Sec. 2, 96 Stat. 1157, 8 U.S.C. 1255
note))
(30 FR 14779, Nov. 30, 1965. Redesignated at 48 FR 4770, Feb. 3,
1983, and further redesignated at 52 FR 6322, Mar. 3, 1982, and further
redesignated at 56 FR 49481, Oct. 2, 1991)
08 CFR 245.5 Medical examination.
Pursuant to section 234 of the Act, an applicant for adjustment of
status shall be required to have a medical examination by a designated
civil surgeon, whose report setting forth the findings of the mental and
physical condition of the applicant shall be incorporated into the
record. A medical examination shall not be required of an applicant for
adjustment of status who entered the United States as a non-immigrant
fiance or fiancee of a United States citizen as defined in section
101(a)(15)(K) of the Act pursuant to 214.2(k) of this chapter if the
applicant was medically examined prior to, and as a condition of, the
issuance of the nonimmigrant visa; provided that the medical
examination must have occurred not more than one year prior to the date
of application for adjustment of status. Any applicant certified under
paragraphs (1)(A)(ii) or (1)(A)(iii) of section 212(a) of the Act may
appeal to a Board of Medical Officers of the U.S. Public Health Service
as provided in section 234 of the Act and part 235 of this chapter.
(56 FR 49841, Oct. 2, 1991)
08 CFR 245.6 Interview.
Each applicant for adjustment of status under this part shall be
interviewed by an immigration officer. This interview may be waived in
the case of a child under the age of 14; when the applicant is clearly
ineligible under section 245(c) of the Act or 245.1 of this chapter;
or when it is determined by the Service that an interview is
unnecessary.
(57 FR 49375, Nov. 2, 1992)
08 CFR 245.7 Adjustment of status of certain Soviet and Indochinese
parolees under the Foreign Operations Appropriations Act for Fiscal Year
1990 (Pub. L. 101-167).
(a) Application. Each person applying for benefits under section
599E of Public Law 101-167 must file Form I-485 (Application for Lawful
Permanent Residence) with the district director having jurisdiction over
the applicant's place of residence and must pay the appropriate fee.
Each application shall be accompanied by Form I-643 (Health and Human
Services Statistical Data Sheet), the results of a medical examination
given in accordance with 245.8 of this part, and, if the applicant has
reached his or her 14th birthday but is not over 79 years of age, Form
G-325A and an applicant fingerprint card (Form FD-258).
(b) Aliens eligible to apply for adjustment. The benefits of this
section shall only apply to an alien who:
(1) Was a national of the Soviet Union, Vietnam, Laos, or Cambodia,
and
(2) Was inspected and granted parole into the United States during
the period beginning on August 15, 1988, and ending on September 30,
1990, after being denied refugee status.
(c) Eligibility. Benefits under Section 599E of Public Law 101-167
are limited to any alien described in paragraph (b) of this section who:
(1) Applies for such adjustment,
(2) Has been physically present in the United States for at least one
year and is physically present in the United States on the date the
application for such adjustment is filed,
(3) Is admissible to the United States as an immigrant, except as
provided in paragraph (d) of this section, and
(4) Pays a fee for the processing of such application.
(d) Waiver of certain grounds for inadmissibility. The provisions of
paragraphs (14), (15), (20), (21), (25), (28) (other than subparagraph
(F), and (32) of section 212(a) of the Act shall not apply to adjustment
under this section. The Attorney General may waive any other provision
of section 212(a) (other than paragraph (23)(B), (27), (29), or (33))
with respect to such an adjustment for humanitarian purposes, to assure
family unity, or when it is otherwise in the public interest.
(e) Date of approval. Upon approval of such an application for
adjustment of status, the Attorney General shall create a record of the
alien's admission as a lawful permanent resident as of the date of the
alien's inspection and parole described in paragraph (b)(2) of this
section.
(f) No offset in number of visas available. When an alien is granted
the status of having been lawfully admitted for permanent residence
under this section, the Secretary of State shall not be required to
reduce the number of immigrant visas authorized to be issued under the
Immigration and Nationality Act.
(55 FR 24860, July 19, 1990. Redesingated at 56 FR 49841, Oct. 2,
1991)
08 CFR 245.8 Adjustment of status as a special immigrant under section
101(a)(27)(K) of the Act.
(a) Application. Each person applying for adjustment of status as a
special immigrant under section 101(a)(27)(K) of the Act must file a
Form I-485, Application to Register Permanent Residence or Adjust
Status, with the director having jurisdiction over the applicant's place
of residence. Benefits under this section are limited to aliens who
have served honorably (or are enlisted to serve) in the Armed Forces of
the United States for at least 12 years, and their spouses and children.
For purposes of this section, special immigrants described in section
101(a)(27)(K) of the Act and his or her spouse and children shall be
deemed to have been paroled into the United States pursuant to section
245(g) of the Act. Each applicant must file a separate application with
the appropriate fee.
(b) Eligibility. The benefits of this section shall apply only to an
alien described in section 101(a)(27)(K) of the Act who applies for such
adjustment. The accompanying spouse or child of an applicant for
adjustment of status who benefits from Public Law 102-110 may also apply
for adjustment of status. The provisions of section 245(c) of the Act
do not apply to the principal Armed Forces special immigrant or to his
or her spouse or child.
(c) Interview of the applicant. Upon completion of the adjustment of
status interview for special immigrants under section 101(a)(27)(K) of
the Act, the director shall make every effort to determine prima facie
eligibility for naturalization benefits, if the applicant is to be
granted status as an alien lawfully admitted for permanent residence.
If the director determines that the applicant is immediately eligible
for naturalization under section 328 or 329 of the Act, the director
shall advise the applicant that he or she is eligible to apply for
naturalization on Form N-400, Application to File Petition for
Naturalization. If the applicant wishes to apply for naturalization,
the director shall instruct the applicant concerning the requirements
for naturalization and provide him or her with the necessary forms.
(d) Deportation provisions of section 241. If the Service is made
aware by notification from the appropriate executive department or by
any other means that a section 101(a)(27)(K) special immigrant who has
already been granted permanent residence fails to complete his or her
total active duty service obligation for reasons other than an honorable
discharge, the alien may become subject to the deportation provisions of
section 241 of the Act, provided the alien is in one or more of the
classes of deportable aliens specified in section 241 of the Act. The
Service shall obtain a current Form DD-214, Certificate of Release or
Discharge from Active Duty, from the appropriate executive department
for verification of the alien's failure to maintain eligibility.
(e) Rescission proceedings under section 246 of the Act. If the
Service determines that a military special immigrant under section
101(a)(27)(K) of the Act was not in fact eligible for adjustment of
status, the Service may pursue rescission proceedings under section 246
of the Act.
(57 FR 33862, July 31, 1992)
08 CFR 245.8 PART 245a -- ADJUSTMENT OF STATUS TO THAT OF PERSONS
ADMITTED FOR LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION
245A OF THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED BY PUBLIC LAW
99-603, THE IMMIGRATION REFORM AND CONTROL ACT OF 1986, AND PUBLIC LAW
100-204, SECTION 902
Sec.
245a.1 Definitions.
245a.2 Application for temporary residence.
245a.3 Application for adjustment from temporary to permanent
resident status.
245a.4 Adjustment to lawful resident status of certain nationals of
countries for which extended voluntary departure has been made
available.
245a.5 Temporary disqualification of certain newly legalized aliens
from receiving benefits from programs of financial assistance furnished
under federal law.
Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note.
Source: 52 FR 16208, May 1, 1987, unless otherwise noted.
08 CFR 245a.1 Definitions.
As used in this chapter:
(a) Act means the Immigration and Nationality Act, as amended by The
Immigration Reform and Control Act of 1986.
(b) Service means the Immigration and Naturalization Service (INS).
(c)(1) Resided continuously as used in section 245A(a)(2) of the Act,
means that the alien shall be regarded as having resided continuously in
the United States if, at the time of filing of the application for
temporary resident status:
An alien who after appearing for a scheduled interview to obtain an
immigrant visa at a Consulate or Embassy in Canada or Mexico but who
subsequently is not issued an immigrant visa and who is paroled back
into the United States, pursuant to the stateside criteria program,
shall be regarded as having been granted advance parole by the Service.
(i) No single absence from the United States has exceeded forty-five
(45) days, and the aggregate of all absences has not exceeded one
hundred and eighty (180) days between January 1, 1982 through the date
the application for temporary resident status is filed, unless the alien
can establish that due to emergent reasons, his or her return to the
United States could not be accomplished within the time period allowed;
(ii) The alien was maintaining residence in the United States; and
(iii) The alien's departure from the United States was not based on
an order of deportation.
An alien who has been absent from the United States in accordance
with the Service's advance parole procedures shall not be considered as
having interrupted his or her continuous residence as required at the
time of filing an application.
(2) Continuous residence, as used in section 245A(b)(1)(B) of the
Act, means that the alien shall be regarded as having resided
continuously in the United States if, at the time of applying for
adjustment from temporary residence to permanent resident status: No
single absence from the United States has exceeded thirty (30) days, and
the aggregate of all absences has not exceeded ninety (90) days between
the date of granting of lawful temporary resident status and of applying
for permanent resident status, unless the alien can establish that due
to emergent reasons the return to the United States could not be
accomplished within the time period(s) allowed.
(d) In the term alien's unlawful status was known to the government,
the term government means the Immigration and Naturalization Service.
An alien's unlawful status was known to the government only if:
(1) The Service received factual information constituting a violation
of the alien's nonimmigrant status from any agency, bureau or
department, or subdivision thereof, of the Federal government, and such
information was stored or otherwise recorded in the official Service
alien file, whether or not the Service took follow-up action on the
information received. In order to meet the standard of information
constituting a violation of the alien's nonimmigrant status, the alien
must have made a clear statement or declaration to the other federal
agency, bureau or department that he or she was in violation of
nonimmigrant status; or
(2) An affirmative determination was made by the Service prior to
January 1, 1982 that the alien was subject to deportation proceedings.
Evidence that may be presented by an alien to support an assertion that
such a determination was made may include, but is not limited to,
official Service documents issued prior to January 1, 1982, i.e., Forms
I-94, Arrival-Departure Records granting a period of time in which to
depart the United States without imposition of proceedings; Forms
I-210, Voluntary Departure Notice letter; and Forms I-221, Order to
Show Cause and Notice of Hearing. Evidence from Service records that
may be used to support a finding that such a determination was made may
include, but is not limited to, record copies of the aforementioned
forms and other documents contained in alien files, i.e., Forms I-213,
Record of Deportable Alien;
Unexecuted Forms I-205, Warrant of Deportation; Forms I-265,
Application for Order to Show Cause and Processing Sheet; Forms I-541,
Order of Denial of Application for Extension of Stay granting a period
of time in which to depart the United States without imposition of
proceedings, or any other Service record reflecting that the alien's
nonimmigrant status was considered by the Service to have terminated or
the alien was otherwise determined to be subject to deportation
proceedings prior to January 1, 1982, whether or not deportation
proceedings were instituted; or
(3) A copy of a response by the Service to any other agency which
advised that agency that a particular alien had no legal status in the
United States or for whom no record could be found.
(4) The applicant produces documentation from a school approved to
enroll foreign students under 214.3 which establishes that the said
school forwarded to the Service a report that clearly indicated the
applicant had violated his or her nonimmigrant student status prior to
January 1, 1982. A school may submit an affirmation that the school did
forward to the Service the aforementioned report and that the school no
longer has available copies of the actual documentation sent. In order
to be eligible under this part, the applicant must not have been
reinstated to nonimmigrant student status.
(e) The term to make a determination as used in 245a.2(t)(3) of this
part means obtaining and reviewing all information required to
adjudicate an application for the benefit sought and making a decision
thereon. If fraud, willful misrepresentation or concealment of a
material fact, knowingly providing a false writing or document,
knowingly making a false statement or representation, or any other
activity prohibited by section 245A(c)(6) of the Act is established
during the process of making the determination on the application, the
Service shall refer to the United States Attorney for prosecution of the
alien or of any person who created or supplied a false writing or
document for use in an application for adjustment of status under this
part.
(f) The term continuous physical presence as used in section
245A(a)(3)(A) of the Act means actual continuous presence in the United
States since November 6, 1986 until filing of any application for
adjustment of status. Aliens who were outside of the United States on
the date of enactment or departed the United States after enactment may
apply for legalization if they reentered prior to May 1, 1987, provided
they meet the continuous residence requirements, and are otherwise
eligible for legalization.
(g) Brief, casual, and innocent means a departure authorized by the
Service (advance parole) subsequent to May 1, 1987 of not more than
thirty (30) days for legitimate emergency or humanitarian purposes
unless a further period of authorized departure has been granted in the
discretion of the district director or a departure was beyond the
alien's control.
(h) The term brief and casual absences as used in section
245a(b)(3)(A) of the Act permits temporary trips abroad as long as the
alien establishes a continuing intention to adjust to lawful permanent
resident status. However, such absences must comply with 245a.3(b)(2)
of this chapter in order for the alien to maintain continuous residence
as specified in the Act.
(i) Public cash assistance means income or needs-based monetary
assistance to include, but not limited to, supplemental security income
received by the alien through federal, state, or local programs designed
to meet subsistence levels. It does not include assistance in kind,
such as food stamps, public housing, or other non-cash benefits, nor
does it include work-related compensation or certain types of medical
assistance (Medicare, Medicaid, emergency treatment, services to
pregnant women or children under 18 years of age, or treatment in the
interest of public health).
(j) Legalization Office means local offices of the Immigration and
Naturalization Service which accept and process applications for
Legalization or Special Agricultural Worker status, under the authority
of the INS district directors in whose districts such offices are
located.
(k) Regional Processing Facility means Service offices established in
each of the four Service regions to adjudicate, under the authority of
the INS Directors of the Regional Processing Facilities, applications
for adjustment of status under section 210, 245A(a) or 245A(b)(1) of the
Act.
(l) Designated entity means any state, local, church, community, farm
labor organization, voluntary organization, association of agricultural
employers or individual determined by the Service to be qualified to
assist aliens in the preparation of applications for Legalization
status.
(m) The term family unity as used in section 245(d)(2)(B)(i) of the
Act means maintaining the family group without deviation or change. The
family group shall include the spouse, unmarried minor children under 18
years of age who are not members of some other household, and parents
who reside regularly in the household of the family group.
(n) The term prima facie as used in section 245(e)(1) and (2) of the
Act means eligibility is established if the applicant presents a
completed I-687 and specific factual information which in the absence of
rebuttal will establish a claim of eligibility under this part.
(o) Misdemeanor means a crime committed in the United States, either
(1) punishable by imprisonment for a term of one year or less,
regardless of the term such alien actually served, if any, or (2) a
crime treated as a misdemeanor under 8 CFR 245a.1(p). For purposes of
this definition, any crime punishable by imprisonment for a maximum term
of five days or less shall not be considered a misdemeanor.
(p) Felony means a crime committed in the United States, punishable
by imprisonment for a term of more than one year, regardless of the term
such alien actually served, if any, except: When the offense is defined
by the State as a misdemeanor and the sentence actually imposed is one
year or less regardless of the term such alien actually served. Under
this exception, for purposes of 8 CFR part 245a, the crime shall be
treated as a misdemeanor.
(q) Subject of an Order to Show Cause means actual service of the
Order to Show Cause upon the alien through the mail or by personal
service.
(r) A qualified designated entity in good-standing with the Service
means those designated entities whose cooperative agreements were not
suspended or terminated by the Service or those whose agreements were
not allowed to lapse by the Service prior to January 30, 1989 (the
expiration date of the INS cooperative agreements for all designated
entities), or those whose agreements were not terminated for cause by
the Service subsequent to January 30, 1989.
Subsequent to January 30, 1989, and throughout the period ending on
November 6, 1990, a QDE in good-standing may: (1) Serve as an
authorized course provider under 245a.3(b)(5)(i)(C) of this chapter;
(2) Administer the IRCA Test for Permanent Residency (proficiency test),
provided an agreement has been entered into with and authorization has
been given by INS under 245a.1(s)(5) of this chapter; and, (3) Certify
as true and complete copies of original documents submitted in support
of Form I-698 in the format prescribed in 245a.3(d)(2) of this chapter.
(s) Satisfactorily pursuing, as used in section 245A(b)(1)(D)(i)(II)
of the Act, means:
(1) An applicant for permanent resident status has attended a
recognized program for at least 40 hours of a minimum 60-hour course as
appropriate for his or her ability level, and is demonstrating progress
according to the performance standards of the English/citizenship course
prescribed by the recognized program in which he or she is enrolled (as
long as enrollment occurred on or after May 1, 1987, course standards
include attainment of particular functional skills related to
communicative ability, subject matter knowledge, and English language
competency, and attainment of these skills is measured either by
successful completion of learning objectives appropriate to the
applicant's ability level, or attainment of a determined score on a test
or tests, or both of these); or
(2) An applicant presents a high school diploma or general
educational development diploma (GED) from a school in the United
States. A GED gained in a language other than English is acceptable
only if a GED English proficiency test has been passed. (The curriculum
for both the high school diploma and the GED must have included at least
40 hours of instruction in English and U.S. history and government); or
(3) An applicant has attended for a period of one academic year (or
the equivalent thereof according to the standards of the learning
institution), a state recognized, accredited learning institution in the
United States and that institution certifies such attendance (as long as
the curriculum included at least 40 hours of instruction in English and
U.S. history and government); or
(4) An applicant has attended courses conducted by employers, social,
community, or private groups certified (retroactively, if necessary, as
long as enrollment occurred on or after May 1, 1987, and the curriculum
included at least 40 hours of instruction in English and U.S. history
and government) by the district director or the Director of the Outreach
Program under 245a.3(b)(5)(i)(D) of this chapter; or
(5) An applicant attests to having completed at least 40 hours of
individual study in English and U.S. history and government and passes
the proficiency test for legalization, called the IRCA Test for
Permanent Residency, indicating that the applicant is able to read and
understand minimal functional English within the context of the history
and government of the United States. Such test may be given by INS, as
well as, State Departments of Education (SDEs) (and their accredited
educational agencies) and Qualified Designated Entities in good-standing
(QDEs) upon agreement with and authorization by INS. Those SDEs and
QDEs wishing to participate in this effort should write to the Director
of the INS Outreach Program at 425 ''I'' Street, NW., Washington, DC
20536, for further information.
(t) Minimal understanding of ordinary English as used in section
245A(b)(1)(D)(i) of the Act means an applicant can satisfy basic
survival needs and routine social demands. The person can handle jobs
that involve following simple oral and very basic written communication.
(u) Curriculum means a defined course for an instructional program.
Minimally, the curriculum prescribes what is to be taught, how the
course is to be taught, with what materials, and when and where. The
curriculum must:
(1) Teach words and phrases in ordinary, everyday usage;
(2) Include the content of the Federal Citizenship Text series as the
basis for curriculum development (other texts with similar content may
be used in addition to, but not in lieu of, the Federal Citizenship Text
series);
(3) Be designed to provide at least 60 hours of instruction per class
level;
(4) Be relevant and educationally appropriate for the program focus
and the intended audience; and
(5) Be available for examination and review by INS as requested.
(v) The term developmentally disabled means the same as the term
developmental disability defined in section 102(5) of the Developmental
Disabilities Assistance and Bill of Rights Act of 1987, Public Law
100-146. As a convenience to the public, that definition is printed
here in its entirety:
The term developmental disability means a severe, chronic disability
of a person which:
(1) Is attributable to a mental or physical impairment or combination
of mental and physical impairments;
(2) Is manifested before the person attains age twenty-two;
(3) Is likely to continue indefinitely;
(4) Results in substantial functional limitations in three or more of
the following areas of major life activity: (i) Self-care, (ii)
receptive and expressive language, (iii) learning, (iv) mobility, (v)
self direction, (vi) capacity for independent living, and (vii) economic
self-sufficiency; and
(5) Reflects the person's need for a combination and sequence of
special, interdisciplinary, or generic care, treatment, or other
services which are of lifelong or extended duration and are individually
planned and coordinated.
(52 FR 16208, May 1, 1987, as amended at 52 FR 43845, Nov. 17, 1987;
53 FR 9863, Mar. 28, 1988; 53 FR 23382, June 22, 1988; 53 FR 43992,
Oct. 31, 1988; 54 FR 29448, July 12, 1989; 56 FR 31061, July 9, 1991)
08 CFR 245a.2 Application for temporary residence.
(a) Application period for temporary residence. (1) An alien who has
resided unlawfully in the United States since January 1, 1982, who
believes that he or she meets the eligibility requirements of section
245A of the Act must make application within the twelve month period
beginning on May 5, 1987 and ending on May 4, 1988, except as provided
in the following paragraphs.
(2)(i) (Reserved)
(ii) An alien who is the subject of an Order to Show Cause issued
under section 242 of the Act during the period beginning on May 5, 1987
and ending on April 4, 1988 must file an application for adjustment of
status to that of a temporary resident prior to the thirty-first day
after the issuance of the Order to Show Cause.
(iii) An alien who is the subject of an Order to Show Cause issued
under section 242 of the Act during the period beginning on April 5,
1988 and ending on May 4, 1988 must file an application for adjustment
of status to that of a temporary resident not later than May 4, 1988.
(iv) An alien, described in paragraphs (a)(2)(i) through (iii) of
this section, who fails to file an application for adjustment of status
to that of a temporary resident under section 245A(a) of the Act during
the respective time period(s), will be statutorily ineligible for such
adjustment of status.
(b) Eligibility. The following categories of aliens, who are
otherwise eligible to apply for legalization, may file for adjustment to
temporary residence status:
(1) An alien (other than an alien who entered as a nonimmigrant) who
establishes that he or she entered the United States prior to January 1,
1982, and who has thereafter resided continuously in the United States
in an unlawful status, and who has been physically present in the United
States from November 6, 1986, until the date of filing the application.
(2) An alien who establishes that he or she entered the United States
as a nonimmigrant prior to January 1, 1982, and whose period of
authorized admission expired through the passage of time prior to
January 1, 1982, and who has thereafter resided continuously in the
United States in an unlawful status, and who has been physically present
in the United States from November 6, 1986, until the date of filing the
application.
(3) An alien who establishes that he or she entered the United States
as a nonimmigrant prior to January 1, 1982, and whose unlawful status
was known to the Government as of January 1, 1982, and who has
thereafter resided continuously in the United States in an unlawful
status, and who has been physically present in the United States from
November 6, 1986, until the date of filing the application.
(4) An alien described in paragraphs (b) (1) through (3) of this
section who was at any time a nonimmigrant exchange visitor (as defined
in section 101(a)(15)(J) of the Act), must establish that he or she was
not subject to the two-year foreign residence requirements of section
212(e) or has fulfilled that requirement or has received a waiver of
such requirements and has resided continuously in the United States in
unlawful status since January 1, 1982.
(5) An alien who establishes that he or she was granted voluntary
departure, voluntary return, extended voluntary departure or placed in
deferred action category by the Service prior to January 1, 1982 and who
has thereafter resided continuously in such status in the United States
and who has been physically present in the United States from November
6, 1986 until the date of filing the application.
(6) An alien who establishes that he or she was paroled into the
United States prior to January 1, 1982, and whose parole status
terminated prior to January 1, 1982, and who has thereafter resided
continuously in such status in the United States, and who has been
physically present in the United States from November 6, 1986, until the
date of filing the application.
(7) An alien who establishes that he or she is a Cuban or Haitian
Entrant who was physically present in the United States prior to January
1, 1982, and who has thereafter resided continuously in the United
States, and who has been physically present in the United States from
November 6, 1986, until the date of filing the application, without
regard to whether such alien has applied for adjustment of status
pursuant to section 202 of the Act.
(8) An alien's eligibility under the categories described in section
245(a)(2)(b) (1) through (7) and (9) through (15) shall not be affected
by entries to the United States subsequent to January 1, 1982 that were
not documented on Service Form I-94, Arrival-Departure Record.
(9) An alien who would be otherwise eligible for legalization and who
was present in the United States in an unlawful status prior to January
1, 1982, and reentered the United States as a nonimmigrant, such entry
being documented on Service Form I-94, Arrival-Departure Record, in
order to return to an unrelinquished unlawful residence.
(10) An alien described in paragraph (b)(9) of this section must
receive a waiver of the excludable charge 212(a)(19) as an alien who
entered the United States by fraud.
(11) A nonimmigrant who entered the United States for duration of
status (''D/S'') is one of the following classes, A, A-1, A-2, G, G-1,
G-2, G-3 or G-4, whose qualifying employment terminated or who ceased to
be recognized by the Department of State as being entitled to such
classification prior to January 1, 1982, and who has thereafter
continued to reside in the United States in an unlawful status. An
alien who was a dependent family member and who may be otherwise
eligible for legalization may be considered a member of this class of
eligible aliens if the dependent family member was also in A and G
status when the principal A or G alien's status terminated or ceased to
be recognized by the Department of State.
(12) A nomimmigrant who entered the United States for duration of
status (''D/S'') in one of the following classes, F, F-1, or F-2, who
completed a full course of study, including practical training and whose
time period if any to depart the United States after completion of study
expired prior to January 1, 1982 and who has remained in the United
States in an unlawful status since that time. A dependent F-2 alien
otherwise eligible who was admitted into the United States with a
specific time period, as opposed to duration of status, documented on
Service Form I-94, Arrival-Departure Record that extended beyond January
1, 1982 is considered eligible if the principal F-1 alien is found
eligible.
(13) An alien who establishes that he or she is a member of the class
in the Silva-Levi lawsuit (No. 76-C-4268 (N.D. ILL. March 22, 1977));
that is, an alien from an independent country of the Western Hemisphere
who was present in the United States prior to March 11, 1977, and was
known by the Immigration and Naturalization Service (INS) to have a
priority date for the issuance of an immigrant visa between July 1, 1968
and December 31, 1976, inclusive, and who was clearly eligible for an
immigrant visa.
(14) An alien who filed an asylum application prior to January 1,
1982 and whose application was subsequently denied or whose application
has not yet been decided is considered an alien in an unlawful status
known to the government.
(15) An alien, otherwise eligible who departed the United States and
was paroled into the United States on or before May 1, 1987 in order to
return to an unrelinquished unlawful residence.
(c) Ineligible aliens. (1) An alien who has been convicted of a
felony, or three or more misdemeanors.
(2) An alien who has assisted in the persecution of any person or
persons on account of race, religion, nationality, membership in a
particular social group or political opinion.
(3) An alien excludable under the provisions of section 212(a) of the
Act whose grounds of excludability may not be waived, pursuant to
section 245A(d)(2)(B)(ii) of this Act.
(4) An alien who at any time was a nonimmigrant exchange visitor who
is subject to the two-year foreign residence requirement unless the
requirement has been satisfied or waived pursuant to the provisions of
section 212(e) of the Act who has resided continuously in the United
States in an unlawful status since January 1, 1982.
(5) (Reserved)
(6) An alien who is the subject of an Order to Show Cause issued
under section 242 of the Act during the period beginning on May 5, 1987
and ending on April 4, 1988 who does not file an application for
adjustment of status to that of temporary resident under section 245A(a)
of the Act prior to the thirty-first day after issuance of the order.
(7) An alien who is the subject of an Order to Show Cause issued
under section 242 of the Act during the period beginning on April 5,
1988 and ending on May 4, 1988 who does not file an application for
adjustment of status to that of a temporary resident under section
245A(a) of the Act prior to May 5, 1988.
(8) An alien who was paroled into the United States prior to January
1, 1982 and whose parole status terminated or expired subsequent to
January 1, 1982, except an alien who was granted advance parole.
(d) Documentation. Evidence to support an alien's eligibility for
the legalization program shall include documents establishing proof of
identity, proof of residence, and proof of financial responsibility, as
well as photographs, a completed fingerprint card (Form FD-258), and a
completed medical report of examination (Form I-693). All documentation
submitted will be subject to Service verification. Applications
submitted with unverifiable documentation may be denied. Failure by an
applicant to authorize release to INS of information protected by the
Privacy Act and/or related laws in order for INS to adjudicate a claim
may result in denial of the benefit sought. Acceptable supporting
documents for these three categories are discussed below.
(1) Proof of identity. Evidence to establish identity is listed
below in descending order of preference:
(i) Passport;
(ii) Birth certificate;
(iii) Any national identity document from the alien's country of
origin bearing photo and fingerprint (e.g., a ''cedula'' or
''cartilla'');
(iv) Driver's license or similar document issued by a state if it
contains a photo;
(v) Baptismal Record/Marriage Certificate; or
(vi) Affidavits.
(2) Assumed names -- (i) General. In cases where an applicant claims
to have met any of the eligibility criteria under an assumed name, the
applicant has the burden of proving that the applicant was in fact the
person who used that name. The applicant's true identity is established
pursuant to the requirements of paragraph (d)(1) of this section. The
assumed name must appear in the documentation provided by the applicant
to establish eligibility. To meet the requirements of this paragraph
documentation must be submitted to prove the common identity, i.e., that
the assumed name was in fact used by the applicant.
(ii) Proof of common identity. The most persuasive evidence is a
document issued in the assumed name which identifies the applicant by
photograph, fingerprint or detailed physical description. Other
evidence which will be considered are affidavit(s) by a person or
persons other than the applicant, made under oath, which identify the
affiant by name and address, state the affiant's relationship to the
applicant and the basis of the affiant's knowledge of the applicant's
use of the assumed name. Affidavits accompanied by a photograph which
has been identified by the affiant as the individual known to affiant
under the assumed name in question will carry greater weight.
(3) Proof of residence. Evidence to establish proof of continuous
residence in the United States during the requisite period of time may
consist of any combination of the following:
(i) Past employment records, which may consist of pay stubs, W-2
Forms, certification of the filing of Federal income tax returns on IRS
Form 6166, state verification of the filing of state income tax returns,
letters from employer(s) or, if the applicant has been in business for
himself or herself, letters from banks and other firms with whom he or
she has done business. In all of the above, the name of the alien and
the name of the employer or other interested organization must appear on
the form or letter, as well as relevant dates. Letters from employers
should be on employer letterhead stationery, if the employer has such
stationery, and must include:
(A) Alien's address at the time of employment;
(B) Exact period of employment;
(C) Periods of layoff;
(D) Duties with the company;
(E) Whether or not the information was taken from official company
records; and
(F) Where records are located and whether the Service may have access
to the records.
If the records are unavailable, an affidavit form-letter stating that
the alien's employment records are unavailable and why such records are
unavailable may be accepted in lieu of (3)(i)(E) and (3)(i)(F) of this
paragraph. This affidavit form-letter shall be signed, attested to by
the employer under penalty of perjury, and shall state the employer's
willingness to come forward and give testimony if requested.
(ii) Utility bills (gas, electric, phone, etc.), receipts, or letters
from companies showing the dates during which the applicant received
service are acceptable documentation.
(iii) School records (letters, report cards, etc.) from the schools
that the applicant or their children have attended in the United States
must show name of school and periods of school attendance.
(iv) Hospital or medical records showing treatment or hospitalization
of the applicant or his or her children must show the name of the
medical facility or physician and the date(s) of the treatment or
hospitalization.
(v) Attestations by churches, unions, or other organizations to the
applicant's residence by letter which:
(A) Identifies applicant by name;
(B) Is signed by an official (whose title is shown);
(C) Shows inclusive dates of membership;
(D) States the address where applicant resided during membership
period;
(E) Includes the seal of the organization impressed on the letter or
the letterhead of the organization, if the organization has letterhead
stationery;
(F) Establishes how the author knows the applicant; and
(G) Establishes the origin of the information being attested to.
(vi) Additional documents to support the applicant's claim may
include:
(A) Money order receipts for money sent in or out of the country;
(B) Passport entries;
(C) Birth certificates of children born in the United States;
(D) Bank books with dated transactions;
(E) Letters or correspondence between applicant and another person or
organization;
(F) Social Security card;
(G) Selective Service card;
(H) Automobile license receipts, title, vehicle registration, etc.;
(I) Deeds, mortgages, contracts to which applicant has been a party;
(J) Tax receipts;
(K) Insurance policies, receipts, or letters; and
(L) Any other relevant document.
(4) Proof of financial responsibility. An applicant for adjustment
of status under this part is subject to the provisions of section
212(a)(15) of the Act relating to excludability of aliens likely to
become public charges. Generally, the evidence of employment submitted
under paragraph (d)(3)(i) of this section will serve to demonstrate the
alien's financial responsibility during the documented period(s) of
employment. If the alien's period(s) of residence in the United States
include significant gaps in employment or if there is reason to believe
that the alien may have received public assistance while employed, the
alien may be required to provide proof that he or she has not received
public cash assistance. An applicant for residence who is determined
likely to become a public charge and is unable to overcome this
determination after application of the special rule will be denied
adjustment. The burden of proof to demonstrate the inapplicability of
this provision of law lies with the applicant who may provide:
(i) Evidence of a history of employment (i.e., employment letter, W-2
Forms, income tax returns, etc.);
(ii) Evidence that he/she is self-supporting (i.e., bank statements,
stocks, other assets, etc.); or
(iii) Form I-134, Affidavit of Support, completed by a spouse in
behalf of the applicant and/or children of the applicant or a parent in
behalf of children which guarantees complete or partial financial
support. Acceptance of the affidavit of support shall be extended to
other family members where family circumstances warrant.
(5) Burden of proof. An alien applying for adjustment of status
under this part has the burden of proving by a preponderance of the
evidence that he or she has resided in the United States for the
requisite periods, is admissible to the United States under the
provisions of section 245a of the Act, and is otherwise eligible for
adjustment of status under this section. The inference to be drawn from
the documentation provided shall depend on the extent of the
documentation, its credibility and amenability to verification as set
forth in paragraph (d) of this section.
(6) Evidence. The sufficiency of all evidence produced by the
applicant will be judged according to its probative value and
credibility. To meet his or her burden of proof, an applicant must
provide evidence of eligibility apart from his or her own testimony. In
judging the probative value and credibility of the evidence submitted,
greater weight will be given to the submission of original
documentation.
(e) Filing of application. (1) The application must be filed on Form
I-687 at an office of a designated entity or at a Service Legalization
Office within the jurisdiction of the District wherein the applicant
resides. If the application is filed with a designated entity, the
alien must have consented to having the designated entity forward the
application to the legalization office. In the case of applications
filed at a legalization office, the district director may, at his or her
discretion:
(i) Require the applicant to file the application in person; or
(ii) Require the applicant to file the application by mail; or
(iii) Permit the filing of applications either by mail or in person.
The applicant must appear for a personal interview at the
legalization office as scheduled. If the applicant is 14 years of age
or older, the application must be accompanied by a completed Form FD-258
(Applicant Card).
(2) At the time of the interview, wherever possible, original
documents must be submitted except the following: Official government
records; employment or employment-related records maintained by
employers, unions, or collective bargaining organizations; medical
records; school records maintained by a school or school board; or
other records maintained by a party other than the applicant. Copies of
records maintained by parties other than the applicant which are
submitted in evidence must be certified as true and correct by such
parties and must bear their seal or signature or the signature and title
of persons authorized to act in their behalf. If at the time of the
interview the return of original documents is desired by the applicant,
they must be accompanied by notarized copies or copies certified true
and correct by a qualified designated entity or by the alien's
representative in the format prescribed in 204.2(j)(1) or (2) of this
chapter. At the discretion of the district director, original
documents, even if accompanied by certified copies, may be temporarily
retained for forensic examination by the Document Analysis Unit at the
Regional Processing Facility having jurisdiction over the legalization
office to which the documents were submitted.
(3) A separate application (I-687) must be filed by each eligible
applicant. All fees required by 103.7(b)(1) of this chapter must be
submitted in the exact amount in the form of a money order, cashier's
check, or certified bank check, made payable to the Immigration and
Naturalization Service. No personal checks or currency will be
accepted. Fees will not be waived or refunded under any circumstances.
(f) Filing date of application. The date the alien submits a
completed application to a Service Legalization Office or designated
entity shall be considered the filing date of the application, provided
that in the case of an application filed at a designated entity the
alien has consented to having the designated entity forward the
application to the Service Legalization Office having jurisdiction over
the location of the alien's residence. The designated entities are
required to forward completed applications to the appropriate Service
Legalization Office within sixty days of receipt.
(g) Selective Service registration. At the time of filing an
application under this section, male applicants over the age of 17 and
under the age of 26 are required to be registered under the Military
Selective Service Act. An applicant shall present evidence that he has
previously registered under that Act in the form of a letter of
acknowledgement from the Selective Service System, or such alien shall
present a completed and signed Form SSS-1 at the time of filing Form
I-687 with the Immigration and Naturalization Service or a designated
entity. Form SSS-1 will be forwarded to the Selective Service System by
the Service.
(h) Continuous residence. (1) For the purpose of this Act, an
applicant for temporary resident status shall be regarded as having
resided continuously in the United States if, at the time of filing of
the application:
(i) No single absence from the United States has exceeded forty-five
(45) days, and the aggregate of all absences has not exceeded one
hundred and eighty (180) days between January 1, 1982 through the date
the application for temporary resident status is filed, unless the alien
can establish that due to emergent reasons, his or her return to the
United States could not be accomplished within the time period allowed;
(ii) The alien was maintaining a residence in the United States; and
(iii) The alien's departure from the United States was not based on
an order of deportation.
(2) An alien who has been absent from the United States in accordance
with the Service's advance parole procedures shall not be considered as
having interrupted his or her continuous residence as required at the
time of filing an application under this section.
(i) Medical examination. An applicant under this part shall be
required to submit to an examination by a designated civil surgeon at no
expense to the government. The designated civil surgeon shall report on
the findings of the mental and physical condition of the applicant and
the determination of the alien's immunization status. Results of the
medical examinaton must be presented to the Service at the time of
interview and shall be incorporated into the record. Any applicant
certified under paragraphs (1), (2), (3), (4), or (5) of section 212(a)
of the Act may appeal to a Board of Medical Officers of the U.S. Public
Health Service as provided in section 234 of the Act and part 235 of
this chapter.
(j) Interview. Each applicant, regardless of age, must appear at the
appropriate Service Legalization Office and must be fingerprinted for
the purpose of issuance of Forms I-688 and I-688A. Each applicant shall
be interviewed by an immigration officer, except that the interview may
be waived for a child under 14, or when it is impractical because of the
health or advanced age of the applicant.
(k) Applicability of exclusion grounds -- (1) Grounds of exclusion
not to be applied. The following paragraphs of section 212(a) of the
Act shall not apply to applicants for temporary resident status: (14)
Workers entering without Labor Certification; (20) immigrants not in
possession of a valid entry document; (21) visas issued without
compliance with section 203; (25) illiterates; and (32) graduates of
non-accredited medical schools.
(2) Waiver of grounds of exclusion. Except as provided in paragraph
(k)(3) of this section, the Attorney General may waive any other
provision of section 212(a) of the Act only in the case of individual
aliens for humanitarian purposes, to assure family unity, or when the
granting of such a waiver is in the public interest. If an alien is
excludable on grounds which may be waived as set forth in this
paragraph, he or she shall be advised of the procedures for applying for
a waiver of grounds of excludability on Form I-690. When an application
for waiver of grounds of excludability is filed jointly with an
application for temporary residence under this section, it shall be
accepted for processing at the legalization office. If an application
for waiver of grounds of excludability is submitted after the alien's
preliminary interview at the legalization office, it shall be forwarded
to the appropriate Regional Processing Facility. All applications for
waivers of grounds of excludability must be accompanied by the correct
fee in the exact amount. All fees for applications filed in the United
States must be in the form of a money order, cashier's check, or bank
check. No personal checks or currency will be accepted. Fees will not
be waived or refunded under any circumstances. An application for
waiver of grounds of excludability under this part shall be approved or
denied by the director of the Regional Processing Facility in whose
jurisdiction the applicant's application for adjustment of status was
filed except that in cases involving clear statutory ineligibility or
admitted fraud, such application may be denied by the district director
in whose jurisdiction the application is filed, and in cases returned to
a Service Legalization Office for re-interview, such application may be
approved at the discretion of the district director. The applicant
shall be notified of the decision and, if the application is denied, of
the reason therefor. Appeal from an adverse decision under this part
may be taken by the applicant on Form I-694 within 30 days after the
service of the notice only to the Service's Administrative Appeals Unit
pursuant to the provisions of 103.3(a) of this chapter.
(3) Grounds of exclusion that may not be waived. Notwithstanding any
other provision of the Act, the following provisions of section 212(a)
may not be waived by the Attorney General under paragraph (k)(2) of this
section:
(i) Paragraphs (9) and (10) (criminals);
(ii) Paragraph (23) (narcotics) except for a single offense of simple
possession of thirty grams or less of marijuana;
(iii) Paragraphs (27) (prejudicial to the public interest), (28)
(communist), and (29) (subversive);
(iv) Paragraph (33) (participated in Nazi persecution).
(4) Special rule for determination of public charge. An alien who
has a consistent employment history which shows the ability to support
himself or herself even though his or her income may be below the
poverty level, may be admissible under paragraph (k)(2) of this section.
The alien's employment history need not be continuous in that it is
uninterrupted. It should be continuous in the sense that the alien
shall be regularly attached to the workforce, has an income over a
substantial period of the applicable time, and has demonstrated the
capacity to exist on his or her income without recourse to public cash
assistance. This regulation is prospective in that the Service shall
determine, based on the alien's history, whether he or she is likely to
become a public charge. Past acceptance of public cash assistance
within a history of consistent employment will enter into this decision.
The weight given in considering applicability of the public charge
provisions will depend on many factors, but the length of time an
applicant has received public cash assistance will constitute a
significant factor.
(5) Public assistance and criminal history verification.
Declarations by an applicant that he or she has not been the recipient
of public cash assistance and/or has not had a criminal record are
subject to a verification of facts by the Service. The applicant must
agree to fully cooperate in the verification process. Failure to assist
the Service in verifying information necessary for the adjudication of
the application may result in a denial of the application.
(l) Continous physical presence since November 6, 1986. (1) An alien
applying for adjustment to temporary resident status must establish that
he or she has been continuously physically present in the United States
since November 6, 1986. Aliens who were outside of the United States on
the date of enactment or departed the United States after enactment may
apply for legalization if they reentered prior to May 1, 1987, and meet
the continuous residence requirements and are otherwise eligible for
legalization.
(2) A brief, casual and innocent absence means a departure authorized
by the Service (advance parole) subsequent to May 1, 1987 of not more
than thirty (30) days for legitimate emergency or humanitarian purposes
unless a further period of authorized departure has been granted in the
discretion of the district director or a departure was beyond the
alien's control.
(m) Departure. (1) During the time period from the date that an
alien's application establishing prima facie eligibility for temporary
resident status is reviewed at a Service Legalization Office and the
date status as a temporary resident is granted, the alien applicant can
only be readmitted to the United States provided his or her departure
was authorized under the Service's advance parole provisions contained
in 212.5(e) of this chapter.
(2) An alien whose application for temporary resident status has been
approved may be admitted to the United States upon return as a returning
temporary resident provided he or she:
(i) Is not under deportation proceedings, such proceedings having
been instituted subsequent to the approval of temporary resident status.
A temporary resident alien will not be considered deported if that
alien departs the United States while under an outstanding order of
deportation issued prior to the approval of temporary resident status;
(ii) Has not been absent from the United States more than thirty (30)
days on the date application for admission is made;
(iii) Has not been absent from the United States for an aggregate
period of more than 90 days since the date the alien was granted lawful
temporary resident status;
(iv) Presents Form I-688;
(v) Presents himself or herself for inspection; and
(vi) Is otherwise admissible.
(3) The periods of time in paragraph (m)(2)(ii) and (m)(2)(iii) of
this section may be waived at the discretion of the Attorney General in
cases where the absence from the United States was due merely to a brief
temporary trip abroad due to emergent or extenuating circumstances
beyond the alien's control.
(n)(1) Employment and travel authorization; general. Authorization
for employment and travel abroad for temporary resident status
applicants under section 245A(a) of the Act may only be granted by a
Service Legalization Office. INS district directors will determine the
Service location for the completion of processing of travel
documentation. In the case of an application which has been filed with
a designated entity, employment authorization may only be granted by the
Service after the application has been properly received at the Service
Legalization Office.
(2) Employment and travel authorization prior to the granting of
temporary resident status. (i) Permission to travel abroad and accept
employment may be granted to the applicant after an interview has been
conducted in connection with an application establishing prima facie
eligibility for temporary resident status. Permission to travel abroad
may be granted in emergent circumstances in accordance with the
Service's advance parole provisions contained in 212.5(e) of this
chapter after an interview has been conducted in connection with an
application establishing prima facie eligiblity for temporary resident
status.
(ii) If an appointment cannot be scheduled within thirty (30) days,
authorization to accept employment will be given, valid to the scheduled
appointment date. The appointment letter will be endorsed with the
temporary employment authorization. Form I-688A, Employment
Authorization, will be given to the applicant after an interview has
been completed by an immigration officer unless a formal denial is
issued by a Service Legalization Office. This temporary employment
authorization will be restricted to six months duration, pending final
determination on the application for temporary resident status.
(3) Employment and travel authorization upon grant of temporary
resident status. Upon grant of an application for adjustment to
temporary resident status by a Regional Processing Facility, the
processing facility will forward a notice of approval to the alien at
his or her last known address and to his or her designated entity or
representative. The alien will be required to return to the Service
Legalization Office where the application was initially received,
surrender the I-688A previously issued, and will be issued Form I-688,
Temporary Resident Card, authorizing employment and travel abroad.
(4) Revocation of employment authorization upon denial of temporary
resident status. Upon denial of an application for adjustment to
temporary resident status the alien will be notified that if a timely
appeal is not submitted, employment authorization shall be automatically
revoked on the final day of the appeal period.
(o) Decision. The applicant shall be notified in writing of the
decision, and, if the application is denied, of the reason therefor. An
appeal from an adverse decision under this part may be taken by the
applicant on Form I-694.
(p) Appeal process. An adverse decision under this part may be
appealed to the Associate Commissioner, Examinations (Administrative
Appeals Unit). Any appeal with the required fee shall be filed with the
Regional Processing Facility within thirty (30) days after service of
the notice of denial in accordance with the procedures of 103.3(a) of
this chapter. An appeal received after the thirty (30) day period has
tolled will not be accepted. The thirty (30) day period includes any
time required for service or receipt by mail.
(q) Motions. The Regional Processing Facility director may sua
sponte reopen and reconsider any adverse decision. When an appeal to
the Associate Commissioner, Examinations (Administrative Appeals Unit)
has been filed, the INS director of the Regional Processing Facility may
issue a new decision that will grant the benefit which has been
requested. The director's new decision must be served on the appealing
party within 45 days of receipt of any briefs and/or new evidence, or
upon expiration of the time allowed for the submission of any briefs.
Motions to reopen a proceeding or reconsider a decision shall not be
considered under this part.
(r) Certifications. The Regional Processing Facility director may,
in accordance with 103.4 of this chapter, certify a decision to the
Associate Commissioner, Examinations (Administrative Appeals Unit) when
the case involves an unusually complex or novel question of law or fact.
The party affected shall be given notice of such certification and of
the right to submit a brief within thirty (30) days from service of the
notice.
(s) Date of adjustment to temporary residence. The status of an
alien whose application for temporary resident status is approved shall
be adjusted to that of a lawful temporary resident as of the date
indicated on the application fee receipt issued at Service Legalization
Office.
(t) Limitation on access to information and confidentiality. (1) No
person other than a sworn officer or employee of the Justice Department
or bureau of agency thereof, will be permitted to examine individual
applications, except employees of designated entities where applications
are filed with the same designated entity. For purposes of this part,
any individual employed under contract by the Service to work in
connection with the legalization program shall be considered an
''employee of the Justice Department or bureau or agency thereof.''
(2) Files and records prepared by designated entites under this
section are confidential. The Attorney General and the Service shall
not have access to these files and records without the consent of the
alien.
(3) No information furnished pursuant to an application for
legalization under this section shall be used for any purpose except:
(i) To make a determination on the application; or, (ii) for the
enforcement of the provisions encompassed in section 245A(c)(6) of the
Act, except as provided in paragraph (t)(4) of this section.
(4) If a determination is made by the Service that the alien has, in
connection with his or her application, engaged in fraud or willful
misrepresentation or concealment of a material fact, knowingly provided
a false writing or document in making his or her application, knowingly
made a false statement or representation, or engaged in any other
activity prohibited by section 245A(c)(6) of the Act, the Service shall
refer the matter to the United States Attorney for prosecution of the
alien or of any person who created or supplied a false writing or
document for use in an application for adjustment of status under this
part.
(5) Information obtained in a granted legalization application and
contained in the applicant's file is subject to subsequent review in
reference to future benefits applied for (including petitions for
naturalization and permanent resident status for relatives).
(u) Termination of temporary resident staus -- (1) Termination of
temporary resident status; General. The status of an alien lawfully
admitted for temporary residence under section 245A(a)(1) of the Act may
be terminated at any time in accordance with section 245A(b)(2) of the
Act. It is not necessary that a final order of deportation be entered
in order to terminate temporary resident status. The temporary resident
status may be terminated upon the occurence of any of the following:
(i) It is determined that the alien was ineligible for temporary
residence under section 245A of this Act;
(ii) The alien commits an act which renders him or her inadmissible
as an immigrant, unless a waiver is secured pursuant to 245a.2(k)(2).
(iii) The alien is convicted of any felony, or three or more
misdemeanors;
(iv) The alien fails to file for adjustment of status from temporary
resident to permanent resident on Form I-698 within forty-three (43)
months of the date he/she was granted status as a temporary resident
under 245a.1 of this part.
(2) Procedure. Termination of an alien's status under paragaph
(u)(1) of this section will be made only on notice to the alien sent by
certified mail directed to his or her last known address, and to his or
her representative. The alien must be given an opportunity to offer
evidence in opposition to the grounds alleged for termination of his or
her status. Evidence in opposition must be submitted within thirty (30)
days after the service of the Notice of Intent to Terminate. If the
alien's status is terminated, the director of the regional processing
facility shall notify the alien of the decision and the reasons for the
termination, and further notify the alien that any Service Form I-94,
Arrival-Departure Record or other official Service document issued to
the alien authorizing employment and/or travel abroad, or any Form
I-688, Temporary Resident Card previously issued to the alien will be
declared void by the director of the regional processing facility within
thirty (30) days if no appeal of the termination decision is filed
within that period. The alien may appeal the decision to the Associate
Commissioner, Examinations (Administrative Appeals Unit). Any appeal
with the required fee shall be filed with the regional processing
facility within thirty (30) days after the service of the notice of
termination. If no appeal is filed within that period, the I-94, I-688
or other official Service document shall be deemed void, and must be
surrendered without delay to an immigration officer or to the issuing
office of the Service.
(3) Termination not construed as rescission under section 246. For
the purposes of this part the phrase termination of status of an alien
granted lawful temporary residence under section 245A(a) of the Act
shall not be construed to necessitate a rescission of status as
described in section 246 of the Act, and the proceedings required by the
regulations issued thereunder shall not apply.
(4) Return to unlawful status after termination. Termination of the
status of any alien previously adjusted to lawful temporary residence
under section 245A(a) of the Act shall act to return such alien to the
unlawful status held prior to the adjustment, and render him or her
amenable to exclusion or deportation proceedings under section 236 or
242 of the Act, as appropriate.
(v) Ineligibility for immigration benefits. An alien whose status is
adjusted to that of a lawful temporary resident under section 245A of
the Act is not entitled to submit a petition pursuant to section
203(a)(2) or to any other benefit or consideration accorded under the
Act to aliens lawfuly admitted for permanent residence.
(w) Declaration of Intending Citizen. An alien who has been granted
the status of temporary resident under section 245A(a)(1) of this Act
may assert a claim of discrimination on the basis of citizenship status
under section 274B of the Act only if he or she has previously filed
Form I-772 (Declaration of Intending Citizen) after being granted such
status. The Declaration of Intending Citizen is not required as a basis
for filing a petition for naturalization; nor shall it be regarded as a
right to United States citizenship; nor shall it be regarded as
evidence of a person's status as a resident.
(52 FR 16208, May 1, 1987, as amended at 52 FR 43845, 43846, Nov.
17, 1987; 53 FR 23382, June 22, 1988; 54 FR 29449, July 12, 1989; 56
FR 31061, July 9, 1991)
08 CFR 245a.3 Application for adjustment from temporary to permanent
resident status.
(a) Application period for permanent residence. (1) An alien may
submit an application for lawful permanent resident status, with fee,
immediately subsequent to the granting of lawful temporary resident
status. Any application received prior to the alien's becoming eligible
for adjustment to permanent resident status will be administratively
processed and held by the INS, but will not be considered filed until
the beginning of the nineteenth month after the date the alien was
granted temporary resident status as defined in 245a.2(s) of this
chapter.
(2) No application shall be denied for failure to timely apply before
the end of 43 months from the date of actual approval of the temporary
resident application.
(3) The Service Center Director shall sua sponte reopen and
reconsider without fee any application which was previously denied for
late filing. No additional fee will be required for those applications
which are filed during the twelve month extension period but prior to
July 9, 1991.
(b) Eligibility. Any alien who has been lawfully admitted for
temporary resident status under section 245A(a) of the Act, such status
not having been terminated, may apply for adjustment of status of that
of an alien lawfully admitted for permanent residence if the alien:
(1) Applies for such adjustment anytime subsequent to the granting of
temporary resident status but on or before the end of 43 months from the
date of actual approval of the termporary resident application. The
alien need not be physically present in the United States at the time of
application; however, the alien must establish continuous residence in
the United States in accordance with the provisions of paragraph (b)(2)
of this section and must be physically present in the United States at
the time of interview and/or processing for permanent resident status
(ADIT processing);
(2) Establishes continuous residence in the United States since the
date the alien was granted such temporary residence status. An alien
shall be regarded as having resided continuously in the United States
for the purpose of this part if, at the time of applying for adjustment
from temporary to permanent resident status, or as of the date of
eligibility for permanent residence, whichever is later, no single
absence from the United States has exceeded thirty (30) days, and the
aggregate of all absences has not exceeded ninety (90) days between the
date of approval of the temporary resident application, Form I-687 (not
the ''roll-back'' date) and the date the alien applied or became
eligible for permanent resident status, whichever is later, unless the
alien can establish that due to emergent reasons or circumstances beyond
his or her control, the return to the United States could not be
accomplished within the time period(s) allowed. A single absence from
the United States of more than 30 days, and aggregate absences of more
than 90 days during the period for which continuous residence is
required for adjustment to permanent residence, shall break the
continuity of such residence, unless the temporary resident can
establish to the satisfaction of the district director or the Director
of the Regional Processing Facility that he or she did not, in fact,
abandon his or her residence in the United States during such period;
(3) Is admissible to the United States as an immigrant, except as
otherwise provided in paragraph (g) of this section; and has not been
convicted of any felony, or three or more misdemeanors; and
(4)(i)A) Can demonstrate that the alien meets the requirements of
section 312 of the Immigration and Nationality Act, as amended (relating
to minimal understanding of ordinary English and a knowledge and
understanding of the history and government of the United States); or
(B) Is satisfactorily pursuing a course of study recognized by the
Attorney General to achieve such an understanding of English and such a
knowledge and understanding of the history and government of the United
States.
(ii) The requirements of paragraph (b)(4)(i) of this section must be
met by each applicant. However, these requirements shall be waived
without formal application for persons who, as of the date of
application or the date of eligibility for permanent residence under
this part, whichever date is later, are:
(A) Under 16 years of age; or
(B) 65 years of age or older; or
(C) Over 50 years of age who have resided in the United States for at
least 20 years and submit evidence establishing the 20-year
qualification requirement. Such evidence must be submitted pursuant to
the requirements contained in Section 245a.2(d)(3) of this chapter; or
(D) Developmentally disabled as defined at 245a.1(v) of this
chapter. Such persons must submit medical evidence concerning their
developmental disability; or
(E) Physically unable to comply. The physical disability must be of
a nature which renders the applicant unable to acquire the four language
skills of speaking, understanding, reading, and writing English in
accordance with the criteria and precedence established in OI
312.1(a)(2)(iii) (Interpretations). Such persons must submit medical
evidence concerning their physical disability.
(iii) (A) Literacy and basic citizenship skills may be demonstrated
for purposes of complying with paragraph (b)(4)(i)(A) of this section
by:
(1) Speaking and understanding English during the course of the
interview for permanent resident status. An applicant's ability to read
and write English shall be tested by excerpts from one or more parts of
the Federal Textbooks on Citizenship at the elementary literacy level.
The test of an applicant's knowledge and understanding of the history
and form of government of the United States shall be given in the
English language. The scope of the testing shall be limited to subject
matter covered in the revised (1987) Federal Textbooks on Citizenship or
other approved training material. The test questions shall be selected
from a list of 100 standardized questions developed by the Service. In
choosing the subject matter and in phrasing questions, due consideration
shall be given to the extent of the applicant's education, background,
age, length of residence in the United States, opportunities available
and efforts made to acquire the requisite knowledge, and any other
elements or factors relevant to an appraisal of the adequacy of his or
her knowledge and understanding; or
(2) By passing a standardized section 312 test (effective
retroactively as of November 7, 1988) such test being given in the
English language by the Legalization Assistance Board with the
Educational Testing Service (ETS) or the California State Department of
Education with the Comprehensive Adult Student Assessment System
(CASAS). The scope of the test is based on the 1987 edition of the
Federal Textbooks on Citizenship series written at the elementary
literacy level. An applicant may evidence passing of the standardized
section 312 test by submitting the approved testing organization's
standard notice of passing test results at the time of filing Form
I-698, subsequent to filing the application but prior to the interview,
or at the time of the interview. The test results may be independently
verified by INS, if necessary.
(B) An applicant who fails to pass the English literacy and/or the
U.S. history and government tests at the time of the interview, shall be
afforded a second opportunity after six (6) months (or earlier, at the
request of the applicant) to pass the tests, submit evidence of passing
an INS approved section 312 standardized examination or submit evidence
of fulfillment of any one of the ''satisfactorily pursuing''
alternatives listed at 245a.1(s) of this chapter. The second interview
shall be conducted prior to the denial of the application for permanent
residence and may be based solely on the failure to pass the basic
citizenship skills requirements. An applicant whose period of
eligibility expires prior to the end of the six-month re-test period,
shall still be accorded the entire six months within which to be
re-tested.
(iv) To satisfy the English language and basic citizenship skills
requirements under the ''satisfactorily pursuing'' standard as defined
at 245a.1(s) of this chapter the applicant must submit evidence of such
satisfactory pursuit in the form of a ''Certificate of Satisfactory
Pursuit'' (Form I-699) issued by the designated school or program
official attesting to the applicant's satisfactory pursuit of the course
of study as defined at 245a.1(s)(1) and (4) of this chapter; or a high
school diploma or general educational development diploma (GED) under
245a.1(s)(2) of this chapter; or certification on letterhead stationery
from a state recognized, accredited learning institution under
245a.1(s)(3) of this chapter; or evidence of having passed the IRCA
Test for Permanent Residency under 245a.1(s)(5) of this chapter. Such
applicants shall not then be required to demonstrate that they meet the
requirements of 245a.3(b)(4)(i)(A) of this chapter in order to be
granted lawful permanent residence provided they are otherwise eligible.
Evidence of ''Satisfactory Pursuit'' may be submitted at the time of
filing Form I-698, subsequent to filing the application but prior to the
interview, or at the time of the interview (the applicant's name and
A90M number must appear on any such evidence submitted). An applicant
need not necessarily be enrolled in a recognized course of study at the
time of application for permanent residency.
(v) Enrollment in a recognized course of study as defined in
245a.3(b)(5) and issuance of a ''Certificate of Satisfactory Pursuit''
must occur subsequent to May 1, 1987.
(5) A course of study in the English language and in the history and
government of the United States shall satisfy the requirement of
paragraph (b)(4)(i) of this section if the course materials for such
instruction include textbooks published under the authority of section
346 of the Act, and it is
(i) Sponsored or conducted by: (A) An established public or private
institution of learning recognized as such by a qualified state
certifying agency; (B) An institution of learning approved to issue
Forms I-20 in accordance with 214.3 of this chapter; (C) A qualified
designated entity within the meaning of section 245A(c)(2) of the Act,
in good-standing with the Service; or (D) Is certified by the district
director in whose jurisdiction the program is conducted, or is certified
by the Director of the Outreach Program nationally.
(ii) A program seeking certification as a course of study recognized
by the Attorney General under paragraph (b)(5)(i)(D) of this section
shall file Form I-803, Petition for Attorney General Recognition to
Provide Course of Study for Legalization: Phase II, with the Director
of Outreach for national level programs or with the district director
having jurisdiction over the area in which the school or program is
located. In the case of local programs, a separate petition must be
filed with each district director when a parent organization has schools
or programs in more than one INS district. A petition must identify by
name and address those schools or programs included in the petition. No
fee shall be required to file Form I-803;
(A) The Director of Outreach and the district directors may approve a
petition where they have determined that (1) a need exists for a course
of study in addition to those already certified under 245a.3(b)(5)(i)
(A), (B), or (C); and/or (2) of this chapter the petitioner has
historically provided educational services in English and U.S. history
and government but is not already certified under 245a.3(b)(5)(i)(A),
(B), or (C); and (3) of this chapter the petitioner is otherwise
qualified to provide such course of study;
(B) Upon approval of the petition the Director of Outreach and
district directors shall issue a Certificate of Attorney General
Recognition on Form I-804 to the petitioner. If the petition is denied,
the petitioner shall be notified in writing of the decision therefor.
No appeal shall lie from a denial of Form I-803, except that in such
case where the petitions of a local, cross-district program are approved
in one district and denied in another within the same State, the
petitioner may request review of the denied petition by the appropriate
Regional Commissioner. The Regional Commissioner shall then make a
determination in this case;
(C) Each district director shall compile and maintain lists of
programs approved under paragraph (b)(5)(i)(D) of this section within
his or her jurisdiction. The Director of Outreach shall compile and
maintain lists of approved national level programs.
(6) Notice of participation. All courses of study recognized under
245a.3(b)(5)(i)(A) through (C) of this chapter which are already
conducting or will conduct English and U.S. history and government
courses for temporary residents must submit a Notice of Participation to
the district director in whose jurisdiction the program is conducted.
Acceptance of ''Certificates of Satisfactory Pursuit'' (Form I-699)
shall be delayed until such time as the course provider submits the
Notice of Participation, which notice shall be in the form of a letter
typed on the letterhead of the course provider (if available) and
include the following:
(i) The name(s) of the school(s)/program(s).
(ii) The complete addresses and telephone numbers of sites where
courses will be offered, and class schedules.
(iii) The complete names of persons who are in charge of conducting
English and U.S. history and government courses of study.
(iv) A statement that the course of study will issue ''Certificates
of Satisfactory Pursuit'' to temporary resident enrollees according to
INS regulations.
(v) A list of designated officials of the recognized course of study
authorized to sign ''Certificates of Satisfactory Pursuit'', and samples
of their original signatures.
(vi) A statement that if a course provider charges a fee to temporary
resident enrollees, the fee will not be excessive.
(vii) Evidence of recognition under 8 CFR 245a.3(b)(5)(i)(A), (B), or
(C) (e.g., certification from a qualified state certifying agency;
evidence of INS approval for attendance by nonimmigrant students, such
as the school code number, or the INS identification number from the QDE
cooperative agreement).
The course provider shall notify the district director, in writing,
of any changes to the information contained in the Notice of
Participation subsequent to its submission within ten (10) days of such
change.
A Certificate of Attorney General Recognition to Provide Course of
Study for Legalization (Phase II), Form I-804, shall be issued to course
providers who have submitted a Notice of Participation in accordance
with the provisions of this section by the distict director. A Notice
of Participation deficient in any way shall be returned to the course
provider to correct the deficiency. Upon the satisfaction of the
district director that the deficiency has been corrected, the course
provider shall be issued Form I-804. Each district director shall
compile and maintain lists of recognized courses within his or her
district.
(7) Fee structure. No maximum fee standard will be imposed by the
Attorney General. However, if it is believed that a fee charged is
excessive, this factor alone will justify non-certification of the
course provider by INS as provided in 245a.3(b)(10) and/or (12) of this
section. Once fees are established, any change in fee without prior
approval of the district director or the Director of Outreach may
justify de-certification. In determining whether or not a fee is
excessive, district directors and the Director of Outreach shall
consider such factors as the means of instruction, class size,
prevailing wages of instructors in the area of the program, and
additional costs such as rent, materials, utilities, insurance, and
taxes. District directors and the Director of Outreach may also seek
the assistance of various Federal, State and local entities as the need
arises (e.g., State Departments of Education) to determine the
appropriateness of course fees.
(8) The Citizenship textbooks to be used by applicants for lawful
permanent residence under section 245A of the Act shall be distributed
by the Service to appropriate representatives of public schools. These
textbooks may otherwise be purchased from the Superintendent of
Documents, Government Printing Office, Washington, DC 20402, and are
also available at certain public institutions.
(9) Maintenance of Student Records. Course providers conducting
courses of study recognized under 245a.3(b)(5) of this chapter shall
maintain for each student, for a period of three years from the
student's enrollment, the following information and documents:
(i) Name (as copied exactly from the I-688A or I-688);
(ii) A-number (90 million series);
(iii) Date of enrollment;
(iv) Attendance records;
(v) Assessment records;
(vi) Photocopy of signed ''Certificate of Satisfactory Pursuit''
issued to the student.
(10) Issuance of ''Certificate of Satisfactory Pursuit'' (I-699).
(i) Each recognized course of study shall prepare a standardized
certificate that is signed by the designated official. The Certificate
shall be issued to an applicant who has attended a recognized course of
study for at least 40 hours of a minimum of 60-hour course as
appropriate for his or her ability level, and is demonstrating progress
according to the performance standards of the English and U.S. history
and government course prescribed. Such standards shall conform with the
provisions of 245a.1(s) of this chapter.
(ii) The district director shall reject a certificate if it is
determined that the certificate is fraudulent or was fraudulently
issued.
(iii) The district director shall reject a Certificate if it is
determined that the course provider is not complying with INS
regulations. In the case of non-compliance, the district director will
advise the course provider in writing of the specific deficiencies and
give the provider thirty (30) days within which to correct such
deficiencies.
(iv) District directors will accept Certificates from course
providers once it is determined that the deficiencies have been
satisfactorily corrected.
(v) Course providers which engage in fraudulent activities or fail to
conform with INS regulations will be removed from the list of INS
approved programs. INS will not accept Certificates from these
providers.
(vi) Certificates may be accepted if a program is cited for
deficiencies or decertified at a later date and no fraud was involved.
(vii) Certificates shall not be accepted from a course provider that
has been decertified unless the alien enrolled in and had been issued a
certificate prior to the decertification, provided that no fraud was
involved.
(viii) The appropriate State agency responsbile for SLIAG funding
shall be notified of all decertifications by the district director.
(11) Designated official. (i) The designated official is the
authorized person from each recognized course of study whose signature
appears on all ''Certificates of Satisfactory Pursuit'' issued by that
course;
(ii) The designated official must be a regularly employed member of
the school administration whose office is located at the school and
whose compensation does not come from commissions for recruitment of
foreign students;
(iii) (A) The head of the school system or school, the director of
the Qualified Designated Entity, the head of a program approved by the
Attorney General, or the president or owner of other institutions
recognized by the Attorney General must specify a designated official.
Such designated official may not delegate this designation to any other
person. Each school or institution may have up to three (3) designated
officials at any one time. In a multi-campus institution, each campus
may have up to three (3) designated officials at any one time;
(B) Each designated official shall have read and otherwise be
familiar with the ''Requirements and Guidelines for Courses of Study
Recognized by the Attorney General''. The signature of a designated
official shall affirm the official's compliance with INS regulations;
(C) The name, title, and sample signature of each designated official
for each recognized course of study shall be on file with the district
director in whose jurisdiction the program is conducted.
(12) Monitoring by INS. (i) INS Outreach personnel in conjunction
with the district director shall monitor the course providers in each
district in order to:
(A) Assure that the program is a course of study recognized by the
Attorney General under the provisions of 245a.3(b)(5).
(B) Verify the existence of curriculm as defined in 245a.1(u) on
file for each level of instruction provided in English language and U.S.
history and government classes.
(C) Assure that ''Certificates of Satisfactory Pursuit'' are being
issued in accordance with 245a.3(b)(10).
(D) Assure that records are maintained on each temporary resident
enrollee in accordance with 245a.3(b)(9).
(E) Assure that fees (if any) assessed by the course provider are in
compliance in accordance with 245a.3(b)(7).
(ii) If INS has reason to believe that the service is not being
provided to the applicant, INS will issue a 24-hour minimum notice to
the service provider before any site visit is conducted.
(iii) If it is determined that a course provider is not performing
according to the standards established in either 245a.3(b)(10) or (12)
of this chapter, the district director shall institute decertification
proceedings. Notice of Intent to Decertify shall be provided to the
course provider. The course provider has 30 days within which to
correct performance according to standards established. If after the 30
days, the district director is not satisfied that the basis for
decertification has been overcome, the course provider will be
decertified. The appropriate State agency shall be notified in
accordance with 245a.3(b)(10)(viii) of this chapter. A copy of the
notice of decertification shall be sent to the State agency.
(13) Courses of study recognized by the Attorney General as defined
at 245a.3(b)(5) of this chapter shall provide certain standards for the
selection of teachers. Since some programs may be in locations where
selection of qualified staff is limited, or where budget constraints
restrict options, the following list of qualities for teacher selection
is provided as guidance. Teacher selections should include as many of
the following qualities as possible:
(i) Specific training in Teaching English to Speakers of Other
Languages (TESOL);
(ii) Experience as a classroom teacher with adults;
(iii) Cultural sensitivity and openness;
(iv) Familiarity with compentency-based education;
(v) Knowledge of curriculum and materials adaptation;
(vi) Knowledge of a second language.
(c) Ineligible aliens. (1) An alien who has been convicted of a
felony, or three or more misdemeanors in the United States.
(2) An alien who is inadmissible to the United States as an
immigrant, except as provided in 245a.3(g)(1).
(3) An alien who was previously granted temporary resident status
pursuant to section 245A(a) of the Act who has not filed an application
for permanent resident status under section 245A(b)(1) of the Act by the
end of 43 months from the date of actual approval of the temporary
resident application.
(4) An alien who was not previously granted temporary resident status
under section 245A(a) of the Act.
(5) An alien whose temporary resident status has been terminated
under 245a.2(u) of this chapter
(d) Filing the application. The provisions of part 211 of this
chapter relating to the documentary requirements for immigrants shall
not apply to an applicant under this part.
(1) The application must be filed on Form I-698. The application
will be mailed to the designated Regional Processing Facility having
jurisdiction over the applicant's residence. Form I-698 must be
accompanied by the correct fee and documents specified in the
instructions.
(2) Certification of documents. The submission of original documents
is not required at the time of filing Form I-698. A copy of a document
submitted in support of Form I-698 filed pursuant to section 245A(b) of
the Act and this part may be accepted, though unaccompanied by the
original, if the copy is certified as true and complete by
(i) An attorney in the format prescribed in 204.2(j)(1) of this
chapter; or
(ii) An alien's representative in the format prescribed in
204.2(j)(2) of this chapter; or
(iii) A qualified designated entity (QDE) in good standing as defined
in 245a.1(r) of this chapter, if the copy bears a certification by the
QDE in good-standing, typed or rubber-stamped in the following language:
I certify that I have compared this copy with its original and it is
a true and complete copy.
Signed: --
Date: --
Name: --
QDE in good-standing representative
Name of QDE in good-standing: --
Address of QDE in good-standing: --
INS-QDE Cooperative Agreement Number: --
(iv) Authentication. Certification of documents must be
authenticated by an original signature. A facsimile signature on a
rubber stamp will not be acceptable.
(v) Original documents. Original documents must be presented when
requested by the Service. Official government records, employment or
employment-related records maintained by employers, unions, or
collective bargaining organizations, medical records, school records
maintained by a school or school board or other records maintained by a
party other than the applicant which are submitted in evidence must be
certified as true and complete by such parties and must bear their seal
or signature or the signature and title of persons authorized to act in
their behalf. At the discretion of the district director and/or the
Regional Processing Facility director, original documents may be kept
for forensic examination.
(3) A separate application (I-698) must be filed by each eligible
applicant. All fees required by 103.7(b)(1) of this chapter must be
submitted in the exact amount in the form of a money order, cashier's
check or certified bank check. No personal checks or currency will be
accepted. Fees will not be waived or refunded under any circumstances.
(4) Applicants who filed for temporary resident status prior to
December 1, 1987, are required to submit the results of a serologic test
for HIV virus on Form I-693, ''Medical Examination of Aliens Seeking
Adjustment of Status'', completed by a designated civil surgeon, unless
the serologic test for HIV was performed and the results were submitted
on Form I-693 when the applicant filed for temporary resident status.
Applicants who did submit an I-693 reflecting a serologic test for HIV
was performed prior to December 1, 1987, must submit evidence of this
fact when filing the I-698 application in order to be relieved from the
requirement of submitting another I-693. If such evidence is not
available, applicants may note on their I-698 application their prior
submission of the results of the serologic test for HIV. This
information shall then be verified at the Regional Processing Facility.
Applicants having to submit an I-693 pursuant to this section are not
required to have a complete medical examination. All HIV-positive
applicants shall be advised that a waiver of the ground of excludability
under section 212(a)(6) of the Act is available and shall be provided
the opportunity to apply for the waiver. To be eligible for the waiver,
the applicant must establish that:
(i) The danger to the public health of the United States created by
the alien's admission to the United States is minimal,
(ii) The possibility of the spread of the infection created by the
alien's admission to the United States is minimal, and
(iii) There will be no cost incurred by any government agency without
prior consent of that agency. Provided these criteria are met, the
waiver may be granted only for humanitarian purposes, to assure family
unity, or when the granting of such a waiver is in the public interest
in accordance with 245a.3(g)(2) of this chapter.
(5) If necessary, the validity of an alien's temporary resident card
(I-688) will be extended in increments of one (1) year until such time
as the decision on an alien's properly filed application for permanent
residence becomes final.
(6) An application lacking the proper fee or incomplete in any way
shall be returned to the applicant with request for the proper fee,
correction, additional information, and/or documentation. Once an
application has been accepted by the Service and additional information
and/or documentation is required, the applicant shall be sent a notice
to submit such information and/or documentation. In such case the
application Form I-698 shall be retained at the RPF. If a response to
this request is not received within 60 days, a second request for
correction, additional information, and/or documentation shall be made.
If the second request is not complied with by the end of 43 months from
the date the application for temporary residence, Form I-687, was
approved the application for permanent residence will be adjudicated on
the basis of the existing record.
(e) Interview. Each applicant regardless of age, must appear at the
appropriate Service office and must be fingerprinted for the purpose of
issuance of Form I-551. Each applicant shall be interviewed by an
immigration officer, except that the adjudicative interview may be
waived for a child under 14, or when it is impractical because of the
health or advanced age of the applicant. An applicant failing to appear
for the scheduled interview may, for good cause, be afforded another
interview. Where an applicant fails to appear for two scheduled
interviews, his or her application shall be held in abeyance until the
end of 43 months from the date the application for temporary residence
was approved and adjudicated on the basis of the existing record.
(f) Numerical limitations. The numerical limitations of sections 201
and 202 of the Act do not apply to the adjustment of aliens to lawful
permanent resident status under section 245A(b) of the Act.
(g) Applicability of exclusion grounds. -- (1) Grounds of exclusion
not to be applied. The following paragraphs of section 212(a) of the
Act shall not apply to applicants for adjustment of status from
temporary resident to permanent resident status: (14) workers entering
without labor certification; (20) immigrants not in possession of valid
entry documents; (21) visas issued without compliance of section 203;
(25) illiterates; and (32) graduates of non-accredited medical schools.
(2) Waiver of grounds of excludability. Except as provided in
paragraph (g)(3) of this section, the Service may waive any provision of
section 212(a) of the Act only in the case of individual aliens for
humanitarian purposes, to assure family unity, or when the granting of
such a waiver is otherwise in the public interest. In any case where a
provision of section 212(a) of the Act has been waived in connection
with an alien's application for lawful temporary resident status under
section 245A(a) of the Act, no additional waiver of the same ground of
excludability will be required when the alien applies for permanent
resident status under section 245A(b)(1) of the Act. In the event that
the alien was excludable under any provision of section 212(a) of the
Act at the time of temporary residency and failed to apply for a waiver
in connection with the application for temporary resident status, or
becomes excludable subsequent to the date temporary residence was
granted, a waiver of the ground of excludability, if available, will be
required before permanent resident status may be granted.
(3) Grounds of exclusion that may not be waived. Notwithstanding any
other provisions of the Act the following provisions of section 212(a)
of the Act may not be waived by the Attorney General under paragraph
(g)(2) of this section:
(i) Paragraphs (9) and (10) (criminals);
(ii) Paragraph (15) (public charge) except for an alien who is or was
an aged, blind, or disabled individual (as defined in section 1614(a)(1)
of the Social Security Act);
(iii) Paragraph (23) (narcotics), except for a single offense of
simple possession of thirty grams or less of marijuana;
(iv) Paragraphs (27) (prejudicial to the public interest), (28)
(communists), and (29) (subversives);
(v) Paragraph (33) (participated in Nazi persecution).
(4) Determination of Likely to become a public charge and Special
Rule. Prior to use of the special rule for determination of public
charge, paragraph (g)(4)(iii) of this section, an alien must first be
determined to be excludable under section 212(a)(15) of the Act. If the
applicant is determined to be likely to become a public charge, he or
she may still be admissible under the terms of the Special Rule.
(i) In determining whether an alien is likely to become a public
charge financial responsibility of the alien is to be established by
examining the totality of the alien's circumstances at the time of his
or her application for legalization. The existence or absence of a
particular factor should never be the sole criteria for determining if
an alien is likely to become a public charge. The determination of
financial responsibility should be a prospective evaluation based on the
alien's age, health, income, and vocation.
(ii) The Special Rule for determination of public charge, paragraph
(g)(4)(iii) of this section, is to be applied only after an initial
determination that the alien is inadmissible under the provisions of
section 212(a)(15) of the act.
(iii) Special Rule. An alien who has a consistent employment history
which shows the ability to support himself or herself even though his or
her income may be below the poverty level is not excludable under
paragraph (g)(3)(ii) of this section. The alien's employment history
need not be continuous in that it is uninterrupted. It should be
continuous in the sense that the alien shall be regularly attached to
the workforce, has an income over a substantial period of the applicable
time, and has demonstrated the capacity to exist on his or her income
without recourse to public cash assistance. The Special Rule is
prospective in that the Service shall determine, based on the alien's
history, whether he or she is likely to become a public charge. Past
acceptance of public cash assistance within a history of consistent
employment will enter into this decision. The weight given in
considering applicability of the public charge provisions will depend on
many factors, but the length of time an applicant has received public
cash assistance will constitute a significant factor. It is not
necessary to file a waiver in order to apply the Special Rule for
Determination of Public Charge.
(5) Public cash assistance and criminal history verification.
Declarations by an applicant that he or she has not been the recipient
of public cash assistance and/or has not had a criminal record are
subject to a verification of facts by the Service. The applicant must
agree to fully cooperate in the verification process. Failure to assist
the Service in verifying information necessary for proper adjudication
may result in denial of the application.
(h) Departure. An applicant for adjustment to lawful permanent
resident status under section 245A(b)(1) of the Act who was granted
lawful temporary resident status under section 245A(a) of the Act, shall
be permitted to return to the United States after such brief and casual
trips abroad, as long as the alien reflects a continuing intention to
adjust to lawful permanent resident status. However, such absences from
the United States must not exceed the periods of time specified in
245a.3(b)(2) of this chapter in order for the alien to maintain
continuous residence as specified in the Act.
(i) Decision. The applicant shall be notified in writing of the
decision, and, if the application is denied, of the reason therefor.
Applications for permanent residence under this chapter will not be
denied at local INS offices (districts, suboffices, and legalization
offices) until the entire record of proceeding has been reviewed. An
application will not be denied if the denial is based on adverse
information not previously furnished to the Service by the alien without
providing the alien an opportunity to rebut the adverse information and
to present evidence in his or her behalf. If inconsistencies are found
between information submitted with the adjustment application and
information previously furnished to the Service, the applicant shall be
afforded the opportunity to explain discrepancies or rebut any adverse
information. A party affected under this part by an adverse decision is
entitled to file an appeal on Form I-694. If an application is denied,
work authorization will be granted until a final decision has been
rendered on an appeal or until the end of the appeal period if no appeal
is filed. An applicant whose appeal period has ended is no longer
considered to be an Eligible Legalized Alien for the purposes of the
administration of State Legalization Impact Assistance Grants (SLIAG)
funding. An alien whose application is denied will not be required to
surrender his or her temporary resident card (I-688) until such time as
the appeal period has tolled, or until expiration date of the I-688,
whichever date is later. After exhaustion of an appeal, an applicant
who believes that the grounds for denial have been overcome may submit
another application with fee, provided that the application is submitted
within his or her eligibility period.
(j) Appeal process. An adverse decision under this part may be
appealed to the Associate Commissioner, Examinations (Administrative
Appeals Unit) the appellate authority designated in 103.1(f)(2). Any
appeal shall be submitted to the Regional Processing Facility with the
required fee within thirty (30) days after service of the Notice of
Denial in accordance with the procedures of 103.3(a) of this chapter.
An appeal received after the thirty (30) day period has tolled will not
be accepted. The thirty (30) day period for submitting an appeal begins
three days after the notice of denial is mailed. If a review of the
Record of Proceeding (ROP) is requested by the alien or his or her legal
representative and an appeal has been properly filed, an additional
thirty (30) days will be allowed for this review from the time the
Record of Proceeding is photocopied and mailed. A brief may be
submitted with the appeal form or submitted up to thirty (30) calendar
days from the date of receipt of the appeal form at the Regional
Processing Facility. Briefs filed after submission of the appeal should
be mailed directly to the Regional Processing Facility. For good cause
shown, the time within which a brief supporting an appeal may be
submitted may be extended by the Director of the Regional Processing
Facility.
(k) Motions. The Regional Processing Facility director may reopen
and reconsider any adverse decision sua sponte. When an appeal to the
Associate Commissioner, Examinations (Administrative Appeals Unit) has
been filed, the INS director of the Regional Processing Facility may
issue a new decision that will grant the benefit which has been
requested. The director's new decision must be served on the appealing
party within forty-five (45) days of receipt of any briefs and/or new
evidence, or upon expiration of the time allowed for the submission of
any briefs.
(l) Certifications. The Regional Processing Facility director or
district director may, in accordance with 103.4 of this chapter,
certify a decision to the Associate Commissioner, Examinations
(Administrative Appeals Unit) when the case involves an unusually
complex or novel question of law or fact. The decision on an appealed
case subsequently remanded back to either the Regional Processing
Facility director or the district director will be certified to the
Administrative Appeals Unit.
(m) Date of adjustment to permanent residence. The status of an
alien whose application for permanent resident status is approved shall
be adjusted to that of a lawful permanent resident as of the date of
filing of the application for permanent residence or the eligibility
date, whichever is later. For purposes of making application to
petition for naturalization, the continuous residence requirements for
naturalization shall begin as of the date the alien's status is adjusted
to that of a person lawfully admitted for permanent residence under this
part.
(n) Limitation on access to information and confidentiality. (1) No
person other than a sworn officer or employee of the Department of
Justice or bureau of agency thereof, will be permitted to examine
individual applications. For purposes of this part, any individual
employed under contract by the Service to work in connection with the
Legalization Program shall be considered an employee of the Department
of Justice or bureau or agency thereof.
(2) No information furnished pursuant to an application for permanent
resident status under this section shall be used for any purpose except:
(i) To make a determination on the application; or (ii) for the
enforcement of the provisions encompassed in section 245A(c)(6) of the
Act, except as provided in paragraph (n)(3) of this section.
(3) If a determination is made by the Service that the alien has, in
connection with his or her application, engaged in fraud or willful
misrepresentation or concealment of a material fact, knowingly provided
a false writing or document in making his or her application, knowingly
made a false statement or representation, or engaged in any other
activity prohibited by section 245A(c)(6) of the Act, the Service shall
refer the matter to the United States Attorney for prosecution of the
alien and/or of any person who created or supplied a false writing or
document for use in an application for adjustment of status under this
part.
(4) Information contained in granted legalization files may be used
by the Service at a later date to make a decision (i) On an immigrant
visa petition or other status filed by the applicant under section
204(a) of the Act; (ii) On a naturalization application submitted by
the applicant; (iii) For the preparation of reports to Congress under
section 404 of IRCA, or; (iv) For the furnishing of information, at the
discretion of the Attorney General, in the same manner and circumstances
as census information may be disclosed by the Secretary of Commerce
under section 8 of title 13, Unites States Code.
(o) Rescission. Rescission of adjustment of status under 245a shall
occur under the guidelines established in section 246 of the Act.
(54 FR 29449, July 12, 1989; 54 FR 43384, Oct. 24, 1989; as amended
at 56 FR 31061, July 9, 1991; 57 FR 3926, Feb. 3, 1992)
08 CFR 245a.4 Adjustment to lawful resident status of certain nationals
of countries for which extended voluntary departure has been made
available.
(a) Definitions. As used in this section: (1) Act means the
Immigration and Nationality Act, as amended by the Immigration Reform
and Control Act of 1986.
(2) Service means the Immigration and Naturalization Service (INS).
(3) Resided continuously means that the alien shall be regarded as
having resided continuously in the United States if, at the time of
filing of the application for temporary resident status:
(i) No single absence from the United States has exceeded 45 days,
and the aggregate of all absences has not exceeded 180 days between July
21, 1984, through the date the application for temporary resident status
is filed, unless the alien can establish that due to emergent reasons,
his or her return to the United States could not be accomplished within
the time period allowed;
(ii) The alien was maintaining residence in the United States; and
(iii) The alien's departure from the United States was not based on
an order of deportation.
An alien who has been absent from the United States in accordance
with the Service's advance parole procedures shall not be considered as
having interrupted his or her continuous residence as required at the
time of filing an application. An alien who, after appearing for a
scheduled interview to obtain an immigrant visa at a Consulate or
Embassy in Canada or Mexico but who subsequently is not issued an
immigrant visa and who is paroled back into the United States pursuant
to the stateside criteria program, shall be considered as having resided
continuously.
(4) Continous residence means that the alien shall be regarded as
having resided continously in the United States if, at the time of
applying for adjustment from temporary residence to permanent resident
status: No single absence from the United States has exceeded 30 days,
and the aggregate of all absences has not exceeded 90 days between the
date on which lawful temporary resident status was granted and the date
permanent resident status was applied for, unless the alien can
establish that due to emergent reasons or extenuating circumstances
beyond his or her control, the return to the United States could not be
accomplished within the time period(s) allowed. A single absence from
the United States of more than 30 days, and aggregate absences of more
than 90 days during the period for which continuous residence is
required for adjustment to permanent resident status, shall break the
continuity of such residence unless the temporary resident can establish
to the satisfaction of the district director that he or she did not, in
fact, abandon his or her residence in the United States during such
period.
(5) To make a determination means obtaining and reviewing all
information required to adjudicate an application for the benefit sought
and making a decision thereon. If fraud, willful misrepresentation or
concealment of a material fact, knowingly providing a false writing or
document, knowingly making a false statement or representation, or any
other activity prohibited by the Act is established during the process
of making the determination on the application, the Service shall refer
the matter to the United States Attorney for prosecution of the alien or
of any person who created or supplied a false writing or document for
use in an application for adjustment of status under this part.
(6) Continuous physical presence means actual continuous presence in
the United States since December 22, 1987, until filing of any
application for adjustment of status. Aliens who were outside of the
United States after enactment may apply for temporary residence if they
reentered prior to March 21, 1988, provided they meet the continuous
residence requirements, and are otherwise eligible for legalization.
(7) Brief, casual, and innocent means a departure authorized by the
Service (advance parole) subsequent to March 21, 1988, for not more than
30 days for legitimate emergency or humanitarian purposes unless a
further period of authorized departure has been granted in the
discretion of the district director or a departure was beyond the
alien's control.
(8) Brief and casual means temporary trips abroad as long as the
alien establishes a continuing intention to adjust to lawful permanent
resident status. However, such absences must not exceed the specific
periods of time required in order to maintain continuous residence.
(9) Certain nationals of countries for which extended voluntary
departure has been made available on the basis of a nationality group
determination at any time during the 5-year period ending on November 1,
1987 is limited to nationals of Poland, Afghanistan, Ethiopia, and
Uganda.
(10) Public cash assistance means income or need-based monetary
assistance to include, but not limited to, supplemental security income
received by the alien through federal, state, or local programs designed
to meet subsistence levels. It does not include assistance in kind,
such as food stamps, public housing, or other non-cash benefits, nor
does it include work related compensation or certain types of medical
assistance (Medicare, Medicaid, emergency treatment, services to
pregnant women or children under 18 years of age, or treatment in the
interest of public health).
(11) Designated entity means any state, local, church, community,
farm labor organization, voluntary organization, association of
agricultural employers or individual determined by the Service to be
qualified to assist aliens in the preparation of applications for
legalization status.
(12) Through the passage of time means through the expiration date of
the nonimmigrant permission to remain in the United States, including
any extensions and/or change of status.
(13) Prima facie eligibility means eligibility is established if the
applicant presents a completed I-687 and specific factual information
which in the absence of rebuttal will establish a claim of eligibility
under this part.
(b) Application for temporary residence -- (1) Application for
temporary residence. (i) An alien who is a national of Poland, Uganda,
Ethiopia, or Afghanistan who has resided continuously in the United
States since prior to July 2l, 1984, and who believes that he or she
meets the eligibility requirements of section 245A of the Act must make
application within the 21-month period beginning on March 21, 1988, and
ending on December 22, 1989.
(ii) An alien who fails to file an application for adjustment of
status to that of a temporary resident under 245A.4 of this part during
the time period, will be statutorily ineligible for such adjustment of
status.
(2) Eligibility (i) The following categories of aliens who are not
otherwise excludable under section 212(a) of the Act are eligible to
apply for status to that of a person admitted for temporary residence:
(A) An alien who is a national of Poland, Uganda, Ethiopia, or
Afghanistan, (other than an alien who entered as a nonimmigrant) who
establishes that he or she entered the United States prior to July 21,
1984, and who has thereafter resided continuously in the United States,
and who has been physically present in the United States from December
22, 1987, until the date of filing the application.
(B) An alien who is a national of Poland, Uganda, Ethiopia, or
Afghanistan, and establishes that he or she entered the United States as
a nonimmigrant prior to July 21, 1984, and whose period of authorized
admission expired through the passage of time prior to January 21, 1985,
and who has thereafter resided continuously in the United States, and
who has been physically present in the United States from December 22,
1987, until the date of filing the application.
(C) An alien who is a national of Poland, Uganda, Ethiopia, or
Afghanistan, and establishes that he or she entered the United States as
a nonimmigrant prior to July 21, 1984, and who applied for asylum prior
to July 21, 1984, and who has thereafter resided continuously in the
United States, and who has been physically present in the United States
from December 22, 1987, until the date of filing the application.
(D) An alien who is a national of Poland, Uganda, Ethiopia, or
Afghanistan, who would otherwise be eligible for temporary resident
status and who establishes that he or she resided continuously in the
United States prior to July 21, 1984, and who subsequently reentered the
United States as a nonimmigrant in order to return to an unrelinquished
residence. An alien described in this paragraph must have received a
waiver of 212(a)(19) as an alien who entered the United States by fraud.
(E) An alien who is a national of Poland, Uganda, Ethiopia, or
Afghanistan, and was a nonimmigrant who entered the United States in the
classification A, A-1, A-2, G, G-1, G-2, G-3, or G-4, for Duration of
Status (D/S), and whose qualifying employment terminated or who ceased
to be recognized by the Department of State as being entitled to such
classification prior to January 21, 1985, and who thereafter continued
to reside in the United States.
(F) An alien who is a national of Poland, Uganda, Ethiopia, or
Afghanistan, and who was a nonimmigrant who entered the United States as
an F, F-1, or F-2 for Duration of Status (D/S), and who completed a full
course of studies, including practical training (if any), and whose time
period to depart the United States after completion of studies expired
prior to January 21, 1985, and who has thereafter continued to reside in
the United States. Those students placed in a nunc pro tunc retroactive
student status which would otherwise preclude their eligibility for
legalization under this section, must present evidence that they had
otherwise terminated their status during the requisite time period. A
dependent F-2 alien otherwise eligible who was admitted into the United
States with a specific time period, as opposed to duration of status,
documented on Service Form I-94, Arrival-Departure Record that extended
beyond July 21, 1984 is considered eligible if the principal F-1 alien
is found eligible.
(3) Ineligible aliens. (i) An alien who has been convicted of a
felony, or three or more misdemeanors.
(ii) An alien who has assisted in the persecution of any person or
persons on account of race, religion, nationality, membership in a
particular social group, or political opinion.
(iii) An alien excludable under the provisions of section 212(a) of
the Act whose grounds of excludability may not be waived.
(4) Documentation. Evidence to support an alien's eligibility for
temporary residence status shall include documents establishing proof of
identity, proof of nationality, proof of residence, and proof of
financial responsibility, as well as photographs, a completed
fingerprint card (Form FD-258), and a completed medical report of
examination (Form I-693). All documentation submitted will be subject
to Service verification. Applications submitted with unverifiable
documentation may be denied. Failure by an applicant to authorize
release to INS of information protected by the Privacy Act and/or
related laws in order for INS to adjudicate a claim may result in denial
of the benefit sought. Acceptable supporting documents for the four
categories of documentation are discussed as follows:
(i) Proof of identity. Evidence to establish identity is listed
below in descending order of preference:
(A) Passport;
(B) Birth certificate;
(C) Any national identity document from the alien's country of origin
bearing photo and fingerprint;
(D) Driver's license or similar document issued by a state if it
contains a photo;
(E) Baptismal Record/Marriage Certificate; or
(F) Affidavits.
(ii) Proof of nationality. Evidence to establish nationality is
listed as follows:
(A) Passport;
(B) Birth certificate;
(C) Any national identity document from the alien's country of origin
bearing photo and fingerprint;
(D) Other credible documents, including those created by, or in the
possession of the INS, or any other documents (excluding affidavits)
that, when taken singly, or together as a whole, establish the alien's
nationality.
(iii) Assumed names -- (A) General. In cases where an applicant
claims to have met any of the eligibility criteria under an assumed
name, the applicant has the burden of proving that the applicant was in
fact the person who used that name. The applicant's true identity is
established pursuant to the requirements of paragraph (b)(4)(i) and (ii)
of this section. The assumed name must appear in the documentation
provided by the applicant to establish eligibility. To meet the
requirement of this paragraph, documentation must be submitted to prove
the common identity, i.e., that the assumed name was in fact used by the
applicant.
(B) Proof of common identity. The most persuasive evidence is a
document issued in the assumed name which identifies the applicant by
photograph, fingerprint, or detailed physical description. Other
evidence which will be considered are affidavit(s) by a person or
persons other than the applicant, made under oath, which identify the
affiant by name and address, state the affiant's relationship to the
applicant and the basis of the affiant's knowledge of the applicant's
use of the assumed name. Affidavits accompanied by a photograph which
has been identified by the affiant as the individual known to the
affiant under the assumed name in question will carry greater weight.
(iv) Proof of residence. -- Evidence to establish proof of continuous
residence in the United States during the requisite period of time may
consist of any combination of the following:
(A) Past employment records, which may consist of pay stubs, W-2
Forms, certification of the filing of Federal income tax returns on IRS
Form 6166, a state verification of the filing of state income tax
returns, letters from employer(s) or, if the applicant has been in
business for himself or herself, letters from banks and other firms with
whom he or she has done business. In all of the above, the name of the
alien and the name of the employer or other interested organizations
must appear on the form or letter, as well as relevant dates. Letters
from employers should be on employer letterhead stationery, if the
employer has such stationery, and must include:
(1) Alien's address at the time of employment;
(2) Exact period of employment;
(3) Periods of layoff;
(4) Duties with the company;
(5) Whether or not the information was taken from official company
records; and
(6) Where records are located, whether the Service may have access to
the records.
If the records are unavailable, an affidavit form letter stating that
the alien's employment records are unavailable and why such records are
unavailable may be accepted in lieu of paragraphs (b)(4)(iv)(A)(5) and
(6) of this section. This affidavit form letter shall be signed,
attested to by the employer under penalty of perjury, and shall state
the employer's willingness to come forward and give testimony if
requested.
(B) Utility bills (gas, electric, phone, etc.) receipts, or letters
from companies showing the dates during which the applicant received
service are acceptable documentation.
(C) School records (letters, report cards, etc.) from the schools
that the applicant or his or her children have attended in the United
States must show the name of school and periods of school attendance.
(D) Hospital or medical records showing treatment or hospitalization
of the applicant or his or her children must show the name of the
medical facility or physician and the date(s) of the treatment or
hospitalization.
(E) Attestations by churches, unions, or other organizations as to
the applicant's residence by letter which:
(1) Identify applicant by name;
(2) Are signed by an official (whose title is shown);
(3) Show inclusive dates of membership;
(4) State the address where applicant resided during membership
period;
(5) Include the seal of the organization impressed on the letter or
the letterhead of the organization, if the organization has letterhead
stationery;
(6) Establish how the author knows the applicant; and
(7) Establish the origin of the information being attested to.
(F) Additional documents to support the applicant's claim may
include:
(1) Money order receipts for money sent into or out of the country;
(2) Passport entries;
(3) Birth certificates of children born in the United States;
(4) Bank books with dated transactions;
(5) Letters or correspondence between applicant and other person or
organization;
(6) Social Security card;
(7) Selective Service card;
(8) Automobile license receipts, title, vehicle registration, etc.;
(9) Deeds, mortgages, contracts to which applicant has been a party;
(10) Tax receipts;
(11) Insurance policies, receipts, or letters; and
(12) Any other relevant document.
(v) Proof of financial responsibility. An applicant for adjustment
of status under this part is subject to the provisions of section
212(a)(15) of the Act relating to excludability of aliens likely to
become public charges. Generally, the evidence of employment submitted
under paragraph (b)(4)(iv)(A) of this section will serve to demonstrate
the alien's financial responsibility during the documented period(s) of
employment. If the alien's period(s) of residence in the United States
include significant gaps in employment or if there is reason to believe
that the alien may have received public assistance while employed, the
alien may be required to provide proof that he or she has not received
public cash assistance. An applicant for residence who is determined
likely to become a public charge and is unable to overcome this
determination after application of the Special Rule under paragraph
(b)(11)(iv)(C) of this section will be denied adjustment. The burden of
proof to demonstrate the inapplicability of this provision of law lies
with the applicant who may provide:
(A) Evidence of a history of employment (i.e., employment letter, W-2
forms, income tax returns, etc.);
(B) Evidence that he/she is self-supporting (i.e., bank statements,
stocks, other assets, etc.); or
(C) Form I-134. Affidavit of Support, completed by a spouse on
behalf of the applicant and/or children of the applicant or a parent in
behalf of children which guarantees complete or partial financial
support. Acceptance of the Affidavit of Support shall be extended to
other family members in unusual family circumstances.
Generally, the evidence of employment submitted under paragraph
(b)(4)(iv)(A) of this section will serve to demonstrate the alien's
financial responsibility during the documented period(s) of employment.
If the alien's period(s) of residence in the United States include
significant gaps in employment or if there is reason to believe that the
alien may have received public assistance while employed, the alien may
be required to provide proof that he or she has not received public cash
assistance. An applicant for residence who is likely to become a public
charge will be denied adjustment.
(vi) Burden of proof. An alien applying for adjustment of status
under this part has the burden of proving by a preponderance of the
evidence that he or she has resided in the United States for the
requisite periods, is admissible to the United States under the
provisions of section 245A of the Act, and is otherwise eligible for
adjustment of status under this section. The inference to be drawn from
the documentation provided shall depend on the extent of the
documentation, its credibility and amenability to verification.
(vii) Evidence. The sufficiency of all evidence produced by the
applicant will be judged according to its probative value and
credibility. To meet his or her burden of proof, an applicant must
provide evidence of eligibility apart from his or her own testimony. In
judging the probative value and credibility of the evidence submitted,
greater weight will be given to the submission of original
documentation.
(5) Filing of application. (i) The application must be filed on Form
I-687 at an office of a designated entity or at a Service office within
the jurisdiction of the district where the applicant resides. If the
application is filed with a designated entity, the alien must have
consented to having the designated entity forward the application to the
Service office. In the case of applications filed at a Service office,
the district director may, at his or her discretion:
(A) Require the applicant to file the application in person; or
(B) Require the applicant to file the application by mail; or
(C) Permit the filing of applications whether by mail or in person.
The applicant must appear for a personal interview at the Service
office as scheduled. If the applicant is 14 years of age or older, the
application must be accompanied by a completed Form FD-258 (Applicant
Card).
(ii) At the time of the interview, whenever possible, original
documents must be submitted except the following: Official government
records; employment or employment-related records maintained by
employers, union, or collective bargaining organizations; medical
records; school records maintained by a school or school board; or
other records maintained by a party other than the applicant. Copies of
records maintained by parties other than the applicant which are
submitted in evidence must be certified as true and correct by such
parties and must bear their seal or signature or the signature and title
of persons authorized to act in their behalf. If at the time of the
interview the return of the original document is desired by the
applicant, the document must be accompanied by notarized copies or
copies certified true and correct by a qualified designated entity or by
the alien's representative in the format prescribed in 204.2(j)(1) or
(2) of this chapter. At the discretion of the district director,
original documents, even if accompanied by certified copies, may be
temporarily retained for forensic examination by the Document Analysis
Unit at the Regional Processing Facility having jurisdiction over the
Service office to which the documents were submitted.
(iii) A separate application (I-687) must be filed by each eligible
applicant. All fees required by 103.7(b)(1) of this chapter must be
submitted in the exact amount in the form of a money order, cashier's
check, or certified bank check, made payable to the Immigration and
Naturalization Service. No personal checks or currency will be
accepted. Fees will not be waived or refunded under any circumstances.
(6) Filing date of application. The date the alien submits a
completed application to a Service office or designated entity shall be
considered the filing date of the application, provided that in the case
of an application filed at a designated entity the alien has consented
to having the designated entity forward the application to the Service
office having jurisdiction over the location of the alien's residence.
Designated entities are required to forward completed applications to
the appropriate Service office within 60 days of receipt.
(7) Selective Service registration. At the time of filing an
application under this section, male applicants over the age of 17 and
under the age of 26, are required to be registered under the Military
Selective Service Act. An applicant shall present evidence that he has
previously registered under that Act in the form of a letter of
acknowledgement from the Selective Service System, or such alien shall
present a completed and signed Form SSS-1 at the time of filing Form
I-687 with the Immigration and Naturalization Service or a designated
entity. Form SSS-1 will be forwarded to the Selective Service System by
the Service.
(8) Continuous residence. (i) For the purpose of this Act, an
applicant for temporary residence status shall be regarded as having
resided continuously in the United States if, at the time of filing of
the application:
(A) No single absence from the United States has exceeded 45 days,
and the aggregate of all absences has not exceeded 180 days between July
2l, 1984, through the date the application for temporary resident status
is filed, unless the alien can establish that due to emergent reasons,
his or her return to the United States could not be accomplished within
the time period allowed;
(B) The alien was maintaining a residence in the United States; and
(C) The alien's departure from the United States was not based on an
order of deportation.
(ii) An alien who has been absent from the United States in
accordance with the Service's advance parole procedures shall not be
considered as having interrupted his or her continuous residence as
required at the time of filing an application under this section.
(9) Medical examination. (i) An applicant under this part shall be
required to submit to an examination by a designated civil surgeon at no
expense to the government. The designated civil surgeon shall report on
the findings of the mental and physical condition of the applicant and
the determination of the alien's immunization status on Form I-693,
''Medical Examination of Aliens Seeking Adjustment of Status, (Pub. L.
99-603)''. Results of the medical examination must be presented to the
Service at the time of interview and shall be incorporated into the
record. Any applicant certified under paragraphs (1), (2), (3), (4) or
(5) of section 212(a) of the Act may appeal to a Board of Medical
Officers of the U.S. Public Health Service as provided in section 234 of
the Act and part 235 of this chapter.
(ii) All applicants who file for temporary resident status are
required to include the results of a serological test for the HIV virus
on the I-693. All HIV-positive applicants shall be advised that a
waiver is available and shall be provided with the opportunity to apply
for a waiver.
(10) Interview. Each applicant, regardless of age, must appear at
the appropriate Service office and must be fingerprinted for the purpose
of issuance of Forms I-688A and I-688. Each applicant shall be
interviewed by an immigration officer, except that the interview may be
waived for a child under 14 years of age, or when it is impractical
because of the health or advanced age of the applicant.
(11) Applicability of exclusion grounds. (i) Grounds of exclusion
not to be applied. Paragraphs (14), (workers entering without labor
certification); (20), (immigrants not in possession of a valid entry
document); (21), (visas issued without compliance with section 203);
(25), (illiterates); and (32) (graduates of non-accredited medical
schools) of section 212(a) of the Act shall not apply to applicants for
temporary resident status.
(ii) Waiver of grounds of exclusion. Except as provided in paragraph
(b)(11)(iii) of this section, the Attorney General may waive any other
provision of section 212(a) of the Act only in the case of individual
aliens for humanitarian purposes, to assure family unity, or when the
granting of such a waiver is in the public interest. If an alien is
excludable on grounds which may be waived as set forth in this
paragraph, he or she shall be advised of the procedures for applying for
a waiver of grounds of excludability on Form I-690. When an application
for waiver of grounds of excludability is filed jointly with an
application for temporary residence under this section, it shall be
accepted for processing at the Service office. If an application for
waiver of grounds of excludability is submitted after the alien's
preliminary interview at the Service office, it shall be forwarded to
the appropriate Regional Processing Facility. All applications for
waivers of grounds of excludability must be accompanied by the correct
fee in the exact amount. All fees for applications filed in the United
States must be in the form of a money order, cashier's check, or bank
check. No personal checks or currency will be accepted. Fees will not
be waived or refunded under any circumstances. An application for
waiver of grounds of excludability under this part shall be approved or
denied by the director of the Regional Processing Facility in whose
jurisdiction the alien's application for adjustment of status was filed
except that in cases involving clear statutory ineligibility or fraud,
such application may be denied by the district director in whose
jurisdiction the application is filed, and in cases returned to a
Service office for re-interview, such application may be approved at the
discretion of the district director. The applicant shall be notified of
the decision and, if the application is denied, of the reason therefore.
Appeal from an adverse decision under this part may be taken by the
applicant on Form I-694 within 30 days after the service of the notice
only to the Service's Administrative Appeals Unit pursuant to the
provisions of section 103.3(a) of this chapter.
(iii) Grounds of exclusion that may not be waived. Notwithstanding
any other provision of the Act, the following provisions of section
212(a) may not be waived by the Attorney General under paragraph
(b)(11)(ii) of this section:
(A) Paragraphs (9) and (10) (criminals);
(B) Paragraph (23) (narcotics) except for a single offense of simple
possession of thirty grams or less of marijuana;
(C) Paragraphs (27) (prejudicial to the public interest), (28)
(communist), and (29) (subversive);
(D) Paragraph (33) (participated in Nazi persecution).
(iv) Determination of Likely to become a public charge and the
special rule. (A) Prior to use of the special rule for determination of
public charge, an alien must first be determined to be excludable under
section 212(a)(15) of the Act. If the applicant is determined to be
likely to become a public charge, he or she may still be admissible
under the terms of the Special Rule.
(B) In determining whether an alien is likely to become a public
charge, financial responsibility of the alien is to be established by
examining the totality of the alien's circumstances at the time of his
or her application for legalization. The existence or absence of a
particular factor should never be the sole criterion for determining if
an alien is likely to become a public charge. The determination of
financial responsibility should be a prospective evaluation based on the
alien's age, health, income and vocation.
(C) An alien who has a consistent employment history which shows the
ability to support himself or herself even though his or her income may
be below the poverty level may be admissible under this section. The
alien's employment history need not be continuous in that it is
uninterrupted. It should be continuous in the sense that the alien
shall be regularly attached to the workforce, has an income over a
substantial period of the applicable time, and has demonstrated the
capacity to exist on his or her income without recourse to public cash
assistance. The Special Rule is prospective in that the Service shall
determine, based on the alien's history, whether he or she is likely to
become a public charge. Past acceptance of public cash assistance
within a history of consistent employment will enter into this decision.
The weight given in considering applicability of the public charge
provisions will depend on many factors, but the length of time an
applicant has received public cash assistance will constitute a
significant factor. It is not necessary to file a waiver in order to
apply the Special Rule for Determination of Public Charge.
(v) Public assistance and criminal history verification.
Declarations by an applicant that he or she has not been the recipient
of public cash assistance and/or has not had a criminal record are
subject to a verification of facts by the Service. The applicant must
agree to fully cooperate in the verification process. Failure to assist
the Service in verifying information necessary for the adjudication of
the application may result in a denial of the application.
(12) Continuous physical presence since December 22, 1987. (i) An
alien applying for adjustment to temporary resident status must
establish that he or she has been continuously physically present in the
United States since December 22, 1987. Aliens who were outside of the
United States on the date of enactment or departed the United States
after enactment may apply for legalization if they reentered prior to
March 21, 1988, and meet the continuous residence requirements and are
otherwise eligible for legalization.
(ii) A brief, casual and innocent absence means a departure
authorized by the Service (advance parole) subsequent to March 21, 1988,
of not more than thirty (30) days for legitimate emergency or
humanitarian purposes unless a further period of authorized departure
has been granted in the discretion of the district director or a
departure was beyond the alien's control.
(13) Departure. (i) During the time period from the date that an
alien's application establishing prima facie eligibility for temporary
resident status is reviewed at a Service office and the date status as a
temporary resident is granted, the alien applicant can be readmitted to
the United States provided his or her departure was authorized under the
Service's advance parole provisions contained in 212.5(e) of this
chapter.
(ii) An alien whose application for temporary resident status has
been approved may be admitted to the United States upon return as a
returning temporary resident provided he or she:
(A) Is not under deportation proceedings, such proceedings having
been instituted subsequent to the approval of temporary resident status.
A temporary resident alien will not be considered deported if that
alien departs the United States while under an outstanding order of
deportation issued prior to the approval of temporary resident status;
(B) Has not been absent from the United States for more than 30 days
on the date application for admission is made;
(C) Has not been absent from the United States for an aggregate
period of more than 90 days since the date the alien was granted lawful
temporary resident status;
(D) Presents Form I-688;
(E) Presents himself or herself for inspection; and
(F) Is otherwise admissible.
(iii) The periods of time in paragraphs (b)(13)(ii)(B) and (C) of
this section may be waived at the discretion of the Attorney General in
cases where the absence from the United States was due merely to a brief
and casual trip abroad due to emergent or extenuating circumstances
beyond the alien's control.
(14) Employment and travel authorization. -- (i) General.
Authorization for employment and travel abroad for temporary resident
status applicants under this section may be granted only by a Service
office. INS district directors will determine the Service location for
the completion of processing travel documentation. In the case of an
application which has been filed with a designated entity, employment
authorization may be granted by the Service only after the application
has been properly received at the Service office.
(ii) Employment and travel authorization prior to the granting of
temporary resident status. (A) Permission to travel abroad and accept
employment may be granted to the applicant after an interview has been
conducted in connection with an application establishing prima facie
eligibility for temporary resident status. Permission to travel abroad
may be granted in emergent circumstances in accordance with the
Service's advance parole provisions contained in 212.5(e) of this
chapter after an interview has been conducted in connection with an
application establishing prima facie eligibility for temporary resident
status.
(B) If an appointment cannot be scheduled within 30 days,
authorization to accept employment will be granted, valid until the
scheduled appointment date. The appointment letter will be endorsed
with the temporary employment authorization. Form I-688A, Employment
Authorization, will be given to the applicant after an interview has
been completed by an immigration officer unless a formal denial is
issued by a Service office. This temporary employment authorization
will be restricted to six-months duration, pending final determination
on the application for temporary resident status.
(iii) Employment and travel authorization upon grant of temporary
resident status. Upon grant of an application for adjustment to
temporary resident status by a Regional Processing Facility, the
processing facility will forward a notice of approval to the alien at
his or her last known address, or to his or her legal representative.
The alien will be required to return to the Service office where the
application was initially received, surrender the I-688A previously
issued, and obtain Form I-688, Temporary Resident Card, authorizing
employment and travel abroad.
(iv) Revocation of employment authorization upon denial of temporary
resident status. Upon denial of an application for adjustment to
temporary resident status, the alien will be notified that if a timely
appeal is not submitted, employment authorization shall be automatically
revoked on the final day of the appeal period. An applicant whose
appeal period has ended is no longer considered to be an Eligible
Legalized Alien for the purposes of the administration of State
Legalization Impact Assistance Grants (SLIAG) funding.
(15) Decision. The applicant shall be notified in writing of the
decision. If the application is denied, the reason(s) for the decision
shall be provided to the applicant. An appeal from an adverse decision
under this part may be taken by the applicant on Form I-694.
(16) Appeal process. An adverse decision under this part may be
appealed to the Associate Commissioner, Examinations (Administrative
Appeals Unit), the appellate authority designated in 103.1(f)(2). Any
appeal shall be submitted to the Regional Processing Facility (RPF) with
the required fee within 30 days after service of the Notice of Denial in
accordance with the procedures of 103.3(a) of this chapter. An appeal
received after the 30-day period will not be accepted. The 30-day
period for submission of an appeal begins three days after the Notice of
Denial is mailed as provided in 103.5a(b) of this Act. If a review of
the Record of Proceeding (ROP) is requested by the alien or his or her
legal representative and an appeal has been properly filed, an
additional 30 days will be allowed for this review beginning at the time
the ROP is mailed. A brief may be submitted with the appeal form or
submitted up to 30 calendar days from the date of receipt of the appeal
form at the RPF. Briefs filed after submission of the appeal should be
mailed directly to the RPF. For good cause shown, the time within which
a brief supporting an appeal may be submitted may be extended by the
Director of the Regional Processing Facility.
(17) Motions. The Regional Processing Facility director may sua
sponte reopen and reconsider any adverse decision. When an appeal to
the Associate Commissioner, Examinations (Administrative Appeals Unit)
has been filed, the INS director of the Regional Processing Facility may
issue a new decision granting the benefit which has been requested. The
director's new decision must be served on the appealing party within 45
days of receipt of any briefs and/or new evidence, or upon expiration of
the time allowed for the submission of any briefs. Motions to reopen a
proceeding or reconsider a decision shall not be considered under this
part.
(18) Certifications. The Regional Processing Facility director may,
in accordance with 103.4 of this chapter, certify a decision to the
Associate Commissioner, Examinations (Administrative Appeals Unit) when
the case involves an unusually complex or novel question of law or fact.
The decision on an appealed case subsequently remanded to the Regional
Processing Facility director will be certified to the Administrative
Appeals Unit.
(19) Date of adjustment to temporary residence. The status of an
alien whose application for temporary resident status is approved shall
be adjusted to that of a lawful temporary resident as of the date
indicated on the application fee receipt issued at the Service office.
(20) Termination of temporary resident status. -- (i) Termination of
temporary resident status (General). The status of an alien lawfully
admitted for temporary residence under 245a.4 of this part may be
terminated at any time. It is not necessary that a final order of
deportation be entered in order to terminate temporary resident status.
The temporary resident status may be terminated upon the occurrence of
any of the following:
(A) It is determined that the alien was ineligible for temporary
residence under 245a.4 of this part;
(B) The alien commits an act which renders him or her inadmissible as
an immigrant unless a waiver is obtained, as provided in this part;
(C) The alien is convicted of any felony, or three or more
misdemeanors;
(D) The alien fails to file for adjustment of status from temporary
resident to permanent resident within 31 months of the date he or she
was granted status as a temporary resident.
(ii) Procedure. Termination of an alien's status will be made only
on notice to the alien sent by certified mail directed to his or her
last known address, and, if applicable, to his or her representative.
The alien must be given an opportunity to offer evidence in opposition
to the grounds alleged for termination of his or her status. Evidence
in opposition must be submitted within 30 days after the service of the
Notice of Intent to Terminate. If the alien's status is terminated, the
director of the Regional Processing Facility shall notify the alien of
the decision and the reason for the termination, and further notify the
alien that any Service Form issued to the alien authorizing employment
and/or travel abroad, or any Form I-688, Temporary Resident Card
previously issued to the alien will be declared void by the director of
the Regional Processing Facility within 30 days if no appeal of the
termination decision is filed within that period. The alien may appeal
the decision to the Associate Commissioner, Examinations (Administrative
Appeals Unit). Any appeal along with the required fee, shall be filed
with the Regional Processing Facility within 30 days after the service
of the notice of termination. If no appeal is filed within that period,
the official Service document shall be deemed void, and must be
surrendered without delay to an immigration officer or to the issuing
office of the Service.
(iii) Termination not construed as rescission under section 246. For
the purposes of this part the phrase termination of status of an alien
granted lawful temporary residence under this section shall not be
construed to necessitate a rescission of status as described in section
246 of the Act, and the proceedings required by the regulations issued
thereunder shall not apply.
(iv) Return to unlawful status after termination. Termination of the
status of any alien previously adjusted to lawful temporary residence
shall act to return such alien to the status held prior to the
adjustment, and render him or her amenable to exclusion or deportation
proceedings under sections 236 or 242 of the Act, as appropriate.
(21) Ineligibility for immigration benefits. An alien whose status
is adjusted to that of a lawful temporary resident under 245a.4 of this
part is not entitled to submit a petition pursuant to section 203(a)(2),
nor is such alien entitled to any other benefit or consideration
accorded under the Act to aliens lawfully admitted for permanent
residence.
(22) Declaration of intending citizen. An alien who has been granted
the status of temporary resident under 245a.4 of this part may assert a
claim of discrimination on the basis of citizenship status under section
274B of the Act only if he or she has previously filed Form I-772
(Declaration of Intending Citizen) after being granted such status. The
Declaration of Intending Citizen is not required as a basis for filing a
petition for naturalization; nor shall it be regarded as a right to
United States citizenship; nor shall it be regarded as evidence of a
person's status as a resident.
(23) Limitation on access to information and confidentiality. (i) No
person other than a sworn officer or employee of the Department of
Justice or bureau or agency thereof, will be permitted to examine
individual applications. For purposes of this part, any individual
employed under contract by the Service to work in connection with the
Legalization Program shall be considered an employee of the Department
of Justice or bureau or agency thereof.
(ii) No information furnished pursuant to an application for
temporary or permanent resident status under this section shall be used
for any purpose except:
(A) To make a determination on the application; or,
(B) for the enforcement of the provisions encompassed in section
245A(c)(6) of the Act, except as provided in paragraph (b)(23)(iii) of
this section.
(iii) If a determination is made by the Service that the alien has,
in connection with his or her application, engaged in fraud or willful
misrepresentation or concealment of a material fact, knowingly provided
a false writing or document in making his or her application, knowingly
made a false statement or representation, or engaged in any other
activity prohibited by section 245A(c)(6) of the Act, the Service shall
refer the matter to the United States Attorney for prosecution of the
alien or of any person who created or supplied a false writing or
document for use in an application for adjustment of status under this
part.
(iv) Information contained in granted legalization files may be used
by the Service at a later date to make a decision on an immigrant visa
petition (or other status petition) filed by the applicant under section
204(a), or for naturalization applications submitted by the applicant.
(c) Adjustment from temporary to permanent resident status. The
provisions of 245a.3 of this part shall be applied to aliens adjusting
to permanent residence under this part.
(54 FR 6505, Feb. 13, 1989, as amended at 54 FR 29455, July 12, 1989;
54 FR 47676, Nov. 16, 1989)
08 CFR 245a.5 Temporary disqualification of certain newly legalized
aliens from receiving benefits from programs of financial assistance
furnished under federal law.
(a) Except as provided in 245a.5(b), any alien who has obtained the
status of an alien lawfully admitted for temporary residence pursuant to
section 245A of the Act (Adjustment of Status of Certain Entrants Before
January 1, 1982, to that of Person Admitted for Lawful Residence) or
210A of the Act (Determinations of Agricultural Labor Shortages and
Admission of Additional Special Agricultural Workers) is ineligible, for
a period of five years from the date such status was obtained, for
benefits financed directly or indirectly, in whole or in part, through
the programs identified in 245a.5(c) of this chapter.
(b)(1) Section 245a.5(a) shall not apply to a Cuban or Haitian
entrant (as defined in paragraph (1) or (2)(A) of section 501(e) of
Public Law 96-422, as in effect on April 1, 1983), or in the case of
assistance (other than aid to families with dependent children) which is
furnished to an alien who is an aged, blind, or disabled individual (as
defined in section 1614(a)(1) of the Social Security Act).
(2) With respect to any alien who has obtained the status of an alien
lawfully admitted for temporary residence pursuant to section 210A of
the Act only, assistance furnished under the Legal Services Corporation
Act (42 U.S.C. 2996, et seq.) or title V of the Housing Act of 1949 (42
U.S.C. l471 et seq.) shall not be construed to be financial assistance
referred to in 245a.5(a).
(3) Section 245a.5(a) shall not apply to benefits financed through
the programs identified in 245a.5(c), which are marked with an asterisk
(*), except to the extent that such benefits:
(i) Consist of, or are financed by, financial assistance in the form
of grants, wages, loan, loan guarantees, or otherwise, which is
furnished by the Federal Government directly, or indirectly through a
State or local government or a private entity, to eligible individuals
or to private suppliers of goods or services to such individuals, or is
furnished to a State or local government that provides to such
individuals goods or services of a kind that is offered by private
suppliers, and
(ii) Are targeted to individuals in financial need; either (A) in
order to be eligible, individuals must establish that their income or
wealth is below some maximum level, or, with respect to certain loan or
loan guarantee programs, that they are unable to obtain financing from
alternative sources, or at prevailing interest rates, or at rates that
would permit the achievement of program goals, or (B) distribution of
assistance is directed, geographically or otherwise, in a way that is
intended to primarily benefit persons in financial need, as evidenced by
references to such intent in the authorizing legislation.
(c) The programs of Federal financial assistance referred to in
245a.5(a) are those identified in the list set forth below. The General
Services Administration (GSA) Program Numbers set forth in the right
column of the program list refer to the program identification numbers
used in the Catalog of Federal Domestic Assistance, published by the
United States General Services Administration, as updated through
December, 1986.
(54 FR 29437, July 12, 1989, as amended at 54 FR 49964, Dec. 4, 1989)
08 CFR 245a.5 PART 246 -- RESCISSION OF ADJUSTMENT OF STATUS
Sec.
246.1 Notice.
246.2 Allegations admitted; no answer filed; no hearing requested.
246.3 Allegations contested or denied; hearing requested.
246.4 Special inquiry officer's authority; withdrawal and
substitution.
246.5 Hearing.
246.6 Decision and order.
246.7 Appeals.
246.8 Reopening or reconsideration.
246.9 Surrender of Form I-151 or I-551.
Authority: Secs. 103, 244, 245, 246, 249, 66 Stat. 173, 214, 217,
219; 8 U.S.C. 1103, 1254, as amended, 1255, as amended, 1256, 1259, as
amended.
Source: 27 FR 10789, Nov. 6, 1962, unless otherwise noted.
08 CFR 246.1 Notice.
If it appears to a district director that a person residing in his
district was not in fact eligible for the adjustment of status made in
his case, a proceeding shall be commenced by the personal service upon
such person of a notice of intention to rescind which shall inform him
of the allegations upon which it is intended to rescind the adjustment
of his status. In such a proceeding the person shall be known as the
respondent. The notice shall also inform the respondent that he may
submit, within thirty days from the date of service of the notice, an
answer in writing under oath setting forth reasons why such rescission
shall not be made, and that he may, within such period, request a
hearing before a special inquiry officer in support of, or in lieu of
his written answer. The respondent shall further be informed that he
may have the assistance of or be represented by counsel or
representative of his choice qualified under part 292 of this chapter,
without expense of the Government, in the preparation of his answer or
in connection with his hearing, and that he may present such evidence in
his behalf as may be relevant to the rescission.
(28 FR 6737, June 29, 1963, as amended at 37 FR 11471, June 8, 1972)
08 CFR 246.2 Allegations admitted; no answer filed; no hearing
requested.
If the answer admits all the allegations in the notice, or if no
answer is filed within the thirty-day period, or if no hearing is
requested within such period, and the status of that of a permanent
resident was acquired through suspension of deportation under section
19(c) of the Immigration Act of February 5, 1917, or under section 244
of the Immigration and Nationality Act, the district director shall
forward the respondent's file containing a copy of the notice and the
answer, if any, to the regional commissioner for further action in
accordance with section 246 of the Immigration and Nationality Act. If
the answer admits the allegations in the notice, or if no answer is
filed within the thirty-day period, or if no hearing is requested within
such period, and the status of that of a permanent resident was acquired
through adjustment of status under section 245 or 249 of the Immigration
and Nationality Act, the district director shall rescind the adjustment
of status previously granted, and no appeal shall lie from his decision.
08 CFR 246.3 Allegations contested or denied; hearing requested.
If, within the prescribed time following service of the notice
pursuant to 246.1, the respondent has filed an answer which contests or
denies any allegation in the notice, or a hearing is requested, a
hearing pursuant to 246.5 shall be conducted by a special inquiry
officer and the procedures specified in 242.10, 242.11, 242.12,
242.13, 242.14 (c), (d) and (e), and 242.15 of this chapter shall apply.
(29 FR 13243, Sept. 24, 1964)
08 CFR 246.4 Special inquiry officer's authority; withdrawal and
substitution.
In any proceeding conducted under this part, the special inquiry
officer shall have authority to interrogate, examine, and cross-examine
the respondent and other witnesses, to present and receive evidence, to
determine whether adjustment of status shall be rescinded, to make
decisions thereon, including an appropriate order, and to take any other
action consistent with applicable provisions of law and regulations as
may be appropriate to the disposition of the case. Nothing contained in
this part shall be construed to diminish the authority conferred on
special inquiry officers by the Act. The special inquiry officer
assigned to conduct a hearing shall, at any time, withdraw if he deems
himself disqualified. If a hearing has begun but no evidence has been
adduced other than the notice and answer, if any, pursuant to 246.1
and 246.2, or if a special inquiry officer becomes unavailable to
complete his duties within a reasonable time, or if at any time the
respondent consents to a substitution, another special inquiry officer
may be assigned to complete the case. The new special inquiry officer
shall familiarize himself with the record in the case and shall state
for the record that he has done so.
08 CFR 246.5 Hearing.
(a) Trial attorney. The Government shall be represented at the
hearing by a trial attorney who shall have authority to present
evidence, and to interrogate, examine, and cross-examine the respondent
and other witnesses. The trial attorney is authorized to appeal from a
decision of the special inquiry officer pursuant to 246.7 and to move
for reopening or reconsideration pursuant to 246.8.
(b) Opening. The special inquiry officer shall advise the respondent
of the nature of the proceeding and the legal authority under which it
is conducted; advise the respondent of his right to representation, at
no expense to the Government, by counsel of his own choice qualified
under part 292 of this chapter and require him to state then and there
whether he desires representation; advise the respondent that he will
have a reasonable opportunity to examine and object to the evidence
against him, to present evidence in his own behalf, and to cross-examine
witnesses presented by the Government; place the respondent under oath;
read the allegations in the notice to the respondent and explain them
in nontechnical language, and enter the notice and respondent's answer,
if any, as exhibits in the record.
(c) Pleading by respondent. The special inquiry officer shall
require the respondent to state for the record whether he admits or
denies the allegations contained in the notice, or any of them, and
whether he concedes that his adjustment of status should be rescinded.
If the respondent admits all of the allegations and concedes that the
adjustment of status in his case should be rescinded under the
allegations set forth in the notice, and the special inquiry officer is
satisfied that no issues of law or fact remain, he may determine that
rescission as alleged has been established by the respondent's
admissions. The allegations contained in the notice shall be taken as
admitted when the respondent, without reasonable cause, fails or refuses
to attend or remain in attendance at the hearing.
08 CFR 246.6 Decision and order.
The decision of the special inquiry officer may be oral or written.
Except when a determination of rescission is based on the respondent's
admissions pursuant to 246.5(c), the decision shall include a
discussion of the evidence and findings as to rescission. The formal
enumeration of findings is not required. The order shall direct either
that the proceeding be terminated or that the adjustment of status be
rescinded. If status was adjusted through suspension of deportation,
the rescission order shall further provide that the matter be referred
to Congress pursuant to section 246 of the Immigration and Nationality
Act. Service of the decision and finality of the order of the special
inquiry officer shall be in accordance with, and as stated in 242.19
(a) and (b) and 242.20 of this chapter.
08 CFR 246.7 Appeals.
Pursuant to part 3 of this chapter, an appeal shall lie from a
decision of a special inquiry officer under this part to the Board of
Immigration Appeals. An appeal shall be taken within 10 days after the
mailing of a written decision or the stating of an oral decision. The
reasons for the appeal shall be stated briefly in the Notice of Appeal,
Form I-290A; failure to do so may constitute a ground for dismissal of
the appeal by the Board. When service of the decision is made by mail,
as authorized by this section, 3 days shall be added to the period
prescribed for the taking of an appeal.
(29 FR 7236, June 3, 1964)
08 CFR 246.8 Reopening or reconsideration.
Except as otherwise provided in this section, a motion to reopen or
reconsider shall be subject to the requirements of 103.5 of this
chapter. The special inquiry officer may upon his own motion, or upon
motion of the trial attorney or the respondent, reopen or reconsider any
case in which he has made a decision, unless jurisdiction in the case is
vested in the Board under part 3 of this chapter. A motion to reopen
will not be granted by a special inquiry officer unless he is satisfied
that evidence sought to be offered is material and was not available and
could not have been discovered or presented at the hearing.
08 CFR 246.9 Surrender of Form I-151 or I-551.
A respondent whose status as a permanent resident has been rescinded
in accordance with section 246 of the Immigration and Nationality Act
and this part, shall, upon demand, promptly surrender to the district
director having administrative jurisdiction over the office in which the
action under this part was taken, the Form I-151 or I-551 issued to him
at the time of the grant of permanent resident status.
(27 FR 10789, Nov. 6, 1962, as amended at 45 FR 32657, May 19, 1980)
08 CFR 246.9 PART 247 -- ADJUSTMENT OF STATUS OF CERTAIN RESIDENT
ALIENS
Sec.
247.1 Scope of part.
247.11 Notice.
247.12 Disposition of case.
247.13 Disposition of Form I-508.
247.14 Surrender of documents.
Authority: Secs. 101, 103, 247, 66 Stat. 166, 173, 218; 8 U.S.C.
1101, 1103, 1257.
08 CFR 247.1 Scope of part.
The provisions of this part apply to an alien who is lawfully
admitted for permanent residence and has an occupational status which,
if he were seeking admission to the United States, would entitle him to
a nonimmigrant status under paragraph (15)(A) or (15)(G) of section
101(a) of the Act, and to his immediate family; also, an alien who was
lawfully admitted for permanent residence and has an occupational status
which, if he were seeking admission to the United States, would entitle
him to a nonimmigrant status under paragraph (15)(E) of section 101(a)
of the Act, and to his spouse and children.
(22 FR 9801, Dec. 6, 1957)
08 CFR 247.11 Notice.
If it appears to a district director that an alien residing in his
district, who was lawfully admitted for permanent residence, has an
occupational status described in section 247 of the Act, he shall cause
a notice on Form I-509 to be served on such alien by personal service
informing him that it is proposed to adjust his status, unless the alien
requests that he be permitted to retain his status as a resident alien
and executes and files with such district director a Form I-508 (Waiver
of Rights, Privileges, Exemptions and Immunities) and, if a French
national receiving salary from the French Republic, Form I-508F
(election as to tax exemption under the Convention between the United
States and the French Republic), within 10 days after service of the
notice, or the alien, within such 10-day period, files with the district
director a written answer under oath setting forth reasons why his
status should not be adjusted. The notice shall also advise the person
that he may, within such period and upon his request have an opportunity
to appear in person, in support or in lieu of his written answer, before
an immigration officer designated for that purpose. The person shall
further be advised that he may have the assistance of counsel without
expense to the Government of the United States in the preparation of his
answer or in connection with such personal appearance, and may examine
the evidence upon which it is proposed to base such adjustment.
(22 FR 9801, Dec. 6, 1957, as amended at 37 FR 11471, June 8, 1972)
08 CFR 247.12 Disposition of case.
(a) Allegations admitted or no answer filed. If the waiver Form
I-508 and, if applicable, Form I-508F is not filed by the alien within
the time prescribed, and the answer admits the allegations in the
notice, or no answer is filed, the district director shall place a
notation on the notice describing the alien's adjusted nonimmigrant
status and shall cause a set of Forms I-94 to be prepared evidencing the
nonimmigrant classification to which the alien has been adjusted and no
appeal shall lie from such decision. Form I-94A shall be delivered to
the alien and shall constitute notice to him of such adjustment. The
alien's nonimmigrant status shall be for such time, under such
conditions, and subject to such regulations as are applicable to the
particular nonimmigrant status granted and shall be subject to such
other terms and conditions, including the exaction of bond as the
district director may deem appropriate.
(b) Answer filed; personal appearance. Upon receipt of an answer
asserting a defense to the allegations made in the notice without
requesting a personal appearance, or if a personal appearance is
requested or directed, the case shall be assigned to an immigration
officer. Pertinent evidence, including testimony of witnesses, shall be
incorporated in the record. The immigration officer shall prepare a
report summarizing the evidence and containing his findings and
recommendation. The record, including the report and recommendation of
the immigration officer, shall be forwarded to the district director who
caused the notice to be served. The district director shall note on the
report of the immigration officer whether he approves or disapproves the
recommendation of the immigration officer. If the decision of the
district director is that the matter be terminated, the alien shall be
informed of such decision. If the decision of the district director is
that the status of the alien should be adjusted to that of a
nonimmigrant, his decision shall provide that unless the alien, within
10 days of receipt of notification of such decision, requests permission
to retain his status as an immigrant and files with the district
director Form I-508 and, if applicable, Form I-508F, the alien's
immigrant status be adjusted to that of a nonimmigrant. The alien shall
be informed of such decision and of the reasons therefor, and of his
right to appeal in accordance with the provisions of part 103 of this
chapter. If the alien does not request that he be permitted to retain
status and file the Form I-508 and, if applicable, Form I-508F within
the period provided therefor, the district director, without further
notice to the alien, shall cause a set of Forms I-94 to be prepared
evidencing the nonimmigrant classification to which the alien has been
adjusted. Form I-94A shall be delivered to the alien. The alien's
nonimmigrant status shall be for such time, under such conditions, and
subject to such regulations as are applicable to the particular
nonimmigrant status created and shall be subject to such other terms and
conditions, including the exaction of bond, as the district director may
deem appropriate.
(22 FR 9801, Dec. 6, 1957, as amended at 23 FR 9124, Nov. 26, 1958;
35 FR 13829, Sept. 1, 1970)
08 CFR 247.13 Disposition of Form I-508.
If Form I-508 is executed and filed, the duplicate copy thereof
(noted to show the election made on Form I-508F, if applicable) shall be
filed in the office of the Assistant Commissioner, Administrative
Division, and may be made available for inspection by any interested
officer or agency of the United States.
(35 FR 13829, Sept. 1, 1970)
08 CFR 247.14 Surrender of documents.
An alien whose status as a permanent resident has been adjusted to
that of a nonimmigrant in accordance with section 247 of the Act and
this part, shall, upon demand, promptly surrender to the district
director having administrative jurisdiction over the office in which the
action under this part was taken any documents (such as Form I-151 or
I-551 or any other form of alien-registration receipt card, immigrant
identification card, resident alien's border-crossing identification
card (Form I-187), certificate of registry, or certificate of lawful
entry) in his possession evidencing his former permanent resident
status.
(22 FR 9802, Dec. 6, 1957, as amended at 45 FR 32657, May 19, 1980)
08 CFR 247.14 PART 248 -- CHANGE OF NONIMMIGRANT CLASSIFICATION
Sec.
248.1 Eligibility.
248.2 Ineligible classes.
248.3 Application.
Authority: 8 U.S.C. 1101, 1103, 1184, 1187, 1258.
08 CFR 248.1 Eligibility.
(a) General. Except for those classes enumerated in 248.2, any
alien lawfully admitted to the United States as a nonimmigrant,
including an alien who acquired such status pursuant to section 247 of
the Act, who is continuing to maintain his nonimmigrant status, may
apply to have his nonimmigrant classification changed to any
nonimmigrant classification other than that of a fiancee or fiance under
section 101(a)(15)(K) of the Act.
(b) Maintenance of status. In determining whether an applicant has
continued to maintain nonimmigrant status, the district director shall
consider whether the alien has remained in the United States for a
longer period than that authorized by the Service. The district
director shall consider any conduct by the applicant relating to the
maintenance of the status from which the applicant is seeking a change.
An applicant may not be considered as having maintained nonimmigrant
status within the meaning of this section if the applicant failed to
submit an application for change of nonimmigrant classification before
the applicant's authorized temporary stay in the United States expired,
unless the district director determines that --
(1) The failure to file a timely application is excusable;
(2) The alien has not otherwise violated the nonimmigrant status;
(3) The alien is a bona fide nonimmigrant; and
(4) The alien is not the subject of deportation proceedings under
part 242 of this chapter.
(c) Change of nonimmigrant classification to that of a nonimmigrant
student. A nonimmigrant applying for a change to classification as a
student under sections 101(a)(15)(F)(i) or 101(a)(15)(M)(i) of the Act
is not considered ineligible for such a change solely because the
applicant may have started attendance at school before the application
was submitted. The district director shall deny an application for a
change to classification as a student under section 101(a)(15)(M)(i) of
the Act if the applicant intends to pursue the course of study solely in
order to qualify for a subsequent change of nonimmigrant classification
to that of an alien temporary worker under section 101(a)(15)(H) of the
Act. Furthermore, an alien may not change from classification as a
student under section 101(a)(15)(M)(i) of the Act to that of a student
under section 101(a)(15)(F)(i) of the Act.
(d) Application for change of nonimmigrant classification from that
of a student under section 101(a)(15)(M)(i) to that described in section
101(a)(15)(H). A district director shall deny an application for change
of nonimmigrant classification from that of an M-1 student to that of an
alien temporary worker under section 101(a)(15)(H) of the Act if the
education or training which the student received while an M-1 student
enables the student to meet the qualifications for temporary worker
classification under section 101(a)(15)(H) of the Act.
(e) Change of nonimmigrant classification to that as described in
section 101(a)(15)(N). An application for change to N status shall not
be denied on the grounds the applicant is an intending immigrant.
Change of status shall be granted for three years not to exceed
termination of eligibility under section 101(a)(15)(N) of the Act.
Employment authorization pursuant to section 274(A) of the Act may be
granted to an alien accorded nonimmigrant status under section
101(a)(15)(N) of the Act. Employment authorization is automatically
terminated when the alien changes status or is no longer eligible for
classification under section 101(a)(15)(N) of the Act.
(36 FR 9001, May 18, 1971, as amended at 48 FR 14592, Apr. 5, 1983;
52 FR 11621, Apr. 10, 1987)
08 CFR 248.2 Ineligible classes.
The following categories of aliens are not eligible to change their
nonimmigrant status under section 248 of the Act:
(a) Any alien in immediate and continuous transit through the United
States without a visa;
(b) Any alien classified as a nonimmigrant under section 101(a)(15)
(C), (D), or (K) of the Act;
(c) Any alien admitted as a nonimmigrant under section 101(a)(15)(J)
of the Act, or who acquired such status after admission in order to
receive graduate medical education or training, whether or not the alien
was subject to, received a waiver of, or fulfilled the two-year foreign
residence requirement of section 212(e) of the Act; and
(d) Any alien classified as a nonimmigrant under section
101(a)(15)(J) of the Act (other than an alien described in paragraph (c)
of this section) who is subject to the foreign residence requirement of
section 212(e) of the Act and who has not received a waiver of the
residence requirement, except when the alien applies to change to a
classification under section 101(a)(15)(A) or (G) of the Act.
(e) Any alien admitted as a visitor under the visa waiver provisions
of 212.1(e) of this chapter.
(f) Any alien admitted as a Visa Waiver Pilot Program visitor under
the provisions of section 217 of the Act and part 217 of this chapter.
(47 FR 44238, Oct. 7, 1982, as amended at 48 FR 41017, Sept. 13,
1983; 52 FR 48084, Dec. 18, 1987; 53 FR 24903, June 30, 1988)
08 CFR 248.3 Application.
(a) General. A nonimmigrant alien who seeks to change the visa
classification under which he or she was admitted to the United States
shall apply for a change of nonimmigrant classification on Form I-506,
Applicant for Change of Nonimmigrant Status. The applicant shall submit
documentary evidence establishing eligibility for the change of
classification being requested. Form I-506 must be filed with the
district director having jurisdiction over the applicant's place of
temporary residence in the United States, except for change of status to
classification under section 101(a)(15) (H) or (L) of the Act.
(b) Change to H or L. An applicant for change of nonimmigrant
classification to H or L shall submit Form I-506 accompanied by either
Form I-129B, Petition to Classify Nonimmigrant as Temporary Worker or
Trainee, or a copy of the Form I-171C, Notice of Approval or Extension
of Nonimmigrant Visa Petition of H or L Alien, to the district director
having jurisdiction over the place of employment. If the services will
be performed or the training will be received in more than one location
in the United States, the petition and application shall be filed with a
Service office having jurisdiction over at least one of those areas. In
the case of a ''blanket L'' applicant, the I-506 may be filed with the
district director having jurisdiction over at least one of the areas
where the services will be performed, or may be filed with the district
director where the blanket petition was filed.
(c) Application and fee not required. For a change of nonimmigrant
classification to a classification under section 101(a)(15)(A) or
101(a)(15)(G) of the Act, the Department of State must send a letter to
the district director. For all other changes of nonimmigrant
classification as described below, the applicant must submit a letter to
the district director requesting the change of nonimmigrant
classification. Neither an application nor a fee is required for the
following changes of nonimmigrant classification:
(1) A change to classification under section 101(a)(15) (A) or (G) of
the Act.
(2) 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.
(3) 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), (L),
or (M) of the Act.
(4) 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.
(5) 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.
(6) 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 Form I-129B visa petition has been filed
and approved.
(7) A change from classification as 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.
(8) A change from classification as an intra-company transferee under
section 101(a)(15)(L) of the Act to classification as an accompanying
spouse or minor child under that section or vice versa.
(9) 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.
(d) Fee not required. No fee is required for a request for change to
exchange alien classification under section 101(a)(15)(J) of the Act
made by an agency of the United States Government. In such a case, the
agency may submit Form IAP-66, Certificate of Eligibility for
Exchange-Visitor (J-1) Status, together with its request in lieu of Form
I-506, Application for Change of Nonimmigrant Status.
(e) Change of classification not required. The following do not need
to request a change of classification:
(1) An alien classified as a visitor for business under section
101(a)(15)(B) of the Act who intends to remain in the United States
temporarily as a visitor for pleasure during the period of authorized
admission; or
(2) An alien classified under sections 101(a)(15)(A) or 101(a)(15)(G)
of the Act as a member of the immediate family of a principal alien
classified under the same section, or an alien classified under section
101(a)(15) (E), (F), (H), (I), (J), (L), or (M) of the Act as the spouse
or child who accompanied or followed to join a principal alien who is
classified under the same section, to attend school in the United
States, as long as the immediate family member, spouse or child
continues to be qualified for and maintains the status under which the
family member, spouse or child is classified.
(f) Approval of application. If the application is granted, the
applicant shall be notified of the decision and granted a new period of
time to remain in the United States without the requirement of filing a
separate application and paying a separate fee for an extension of stay.
The applicant's nonimmigrant status under his new classification shall
be subject to the terms and conditions applicable generally to such
classification and to such other additional terms and conditions,
including exaction of bond, which the district director deems
appropriate to the case.
(g) Denial of application. When the application is denied, the
applicant shall be notified of the decision and the reasons for the
denial. There is no appeal from the denial of the application under
this chapter.
(36 FR 9001, May 18, 1971, as amended at 48 FR 14593, Apr. 5, 1983;
48 FR 41017, Sept. 13, 1983; 48 FR 44763, Sept. 30, 1983; 50 FR 25697,
June 21, 1985)
08 CFR 248.3 PART 249 -- CREATION OF RECORDS OF LAWFUL ADMISSION FOR
PERMANENT RESIDENCE
Sec.
249.1 Waiver of inadmissibility.
249.2 Application.
249.3 Reopening and reconsideration.
Authority: Secs. 103, 212, 249, 66 Stat. 173, 182, as amended, 219,
as amended; 8 U.S.C. 1103, 1182, 1259.
08 CFR 249.1 Waiver of inadmissibility.
In conjunction with an application under section 249 of the Act, an
otherwise eligible alien who is inadmissible under paragraph (9), (10),
or (12) of section 212(a) of the Act or so much of paragraph (23) of
section 212(a) of the Act as relates to a single offense of simple
possession of 30 grams or less of marihuana may request a waiver of such
ground of inadmissibility under section 212(h) of the Act. Any alien
within the classes described in subparagraphs (B) through (H) of section
212(a)(28) of the Act may apply for the benefits of section
212(a)(28)(I)(ii) in conjunction with an application under section 249
of the Act.
(47 FR 44238, Oct. 7, 1982)
08 CFR 249.2 Application.
(a) Jurisdiction. An application by an alien who has been served
with an order to show cause or warrant of arrest shall be considered
only in proceedings under part 242 of this chapter. In any other case,
an alien who believes he or she meets the eligibility requirements of
section 249 of the Act shall apply to the district director having
jurisdiction over his or her place of residence. The application shall
be made on Form I-485 and shall be accompanied by Form G-325A, which
shall be considered part of the application. The application shall also
be accompanied by documentary evidence establishing continuous residence
in the United States since prior to January 1, 1972, or since entry and
prior to July 1, 1924. All documents must be submitted in accordance
with 103.2(b) of this chapter. Documentary evidence may include any
records of official or personal transactions or recordings of events
occurring during the period of claimed residence. Affidavits of
credible witnesses may also be accepted. Persons unemployed and unable
to furnish evidence in their own names may furnish evidence in the names
of parents or other persons with whom they have been living, if
affidavits of the parents or other persons are submitted attesting to
the residence. The numerical limitations of sections 201 and 202 of the
Act shall not apply.
(b) Decision. The applicant shall be notified of the decision and,
if the application is denied, of the reasons therefor. If the
application is granted, a Form I-551, showing that the applicant has
acquired the status of an alien lawfully admitted for permanent
residence, shall not be issued until the applicant surrenders any other
document in his or her possession evidencing compliance with the alien
registration requirements of former or existing law. No appeal shall
lie from the denial of an application by the district director, but such
denial shall be without prejudice to the alien's right to renew the
application in proceedings under part 242 of this chapter.
(52 FR 6322, Mar. 3, 1987)
08 CFR 249.3 Reopening and reconsideration.
An applicant who alleged entry and residence since prior to July 1,
1924, but in whose case a record was created as of the date of approval
of the application because evidence of continuous residence prior to
July 1, 1924, was not submitted, may have his case reopened and
reconsidered pursuant to 103.5 of this chapter. Upon the submission of
satisfactory evidence, a record of admission as of the date of alleged
entry may be created.
(29 FR 11494, Aug. 11, 1964)
08 CFR 249.3 PART 250 -- REMOVAL OF ALIENS WHO HAVE FALLEN INTO
DISTRESS
Sec.
250.1 Application.
250.2 Removal authorization.
Authority: Secs. 103, 250, 66 Stat. 173, 219; 8 U.S.C. 1103, 1260.
08 CFR 250.1 Application.
Application for removal shall be made on Form I-243. No appeal shall
lie from the decision of the district director.
(22 FR 9802, Dec. 6, 1957)
08 CFR 250.2 Removal authorization.
If the district director grants the application he shall issue an
authorization for the alien's removal on Form I-202. Upon issuance of
the authorization, or as soon thereafter as practicable, the alien may
be removed from the United States at government expense.
(22 FR 9802, Dec. 6, 1957)
08 CFR 250.2 PART 251 -- ARRIVAL MANIFESTS AND LISTS: SUPPORTING
DOCUMENTS
Sec.
251.1 Arrival manifests and lists.
251.2 Notification of illegal landings.
251.3 Departure manifests and lists for vessels.
251.4 Departure manifests and lists for aircraft.
251.5 Exemptions for private vessels and aircraft.
Authority: 8 U.S.C. 1103, 1182, 1221, 1281, 1282.
08 CFR 251.1 Arrival manifests and lists.
(a) Vessels. (1) General. The master or agent of every vessel
arriving in the United States from a foreign place or an outlying
possession of the United States shall present to the immigration officer
at the port where the immigration inspection is performed a manifest of
all crewmen on board on Form I-418, Passenger List-Crew List, in
accordance with the instructions contained thereon.
(2) Longshore work notations. The master of the vessel or his or her
agent shall indicate in writing immediately below the name of the last
alien listed on the Form I-418 whether or not D crewmen aboard the
vessel will be used to perform longshore work at any United States port
before the vessel departs the United States.
(i) If no longshore work will be performed, no further notation
regarding longshore work is required.
(ii) If longshore work will be performed, the master or agent shall
note which exception listed in section 258 of the Act permits the work.
The exceptions are:
(A) The hazardous cargo exception;
(B) The prevailing practice exception in accordance with a port's
collective bargaining agreements;
(C) The prevailing practice exception at a port where there is no
collective bargaining agreement, but for which the vessel files an
attestation;
(D) The prevailing practice exception for automated vessels; and
(E) The reciprocity exception.
(iii) If longshore work will be performed under the hazardous cargo
exception, the vessel must either be a tanker or be transporting dry
bulk cargo that qualifies as hazardous. All tankers qualify for the
hazardous cargo exception, except for a tanker that has been gas-freed
to load non-hazardous dry bulk commodities.
(A) To invoke the exception for tankers, the master or agent shall
note on the manifest that the vessel is a qualifying tanker.
(B) If the vessel is transporting dry bulk hazardous cargo, the
master or agent shall note on the manifest that the vessel's dry bulk
cargo is hazardous and shall show the immigration officer the dangerous
cargo manifest which is signed by the master or an authorized
representative of the owner, and which under 46 CFR 148.02 must be kept
in a conspicuous place near the bridge house.
(iv) If longshore work will be performed under the prevailing
practice exception, the master or agent shall note on the manifest each
port at which longshore work will be performed under this exception.
Additionally, for each port the master or agent shall note either that:
(A) The practice of nonimmigrant crewmen doing longshore work is in
accordance with all collective bargaining agreements covering 30 percent
or more of the longshore workers in the port;
(B) The port has no collective bargaining agreement covering 30
percent or more of the longshore workers in the port and an attestation
has been filed with the Secretary of Labor;
(C) An attestation that was previously filed is still valid and the
vessel continues to comply with the conditions stated in that
attestation; or
(D) The longshore work consists of operating an automated,
self-unloading conveyor belt or a vacuum-actuated system.
(v) If longshore work will be performed under the reciprocity
exception, the master or agent shall note on the manifest that the work
will be done under the reciprocity exception, and will note the
nationality of the vessel's registry and the nationality or
nationalities of the holders of a majority of the ownership interest in
the vessel.
(vi) Notations for Great Lakes vessels. (A) A manifest shall not be
required for a vessel of United States, Canadian, or British registry
engaged solely in traffic on the Great Lakes or the St. Lawrence River
and connecting waterways, herein designated as a Great Lakes vessel,
unless nonimmigrant crewmen intend to do longshore work at a port in the
United States.
(B) If nonimmigrant crewmen will do longshore work, the master of
agent of the vessel shall note on the manifest which exception in
section 258 of the Act permits the work and any other notations
described in paragraphs (a)(2)(ii) through (a)(2)(v) of this section
required by the exception invoked.
(C) A manifest shall be required for crewmen of other than United
States, Canadian, or British citizenship and shall contain the same
information regarding longshore work as is required of other vessels.
(D) After submission of a manifest on the first voyage of a calendar
year, a manifest shall not be required on subsequent arrivals unless a
nonimmigrant crewman of other than Canadian or British citizenship is
employed on the vessel who was not aboard and listed on the last prior
manifest, or a change has occurred regarding the performance of
longshore work in the United States by nonimmigrant crewmen, or a change
has occurred in the exception that the master or agent of the vessel
wishes to invoke which was not noted on the last prior manifest.
(3) The master or agent of a vessel that only bunkers at a United
States port pursuant to 8 CFR 235.1(d)(7) shall annotate Form I-418 to
indicate the time, date, and place of bunkering.
(4) If documentation is required to support an exception, as
described in 8 CFR 258.2, it must accompany the manifest.
(b) Aircraft. The captain or agent of every aircraft arriving in the
United States from a foreign place or from an outlying possession of the
United States, except an aircraft arriving in the United States directly
from Canada on a flight originating in that country, shall present to
the immigration officer at the port where the inspection is performed a
manifest on the Bureau of Customs Form 7507 or on the International
Civil Aviation Organization's General Declaration of all the alien
crewmembers on board, including alien crewmembers who are returning to
the United States after taking an aircraft of the same line from the
United States to a foreign place or alien crewmembers who are entering
the United States as passengers solely for the purpose of taking an
aircraft of the same line from the United States to a foreign port. The
captain or agent of an aircraft that only refuels at the United States
port pursuant to 235.1(d)(7) of this part must annotate the manifest to
indicate the time, date and place of refueling. The surname, given
name, and middle initial of each alien crewman listed also shall be
shown on the manifest. In addition, the captain or agent of the
aircraft shall indicate in writing immediately below the name of the
last alien listed on the Form or Declaration, the number of United
States citizen crewmen on board, if any. If there are no alien crewmen
aboard, the captain or agent shall indicate in writing on the Form or
Declaration the number of United States citizen crewmen, followed by a
statement that there are no alien crewmen.
(c) Additional documents. The master, captain, or agent shall
prepare as a part of the manifest, when one is required for presentation
to an immigration officer, a completely executed set of Forms I-95 for
each alien crewman on board, except: (1) An alien immigrant crewman in
possession of a valid immigrant visa, reentry permit, or alien
registration receipt card on Form I-151 or I-551; (2) a Canadian or
British citizen crewman serving on a vessel plying solely between Canada
and the United States; or (3) a crewman seeking conditional landing
privileges under section 252(a)(1) of the Act who is in possession of an
unmutilated alien crewman landing permit and identification card (Form
I-184) or an unmutilated conditional landing permit (Form I-95) with
space for additional endorsements previously issued to him as a member
of the crew of the same vessel or an aircraft of the same line on his
last prior arrival in the United States, following which he departed
from the United States as a member of the crew of the same vessel or an
aircraft of the same line.
(d) Immigration officer notations on arrival manifests. (1) Upon
completion of the examination of each crewman listed on the Form I-418
presented by the master or agent of an arriving vessel, the immigration
officer shall place one of the following symbols in column (5) of the
Form I-418 opposite the name of the crewman: ''USC'' for a crewman
admitted as a United States citizen; ''RP'' or ''ARC'' to indicate
respectively the presentation of a reentry permit or an alien
registration receipt card, Form I-151 or I-551, for a crewman admitted
as a lawful permanent resident; ''D-1'' for an alien crewman granted a
conditional landing permit under section 252(a)(1) of the Act; ''D-2''
for an alien crewman granted a conditional landing permit under section
252(a)(2) of the Act; ''Parolee'' for an alien crewman paroled pursuant
to section 212(d)(5) of the Act; and ''Refused'' for a nonimmigrant
crewman whose request for a landing permit has been refused.
(2) The immigration officer shall note on the Form I-410, Receipt for
Crew List, whether or not nonimmigrant crewmen will perform longshore
work in the United States, and if so:
(i) Under which exception in section 258 of the Act it will be
performed; and
(ii) What type of documentation accompanied the manifest to support
the exception invoked.
(3) The examining immigration officer shall sign his or her name,
title, and the date of the inspection following the last entry on the
Form I-418. The master of the vessel shall be furnished Form I-410 as a
receipt for the Form I-418 arrival manifest, and the immigration officer
shall list on the Form I-410 both the information regarding longshore
work described in 8 CFR 251.1(a)(2) and the names of all crewmen who
have been refused conditional landing permits.
(30 FR 6777, May 19, 1965, as amended at 32 FR 9632, July 4, 1967;
34 FR 12560, Aug. 1, 1969; 34 FR 19799, Dec. 18, 1969; 45 FR 32658,
May 19, 1980; 46 FR 43827, Sept. 1, 1981; 56 FR 26017, June 6, 1991;
57 FR 40833, Sept. 8, 1992)
08 CFR 251.2 Notification of illegal landings.
As soon as discovered, the master or agent of any vessel from which
an alien crewman has illegally landed or deserted in the United States
shall inform the immigration officer in charge of the port where the
illegal landing or desertion occurred, in writing, of the name,
nationality, passport number and, if known, the personal description,
circumstances and time of such illegal landing or desertion of such
alien crewman, and furnish any other information and documents which
might aid in his apprehension, including any passport surrendered
pursuant to 252.1(d) of this chapter. Failure to file notice of
illegal landing or desertion and to furnish any surrendered passport
within 24 hours of the time of such landing or desertion becomes known
shall be regarded as lack of compliance with section 251(d) of the Act.
(28 FR 209, Jan. 9, 1963)
08 CFR 251.3 Departure manifests and lists for vessels.
(a) Form I-418, Crew List. The master or agent of every vessel
departing from the United States shall submit to the immigration officer
at the port from which such vessel is to depart directly to some foreign
place or outlying possession of the United States, except when a
manifest is not required pursuant to 251.1(a), a single Form I-418,
Crew List, completed in accordance with the instructions contained
herein. Every item in the heading of the Form I-418 must be completed
and the following endorsement shall be placed on the first line of the
form: ''Arrival Crew List, Form I-418, filed at (show United States
port of entry).'' Submission of a Form I-418 which lacks that
endorsement or which lacks other essential information shall be regarded
as lack of compliance with section 251(c) of the Act.
(b) Added crewmen. Under a heading ''Added Crewmen,'' list the names
of all nonresident alien crewmen who were not members of the crew and
manifested on Form I-418 as such on the occasion of the vessel's last
arrival in the United States and attach for each name on the list the
Form I-95 or Form I-94 given to the alien crewman when he last arrived
in the United States. If that form is unavailable, a new Form I-95
shall be prepared and attached to the Form I-418.
(c) Separated crewman. Under a heading ''Separated Crewmen,'' list
the names of all alien crewmen, other than alien permanent residents of
the United States, who were listed on the arrival Form I-418, as members
of the crew on the occasion of the vessel's last arrival in the United
States but who for any reason are not departing with the vessel, and for
each such separated crewman show his nationality, passport number,
specific port and date of separation, and the reasons for failure to
depart. If an application to pay off or discharge an alien crewman has
been granted subsequent to the vessel's arrival, the triplicate copy of
the relating Form I-408 shall be attached to the Form I-418. The list
required by paragraph (b) of this section and this paragraph may be
incorporated in a single Form I-418, if space permits. The required
lists need not be submitted for Canadian or British citizen crewmen of
Great Lakes vessels.
(d) No changes in crew. When there are no added and separated
crewmen as described in this section, the Form I-418 shall be endorsed
with the notation ''No changes in nonresident alien crew upon
departure.''
(30 FR 6777, May 19, 1965, as amended at 33 FR 17137, Nov. 19, 1968)
08 CFR 251.4 Departure manifests and lists for aircraft.
(a) Bureau of Customs Form 7507 or International Civil Aviation
Organization's General Declaration. The captain or agent of every
aircraft departing from the United States for a foreign place or an
outlying possession of the United States, except an aircraft departing
from the United States directly to Canada on a flight terminating in
that country, shall submit to the immigration officer at the port from
which such aircraft is to depart on the Bureau of Customs Form 7507 or
on the International Civil Aviation Organization's General Declaration a
list of all alien crewmen on board, including alien crewmen who arrived
in the United States as crewmen on an aircraft of the same line and who
are departing as passengers. The surname, given name, and middle
initial of each such alien crewman listed shall be shown. In addition,
the captain or agent of the aircraft shall indicate in writing
immediately below the name of the last alien listed on such form or
declaration, the number of U.S. citizen crewmen on board, if any. If
there are no alien crewmen aboard, the captain or agent shall indicate
in writing on the form or declaration the number of U.S. citizen
crewmen, followed by a statement that there are no alien crewmen.
(b) Notification of changes in employment for aircraft. The agent of
the air transportation line shall immediately notify in writing the
nearest immigration office of the termination of employment in the
United States of each alien employee of the line furnishing the name,
birthdate, birthplace, nationality, passport number, and other available
information concerning such alien. The procedure to follow in obtaining
permission to pay off or discharge an alien crewman in the United States
after initial immigration inspection, other than an alien lawfully
admitted for permanent residence, is set forth in 252.1(h) of this
chapter.
(30 FR 6777, May 19, 1965, as amended at 33 FR 17137, Nov. 19, 1968;
34 FR 12561, Aug. 1, 1969)
08 CFR 251.5 Exemptions for private vessels and aircraft.
The provisions of this part relating to submission of arrival and
departure manifests and lists shall not apply to a private vessel or a
private aircraft not engaged directly or indirectly in the carriage of
persons or cargo for hire.
(32 FR 9632, July 4, 1967)
08 CFR 251.5 PART 252 -- LANDING OF ALIEN CREWMEN
Sec.
252.1 Examination of crewmen.
252.2 Revocation of conditional landing permits; deportation.
252.3 Great Lakes vessels and tugboats arriving in the United States
from Canada; special procedures.
252.4 Permanent landing permit and identification card.
252.5 Special procedures for deserters from Spanish or Greek ships of
war.
Authority: Secs. 103, 214, 248, 251, 252, 66 Stat. 173, 189, 218,
219, 220; 8 U.S.C. 1103, 1184, 1258, 1281, 1282.
08 CFR 252.1 Examination of crewmen.
(a) Detention prior to examination. All persons employed in any
capacity on board any vessel or aircraft arriving in the United States
shall be detained on board the vessel or at the airport of arrival by
the master or agent of such vessel or aircraft until admitted or
otherwise permitted to land by an officer of the Service.
(b) Classes of aliens subject to examination under this part. The
examination of every alien crewman arriving in the United States shall
be in accordance with this part and not otherwise except that the
following classes of persons employed on vessels or aircraft shall be
examined in accordance with the provisions of parts 235, 236, and 237 of
this chapter: (1) Aliens in possession of an immigrant visa, reentry
permit, or a Form I-151 alien registration receipt card, applying for
admission as immigrants; (2) Canadian or British citizen crewmen
serving on vessels plying solely between Canada and the United States;
or (3) Canadian or British citizen crewmen of aircraft arriving in a
State of the United States directly from Canada on flights originating
in that country. The crew of a vessel arriving at a United States port
which may not require inspection by or clearance from the Bureau of
Customs is, nevertheless, subject to examination under this part;
however, the master of such a vessel, is not required to present Form
I-95 for any crewman who is not an applicant for a conditional landing
permit.
(c) Requirements for admission. Every alien crewman applying for
landing privileges in the United States must make his application in
person before an immigration officer, present whatever documents are
required, be photographed and fingerprinted as the district director may
require, and establish to the satisfaction of the immigration officer
that he is not subject to exclusion under any provision of the law and
is entitled clearly and beyond doubt to landing privileges in the United
States.
(d) Authorization to land. The immigration officer in his discretion
may grant an alien crewman authorization to land temporarily in the
United States for: (1) Shore leave purposes during the period of time
the vessel or aircraft is in the port of arrival or other ports in the
United States to which it proceeds directly without touching at a
foreign port or place, not exceeding 29 days in the aggregate, if the
immigration officer is satisfied that the crewman intends to depart on
the vessel on which he arrived or on another aircraft of the same
transportation line, and the crewman's passport is surrendered for safe
keeping to the master of the arriving vessel, or (2) the purpose of
departing from the United States as a crewman on a vessel other than the
one on which he arrived, or departing as a passenger by means of other
transportation, within a period of 29 days, if the immigration officer
is satisfied that the crewman intends to depart in that manner, that
definite arrangements for such departure have been made, and the
immigration officer has consented to the pay off or discharge of the
crewman from the vessel on which he arrived. A crewman granted a
conditional permit to land under section 252(a)(1) of the Act and
paragraph (d)(1) of this section is required to depart with his vessel
from its port of arrival and from each other port in the United States
to which it thereafter proceeds coastwise without touching at a foreign
port or place; however, he may rejoin his vessel at another port in the
United States before it touches at a foreign port or place if he has
advance written permission from the master or agent to do so.
(e) Conditional permits to land. Unless the crewman is in possession
of Form I-184 and is landed under paragraph (d)(1) of this section, the
immigration officer shall give to each alien nonimmigrant crewman
permitted to land a copy of the Form I-95 presented by the crewman,
endorsed to show the date and place of admission and the type of
conditional landing permit.
(f) Change of status. An alien nonimmigrant crewman landed pursuant
to the provisions of this part shall be ineligible for any extension of
stay or for a change of nonimmigrant classification under part 248 of
this chapter. A crewman admitted under paragraph (d)(1) of this section
may, if still maintaining status, apply for a conditional landing permit
under paragraph (d)(2) of this section. The application shall not be
approved unless an application on Form I-408, filed pursuant to
paragraph (h) of this section, has been approved authorizing the master
or agent of the vessel on which the crewman arrived to pay off or
discharge the crewman and unless evidence is presented by the master or
agent of the vessel to which the crewman will be transferred that a
specified position on that vessel has been authorized for him or that
satisfactory arrangements have been completed for the repatriation of
the alien crewman. If the application is approved, the crewman shall be
given a new Form I-95 endorsed to show landing authorized under
paragraph (d)(2) of this section for the period necessary to accomplish
his scheduled reshipment, which shall not exceed 29 days from the date
of his landing, upon surrendering any conditional landing permit
previously issued to him on Form I-95.
(g) Refusal of conditional landing permit. When an alien crewman is
refused a conditional landing permit for any reason, the Form I-95
presented by him at time of examination shall be endorsed ''Permission
to land temporarily at all U.S. ports is refused'' and the Form I-95
shall be given to the master or agent of the vessel or aircraft and, in
the case of vessels, the alien crewman's name shall be listed on the
Form I-410 delivered to the master of the vessel upon completion of the
examination of the crew. If an alien crewman who has been refused a
conditional landing permit is in possession of Form I-184, the Form
I-184 shall be lifted by the examining immigration officer and, except
in the case of an alien crewman who is refused a conditional landing
permit solely because he is not in possession of a valid passport or
visa, the Form I-184 shall be voided. In the case of an alien crewman
refused a conditional landing permit because he is not in possession of
a valid passport or visa, the Form I-184 shall be delivered to the
master or agent of the vessel with instructions to return it to the
alien crewman after the vessel has departed from the United States.
(h) Authorization to pay off or discharge an alien crewman.
Application to pay off or discharge an alien crewman, except an alien
lawfully admitted for permanent residence, shall be made by the owner,
agent, consignee, charterer, master, or commanding officer of the vessel
or aircraft on which the alien crewman arrived on Form I-408 filed with
the immigration officer having jurisdiction over the area in which the
vessel or aircraft is located at the time of application. The applicant
shall be notified of the decision, and, if the application is denied, of
the reasons therefor. There shall be no appeal from the denial of an
application on Form I-408.
(23 FR 2788, Apr. 26, 1958, as amended at 27 FR 11875, Dec. 1, 1962;
29 FR 13243, Sept. 24, 1964; 29 FR 14432, Oct. 21, 1964; 32 FR 9633,
July 4, 1967; 33 FR 9332, June 26, 1968; 33 FR 17137, Nov. 19, 1968)
08 CFR 252.2 Revocation of conditional landing permits; deportation.
An alien permitted to land conditionally under 252.1(d)(1) may,
within the period of time for which he was permitted to land, be taken
into custody by any immigration officer without a warrant of arrest and
be transferred to the vessel upon which he arrived in the United States,
if such vessel is in any port of the United States and has not been in a
foreign port or place since the crewman was issued his condition landing
permit, upon a determination by the immigration officer that the alien
crewman is not a bona fide crewman or that he does not intend to depart
on the vessel on which he arrived in the United States. The conditional
landing permit of such an alien crewman shall be taken up and revoked by
the immigration officer, and a notice on Form I-259 to detain and deport
such alien crewman shall be served on the agent for the vessel, and if
they are available, on the owner and the master or commanding officer of
the vessel. Form I-99 shall be served on the crewman when he is taken
into custody or as soon as practicable thereafter. On the written
request of the master of the vessel, the crewman may be detained and
deported, both at the expense of the transportation line on whose vessel
he arrived in the United States, other than on the vessel on which he
arrived in the United States, if detention or deportation on such latter
vessel is impractical.
(29 FR 15253, Nov. 13, 1964)
08 CFR 252.3 Great Lakes vessels and tugboats arriving in the United
States from Canada; special procedures.
(a) United States vessels and tugboats. An immigration examination
shall not be required of any crewman aboard a Great Lakes vessel of
United States registry or a tugboat of United States registry arriving
from Canada at a port of the United States who has been examined and
admitted by an immigration officer as a member of the crew of the same
vessel or tugboat or of any other vessel or tugboat of the same company
during the current calendar year.
(b) Canadian or British vessels or tugboats. An immigration
examination shall not be required of any crewman aboard a Great Lakes
vessel of Canadian or British registry or a tugboat of Canadian or
British registry arriving from Canada at a port of the United States for
a period of less than 29 days who has been examined and admitted by an
immigration officer as a member of the crew of the same vessel or
tugboat or of any other vessel or tugboat of the same company during the
current calendar year, and is either a British or Canadian citizen or is
in possession of a valid Form I-95 previously issued to him as a member
of the crew of the same vessel or tugboat or of any other vessel or
tugboat of the same company, and does not request or require landing
privileges in the United States beyond the time the vessel or tugboat
will be in port, and will depart with the vessel or tugboat to Canada.
(41 FR 24700, June 18, 1976)
08 CFR 252.4 Permanent landing permit and identification card.
A Form I-184 is valid until revoked. It shall be revoked when an
immigration officer finds that the crewman is in the United States in
willful violation of the terms and conditions of his admission, or that
he is inadmissible to the United States. On revocation, the Form I-184
shall be surrendered to an immigration officer. No appeal shall lie
from the revocation of Form I-184.
(43 FR 37174, Aug. 22, 1978)
08 CFR 252.5 Special procedures for deserters from Spanish or Greek
ships of war.
(a) General. Under E.O. 11267 of January 19, 1966 (31 FR 807) and 28
CFR 0.109, and E.O. 11300 of August 17, 1966, (31 FR 11009), and 28 CFR
0.110, the Commissioner and immigration officers (as defined in
103.1(i) of this chapter) are designated as ''competent national
authorities'' on the part of the United States within the meaning of
Article XXIV of the 1903 Treaty of Friendship and General Relations
between the United States and Spain (33 Stat. 2105, 2117), and ''local
authorities'' and ''competent officers'' on the part of the United
States within the meaning of Article XIII of the Convention between the
United States and Greece (33 Stat. 2122, 2131).
(b) Application for restoration. On application of a Consul General,
Consul, Vice-Consul, or Consular-Agent of the Spanish or Greek
Government, made in writing pursuant to Article XXIV of the treaty, or
Article XIII of the Convention, respectively, stipulating for the
restoration of crewmen deserting, stating that the person named therein
has deserted from a ship of war of that government, while in any port of
the United States, and on proof by the exhibition of the register, crew
list, or official documents of the vessel, or a copy or extract
therefrom, duly certified, that the person named belonged, at the time
of desertion, to the crew of such vessel, such person shall be taken
into custody by any immigration officer without a warrant of arrest.
Written notification of charges shall be served on the individual when
he is taken into custody or as soon as practical thereafter.
(c) Examination. Within a reasonable period of time after the
arrest, the individual shall be accorded an examination by the district
director, acting district director, or the deputy district director
having jurisdiction over the place of arrest. He shall be informed that
he may have the assistance of or be represented by a counsel or
representative of his choice qualified under part 292 of this chapter
without expense to the Government, and that he may present such evidence
in his behalf as may be relevant to this proceeding. If, upon the
completion of such examination, it is determined that: (1) The
individual sought by the Spanish or Greek authorities had deserted from
a Spanish or Greek ship of war in a United States port; (2) the
individual actually arrested and detained is the person sought; (3)
this individual is not a citizen of the United States; and (4) this
individual had not previously been arrested for the same cause and set
at liberty because he had been detained for more than 3 months, or more
than 2 months in the case of a deserter from a Greek ship of war, from
the day of his arrest without the Spanish or Greek authorities having
found an opportunity to send him home, the individual shall be served
with a copy of the findings, from which no appeal shall lie, and be
surrendered forthwith to the Spanish or Greek authorities if they are
prepared to remove him from the United States. On written request of
the Spanish or Greek authorities, the individual shall be detained, at
their expense, for a period not exceeding 3 months or 2 months,
respectively, from the day of arrest to afford opportunity to arrange
for his departure from the United States.
(d) Timely departure not effected. If the Spanish authorities delay
in sending the individual home for more than 3 months, or if the Greek
authorities delay in sending the individual home for more than 2 months,
from the day of his arrest, the individual shall be dealt with as any
other alien unlawfully in the United States under the deportation
provisions of the Immigration and Nationality Act, as amended.
(e) Commission of crime. If the individual has committed any crime
or offense in the United States, he shall not be placed at the disposal
of the consul until after the proper tribunal having jurisdiction in his
case shall have pronounced sentence, and such sentence shall have been
executed.
(31 FR 12774, Sept. 30, 1966)
08 CFR 252.5 PART 253 -- PAROLE OF ALIEN CREWMEN
Sec.
253.1 Parole.
253.2 Termination of parole.
Authority: 8 U.S.C. 1103, 1182, 1282, 1283, 1285.
08 CFR 253.1 Parole.
(a) General. When a crewman is paroled into the United States
pursuant to the provisions of this part under the provisions of section
212(d)(5) of the Act, he shall be given Form I-94, reflecting the terms
of parole. A notice on Form I-259 shall be served upon the agent, and,
if available, upon the owner and master or commanding officer of the
vessel or aircraft, which shall specify the purpose of the parole and
the conditions under which the alien crewman is paroled into the United
States. The Form I-259 shall also specify the Service office to which
the alien crewman is to be presented for inspection upon termination of
the parole. The guarantee of payment for medical and other related
expenses required by section 253 of the Act shall be executed by the
owner, agent, consignee, commanding officer or master on Form I-510.
(b) Afflicted crewman. Any alien crewman afflicted with
feeblemindedness, insanity, epilepsy, tuberculosis in any form, leprosy,
or any dangerous contagious disease, or an alien crewman suspected of
being so afflicted shall upon arrival at the first port of call in the
United States, be paroled to the medical institution designated by the
district director in whose district the port is located, in the custody
(other than during the period of time he is in such medical institution)
of the agent of the vessel or aircraft on which such alien arrived in
the United States and at the expense of the transportation line for a
period initially not to exceed thirty days, for treatment and
observation, under the provisions of section 212(d)(5) of the Act.
Unless the Public Health Surgeon at the first port certifies that such
parole be effected immediately for emergent reasons, the district
director may defer execution of parole to a subsequent port of the
United States to which the vessel or aircraft will proceed, if
facilities not readily available at the first port are readily available
at such subsequent port of call. Notice to remove an afflicted alien
crewman shall be served by the examining immigration officer upon the
master or agent of the vessel or aircraft on Form I-259 and shall
specify the date when and the place to which such alien crewman shall be
removed and the reasons therefor.
(c) Disabled crewman. Any alien crewman who becomes disabled in any
port of the United States, whom the master or agent of the vessel or
aircraft is obliged under foreign law to return to another country, may
be paroled into the United States under the provisions of section
212(d)(5) of the Act for the period of time and under the conditions set
by the district director in whose district the port is located, in the
custody of the agent of the vessel or aircraft for the purpose of
passing through the United States and transferring to another vessel or
aircraft for departure to such foreign country, by the most direct and
expeditious route.
(d) Shipwrecked or castaway seamen or airmen. A shipwrecked or
castaway alien seaman or airman who is rescued by or transferred at sea
to a vessel or aircraft destined directly for the United States and who
is brought to the United States on such vessel or aircraft other than as
a member of its crew shall be paroled into the United States under the
provisions of section 212(d)(5) of the Act for the period of time and
under the conditions set by the district director in whose district the
port is located, in the custody of the appropriate foreign consul or the
agent of the aircraft or vessel which was wrecked or from which such
seaman or airman was removed, for the purpose of treatment or
observation in a hospital, if such is required, and for departure to the
appropriate foreign country by the most direct and expeditious route.
(e) Medical treatment or observation. Any alien crewman denied a
conditional landing permit or whose conditional landing permit issued
under 252.1(d)(1) of this chapter is revoked may, upon the request of
the master or agent, be paroled into the United States under the
provisions of section 212(d)(5) of the Act in the custody of the agent
of the vessel or aircraft and at the expense of the transportation line
for medical treatment or observation.
(f) Crewman, stowaway, or alien temporarily excluded under section
235(c) alleging persecution. Any alien crewman, stowaway, or alien
temporarily excluded under section 235(c) of the Act who alleges that he
cannot return to his country of nationality or last habitual residence
(if not a national of any country) because of fear of persecution in
that country on account of race, religion, nationality, membership in a
particular social group, or political opinion, is eligible to apply for
asylum or withholding of deportation under part 208 of this chapter.
(1) If the alien is on a vessel or other conveyance and makes such
fear known to an immigration inspector or other official making an
examination on the conveyance, he shall be promptly removed from the
conveyance. If the alien makes his fear known to an official while off
such conveyance, he shall not be returned to the conveyance but shall be
retained in or transferred to the custody of the Service.
(2) In either case, the alien shall be provided the appropriate
application forms and such other information as is required by 208.5 of
this chapter and may then have ten (10) days within which to file an
application for such relief with the District Director having
jurisdiction over the port of entry from which the applicant seeks entry
into the United States. The District Director, pursuant to 208.4(a) of
this chapter, shall immediately forward any such application to an
Asylum Officer with jurisdiction over his district.
(3) Pending adjudication of the application by the Asylum Officer,
the applicant may be detained by the Service, or paroled into the
custody of the ship's agent or otherwise paroled in accordance with
212.5 of this chapter and shall not be excluded or deported before a
decision is rendered by the Asylum Officer on his asylum application.
(4) A decision denying asylum to an alien crewman or stowaway, but
not an alien temporarily excluded under section 235(c) of this chapter,
may be appealed directly to the Board of Immigration Appeals. Such
appeal must be filed within ten (10) days of the Asylum Officer's
decision by filing a notice of appeal on Form I-290A with the District
Director, who shall immediately forward the notice to the Asylum
Officer. The Asylum Officer shall transmit the notice of appeal, his
decision, and the record on which that decision was based, to the Board
of Immigration Appeals. The filing of a notice of appeal shall stay the
exclusion or deportation of the applicant pending decision on the appeal
by the Board.
(g) Other crewmen. In the discretion of the district director, any
alien crewman not within the purview of paragraphs (b) through (f) of
this section may for other emergent reasons or for reasons deemed
strictly in the public interest be paroled into the United States under
the provisions of section 212(d)(5) of the Act for the period of time
and under the conditions set by the district director having
jurisdiction over the area where the alien crewman is located.
(22 FR 9804, Dec. 6, 1957, as amended at 26 FR 11797, Dec. 8, 1961;
32 FR 4341, Mar. 22, 1967; 32 FR 9633, July 4, 1967; 55 FR 30687, July
27, 1990)
08 CFR 253.2 Termination of parole.
(a) General. At the expiration of the period of parole authorized by
the district director, or when the purpose of the parole has been
served, whichever is earlier, the agent upon whom the relating Form
I-259 was served as provided in 253.1, shall present the alien crewman
for inspection to an immigration officer at the Service office specified
in the Form I-259. If the agent cannot present the alien crewman, the
agent shall immediately submit a report of the reasons therefor to the
district director. The district director shall take such further action
as the circumstances may require. If the vessel or aircraft on which
the alien crewman arrived in the United States is still in the United
States when he is presented for inspection, he shall be treated as an
applicant for a conditional landing permit and his case shall be dealt
with in the same manner as any other applicant for a conditional landing
permit. If the vessel or aircraft on which the alien crewman arrived in
the United States departed before he was presented for inspection, the
agent shall be directed by means of written notice on Form I-259 to
arrange for the removal of the alien crewman from the United States, and
if such alien crewman thereafter departs voluntarily from the United
States within the time specified by the district director, such
departure shall not be considered a deportation within the meaning of
this section.
(b) Revocation of parole. When an immigration officer has reason to
believe that an alien crewman paroled into the United States pursuant to
the provisions of 253.1 has violated the conditions of parole, the
immigration officer may take such alien crewman into custody without a
warrant of arrest. Following such action, the alien crewman shall be
accorded, without undue delay, an examination by another immigration
officer. If it is determined on the basis of such examination that the
individual detained is an alien crewman who was paroled into the United
States pursuant to the provisions of 253.1 and that he has violated the
conditions of the parole or has remained in the United States beyond the
period authorized by the district director, the district director shall
cause to be served upon the alien crewman a written notice that his
parole has been revoked, setting forth the reasons for such action. If
the vessel or aircraft upon which the alien crewman arrived in the
United States is still in the United States, the alien crewman shall be
delivered to that vessel or aircraft and Form I-259 shall be served upon
the master or commanding officer of the vessel or aircraft directing
that the alien crewman be detained on board the vessel or aircraft and
deported from the United States. A copy of Form I-259 shall also be
served on the agent for the vessel or aircraft. If the vessel or
aircraft upon which the alien crewman arrived in the United States has
departed from the United States, the agent or owner of the vessel or
aircraft shall be directed by means of a notice on Form I-259 to effect
the deportation of the alien crewman from the United States. Pending
deportation, the alien crewman shall be continued in custody, unless the
district director authorizes his release on parole under such
conditions, including the posting of a suitable bond, as the district
director may prescribe.
(32 FR 4342, Mar. 22, 1967)
08 CFR 253.2 PART 258 -- LIMITATIONS ON PERFORMANCE OF LONGSHORE WORK
BY ALIEN CREWMEN
Sec.
258.1 Limitations -- General.
258.2 Exceptions.
258.3 Action upon arrival.
Authority: 8 U.S.C. 1101, 1103, 1281; 8 CFR part 2.
Source: 57 FR 30384, Sept. 8, 1992, unless otherwise noted.
08 CFR 258.1 Limitations -- General.
(a) Longshore work defined. Longshore work means any activity
relating to the loading and unloading of cargo, the operation of
cargo-related equipment (whether or not integral to the vessel), and the
handling of mooring lines on the dock when the vessel is made fast or
let go, in the United States or the coastal waters thereof.
(1) Longshore work is not included in the term ''normal operation and
service on board a vessel'' for the purposes of section 101(a)(15)(D)(i)
of the Act except as provided in sections 258 (c) or (d) of the Act.
(2) A vessel that uses nonimmigrant crewmen to perform longshore
work, other than the activities allowed in particular circumstances
under 258.2 (a)(2), (b), or (c) of this part, shall be subject to a
fine under section 251(d) of the Act.
(b) Port defined. For purposes of this section, the term port means
a geographic area, either on a seacoast, lake, river, or other navigable
body of water, which contains one or more publicly or privately owned
terminals, piers, docks, or maritime facilities, which is commonly
regarded as a port by other government maritime related agencies, such
as the Maritime Administration.
08 CFR 258.2 Exceptions.
Any master or agent who uses nonimmigrant crewmen to perform
longshore work at any United States port under the exceptions provided
for in paragraphs (a)(2), (b), or (c) of this section must so indicate
on the crew manifest and shall note under which exception the work will
be performed.
(a) Hazardous cargo. (1) The term longshore work does not include
the loading and unloading of any cargo for which the Secretary of
Transportation has prescribed regulations under authority contained in
chapter 37 of title 46, United States Code, section 311 of the Federal
Water Pollution Control Act, section 4106 of the Oil Pollution Act of
1990, or section 105 or 106 of the Hazardous Materials Transportation
Act.
(2) In order to invoke the hazardous cargo exception for safety and
environmental protection, the master or agent shall note on the manifest
that the vessel is a qualifying tanker or carries hazardous dry bulk
cargo.
(i) All tankers qualify for the hazardous cargo exception, including
parcel tankers, except for a tanker that has been gas-freed to transport
non-hazardous dry bulk commodities.
(ii) In order for a vessel to qualify for the hazardous cargo
exception as a dry bulk hazardous cargo carrier, the master or agent
must show the immigration officer the dangerous cargo manifest that is
required by Coast Guard regulation 46 CFR 148.02-3(a) to be kept near
the bridge house.
(b) Prevailing practice exception. (1) Nonimmigrant crewmen may
perform longshore work under this exception if:
(i) There is in effect in the local port one or more collective
bargaining agreements, each covering at least 30 percent of the persons
performing longshore work at the port, and each of which permits the
longshore activity to be performed by the nonimmigrant crewman, or
(ii) There is no collective bargaining agreement in effect in the
local port covering at least 30 percent of the persons performing
longshore work at the port, and the employer of the crewmen has filed an
attestation with the Secretary of Labor that the Secretary of Labor has
accepted.
(2) Documentation to be presented under the prevailing practice
exception. (i) If the master or agent states on the manifest, Form
I-418, that nonimmigrant crewmen will perform longshore work at a port
under the prevailing practice exception as permitted by all collective
bargaining agreements covering 30 percent or more of the persons
performing longshore work at the port, then the master or agent must
present to the examining immigration officer an affidavit from the local
stevedore. The stevedore or a union representative of the employees'
association must state on the affidavit that all bargaining agreements
covering 30 percent or more of the longshore workers at the port allow
nonimmigrant crewmen either to perform all longshore work or to perform
those specified longshore activities that crewmen on the vessel intend
to perform.
(ii) Where there is no collective bargaining agreement in effect at a
port covering at least 30 percent of the persons who do longshore work,
and the master or agent states on the manifest that nonimmigrant crewmen
will perform such work under the prevailing practice exception, then the
master or agent shall present a copy of the notification received from
the Secretary of Labor that the attestation required for this exception
has been accepted.
(iii) When an unanticipated emergency occurs, the master or agent of
a vessel may file an attestation with the Secretary of Labor up to the
date on which crewmen perform longshore work.
(A) If, because of an unanticipated emergency, crewmen on a vessel
perform longshore work under the prevailing practice exception at a
port, a revised manifest shall be submitted together with complete
documentation, as specified in paragraph (b)(2)(ii) of this section,
within 14 days of the longshore work having been done. Failure to
present the required documentation may result in a fine under section
251 of the Act.
(B) All documents submitted after inspection shall be sent to the
Immigration and Naturalization Service seaport office that inspected the
vessel.
(iv) Attestations are valid for one year from the date of filing and
cover nonimmigrant crewmen landing during that period if the master or
agent states on the manifest that the vessel's crew continue to comply
with the conditions in the attestation. When the vessel's master or
agent intends to use a previously accepted attestation that is still
valid, the master or agent shall submit a copy of the notification from
the Secretary of Labor that the attestation was accepted and shall note
on the manifest that the vessel continues to comply with the conditions
of the attestation.
(3) Use of automated self-unloading conveyor belt or vacuum-actuated
system on a vessel. An automated self-unloading conveyor belt or a
vacuum-actuated system may be operated by a nonimmigrant crewman under
the prevailing practice exception when no collective bargaining
agreement at the local port prevents it. The master or agent is not
required to file an attestation for nonimmigrant crewmen to perform such
activity in such a circumstance unless the Secretary of Labor has
determined that such activity is not the prevailing practice at that
port, and has publicized this finding. When invoking this exception,
the master or agent of the vessel shall annotate the manifest that the
longshore work consists of operating a self-unloading conveyor belt or a
vacuum-actuated system on the vessel under the prevailing practice
exception.
(4) Sanctions upon notification by the Secretary of Labor. If the
Immigration and Naturalization Service is notified by the Secretary of
Labor that an entity has either misrepresented facts in its attestation
or has failed to meet a condition attested to, then the Immigration and
Naturalization Service will take the necessary steps to prevent the
landing of vessels owned or chartered by the offending entity in
accordance with section 258(c)(E)(i) of the Act. The Service may also
impose a sanction as provided in that section, including the prohibition
of any vessel owned or chartered by the violating entity from landing at
any United States port for up to one year.
(5) The three variations of the prevailing practice exception --
collective bargaining agreement, attestation process, and automated
equipment -- are port specific. If a vessel is to use nonimmigrant
crewmen to perform longshore work under the prevailing practice
exception, the appropriate documentation required under paragraph (b)(2)
of this section must be presented for each port at which the longshore
work will be performed.
(c) Reciprocity exception. Nonimmigrant crewmen may perform
longshore work in a United States port under this exception if:
(1) The vessel on which the crewmen serve is registered in a country
that does not prohibit crewmen aboard United States vessels from
performing longshore work, or a specified longshore activity, when
United States vessels land in that country, as determined by the
Secretary of State; and
(2) The master or agent presents an affidavit from the crewmen's
employer or the vessel's owner that a majority of the ownership interest
in the vessel is held by nationals of a country or countries that do not
prohibit such longshore activity by crewmen aboard United States vessels
when they land in those countries.
(d) Vessels that qualify for multiple exceptions. A vessel that
qualifies for more than one exception under this section may invoke the
exception that the master or agent chooses.
(e) Lack of documentation required by an exception. If a vessel
invokes an exception to the prohibition against nonimmigrant crewmen
performing longshore work, but lacks any documentation required to
accompany the manifest when invoking the exception, then the vessel's
crewmen shall not perform longshore work. If the longshore work is
performed despite the lack of documentation that the immigration officer
has noted on the Form I-410, then the vessel is subject to fine under
section 251(d) of the Act.
08 CFR 258.3 Action upon arrival.
(a) The master or agent of the vessel shall state on the manifest at
the first port of entry:
(1) Whether or not nonimmigrant crewmen aboard the vessel will
perform longshore work at any port before departing the United States;
and
(2) If nonimmigrant crewmen will perform longshore work, which
exception in section 258 of the Act permits them to do so.
(b) If nonimmigrant crewmen will perform longshore work, the master
or agent of the vessel shall present with the manifest any documentation
required by 8 CFR 258.2 for the exception invoked.
(c) If, at the time of inspection, the master or agent fails to
present the documentation required for the exception invoked, then the
vessel is prohibited from using nonimmigrant crewmen to perform
longshore work. If crewmen aboard the vessel perform longshore work
despite the prohibition, the vessel is subject to fine under section
251(d) of the Act.
(d) The examining immigration officer shall give the master or agent
a Receipt for Crew List, Form I-410, on which the officer shall note
whether or not nonimmigrant crewmen will do longshore work at any port
of call and, if so, under which exception. The officer shall also note
which documentation supporting the exception accompanied the manifest,
and any failure to present documentation which failure would prohibit
crewmen from performing longshore work under the exception that the
vessel invoked.
(e) If a vessel's crewmen perform longshore activity not sanctioned
by an exception but performed to prevent the imminent destruction of
goods or property; severe damage to vessels, docks, or real estate;
possible environmental contamination; or possible injury or death to a
person, a concise report of the incident shall be made within 14 days of
the incident to the Immigration and Naturalization Service seaport
office that performed the inspection. If the Service agrees that the
situation was one of imminent danger requiring immediate action, no fine
will be imposed for the performance of a longshore activity in this
isolated instance.
(f) Failure to deliver true and complete information on the manifest
or any documentation required to support an exception may result in a
fine against the owner, agent, consignee, master, or commanding officer
under section 251(d) of the Act
08 CFR 258.3 PART 264 -- REGISTRATION AND FINGERPRINTING OF ALIENS IN
THE UNITED STATES
264.1 Registration and fingerprinting.
264.2 Application for creation of record of lawful permanent
residence and Alien Registration Receipt Card, Form I-551.
264.3 Registration and fingerprinting of certain nonimmigrants
bearing Iraqi and Kuwaiti travel documents.
Authority: 8 U.S.C. 1103, 1201, 1201a, 1301-1305.
08 CFR 264.1 Registration and fingerprinting.
(a) Prescribed registration forms. The following forms are
prescribed as registration forms:
I-67, Inspection Record -- Hungarian refugees (Act of July 25, 1958).
I-94, Arrival-Departure Record -- Aliens admitted as nonimmigrants;
aliens paroled into the United States under section 212(d)(5) of the
Immigration and Nationality Act; aliens whose claimed entry prior to
July 1, 1924, cannot be verified, they having satisfactorily established
residence in the United States since prior to July 1, 1924; aliens
lawfully admitted to the United States for permanent residence who have
not been registered previously; aliens who are granted permission to
depart without the institution of deportation proceedings or against
whom deportation proceedings are being instituted.
I-95, Crewmen's Landing Permit -- Crewmen arriving by vessel or
aircraft.
I-175, Application for Nonresident Alien Canadian Border Crossing
Card -- Citizens of Canada or British subjects residing in Canada.
I-181, Memorandum of Creation of Record of Lawful Permanent Residence
-- Aliens presumed to be lawfully admitted to the United States under 8
CFR 101.1.
I-190, Application for Nonresident Alien Mexican Border Crossing Card
-- Citizens of Mexico residing in Mexico.
I-485, Application for Status as Permanent Resident -- Applicants
under sections 245 and 249 of the Immigration and Nationality Act as
amended, and section 13 of the Act of September 11, 1957.
I-485A, Application by Cuban Refugee for Permanent Residence --
Applicants under section 1 of the Act of November 2, 1966.
I-590, Registration for Classification as Refugee -- Escapee --
Refugee-escapees paroled pursuant to section 1 of the Act of July 14,
1960.
I-687, Application for Status as a Temporary Resident -- Applicants
under section 245A of the Immigration and Nationality Act, as amended.
I-691, Notice of Approval for Status as a Temporary Resident --
Aliens adjusted to lawful temporary residence under 8 CFR 210.2 and
245A.2.
I-698, Application to Adjust Status from Temporary to Permanent
Resident -- Applicants under section 245A of the Immigration and
Nationality Act, as amended.
I-700, Application for Status as a Temporary Resident -- Applicants
under section 210 of the Immigration and Nationality Act, as amended.
I-817, Application for Voluntary Departure under the Family Unity
Program.
(b) Evidence of registration. The following forms constitute
evidence of registration:
I-90, Application by Lawful Permanent Resident Alien for Alien
Registration Receipt Card, Form I-151 -- While application is pending,
aliens whose evidence of registration has been lost, mutilated, or
destroyed; aliens whose name has been changed; aliens whose evidence
of registration is on a form other than Form I-151; aliens who have
never received Form I-151; aliens who have surrendered Forms I-151
which are in poor condition because of improper lamination and aliens
who have surrendered Form I-151 issued prior to their fourteenth
birthday and who are applying for registration pursuant to section
262(b) after attaining that birthday.
I-94, Arrival-Departure Record -- Aliens admitted as nonimmigrants;
aliens paroled into the United States under section 212(d)(5) of the
Immigration and Nationality Act; aliens whose claimed entry prior to
July 1, 1924, cannot be verified, they having satisfactorily established
residence in the United States since prior to July 1, 1924; and aliens
granted permission to depart without the institution of deportation
proceedings.
I-95, Crewmen's Landing Permit -- Crewmen arriving by vessel or
aircraft.
I-102, Application by Nonimmigrant Alien for Replacement of Arrival
Document -- While application is pending, nonimmigrants and other aliens
not in lawful permanent resident status.
I-151, Alien Registration Receipt Card -- Lawful permanent residents
of the United States.
I-174, Application for Crewmen's Landing Permit -- Crewmen whose
landing permits have been lost, mutilated, or destroyed (while
application is pending).
I-184, Alien Crewman Landing Permit and Identification Card --
Crewmen arriving by vessel.
I-185, Nonresident Alien Canadian Border Crossing Card -- Citizens of
Canada or British subjects residing in Canada.
I-186, Nonresident Alien Mexican Border Crossing Card -- Citizens of
Mexico residing in Mexico.
I-221, Order to Show Cause and Notice of Hearing -- Aliens against
whom deportation proceedings are being instituted.
I-221S, Order to Show Cause, Notice of Hearing, and Warrant for
Arrest of Alien -- Aliens against whom deportation proceedings are being
instituted.
I-551, Alien Registration Receipt Card -- Lawful permanent resident
of the United States.
I-688, Temporary Resident Card-Lawful temporary residents of the
United States.
I-688A, Employment Authorization Card.
I-695, Application for Replacement of Form I-688 Temporary Resident
Card -- While application is pending, aliens whose evidence of
registration has been lost, stolen, mutilated, or destroyed; aliens
whose original Form I-688 were incorrect when issued.
(c) Replacement of registration. Any alien whose evidence of
registration has been lost, mutilated, or destroyed, shall immediately
apply for new evidence of registration.
(1) Nonimmigrants. (i) Application for replacement of Form I-185,
Nonresident Alien Canadian Border Crossing Card, shall be made on Form
I-175.
(ii) Application for Replacement of Form I-186, or Form I-586,
Nonresident Alien Mexican Border Crossing Card, shall be made on Form
I-190.
(iii) Application for replacement of Form I-94, Arrival-Departure
Record, or Form I-95, Crewman's Landing Permit, shall be made on Form
I-102, except that a new form I-94 may be issued in lieu of one lost,
mutilated, or destroyed without application therefor, when the alien is
an applicant for extension of his or her temporary stay or change of
nonimmigrant classification.
(2) Permanent residents -- Application by an alien lawfully admitted
for permanent residence for Form I-551, Alien Registration Receipt Card,
shall be made on Form I-90. (i) Who can file. An I-90 application may
be filed by a lawful permanent resident:
(A) To replace a lost, stolen or destroyed card;
(B) To replace a mutilated card;
(C) To change a name upon request, after registration, by order of
any court of competent jurisdiction or by marriage;
(D) To obtain a card when it is established that Form I-551 was never
received;
(E) To replace evidence of permanent residence issued on alien
registration cards predating the use of Forms I-151 and I-551;
(F) To correct a card which was issued with an incorrect name or
other biographic data;
(G) Who has attained the age of 14 and is seeking to be registered
and fingerprinted pursuant to section 262(b) of the Act;
(H) Who is an alien commuter taking up actual permanent residence in
the United States; or
(I) Whose status was automatically adjusted from temporary residence
pursuant to 210.5 of this chapter.
(ii) Fee An I-90 application must be submitted with the nonrefundable
fee required by 103.7(b)(1), except that a fee is not required when the
application is filed under paragraphs (c)(2)(i)(D) through (c)(2)(i)(H)
of this section.
(iii) Accompanying documents. -- (A) Photographs. An I-90
application must be filed with two color photographs meeting the
specifications on the application form.
(B) Prior evidence of alien registration. An I-90 application filed
under paragraph (c)(2)(i) (B), (C), (E), (F), (G) or (H) of this section
must be filed with the prior Alien Registration Receipt Card or other
evidence of permanent residence or commuter status.
(C) Evidence of name or other biographic change. An I-90 application
filed under paragraph (c)(2)(i)(F) of this section must be filed with
the order, issued by a court of competent jurisdiction, changing the
applicant's name, or with the applicant's marriage certificate. An
application to change other biographic data on a card must be filed with
documentary evidence conclusively establishing the new data.
(D) Fingerprint chart. An I-90 application filed under paragraph
(c)(2)(i)(G) of this section must be filed with a completed Form FD-258
Fingerprint Chart.
(iv) Filing -- (A) Where to file. An I-90 application shall be filed
by the applicant, in person, at the Service office that has jurisdiction
over his or her place of residence, except for those applicants filing
an I-90 pursuant to 264.1(c)(2)(i)(I) of this section, who shall file
the application with the Director of the Service Center having
jurisdiction over his or her place of residence. If the applicant's
place of residence is outside the United States and there is no Service
office in that foreign country, the application shall be filed by the
applicant, in person, at the American Consulate with jurisdiction over
his or her place of residence.
(B) Data collection form. An applicant must execute the signature
and fingerprint blocks of Form I-89, Data Collection Form, at a Service
office when filing an I-90 application.
(v) Processing -- (A) Interview. An applicant may be required to
appear before an immigration officer or consular officer and be
interviewed under oath concerning eligibility.
(B) Waiver of requirements. The Service may waive the photograph, in
person filing and I-89 execution requirements of this section in cases
of confinement due to advanced age or physical infirmity.
(vi) Decision. If an application is denied, the applicant shall be
notified of the reasons for denial. No appeal shall lie from this
decision.
(3) Temporary residents. Application by an alien lawfully admitted
for temporary residence for Form I-688, Temporary Resident Card, shall
be made on Form I-695. (i) Who can file. An I-695 application may be
filed by a lawful temporary resident:
(A) To replace a lost, stolen, or detroyed card;
(B) To replace a mutilated card;
(C) To change a name or other biographic data.
(ii) Fee. An I-695 application must be submitted with the fee
required by 103.7(b)(1) of this chapter.
(iii) Accompanying documents -- (A) Photographs. An I-695
application must be filed with two color photographs meeting the
specifications on the application form.
(B) Prior evidence of alien registration. Any Form I-688 in the
applicant's possession must be submitted with the application.
(C) Evidence of name or other biographic change. An I-695
application filed under paragraph (c)(2)(i)(C) of this section must be
filed with the order, issued by a court of competent jurisdiction,
changing the applicant's name, or with the applicant's marriage
certificate. An application to change other biographic data on a card
must be filed with documentary evidence conclusively establishing the
new data.
(iv) Filing -- (A) Where to file. An application by an alien within
the United States for replacement of evidence of registration shall be
submitted to the legalization or Service office having jurisdiction over
the applicant's place of residence in the United States. An alien
outside the United States shall appear at an American Consulate or
Service office abroad and present a full account of the circumstances
involving the loss or destruction of Form I-688. A cable shall be sent
to the Service's Central Office Records Management Branch for
verification of status. Subsequent to verification that temporary
residence was granted, a transportation letter will be issued to the
temporary resident alien. Upon entry to the United States, the alien
shall submit the I-695 to the legalization or Service office having
jurisdiction over the applicant's place of residence in the United
States.
(B) Camera ready card. Prior to the issuance of Form I-688, all
applicants, regardless of age, shall appear at the appropriate
legalization or Service office for placement of fingerprint and
signature on I-688.
(v) Processing -- (A) Interview. An alien who files application Form
I-695 may be required to appear in person before an immigration officer
prior to the adjudication of the application and be interviewed under
oath concerning his or her eligibility for issuance of I-688 as evidence
of his or her registration.
(B) Waiver of requirements. The Service may waive the photograph,
interview or the placement of fingerprint and signature on the I-688 for
a child under 14 or when it is impractical because of the health or
advanced age of the applicant.
(C) Fingerprint chart. An applicant may be required to present a
completed fingerprint chart, FD-258.
(vi) Decision. The decision on an application for replacement of
evidence of registration shall be made by the Regional Processing
Facility director having jurisdiction over the alien's place of
residence in the United States. No appeal shall lie from the decision
of the Regional Processing Facility director denying the application.
(d) Surrender of registration. If an alien is naturalized, dies,
permanently departs, or is deported from the United States, or evidence
of registration is found by a person other than the one to whom such
evidence was issued, the person in possession of the document shall
forward it to a Service office.
(e) Fingerprinting waiver. (1) Fingerprinting is waived for
nonimmigrant aliens admitted as foreign government officials and
employees; international organization representatives, officers and
employees; NATO representatives, officers and employees, and holders of
diplomatic visas while they maintain such nonimmigrant status.
Fingerprinting is also waived for other nonimmigrant aliens, while they
maintain nonimmigrant status, who are nationals of countries which do
not require fingerprinting of United States citizens temporarily
residing therein.
(2) Fingerprinting is waived for every nonimmigrant alien not
included in paragraph (e)(1) of this section who departs from the United
States within one year of his admission, provided he maintains his
nonimmigrant status during that time; each such alien not previously
fingerprinted shall apply therefor at once if he remains in the United
States in excess of one year.
(3) Every nonimmigrant alien not previously fingerprinted shall apply
therefor at once upon his failure to maintain his nonimmigrant status.
(f) Registration and fingerprinting of children who reach age 14.
Within 30 days after reaching the age of 14, any alien in the United
States not exempt from alien registration under the act and this chapter
shall present himself to a Service office for registration in accordance
with section 262(b) of the Act, and for fingerprinting unless
fingerprinting is waived pursuant to paragraph (e) of this section. He
shall submit Form I-90 if he is a lawful permanent resident. If such
alien is a lawful permanent resident of the United States and is
temporarily absent from the United States when he reaches the age of 14,
he shall comply with the foregoing within 30 days of his return to the
United States. The alien, if a lawful permanent resident of the United
States, shall surrender his prior evidence of alien registration and
shall be issued Form I-551 bearing a photograph submitted by him in
accordance with the instructions on Form I-90. In the case of an alien
who is not a lawful permanent resident, the alien's Form I-94 or I-95
shall be noted to show that he has been registered and the date of
registration.
(g) Temporary evidence of registration. Form I-94, appropriately
endorsed, may be issued as temporary evidence of registration and lawful
admission for permanent residence to a lawful permanent resident alien
who is departing temporarily from the United States and has applied on
Form I-90 for issuance of Form I-551, if the district director is unable
to issue and deliver the Form I-551 prior to the alien's contemplated
return to the United States. The alien shall surrender such Form I-94
to the Service upon receipt of Form I-551.
(h) Copy of Form I-94. An attorney or representative as defined in
1.1 of this chapter who is representing an alien before the Service or
the Board may make and retain, solely for information purposes, a copy
of the Form I-94 (Arrival-Departure Record) issued to and in the
possession of the alien. Such copy shall not be used for any other
purpose.
(25 FR 10495, Nov. 2, 1960)
Editorial Note: For Federal Register citations affecting 264.1, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
08 CFR 264.2 Application for creation of record of lawful permanent
residence and Alien Registration Receipt Card, Form I-551.
(a) Jurisdiction. An applicant who believes that he/she is eligible
for presumption of lawful admission for permanent residence under 101.1
or 101.2 of this chapter or for lawful permanent residence as a person
born in the United States to a foreign diplomatic officer under 101.3
of this chapter shall submit his/her application for creation of a
record of lawful permanent residence to the Service office having
jurisdiction over the applicant's place of residence in the United
States. The applicant must be physically present in the United States
at the time of submission of his/her application.
(b) Applicant under eighteen years old. If the applicant is under
eighteen years old, the applicant's parent or legal guardian shall
prepare and sign the application in the applicant's behalf.
(c) Filing application -- (1) Presumption of lawful admission for
permanent residence. An applicant who believes that he/she is eligible
for presumption of lawful admission for permanent residence under 101.1
or 101.2 of this chapter shall submit the following:
(i) A completed Form I-90, Application by a Lawful Permanent Resident
for an Alien Registration Receipt Card, Form I-551, without fee.
(ii) Form G-325A, Biographic Information.
(iii) The applicant's fingerprints on Form FD-258.
(iv) A list of all the applicant's arrivals in and departures from
the United States.
(v) A statement signed by the applicant indicating the basis of the
applicant's claim to presumption of lawful admission for permanent
residence.
(vi) Documentary evidence substantiating the applicant's claim to
presumption of lawful admission for permanent residence, including proof
of continuous residence in the United States.
(vii) Two photographs prepared in accordance with the specifications
outlined in the instructions to Form I-90. The immigration officer to
whom the application is submitted, however, may waive the photographs
for just cause.
(2) Lawful permanent residence as a person born in the United States
under diplomatic status. An applicant who believes that he/she is
eligible for lawful permanent residence as a person born in the United
States to a foreign diplomatic officer under 101.3 of this chapter
shall submit the following:
(i) A completed Form I-90, Application by a Lawful Permanent Resident
for an Alien Registration Receipt Card, Form I-551, without fee.
(ii) Form G-325A, Biographic Information.
(iii) The applicant's fingerprints on Form FD-258.
(iv) The applicant's birth certificate.
(v) An executed Form I-508, Waiver of Rights, Privileges, Exemptions,
and Immunities.
(vi) Official confirmation of the diplomatic classification and
occupational title of the applicant's parent(s) at the time of the
applicant's birth.
(vii) A list of all the applicant's arrivals in and departures from
the United States.
(viii) Proof of continuous residence in the United States.
(ix) Two photographs prepared in accordance with the specifications
outlined in the instructions to Form I-90. The immigration officer to
whom the application is submitted, however, may waive the photographs
for just cause.
(3) Applicant under fourteen years old. An applicant under fourteen
years old shall not submit Form G-325A, Biographic Information, or
his/her fingerprints on Form FD-258.
(d) Personal appearance. Each applicant, including an applicant
under eighteen years of age, must submit his/her application in person.
This requirement may be waived at the discretion of the immigration
officer to whom the application is submitted because of confinement of
age, physical infirmity, illiteracy, or other compelling reason.
(e) Interview. The applicant may be required to appear in person
before an immigration officer prior to adjudication of the application
to be interviewed under oath concerning his/her eligibility for creation
of a record of lawful permanent residence.
(f) Decision. The decision regarding creation of a record of lawful
permanent residence for an alien eligible for presumption of lawful
admission for permanent residence or for a person born in the United
States to a foreign diplomatic officer will be made by the district
director having jurisdiction over the applicant's place of residence.
(g) Date of record of lawful permanent residence -- (1) Presumption
of lawful admission for permanent residence. If the application is
granted, the applicant's permanent residence will be recorded as of the
date of the applicant's arrival in the United States under the
conditions which caused him/her to be eligible for presumption of lawful
admission for permanent residence.
(2) Lawful permanent residence as a person born in the United States
under diplomatic status. If the application is granted, the applicant's
permanent residence will be recorded as of his/her date of birth.
(h) Denied application. If the application is denied, the decision
may not be appealed.
(Secs. 101(a)(20), 103, 262, 264 of the Immigration and Nationality
Act, as amended; 8 U.S.C. 1101(a)(20), 1103, 1302, 1304)
(47 FR 941, Jan. 8, 1982)
08 CFR 264.3 Registration and fingerprinting of certain nonimmigrants
bearing Iraqi and Kuwaiti travel documents.
All nonimmigrants bearing Iraqi and Kuwaiti travel documents who
apply for admission to the United States on or after January 10, 1991,
except those applying for admission under section 101(a)(15)(A) or
101(a)(15)(G) of the Act, shall be registered on Form I-94,
photographed, and fingerprinted on Form FD-258, by the Service at the
Port of Entry where they apply for admission to the United States.
(56 FR 1566, Jan. 16, 1991)
08 CFR 264.3 PART 265 -- NOTICES OF ADDRESS
Authority: Secs. 103, 265 of the Immigration and Nationality Act, as
amended by sec. 11, Pub. L. 97-166, 95 Stat. 1617 (8 U.S.C. 1103,
1305).
08 CFR 265.1 Forms.
Except for those exempted by section 263(b) of the Act, all aliens in
the United States required to register under section 262 of the Act
shall report each change of address and new address within 10 days on
Form AR-11. This form is available at post offices and Service offices
in the United States. The completed form must be mailed to the
Department of Justice, Immigration and Naturalization Service,
Washington, DC 20536.
(47 FR 44239, Oct. 7, 1982)
08 CFR 265.1 PART 270 -- PENALTIES FOR DOCUMENT FRAUD
Sec.
270.1 Definitions.
270.2 Enforcement procedures.
270.3 Penalties.
Authority: 8 U.S.C. 1101, 1103, and 1324c.
Source: 57 FR 33866, July 31, 1992, unless otherwise noted.
08 CFR 270.1 Definitions.
For the purpose of this part --
Document means an instrument on which is recorded, by means of
letters, figures, or marks, matters which may be used to fulfill any
requirement of the Act. The term ''document'' includes, but is not
limited to, an application required to be filed under the Act and any
other accompanying document or material;
Entity means any legal entity, including, but not limited to, a
corporation, partnership, joint venture, governmental body, agency,
proprietorship, or association, including an agent or anyone acting
directly or indirectly in the interest thereof.
08 CFR 270.2 Enforcement procedures.
(a) Procedures for the filing of complaints. Any person or entity
having knowledge of a violation or potential violation of section 274C
of the Act may submit a signed, written complaint to the Service office
having jurisdiction over the business or residence of the potential
violator or the location where the violation occurred. The signed,
written complaint must contain sufficient information to identify both
the complainant and the alleged violator, including their names and
addresses. The complaint should also contain detailed factual
allegations relating to the potential violation including the date, time
and place of the alleged violation and the specific act or conduct
alleged to constitute a violation of the Act. Written complaints may be
delivered either by mail to the appropriate Service office or by
personally appearing before any immigration officer at a Service office.
(b) Investigation. When the Service receives complaints from a third
party in accordance with paragraph (a) of this section, it shall
investigate only those complaints which, on their face, have a
substantial probability of validity. The Service may also conduct
investigations for violations on its own initiative, and without having
received a written complaint. If it is determined after investigation
that the person or entity has violated section 274C of the Act, the
Service may issue and serve upon the alleged violator a Notice of Intent
to Fine.
(c) Issuance of a subpoena. Service officers shall have reasonable
access to examine any relevant evidence of any person or entity being
investigated. The Service may issue subpoenas pursuant to its authority
under sections 235(a) and 287 of the Act, in accordance with the
procedures set forth in 287.4 of this chapter.
(d) Notice of Intent to Fine. The proceeding to assess
administrative penalties under section 274C of the Act is commenced when
the Service issues a Notice of Intent to Fine. Service of this notice
shall be accomplished by personal service pursuant to 103.5a(a)(2) of
this chapter. Service is effective upon receipt, as evidenced by the
certificate of service or the certified mail return receipt. The person
or entity identified in the Notice of Intent to Fine shall be known as
the respondent. The Notice of Intent to Fine may be issued by an
officer defined in 242.1 of this chapter or by an INS port director
designated by his or her district director.
(e) Contents of the Notice of Intent to Fine. (1) The Notice of
Intent to Fine shall contain the basis for the charge(s) against the
respondent, the statutory provisions alleged to have been violated, and
the monetary amount of the penalty the Service intends to impose.
(2) The Notice of Intent to Fine shall provide the following advisals
to the respondent:
(i) That the person or entity has the right to representation by
counsel of his or her own choice at no expense to the government;
(ii) That any statement given may be used against the person or
entity;
(iii) That the person or entity has the right to request a hearing
before an administrative law judge pursuant to 5 U.S.C. 554-557, and
that such request must be filed with INS within 60 days from the service
of the Notice of Intent to Fine; and
(iv) That if a written request for a hearing is not timely filed, the
Service will issue a final order from which there is no appeal.
(f) Request for hearing before an administrative law judge. If a
respondent contests the issuance of a Notice of Intent to Fine, the
respondent must file with the INS, within 60 days of the Notice of
Intent to Fine, a written request for a hearing before an administrative
law judge. Any written request for a hearing submitted in a foreign
language must be accompanied by an English language translation. A
request for hearing is deemed filed when it is either received by the
Service office designated in the Notice of Intent to Fine, or addressed
to such office, stamped with the proper postage, and postmarked within
the 60-day period. In computing the 60-day period prescribed by this
section, the day of service of the Notice of Intent to Fine shall not be
included. In the request for a hearing, the respondent may, but is not
required to, respond to each allegation listed in the Notice of Intent
to Fine. A respondent may waive the 60-day period in which to request a
hearing before an administrative law judge and ask that the INS issue a
final order from which there is no appeal. Prior to execution of the
waiver, a respondent who is not a United States citizen will be advised
that a waiver of a section 274C hearing will result in the issuance of a
final order and that the respondent will be excludable and/or deportable
from the United States pursuant to the Act.
(g) Failure to file a request for hearing. If the respondent does
not file a written request for a hearing within 60 days of service of
the Notice of Intent to Fine, the INS shall issue a final order from
which there shall be no appeal.
(h) Issuance of the final order. A final order may be issued by an
officer defined in 242.1 of this chapter, by an INS port director
designated by his or her district director, or by the Director of the
INS National Fines Office.
(i) Service of the final order -- (1) Generally. Service of the
final order shall be accomplished by personal service pursuant to
103.5a(a)(2) of this chapter. Service is effective upon receipt, as
evidenced by the certificate of service or the certified mail return
receipt.
(2) Alternative provisions for service in a foreign country. When
service is to be effected upon a party in a foreign country, it is
sufficient if service of the final order is made: (i) In the manner
prescribed by the law of the foreign country for service in that country
in an action in any of its courts of general jurisdiction; or
(ii) As directed by the foreign authority in response to a letter
rogatory, when service in either case is reasonably calculated to give
actual notice; or
(iii) When applicable, pursuant to 103.5a(a)(2) of this chapter.
Service is effective upon receipt of the final order. Proof of
service may be made as prescribed by the law of the foreign country, or,
when service is pursuant to 103.5a(a)(2) of this chapter, as evidenced
by the certificate of service or the certified mail return receipt.
(j) Declination to file charges for document fraud committed by
refugees at the time of entry. The Service shall not issue a Notice of
Intent to Fine for acts of document fraud committed by an alien pursuant
to direct departure from a country in which the alien has a well-founded
fear of persecution or from which there is a significant danger that the
alien would be returned to a country in which the alien would have a
well-founded fear of persecution, provided that the alien has presented
himself or herself without delay to an INS officer and shown good cause
for his or her illegal entry or presence. Other acts of document fraud
committed by such an alien may result in the issuance of a Notice of
Intent to Fine and the imposition of civil money penalties.
08 CFR 270.3 Penalties.
(a) Criminal penalties. Nothing in section 274C of the Act shall be
construed to diminish or qualify any of the penalties available for
activities prohibited by this section but proscribed as well in title
18, United States Code.
(b) Civil penalties. A person or entity may face civil penalties for
a violation of section 274C of the Act. Civil penalties may be imposed
by the Service or by an administrative law judge for violations under
section 274C of the Act. The Service may charge multiple violations of
section 274C of the Act in a single Notice of Intent to Fine, and may
impose separate penalties for each such unlawful act in a single
proceeding or determination. However, in determining whether an offense
is a first offense or a subsequent offense, a finding of more than one
violation in the course of a single proceeding or determination will be
counted as a single offense.
(1) A respondent found by the Service or an administrative law judge
to have violated section 274C of the Act shall be subject to an order:
(i) To cease and desist from such behavior; and
(ii) To pay a civil penalty according to the following schedule:
(A) First offense. Not less than $250 and not more than $2,000 for
each fraudulent document or each proscribed activity described in
section 274C (a)(1)-(a)(4) of the Act, or
(B) Subsequent offenses. Not less than $2,000 and not more than
$5,000 for each fraudulent document or each proscribed activity
described in section 274C (a)(1)-(a)(4) of the Act.
(2) Where an order is issued to a respondent composed of distinct,
physically separate subdivisions each of which provides separately for
the hiring, recruiting, or referring for a fee for employment (without
reference to the practices of, and not under the common control of or
common control with, another subdivision), each subdivision shall be
considered a separate person or entity.
08 CFR 270.3 PART 271 -- DILIGENT AND REASONABLE EFFORTS TO PREVENT THE
UNAUTHORIZED ENTRY OF ALIENS BY THE OWNERS OF RAILROAD LINES,
INTERNATIONAL BRIDGES OR TOLL ROADS
Authority: 8 U.S.C. 1103 and 1321.
08 CFR 271.1 Procedures for inspections.
(a) Applicability. The following terms and conditions apply to those
owners or operators of railroad lines, international bridges, or toll
roads, which provide a means for an alien to come to the United States.
(b) Inspection of facility. Based upon a written request by the
owners or operators, the INS district director or his designee shall
inspect the facility or method utilized in order to ensure that owners
and operators have acted diligently in taking adequate steps to prevent
the unlawful entry of aliens into the United States. Such measures may
include but are not necessarily limited to fencing, barricades,
lighting, or security guards. If the district director determines that
preventive measures are inadequate, he or she shall advise the owners or
operators in writing, citing the reasons for such determination. If the
owners or operators believe the requirements of the district director to
be excessive or unnecessary, they may request that the Regional
Commissioner having jurisdiction over the location where the facility is
located, review the district director's requirements. The Regional
Commissioner shall advise the owners or operators in writing of the
results of his or her review.
(c) Preventive measures and certification. Upon a determination by
the district director that reasonable and adequate preventive measures
have been taken by the owners and operators, he or she shall certify
that the owners and operators shall not be liable for the penalty
described in section 271(a), so long as the facility or method utilized
is maintained in the condition in which approved and certified.
(d) Revocation of certification. The District Director having
jurisdiction over the location where the facility is located, in his or
her discretion, may at any time, conduct an inspection of said facility
to determine if any violation is occurring. If the facility is found to
be not in compliance, said certification will be revoked.
(53 FR 26036, July 11, 1988)
08 CFR 271.1 PART 274 -- SEIZURE AND FORFEITURE OF CONVEYANCES
Sec.
274.1 Definitions.
274.2 Officers authorized to seize conveyances.
274.3 Custody and duties of custodian.
274.4 Conveyances subject to seizure; termination of interest.
274.5 Return to owner of seized conveyance not subject to forfeiture;
opportunity for personal interview.
274.6 Proof of property interest.
274.7 Appraisal.
274.8 Notice to owner and lienholder of seizure.
274.9 Advertisement.
274.10 Judicial forfeiture proceedings upon claim and bond.
274.11 Administrative forfeiture.
274.12 Judicial forfeiture.
274.13 Petitions for relief from forfeiture; filing.
274.14 Time for filing petitions.
274.15 Remission.
274.16 Mitigation.
274.17 Restoration of proceeds or appraised value.
274.18 Provisions applicable to particular situations.
274.19 Determinations on petitions; reconsideration.
274.20 Compromise of judicial forfeiture proceedings.
Authority: 8 U.S.C. 1103, 1324(b).
Source: 53 FR 43187, Oct. 26, 1988, unless otherwise noted.
08 CFR 274.1 Definitions.
The following definitions apply to the following terms in this part:
(a) The term appraised value means the estimated price at the time
and place of seizure, if such or similar property were freely offered
for sale.
(b) The term beneficial owner means a person who has dominion and
control over a conveyance, as well as a property interest therein.
(c) The term claimant means any person who asserts a property
interest in a seized or forfeited conveyance through a personal
interview or by filing a claim and a bond or a petition for relief from
forfeiture.
(d) The term common carrier means an express carrier, a freight
forwarder, a motor common carrier, a rail carrier, a sleeping car
carrier, and a water common carrier, as each of those terms is defined
in 49 U.S.C. 10102; and an air carrier and a foreign air carrier, as
each of those terms is defined in 49 U.S.C. 1301.
(e) The term consenting party or privy to the illegal act means that
the person knew of the illegal activity. A person shall be presumed to
have knowledge of an illegal activity if the facts and circumstances are
such that a person would reasonably be expected to know of the illegal
activity.
(f) The term conveyance means a vessel, vehicle, or aircraft as used
in section 274(b) of the Act. A trailer shall be considered a vehicle
if it is being towed or readily capable of being towed. An immobilized
house trailer which has been placed on permanent foundations, which is
not readily mobile, is not a vehicle.
(g) The term custodian means the regional commissioner or the U.S.
Marshals Service.
(h) The date of an action in conjunction with the term filed means
the following:
(1) Date of receipt in the office specified in this part for filing,
if filing is by personal delivery;
(2) Date of postmark, if filing is by mail to the office specified in
this part for filing;
(3) Date five days prior to date of receipt in the office specified
in this part for filing, if filing is by mail to the office specified in
this part for filing and date of postmark is missing or illegible; or
(4) Date of receipt in the office specified in this part for filing,
if filing is by mail to any other office.
(i) The term lien means in interest created by a conditional sales
contract, mortgage, title retention contract, debt reduced to a judicial
judgment upon which there has been an execution or an attachment against
a conveyance, or other security interest in a conveyance. A lienholder
is the holder of such an interest.
(j) The term net equity means the amount of monetary interest of a
lienholder in a conveyance. Net equity is to be computed by determining
the amount of unpaid principal and unpaid interest as of the date of
seizure, and by adding to that amount the unpaid interest calculated
from the date of seizure through the last full month prior to the date
of the determination granting relief from forfeiture. The rate of
interest to be used in this computation will be the annual percentage
rate specified in the security agreement which is the basis of the
interest of the lienholder. In this computation there shall be no
allowances for unearned extended warranty, insurance, or service
contract charges incurred after the date of seizure, nor allowances for
dealer reserves, attorneys fees, or other similar charges.
(k) The term owner means a person who has the right to possess and
use a conveyance to the exclusion of other persons. A person who has
complied with the state formalities for a title or a registration for a
conveyance is not the owner if such person does not have sufficient
actual beneficial interest in the conveyance. In the consideration of a
petition for relief from forfeiture the mere existence of a community
property interest without proof of financial contribution to the
purchase of a conveyance will not be deemed a property interest.
Ownership is the interest that an owner has in a conveyance.
(l) The term person means an individual, partnership, corporation,
joint business enterprise, or other entity capable of owning a
conveyance.
(m) The term petitioner means a person filing a petition for relief
from forfeiture of a seized conveyance.
(n) The term property interest means ownership, lien, or other
legally cognizable interest in or legal entitlement to possession of a
conveyance existing on the date of seizure of the conveyance. A person
who has complied with the state formalities of a title or a registration
for a conveyance may not have sufficient actual beneficial interest or
other legally cognizable interest in a conveyance. In the consideration
of a petition for relief from forfeiture the mere existence of a
community property interest without proof of financial contribution to
the purchase of a conveyance will not be deemed a property interest.
(o) The term record means an arrest for a related crime followed by a
conviction, except that a single arrest and conviction and the
expiration of any sentence imposed as a result of the conviction, all of
which occurred more than ten years prior to the date a claimant acquired
a property interest in the seized or forfeited conveyance, is not
considered a record; provided that two convictions of related crimes
shall always be considered a record regardless of when the convictions
occurred; and provided that the regional commissioner may consider as
constituting a record an arrest for a related crime or series of arrests
for related crimes in which the charge or charges were subsequently
dismissed for reasons other than acquittal or lack of evidence.
(p) The term regional commissioner means the Regional Commissioner of
the Service for the region in which a conveyance is seized, or the
designee of that Regional Commissioner.
(q) The term related crime means any crime similar in nature to or
related to the illegal bringing in, harboring, transportation, entry,
reentry, or importation of aliens.
(r) The term reputation means repute for related crimes with a law
enforcement agency or among law enforcement officers or in the community
generally, including any pertient neighborhood or other area.
(s) The term seizure means the act of taking a conveyance into the
custody of the Service for the express purpose of considering forfeiture
pursuant to section 274(b) of the Act and this part.
(t) The term state means any state or any like political division of
any geographical territory defined in section 101(a)(38) of the Act as
being part of the United States or any state or any like political
division of any geographical territory of any other nation or territory,
unless otherwise limited in this part.
(u) The term sufficient actual beneficial interest means the interest
in a conveyance of a beneficial owner.
(v) The term violator means a person whose use of or actions with
regard to a conveyance in violation of the law subjected the conveyance
to seizure pursuant to section 274(b) of the Act and this part.
08 CFR 274.2 Officers authorized to seize conveyances.
For the purpose of carrying out the provisions of section 274(b) of
the Act and this part, any immigration officer is authorized and
designated by the Commissioner to seize a conveyance.
08 CFR 274.3 Custody and duties of custodian.
Any conveyance seized pursuant to section 274(b) of the Act and this
part shall be stored in a location designated by the custodian. The
custodian is to receive and maintain in storage all conveyances seized
and all conveyances forfeited pursuant to section 274(b) of the Act and
this part. After the custodian is notified that all proceedings,
administrative or judicial, have been completed and that all petitions
for relief from forfeiture have been finally adjudicated, a conveyance
is available for disposition according to law. The custodian is
authorized to dispose of any conveyances pursuant to section 274(b) of
the Act and any other applicable statutes or regulations relative to
disposal; and to perform other duties, not inconsistent with the
provisions of the Act, regarding seized and forfeited conveyances and
the proceeds of sales thereof, as are imposed on the U.S. Customs
Service with respect to seizures under the Customs statutes, including
the maintenance of appropriate records concerning the seizure and
disposition of conveyances.
08 CFR 274.4 Conveyances subject to seizure; termination of interest.
(a) Any conveyance which an immigration officer has probable cause to
believe has been or is being used in the commission of a violation of
section 274(a) of the Act is subject to seizure.
(b) Any property interest in a conveyance is automatically terminated
as of the date of the seizure, if the conveyance is later declared
forfeited. Any provision of any state law which recognizes a continuing
property interest or right to reinstatement of a property interest in a
conveyance has no effect after the date of the seizure of the
conveyance, if the conveyance is later declared forfeited.
(c) The custodian is authoized to execute a document of title to
convey ownership of a conveyance declared forfeited pursuant to section
274(b) of the Act and this part.
08 CFR 274.5 Return to owner of seized conveyance not subject to
forfeiture; opportunity for personal interview.
(a) The Service shall attempt with due diligence to ascertain the
ownership of any conveyance seized pursuant to section 274(b) of the Act
and this part, in order to determine whether the conveyance is subject
to forfeiture.
(b) The following conveyances are not subject to forfeiture:
(1) A conveyance used by any person as a common carrier, unless it
appears that the owner or other person in charge was a consenting party
or privy to the illegal use of the conveyance; and
(2) A conveyance established by the owner to have been unlawfully in
the possession of a person other than the owner in violation of the
criminal laws of the United States or of any state of the United States
as defined in section 101(a)(38) of the Act.
(c) The owner of a seized conveyance shall be informed of the right
to request a personal interview with an immigration officer and to
present evidence to establish:
(1) That the conveyance was not subject to seizure; or
(2) That the conveyance is not subject to forfeiture; or
(3) That the conveyance was used in an act to which the owner was not
privy, or did not consent, and the owner took all reasonable steps to
prevent the illegal use of the conveyance.
If it is determined that the owner has established that paragraphs
(c)(1) or (c)(2) of this section apply to the seized conveyance, that
seized conveyance shall be returned to the owner as provided in
paragraph (e) of this section; and if it is determined that the owner
has established that paragraph (c)(3) of this section applies to the
seized conveyance, that seized conveyance may be returned to the owner
as provided in paragraph (d) of this section.
(d) At any time after seizure the regional commissioner may determine
that it is in the best interests of justice not to pursue forfeiture of
a seized conveyance which is otherwise subject to forfeiture. If such a
determination is made, that seized conveyance shall be returned to the
owner as provided in paragraph (e) of this section.
(e) The owner of a seized conveyance to be returned pursuant to
paragraphs (c) or (d) of this section will be notified of the conditions
of obtaining possession and that possession of the seized conveyance
must be taken within 20 days of receipt of notice of the availability of
the seized conveyance for return. If the owner has not complied with
the conditions of obtaining possession and taken possession of the
seized conveyance within that 20 day period, that seized conveyance
shall be considered voluntarily abandoned to the United States, and the
custodian shall dispose of that seized conveyance as provided in 274.3
of this part. The conditions of obtaining possession of a seized
conveyance available for return pursuant to paragraphs (c) and (d) of
this section are as follows:
(1) If paragraph (c)(1) of this section applies to the seized
conveyance, there shall be no conditions for obtaining possession;
(2) If paragraphs (c)(2), (c)(3), or (d) of this section apply to the
seized conveyance, the owner shall pay all costs and expenses of seizure
and shall execute an instrument holding the United States, its agents
and employees, harmless from all claims which may result from the
seizure and return of the seized conveyance.
(f) If a seized conveyance being returned to the owner pursuant to
this section is the subject of judicial forfeiture proceedings, the
regional commissioner shall notify the United States Attorney that a
determination has been made that the seized conveyance is to be returned
to the owner and request that the judicial forfeiture proceedings be
terminated.
08 CFR 274.6 Proof of property interest.
The burden of proof is on a claimant to establish that the asserted
property interest in a seized conveyance existed on the date of seizure
of that conveyance by submission of sufficient satisfactory original
documentation or certified copies of the original documentation. If the
claimant fails to present documentation showing compliance with required
state formalities it will be presumed that a property interest in a
seized conveyance did not exist on the date of seizure of that
conveyance.
08 CFR 274.7 Appraisal.
The regional commissioner shall determine the appraised value of a
seized conveyance by consulting accepted reference guides to conveyance
values or experts in conveyance values. If there is no market for a
conveyance at the place of seizure, the value of the conveyance in the
principal market nearest the place of seizure shall be considered.
08 CFR 274.8 Notice to owner and lienholder of seizure.
Whenever a conveyance is seized, a notice must be given to the owner
and any known lienholder notifying them of the seizure of the conveyance
and its consideration for forfeiture. The notice must be accompanied by
copies of this part, section 274 of the Act, and the proposed
advertisement, if an advertisement is required pursuant to 274.9 of
this part. The owner shall be specifically informed of the provisions
of 274.5, 274.10, 274.13, 274.14, 274.15, 274.16, and 274.17 of this
part.
08 CFR 274.9 Advertisement.
(a) If the appraised value of a seized conveyance does not exceed the
monetary amount set forth in title 19 U.S.C. 1607 the regional
commissioner shall cause an advertisement of the seizure to be published
once a week for at least three successive weeks in a newspaper of
general circulation in the federal judicial district in which the
seizure occurred.
(b) The advertisement must:
(1) Describe the conveyance seized and indicate the identification
number, if any;
(2) State the time and place of seizure;
(3) State that the seized conveyance is subject to forfeiture except
as provided in 274.5(b) of this part;
(4) State that the Service is considering forfeiture of the seized
conveyance and sale or other disposal, if declared forfeited; and
(5) State that any prospective petitioners for relief from forfeiture
should submit their petitions pursuant to 274.13, 274.14, 274.15,
274.16, and 274.17 of this part within 30 days of publication of the
advertisement.
(53 FR 43187, Oct. 26, 1988, as amended at 56 FR 8686, Mar. 1, 1991)
08 CFR 274.10 Judicial forfeiture proceedings upon claim and bond.
(a) Any person claiming ownership of a seized conveyance with an
appraised value that does not exceed the monetary amount set forth in
title 19 U.S.C. 1607, may obtain judicial forfeiture proceedings in
United States District Court by filing a claim and a bond as follows:
(1) The claim must set forth the basis of the claimed ownership and
allege why the conveyance was not subject to seizure;
(2) The claim must be filed in the office specified in the notice and
the advertisement as provided in 274.8 and 274.9 of this part within
20 days of the date of first publication of the advertisement;
(3) The claim must be accompanied by a bond in the amount of the
lesser of $5,000 or ten percent of the appraised value of the seized
conveyance, but in no event less than $250, in the form of cash or
certified check; and
(4) If the bond is in the form of a check, it must be drawn payable
to the Department of Justice. The costs and expenses of the judicial
forefeiture proceedings will be paid from the bond, following completion
of the proceedings. Any balance remaining shall be returned to the
claimant.
(b) The regional commissioner may waive the bond requirement in the
manner provided in 103.7(c)(1) of this chapter.
(c) The filing of a claim and a bond does not entitle the claimant to
possession of the conveyance.
(53 FR 43187, Oct. 26, 1988, as amended at 56 FR 8686, Mar. 1, 1991)
08 CFR 274.11 Administrative forfeiture.
If the appraised value of a seized conveyance does not exceed the
monetary amount set forth in title 19 U.S.C. 1607, and a claim and a
bond are not filed within 20 days of the date of first publication of
the advertisement as provided in 274.9 of this part, the regional
commissioner may declare the seized conveyance forfeited. The regional
commissioner shall execute the declaration of forfeiture. The custodian
shall dispose of the forfeited conveyance as provided in 274.3 of this
part.
(53 FR 43187, Oct. 26, 1988, as amended at 56 FR 8686, Mar. 1, 1991)
08 CFR 274.12 Judicial forfeiture.
If the appraised value of a seized conveyance exceeds the monetary
amount set forth in title 19 U.S.C. 1607, or a claim and a bond have
been filed for a seized conveyance with an appraised value that does not
exceed the monetary amount set forth in title 19 U.S.C. 1607, as
provided in 274.10(a) of this part, the regional commissioner shall
transmit the claim and bond, as well as a copy of the advertisement as
provided in 274.9 of this part and a complete statement of the facts
and circumstances surrounding the seizure to the United States Attorney
for the federal judicial district in which the conveyance was seized for
commencement of judicial forfeiture proceedings pursuant to section
274(b) of the Act and this part.
(53 FR 43187, Oct. 26, 1988, as amended at 56 FR 8686, Mar. 1, 1991)
08 CFR 274.13 Petitions for relief from forfeiture; filing.
(a) Any person having a property interest in any seized conveyance
may file a petition for relief from forfeiture. A petition must comply
with the provisions of this section and 274.14, 274.15, 274.16, and
274.17 of this part and be filed with the regional commissioner if the
seized conveyance has not been referred to a United States Attorney
pursuant to 274.12 of this part for the commencement of judicial
forfeiture proceedings. If such a referral has occurred, a petition
must comply with the provisions of 28 CFR 9.3 and be filed with the
United States Attorney.
(b) A petition must be executed and sworn to by the petitioner or by
duly authorized counsel for the petitioner upon information and belief.
(c) A petition must include the following:
(1) A complete description of the conveyance, including
identification number, if any, and the date and place of seizure;
(2) A complete statement of the property interest in the seized
conveyance asserted by the petitioner, which property interest must be
established as provided in 274.6 of this part; and
(3) The facts and circumstances, with satisfactory proof thereof,
relied upon by the petitioner to justify relief from forfeiture.
(d) Filing of a petition does not extend the time for filing a claim
and a bond.
(e) If a petition is received by or a petition without a
determination issued thereon is in the possession of the regional
commissioner which asserts a property interest in a seized conveyance
which is the subject of a referral to a United States Attorney for
commencement of judicial forfeiture proceedings, the regional
commissioner shall transmit the petition and a recommendation thereon to
the United States Attorney. The regional commissioner shall notify the
petitioner of the transmittal. Upon receipt of such a petition, the
United States Attorney shall forward a copy of the petition, the
recommendation of the regional commissioner, and the recommendation of
the United States Attorney to the Director, Asset Forfeiture Office,
Criminal Division, Department of Justice.
08 CFR 274.14 Time for filing petitions.
(a) Petitions for the reliefs of remission or mitigation of
forfeitute should be filed within 30 days of the date of first
publication of the advertisement as provided in 274.9 of this part.
After a seized conveyance has been declared forfeited and placed in
official use, sold, or otherwise disposed of according to law, petitions
for the reliefs of remission or mitigation of forfeiture shall not be
accepted.
(b) Petitions for the relief of restoration of proceeds of sale or
the appraised value of a seized and forfeited conveyance placed in
official use or otherwise disposed of according to law must be filed
within 90 days of the sale of the seized and forfeited conveyance or
within 90 days that the seized and forfeited conveyance is placed in
official use or otherwise disposed of according to law.
08 CFR 274.15 Remission.
(a) The regional commissioner shall not grant remission of forfeiture
unless the petitioner establishes:
(1) A property interest in the conveyance;
(2) That at no time did the petitioner have any knowledge or reason
to believe that the conveyance was being or would be used in violation
of the law, including satisfying any applicable provisions of 274.18 of
this part;
(3) That the petitioner had no knowldege of the particular violation
which subjected the conveyance to seizure and forfeiture;
(4) That the petitioner had no knowledge that the owner nor anyone
else using or able to use the conveyance had any record or reputation;
had
(5) That the petitioner had taken all reasonable steps to prevent the
illegal use of the conveyance.
(b) Remission of forfeiture can only be granted after a seized
conveyance has been declared forfeited.
(c) Grant of remission of forfeiture must be conditioned upon:
(1) Payment to the custodian of all costs and expenses of the seizure
and forfeiture; or, in the case of a lienholder-petitioner, payment of
all costs and expenses of the seizure and forfeiture or the amount by
which the appraised value exceeds the net equity of the
lienholder-petitioner in the conveyance, whichever is greater;
(2) Execution of an instrument by the petitioner holding the United
States, its agents and employees, harmless from all claims which may
result from the grant of remission of forfeiture;
(3) Execution of an agreement by the petitioner that no property
interest in the conveyance will be transferred to any violator; and
(4) Any other terms or conditions as the regional commissioner
determines to be appropriate, including a provision for liquidated
damages to guarantee compliance with any of the provisions of the
agreement or terms and conditions of the remission of forfeiture.
(d) The following provisions apply only to an owner-petitioner that
is granted remission of forfeiture:
(1) Within 20 days after receipt of the determination, that
owner-petitioner shall comply with the conditions of remission and take
possession of the forfeited conveyance; and
(2) If that owner-petitioner does not comply with the provisions of
paragraph (d)(1) of this section, the forfeited conveyance shall be
placed in official use, sold, or otherwise disposed of by the custodian
as provided in 274.3 of this part. The proceeds of a sale of the
forfeited conveyance shall be applied first to all costs and expenses of
the seizure, forfeiture, and sale and any remaining balance shall be
paid to that owner-petitioner. If the forfeited conveyance is placed in
official use or otherwise disposed of, that owner-petitioner shall be
paid an amount equal to the appraised value of the conveyance minus all
costs and expenses of the seizure, forfeiture, and disposal.
(e) The following provisions apply only to a lienholder-petitioner
that is granted remission of forfeiture:
(1) That lienholder-petitioner shall receive payment of the net
equity of that lienholder-petitioner, if the forfeited conveyance is
placed in official use or otherwise disposed of according to law; or
either possession of the forfeited conveyance, or a monetary amount not
to exceed the net equity of that lienholder-petitioner from a sale of
the forfeited conveyance;
(2) Within 20 days after receipt of the determination, that
lienholder-petitioner shall comply with the conditions of remission and
take possession of the forfeited conveyance; and
(3) If that lienholder-petitioner does not comply with the provisions
of paragraph (e)(2) of this section, the forfeited conveyance shall be
placed in official use, sold, or otherwise disposed of by the custodian
as provided in 274.3 of this part. The proceeds of a sale shall be
applied first to all costs and expenses of the seizure, forfeiture, and
sale and any remaining balance not exceeding the net equity of that
lienholder-petitioner shall be paid to that lienholder-petitioner. If
the forfeited conveyance is placed in official use or otherwise disposed
of, that lienholder-petitioner shall be paid the net equity of that
lienholder-petitioner minus all costs and expenses of the seizure,
forfeiture, and disposal.
08 CFR 274.16 Mitigation.
(a) The regional commissioner may grant mitigation of forfeiture of a
seized conveyance to a petitioner, including a violator. To be eligible
for the relief of mitigation of forfeiture, a petitioner must establish
that transfer of ownership of the forfeited conveyance to the petitioner
promotes the interests of justice and does not diminish the deterrent
effect of section 274(b) of the Act.
(b) A grant of mitigation of forfeiture shall be in the form of a
monetary penalty imposed upon the petitioner in addition to any other
amounts chargeable as a condition to the grant of the relief of
remission of forfeiture. This penalty is considered as an item of cost
payable by the petitioner.
(c) Mitigation of forfeiture can only be granted after a seized
conveyance has been declared forfeited.
(d) A grant of mitigation of forfeiture must be conditioned upon:
(1) Execution of an instrument by the petitioner holding the United
States, its agents and employees, harmless from all claims which may
result from the grant of mitigation of forfeiture;
(2) Execution of an agreement that no property interest in the
conveyance will be transferred to any violator, or any other violator if
the petitioner is a violator; and
(3) Any other terms or conditions as the regional commissioner
determines to be appropriate, including a provision for liquidated
damages to guarantee compliance with any provisions of the agreement or
terms and conditions of the mitigation of forfeiture.
(e) The following provisions apply only to an owner-petitioner that
is granted mitigation of forfeiture:
(1) Within 20 days after receipt of the determination, that
owner-petitioner shall comply with the conditions of mitigation and take
possession of the forfeited conveyance; and
(2) If that owner-petitioner does not comply with the provisions of
paragraph (e)(1) of this section, the forfeited conveyance shall be
placed in official use, sold, or otherwise disposed of by the custodian
under 274.3 of this part. The proceeds of a sale of the forfeited
conveyance shall be applied first to all costs and expenses of the
seizure, forfeiture, and sale and any remaining balance shall be paid to
that owner-petitioner. If the forfeited conveyance is placed in
official use or otherwise disposed of, that owner-petitioner shall be
paid an amount equal to the appraised value of the conveyance minus all
costs and expenses of the seizure, forfeiture, and disposal.
(f) The following provisions apply only to a lienholder-petitioner
that is granted mitigation of forfeiture:
(1) That lienholder-petitioner shall receive payment of the net
equity of that lienholder-petitioner, if the forfeited conveyance is
retained for official use; or either possession of the forfeited
conveyance, or a monetary amount not to exceed the net equity of that
lienholder-petitioner from the sale of the forfeited conveyance;
(2) Within 20 days after receipt of the determination, that
lienholder-petitioner shall comply with the conditions of mitigation and
take possession of the forfeited conveyance; and
(3) If the lienholder-petitioner does not comply with the provisions
of paragraph (f)(2) of this section, the forfeited conveyance shall be
placed in official use, sold, or otherwise disposed of by the custodian
as provided in 274.3 of this part. The proceeds of a sale shall be
applied first to all costs and expenses of the seizure, forfeiture, and
sale and any remaining balance not exceeding the net equity of that
lienholder-petitioner shall be paid to that lienholder-petitioner. If
the forfeited conveyance is placed in official use or otherwise disposed
of, that lienholder-petitioner shall be paid the net equity of that
lienholder-petitioner minus all costs and expenses of the seizure,
forfeiture, and disposal.
08 CFR 274.17 Restoration of proceeds or appraised value.
(a) The regional commissioner shall not grant restoration of proceeds
of sale or the appraised value of a conveyance placed in official use or
otherwise disposed of according to law unless the petitioner establishes
that the petitioner:
(1) Did not know of the seizure prior to the declaration of
forfeiture;
(2) Was in such circumstances as prevented the petitioner from
knowing thereof; and
(3) Would otherwise have been granted the relief of remission of
forfeiture.
(b) A grant of restoration of proceeds of sale or the appraised value
of a conveyance placed in official use or otherwise disposed of
according to law must be conditioned upon:
(1) Execution of an instrument by the petitioner holding the United
States, its agents and employees, harmless from all claims which may
result from the grant of restoration of proceeds of sale or the
appraised value of a conveyance placed in official use or otherwise
disposed of according to law; and
(2) Any other terms or conditions as the regional commissioner
determines to be appropriate.
08 CFR 274.18 Provisions applicable to particular situations.
(a) A straw purchaser is a person who purchases in his own name a
conveyance for another person, the real purchaser, who has a record or
reputation. A lienholder-petitioner that knows, or has reason to
believe, that a purchaser of a conveyance is a straw purchaser, must
satisfy the requirements of 274.15(a) of this part as to both the straw
purchaser and the real purchaser to be eligible for a grant of remission
of forfeiture. This provision applies where money is borrowed on the
security of property held in the name of the straw purchaser for the
real purchaser.
(b) A petitioner engaged in the business of leasing conveyances must
satisfy the requirements of 274.15(a) of this part as to all lessees
and sublessees or other persons having any interest under a lease of the
subject conveyance on the date of seizure of that conveyance to be
eligible for a grant of remission of forfeiture.
(c) In the consideration of a petition for relief from forfeiture the
mere existence of a community property interest without proof of
financial contribution to the purchase of a conveyance will not be
deemed to have been a property interest in a seized and forfeited
conveyance.
(d) A petitioner that submits a petition for remission of forfeiture
as a subrogee must satisfy the requirements of 274.15(a) of this part
as to all prior possessors of the subrogated interest in the seized and
forfeited conveyance to be eligible for a grant of remission of
forfeiture.
08 CFR 274.19 Determinations on petitions; reconsideration.
(a) Upon consideration of a petition for relief from forfeiture and
all of the facts and circumstances surrounding the seizure of a
conveyance, the regional commissioner shall issue a written
determination. In making that determination the regional commissioner
shall presume that the evidence is sufficient to support forfeiture of
the conveyance. No hearing shall be held on any petitions for relief
from forfeiture under this part.
(b) The regional commissioner may deny relief from forfeiture when
there are unusual circumstances regarding a seizure which provide
reasonable grounds for concluding that remission or mitigation of the
forfeiture would be contrary to the interests of justice and would
diminish the deterrent effect of section 274(b) of the Act, even if the
petitioner has satisfactorily established compliance with the
administrative conditions applicable to and eligibility for relief from
forfeiture.
(c) Relief from forfeiture shall not be granted to any petitioner who
has a subordinate property interest to another petitioner until the
petition of the petitioner with the superior property interest has been
finally adjudicated nor until any claim or petition of the owner has
been finally adjudicated.
(d) The determination on a petition shall set forth either the
conditions upon which relief has been granted and the procedures for
obtaining possession of the forfeited conveyance or other relief
granted; or the reasons for denial of relief from forfeiture and the
procedures for requesting reconsideration. The determination on a
petition shall be mailed to the petitioner or duly authorized counsel of
the petitioner.
(e) Any request for reconsideration of a denial of relief from
forfeiture must be submitted to the regional commissioner within 10 days
of receipt of the determination on the petition. Such request for
reconsideration can only be based on evidence recently developed or not
previously considered.
(f) Only one request for reconsideration of a denial of relief from
forfeiture shall be considered.
08 CFR 274.20 Compromise of judicial forfeiture proceedings.
Judicial forfeiture proceedings commenced pursuant to section 274(b)
of the Act and this part may be compromised by the United States
Attorney only with the concurrence of the Director, Asset Forfeiture
Office, Criminal Division, Department of Justice. In evaluating a
compromise, the United States Attorney shall consider the probabilities
for successfully prosecuting the judicial forfeiture proceedings and the
terms of the compromise offer. The United States Attorney shall consult
with the regional commissioner before recommending a compromise.
08 CFR 274.20 PART 274a -- CONTROL OF EMPLOYMENT OF ALIENS
08 CFR 274.20 Subpart A -- Employer Requirements
Sec.
274a.1 Definitions.
274a.2 Verification of employment eligibility.
274a.3 Continuing employment of unauthorized aliens.
274a.4 Good faith defense.
274a.5 Use of labor through contract.
274a.6 State employment agencies.
274a.7 Pre-enactment provisions for employees hired prior to November
7, 1986.
274a.8 Prohibition of indemnity bonds.
274a.9 Enforcement procedures.
274a.10 Penalties.
274a.11 (Reserved)
08 CFR 274.20 Subpart B -- Employment Authorization
274a.12 Classes of aliens authorized to accept employment.
274a.13 Application for employment authorization.
274a.14 Termination of employment authorization.
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
Source: 52 FR 16221, May 1, 1987, unless otherwise noted.
08 CFR 274.20 Subpart A -- Employer Requirements
08 CFR 274a.1 Definitions.
For the purpose of this part --
(a) The term unauthorized alien means, with respect to employment of
an alien at a particular time, that the alien is not at that time
either: (1) Lawfully admitted for permanent residence, or (2)
authorized to be so employed by this Act or by the Attorney General;
(b) The term entity means any legal entity, including but not limited
to, a corporation, partnership, joint venture, governmental body,
agency, proprietorship, or association;
(c) The term hire means the actual commencement of employment of an
employee for wages or other remuneration. For purposes of section
274A(a)(4) of the Act and 274a.5 of this part, a hire occurs when a
person or entity uses a contract, subcontract or exchange entered into,
renegotiated or extended after November 6, 1986, to obtain the labor of
an alien in the United States, knowing that the alien is an unauthorized
alien;
(d) The term refer for a fee means the act of sending or directing a
person or transmitting documentation or information to another, directly
or indirectly, with the intent of obtaining employment in the United
States for such person, for remuneration whether on a retainer or
contingency basis; however, this term does not include union hiring
halls that refer union members or non-union individuals who pay union
membership dues;
(e) The term recruit for a fee means the act of soliciting a person,
directly or indirectly, and referring that person to another with the
intent of obtaining employment for that person, for remuneration whether
on a retainer or contingency basis; however, this term does not include
union hiring halls that refer union members or non-union individuals who
pay union membership dues;
(f) The term employee means an individual who provides services or
labor for an employer for wages or other remuneration but does not mean
independent contractors as defined in paragraph (j) of this section or
those engaged in casual domestic employment as stated in paragraph (h)
of this section;
(g) The term employer means a person or entity, including an agent or
anyone acting directly or indirectly in the interest thereof, who
engages the services or labor of an employee to be performed in the
United States for wages or other remuneration. In the case of an
independent contractor or contract labor or services, the term employer
shall mean the independent contractor or contractor and not the person
or entity using the contract labor;
(h) The term employment means any service or labor performed by an
employee for an employer within the United States, including service or
labor performed on a vessel or aircraft that has arrived in the United
States and has been inspected, or otherwise included within the
provisions of the Anti-Reflagging Act codified at 46 U.S.C. 8704, but
not including duties performed by nonimmigrant crewmen defined in
sections 101 (a)(10) and (a)(15)(D) of the Act. However, employment
does not include casual employment by individuals who provide domestic
service in a private home that is sporadic, irregular or intermittent;
(i) The term State employment agency means any State government unit
designated to cooperate with the United States Employment Service in the
operation of the public employment service system;
(j) The term independent contractor includes individuals or entities
who carry on independent business, contract to do a piece of work
according to their own means and methods, and are subject to control
only as to results. Whether an individual or entity is an independent
contractor, regardless of what the individual or entity calls itself,
will be determined on a case-by-case basis. Factors to be considered in
that determination include, but are not limited to, whether the
individual or entity: supplies the tools or materials; makes services
available to the general public; works for a number of clients at the
same time; has an opportunity for profit or loss as a result of labor
or services provided; invests in the facilities for work; directs the
order or sequence in which the work is to be done and determines the
hours during which the work is to be done. The use of labor or services
of an independent contractor are subject to the restrictions in section
274A(a)(4) of the Act and 274a.5 of this part;
(k) The term pattern or practice means regular, repeated, and
intentional activities, but does not include isolated, sporadic, or
accidental acts;
(l)(1) The term knowing includes not only actual knowledge but also
knowledge which may fairly be inferred through notice of certain facts
and circumstances which would lead a person, through the exercise of
reasonable care, to know about a certain condition. Constructive
knowledge may include, but is not limited to, situations where an
employer:
(i) Fails to complete or improperly completes the Employment
Eligibility Verification Form, I-9;
(ii) Has information available to it that would indicate that the
alien is not authorized to work, such as Labor Certification and/or an
Application for Prospective Employer; or
(iii) Acts with reckless and wanton disregard for the legal
consequences of permitting another individual to introduce an
unauthorized alien into its work force or to act on its behalf.
(2) Knowledge that an employee is unauthorized may not be inferred
from an employee's foreign appearance or accent. Nothing in this
definition should be interpreted as permitting an employer to request
more or different documents than are required under section 274(b) of
the Act or to refuse to honor documents tendered that on their face
reasonably appear to be genuine and to relate to the individual.
(52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988;
55 FR 25931, June 25, 1990; 56 FR 41783, Aug. 23, 1991)
08 CFR 274a.2 Verification of employment eligibility.
(a) General. This section states the requirements and procedures
persons or entities must comply with when hiring, or when recruiting or
referring for a fee, or when continuing to employ individuals in the
United States. For purposes of complying with section 274A(b) of the
Act and this section, all references to recruiters and referrers for a
fee are limited to a person or entity who is either an agricultural
association, agricultural employer, or farm labor contractor (as defined
in section 3 of the Migrant and Seasonal Agricultural Worker Protection
Act, 29 U.S.C. 1802). The Form I-9, Employment Eligibility Verification
Form, has been designated by the Service as the form to be used in
complying with the requirements of this section. The Form I-9 may be
obtained in limited quantities at INS District Offices, or ordered from
the Superintendent of Documents, Washington, DC 20402. A blank Form I-9
must be photocopied or printed in accordance with the restrictions set
forth in 299.4 of this chapter, with the exception of the black ink or
dye requirements contained therein. When photocopying or printing the
Form I-9, both sides must be photocopied or printed. Employers need
only complete the Form I-9 for individuals who are hired after November
6, 1986 and continue to be employed after May 31, 1987. Employers shall
have until September 1, 1987 to complete the Form I-9 for individuals
hired from November 7, 1986 through May 31, 1987. Recruiters and
referrers for a fee need complete the Form I-9 only for those
individuals who are recruited or referred and hired after May 31, 1987.
In conjunction with completing the Form I-9, an employer or recruiter or
referrer for a fee must examine documents that evidence the identity and
employment eligibility of the individual. The employer or recruiter or
referrer for a fee and the individual must each complete an attestation
on the Form I-9 under penalty of perjury.
(b) Employment verification requirements -- (1) Examination of
documents and completion of Form I-9.
(i) A person or entity that hires or recruits or refers for a fee an
individual for employment must ensure that the individual properly:
(A) Complete section 1 -- ''Employee Information and Verification''
-- on the Form I-9 at the time of hire; or if an individual is unable
to complete the Form I-9 or needs it translated, someone may assist him
or her. The preparer or translator must read the Form to the
individual, assist him or her in completing Section 1 -- ''Employee
Information and Verification,'' and have the individual sign or mark the
Form in the appropriate place. The preparer or translator must then
complete the ''Preparer/Translator Certification'' portion of the Form
I-9; and
(B) Present to the employer or the recruiter or referrer for a fee
documentation as set forth in paragraph (b)(1)(v) of this section
establishing his or her identity and employment eligibility within the
time limits set forth in paragraphs (b)(1)(ii) through (b)(1)(v) of this
section.
(ii) Except as provided in paragraph (b)(1)(viii) of this section, an
employer, his or her agent, or anyone acting directly or indirectly in
the interest thereof, must within three business days of the hire:
(A) Physically examine the documentation presented by the individual
establishing identity and employment eligibility as set forth in
paragraph (b)(1)(v) of this section and ensure that the documents
presented appear to be genuine and to relate to the individual; and
(B) Complete section 2 -- ''Employer Review and Verification'' -- of
the Form I-9.
(iii) An employer, his or her agent, or anyone acting directly or
indirectly in the interest thereof, who hires an individual for
employment for duration of less than three business days must comply
with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section at the
time of the hire. A receipt for the application of such documentation,
as described in paragraph (b)(1)(vi) of this section, may not be
accepted by the employer.
(iv) A recruiter or referrer for a fee for employment must comply
with paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B) of this section within
three business days of the date the referred individual is hired by the
employer. Recruiters and referrers may designate agents to complete the
employment verification procedures on their behalf including but not
limited to notaries, national associations, or employers. If a
recruiter or referrer designates an employer to complete the employment
verification procedures, the employer need only provide the recruiter or
referrer with a photocopy of the Form I-9.
(v) The individual may present either an original document which
establishes both employment authorization and identity, or an original
document which establishes employment authorization and a separate
original document which establishes identity. The identification number
and expiration date (if any) of all documents must be noted in the
appropriate space provided on the Form I-9.
(A) The following documents, so long as they appear to relate to the
individual presenting the document, are acceptable to evidence both
identity and employment eligibility:
(1) United States passport (unexpired or expired);
(2) Certificate of United States Citizenship, INS Form N-560 or
N-561;
(3) Certificate of Naturalization, INS Form N-550 or N-570;
(4) An unexpired foreign passport which:
(i) Contains an unexpired stamp therein which reads, ''Processed for
I-551. Temporary Evidence of Lawful Admission for permanent residence.
Valid until ------ . Employment authorized.'' or
(ii) Has attached thereto a Form I-94 bearing the same name as the
passport and contains an employment authorization stamp, so long as the
period of endorsement has not yet expired and the proposed employment is
not in conflict with any restrictions or limitations identified on the
Form I-94.
(5) Alien Registration Receipt Card, INS Form I-151 or Resident Alien
INS Form I-551, provided that it contains a photograph of the bearer;
(6) An unexpired Temporary Resident Card, INS Form 688;
(7) An unexpired Employment Authorization Card, INS Form I-688A;
(8) An unexpired reentry permit, INS Form I-327;
(9) An unexpired Refugee Travel document, INS Form I-571;
(10) An unexpired employment authorization document issued by the
Immigration and Naturalization Service which contains a photograph, INS
Form I-688B.
(B) The following documents are acceptable to establish identity
only:
(1) For individuals 16 years of age or older:
(i) A driver's license or identification card containing a
photograph, issued by a state (as defined in section 101(a)(36) of the
Act) or an outlying possession of the United States (as defined by
section 101(a)(29) of the Act). If the driver's license or
identification card does not contain a photograph, identifying
information shall be included such as: name, date of birth, sex,
height, color of eyes, and address;
(ii) School identification card with a photograph;
(iii) Voter's registration card;
(vi) U.S. military card or draft record;
(v) Identification card issued by federal, state, or local government
agencies or entities. If the identification card does not contain a
photograph, identifying information shall be included such as: name,
date of birth, sex, height, color of eyes, and address;
(vi) Military dependent's identification card;
(vii) Native American tribal documents;
(viii) United States Coast Guard Merchant Mariner Card;
(ix) Driver's license issued by a Canadian government authority;
(2) For individuals under age 18 who are unable to produce a document
listed in paragraph (b)(1)(v)(B)(1) of this section, the following
documents are acceptable to establish identity only:
(i) School record or report card;
(ii) Clinic doctor or hospital record;
(iii) Daycare or nursery school record.
(3) Minors under the age of 18 who are unable to produce one of the
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this
section are exempt from producing one of the enumerated identity
documents if:
(i) The minor's parent or legal guardian completes on the Form I-9
Section 1 -- ''Employee Information and Verification'' and in the space
for the minor's signature, the parent or legal guardian writes the
words, ''minor under age 18.''
(ii) The minor's parent or legal guardian completes on the Form I-9
the ''Preparer/Translator certification.''
(iii) The employer or the recruiter or referrer for a fee writes in
Section 2 -- ''Employer Review and Verification'' under List B in the
space after the words ''Document Identification #'' the words, ''minor
under age 18.''
(4) Individuals with handicaps, who are unable to produce one of the
identity documents listed in paragraph (b)(1)(v)(B) (1) or (2) of this
section, who are being placed into employment by a nonprofit
organization, association or as part of a rehabilitation program, may
follow the procedures for establishing identity provided in this section
for minors under the age of 18, substituting where appropriate, the term
''special placement'' for ''minor under age 18'', and permitting, in
addition to a parent or legal guardian, a representative from the
nonprofit organization, association or rehabilitation program placing
the individual into a position of employment, to fill out and sign in
the appropriate section, the Form I-9. For purposes of this section the
term individual with handicaps means any person who
(i) Has a physical or mental impairment which substantially limits
one or more of such person's major life activities,
(ii) Has a record of such impairment, or
(iii) Is regarded as having such impairment.
(C) The following are acceptable documents to establish employment
authorization only:
(1) A social security number card other than one which has printed on
its face ''not valid for employment purposes'';
(2) A Certification of Birth Abroad issued by the Department of
State, Form FS-545;
(3) A Certification of Birth Abroad issued by the Department of
State, Form DS-1350;
(4) An original or certified copy of a birth certificate issued by a
State, county, municipal authority or outlying possession of the United
States bearing an official seal;
(5) Native American tribal document;
(6) United States Citizen Identification Card, INS Form I-197;
(7) Identification card for use of resident citizen in the United
States, INS Form I-179;
(8) An unexpired employment authorization document issued by the
Immigration and Naturalization Service.
(vi) If an individual is unable to provide the required document or
documents within the time periods specified in paragraphs (b)(1) (ii)
and (iv) of this section, the individual must present a receipt for the
application of the replacement document or documents within three
business days of the hire and present the required document or documents
within 90 days of the hire. This section is not applicable to an alien
who indicates that he or she does not have work authorization at the
time of hire.
(vii) If an individual's employment authorization expires, the
employer, recruiter or referrer for a fee must reverify on the Form I-9
to reflect that the individual is still authorized to work in the United
States; otherwise the individual may no longer be employed, recruited,
or referred. Reverification on the Form I-9 must occur not later than
the date work authorization expires. In order to reverify on the Form
I-9, the employee or referred individual must present a document that
either shows continuing employment eligibility or is a new grant of work
authorization. The employer or the recruiter or referrer for a fee must
review this document, and if it appears to be genuine and to relate to
the individual, reverify by noting the document's identification number
and expiration date on the Form I-9.
(viii) An employer will not be deemed to have hired an individual for
employment if the individual is continuing in his or her employment and
has a reasonable expectation of employment at all times.
(A) An individual is continuing in his or her employment in one of
the following situations:
(1) An individual takes approved paid or unpaid leave on account of
study, illness or disability of a family member, illness or pregnancy,
maternity or paternity leave, vacation, union business, or other
temporary leave approved by the employer;
(2) An individual is promoted, demoted, or gets a pay raise;
(3) An individual is temporarily laid off for lack of work;
(4) An individual is on strike or in a labor dispute;
(5) An individual is reinstated after disciplinary suspension for
wrongful termination, found unjustified by any court, arbitrator, or
administrative body, or otherwise resolved through reinstatement or
settlement;
(6) An individual transfers from one distinct unit of an employer to
another distinct unit of the same employer; the employer may transfer
the individual's Form I-9 to the receiving unit;
(7) An individual continues his or her employment with a related,
successor, or reorganized employer, provided that the employer obtains
and maintains from the previous employer records and Forms I-9 where
applicable. For this purpose, a related, successor, or reorganized
employer includes:
(i) The same employer at another location;
(ii) An employer who continues to employ some or all of a previous
employer's workforce in cases involving a corporate reorganization,
merger, or sale of stock or assets;
(iii) An employer who continues to employ any employee of another
employer's workforce where both employers belong to the same
multi-employer association and the employee continues to work in the
same bargaining unit under the same collective bargaining agreement.
For purposes of this subsection, any agent designated to complete and
maintain the Form I-9 must record the employee's date of hire and/or
termination each time the employee is hired and/or terminated by an
employer of the multi-employer association; or
(8) An individual is engaged in seasonal employment.
(B) The employer who is claiming that an individual is continuing in
his or her employment must also establish that the individual expected
to resume employment at all times and that the individual's expectation
is reasonable. Whether an individual's expectation is reasonable will
be determined on a case-by-case basis taking into consideration several
factors. Factors which would indicate that an individual has a
reasonable expectation of employment include, but are not limited to,
the following:
(1) The individual in question was employed by the employer on a
regular and substantial basis. A determination of a regular and
substantial basis is established by a comparison of other workers who
are similarly employed by the employer;
(2) The individual in question complied with the employer's
established and published policy regarding his or her absence;
(3) The employer's past history of recalling absent employees for
employment indicates a likelihood that the individual in question will
resume employment with the employer within a reasonable time in the
future;
(4) The former position held by the individual in question has not
been taken permanently by another worker;
(5) The individual in question has not sought or obtained benefits
during his or her absence from employment with the employer that are
inconsistent with an expectation of resuming employment with the
employer within a reasonable time in the future. Such benefits include,
but are not limited to, severance and retirement benefits;
(6) The financial condition of the employer indicates the ability of
the employer to permit the individual in question to resume employment
within a reasonable time in the future; or
(7) The oral and/or written communication between employer, the
employer's supervisory employees and the individual in question
indicates that it is reasonably likely that the individual in question
will resume employment with the employer within a reasonable time in the
future.
(2) Retention and Inspection of Form I-9. (i) Form I-9 must be
retained by an employer or a recruiter or referrer for a fee for the
following time periods:
(A) In the case of an employer, three years after the date of the
hire or one year after the date the individual's employment is
terminated, whichever is later; or
(B) In the case of a recruiter or referrer for a fee, three years
after the date of the hire.
(ii) Any person or entity required to retain Forms I-9 in accordance
with this section shall be provided with at least three days notice
prior to an inspection of the Forms I-9 by officers of the Service, the
Special Counsel for Immigration-Related Unfair Employment Practices, or
the Departmet of Labor. At the time of inspection, Forms I-9 must be
made available in their original form or on microfilm or microfiche at
the location where the request for production was made. If Forms I-9
are kept at another location, the person or entity must inform the
officer of the Service, the Special Counsel for Immigration-Related
Unfair Employment Practices, or the Department of Labor of the location
where the forms are kept and make arrangements for the inspection.
Inspections may be performed at an INS office. A recruiter or referrer
for a fee who has designated an employer to complete the employment
verification procedures may present a photocopy of the Form I-9 in lieu
of presenting the Form I-9 in its original form or on microfilm or
microfiche, as set forth in paragraph (b) (1) (iv) of this section. Any
refusal or delay in presentation of the Forms I-9 for inspection is a
violation of the retention requirements as set forth in section 274A(b)
(3) of the Act. No Subpoena or warrant shall be required for such
inspection, but the use of such enforcement tools is not precluded. In
addition, if the person or entity has not complied with a request to
present the Forms I-9, any Service officer listed in 287.4 of this
chapter may compel production of the Forms I-9 and any other relevant
documents by issuing a subpoena. Nothing in this section is intended to
limit the Service's subpoena power under section 235(a) of the Act.
(iii) The following standards shall apply to Forms I-9 presented on
microfilm or microfiche submitted to an officer of the Service, the
Special Counsel for Immigration-Related Unfair Employment Practices, or
the Department of Labor: Microfilm, when displayed on a microfilm
reader (viewer) or reproduced on paper must exhibit a high degree of
legibility and readability. For this purpose, legibility is defined as
the quality of a letter or numeral which enables the observer to
positively and quickly identify it to the exclusion of all other letters
or numerals. Readability is defined as the quality of a group of
letters or numerals being recognizable as words or whole numbers. A
detailed index of all microfilmed data shall be maintained and arranged
in such a manner as to permit the immediate location of any particular
record. It is the responsibility of the employer, recruiter or referrer
for a fee:
(A) To provide for the processing, storage and maintenace of all
microfilm, and
(B) To be able to make the contents thereof available as required by
law. The person or entity presenting the microfilm will make available
a reader-printer at the examination site for the ready reading, location
and reproduction of any record or records being maintained on microfilm.
Reader-printers made available to an officer of the Service, the
Special Counsel for Immigration-Related Unfair Employment Practices, or
the Department of Labor shall provide safety features and be in clean
condition, properly maintained and in good working order. The
reader-printers must have the capacity to display and print a complete
page of information. A person or entity who is determined to have
failed to comply with the criteria established by this regulation for
the presentation of microfilm or microfiche to the Service, the Special
Counsel for Immigration-Related Unfair Employment Practices, or the
Department of Labor, and at the time of the inspection does not present
a properly completed Form I-9 for the employee, is in violation of
section 274A(a)(1)(B) of the Act and 274a.2(b)(2).
(3) Copying of documentation. An employer, or a recruiter or
referrer for a fee may, but is not required to, copy a document
presented by an individual solely for the purpose of complying with the
verification requirements of this section. If such a copy is made, it
must be retained with the Form I-9. The retention requirements in
paragraph (b)(2) of this section do not apply to the photocopies. The
copying of any such document and retention of the copy does not relieve
the employer from the requirement to fully complete section 2 of the
Form I-9. An employer, recruiter or referrer for a fee should not,
however, copy the documents only of individuals of certain national
origins or citizenship statuses. To do so may violate section 274B of
the Act.
(4) Limitation on use of Form I-9. Any information contained in or
appended to the Form I-9, including copies of documents listed in
paragraph (c) of this section used to verify an individual's identity or
employment eligibility, may be used only for enforcement of the Act and
sections 1001, 1028, 1546, or 1621 of title 18, United States Code.
(c) Employment verification requirements in the case of hiring an
individual who was previously employed. (1) When an employer hires an
individual whom that person or entity has previously employed, if the
employer has previously completed the Form I-9 and complied with the
verification requirements set forth in paragraph (b) of this section
with regard to the individual, the employer may (in lieu of completing a
new Form I-9) inspect the previously completed Form I-9 and:
(i) If upon inspection of the Form I-9, the employer determines that
the Form I-9 relates to the individual and that the individual is still
eligible to work, that previously executed Form I-9 is sufficient for
purposes of section 274A(b) of the Act if the individual is hired within
three years of the date of the initial execution of the Form I-9 and the
employer updates the Form I-9 to reflect the date of rehire; or
(ii) If upon inspection of the Form I-9, the employer determines that
the individual's employment authorization has expired, the employer must
reverify on the Form I-9 in accordance with paragraph (b)(1)(vii);
otherwise the individual may no longer be employed.
(2) For purposes of retention of the Form I-9 by an employer for a
previously employed individual hired pursuant to paragraph (c)(1) of
this section, the employer shall retain the Form I-9 for a period of
three years commencing from the date of the initial execution of the
Form I-9 or one year after the individual's employment is terminated,
whichever is later.
(d) Employment verification requirements in the case of recruiting or
referring for a fee an individual who was previously recruited or
referred. (1) When a recruiter or referrer for a fee refers an
individual for whom that recruiter or referrer for a fee has previously
completed a Form I-9 and complied with the verification requirements set
forth in paragraph (b) of this section with regard to the individual,
the recruiter or referrer may (in lieu of completing a new Form I-9)
inspect the previously completed Form I-9 and:
(i) If upon inspection of the Form I-9, the recruiter or referrer for
a fee determines that the Form I-9 relates to the individual and that
the individual is still eligible to work, that previously executed Form
I-9 is sufficient for purposes of section 274A(b) of the Act if the
individual is referred within three years of the date of the initial
execution of the Form I-9 and the recruiter or referrer for a fee
updates the Form I-9 to reflect the date of rehire; or
(ii) If upon inspection of the Form I-9, the recruiter or referrer
determines that the individual's employment authorization has expired,
the recruiter or referrer for a fee must reverify on the Form I-9 in
accordance with paragraph (b)(1)(vii) of this section; otherwise the
individual may no longer be recruited or referred.
(2) For purposes of retention of the Form I-9 by a recruiter or
referrer for a previously recruited or referred individual pursuant to
paragraph (d)(1) of this section, the recruiter or referrer shall retain
the Form I-9 for a period of three years from the date of the rehire.
(52 FR 16221, May 1, 1987, as amended at 53 FR 8612, Mar. 16, 1988;
55 FR 25932, June 25, 1990; 56 FR 41784-41786, Aug. 23, 1991)
08 CFR 274a.3 Continuing employment of unauthorized aliens.
An employer who continues the employment of an employee hired after
November 6, 1986, knowing that the employee is or has become an
unauthorized alien with respect to that employment, is in violation of
section 274A(a)(2) of the Act.
(52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988)
08 CFR 274a.4 Good faith defense.
An employer or a recruiter or referrer for a fee for employment who
shows good faith compliance with the employment verification
requirements of 274a.2(b) of this part shall have established a
rebuttable affirmative defense that the person or entity has not
violated section 274A(a)(1)(A) of the Act with respect to such hiring,
recruiting, or referral.
08 CFR 274a.5 Use of labor through contract.
Any person or entity who uses a contract, subcontract, or exchange
entered into, renegotiated, or extended after November 6, 1986, to
obtain the labor or services of an alien in the United States knowing
that the alien is an unauthorized alien with respect to performing such
labor or services, shall be considered to have hired the alien for
employment in the United States in violation of section 274A(a)(1)(A) of
the Act.
(55 FR 25934, June 25, 1990)
08 CFR 274a.6 State employment agencies.
(a) General. Pursuant to sections 274A(a)(5) and 274A(b) of the Act,
a state employment agency as defined in 274a.1 of this part may, but is
not required to, verify identity and employment eligibility of
individuals referred for employment by the agency. However, should a
state employment agency choose to do so, it must:
(1) Complete the verification process in accordance with the
requirements of 274a.2(b) of this part provided that the individual may
not present receipts in lieu of documents in order to complete the
verification process as otherwise permitted by 274a.2(b)(1)(vi) of this
part; and
(2) Complete the verification process prior to referral for all
individuals for whom a certification is required to be issued pursuant
to paragraph (c) of this section.
(b) Compliance with the provisions of section 274A of the Act. A
state employment agency which chooses to verify employment eligibility
of individuals pursuant to 274a.2(b) of this part shall comply with all
provisions of section 274A of the Act and the regulations issued
thereunder.
(c) State employment agency certification. (1) A state employment
agency which chooses to verify employment eligibility pursuant to
paragraph (a) of this section shall issue to an employer who hires an
individual referred for employment by the agency, a certification as set
forth in paragraph (d) of this section. The certification shall be
transmitted by the state employment agency directly to the employer,
personally by an agency official, or by mail, so that it will be
received by the employer within 21 business days of the date that the
referred individual is hired. In no case shall the certification be
transmitted to the employer from the state employment agency by the
individual referred. During this period:
(i) The job order or other appropriate referral form issued by the
state employment agency to the employer, on behalf of the individual who
is referred and hired, shall serve as evidence, with respect to that
individual, of the employer's compliance with the provisions of section
274A(a)(1)(B) of the Act and the regulations issued thereunder.
(ii) In the case of a telephonically authorized job referral by the
state employment agency to the employer, an appropriate annotation by
the employer shall be made and shall serve as evidence of the job order.
The employer should retain the document containing the annotation where
the employer retains Forms I-9.
(2) Job orders or other referrals, including telephonic
authorizations, which are used as evidence of compliance pursuant to
paragraph (c)(1)(i) of this section shall contain:
(i) The name of the referred individual;
(ii) The date of the referral;
(iii) The job order number or other applicable identifying number
relating to the referral;
(iv) The name and title of the referring state employment agency
official; and
(v) The telephone number and address of the state employment agency.
(3) A state employment agency shall not be required to verify
employment eligibility or to issue a certification to an employer to
whom the agency referred an individual if the individual is hired for a
period of employment not to exceed 3 days in duration. Should a state
agency choose to verify employment eligibility and to issue a
certification to an employer relating to an individual who is hired for
a period of employment not to exceed 3 days in duration, it must verify
employment eligibility and issue certifications relating to all such
individuals. Should a state employment agency choose not to verify
employment eligibility or issue certifications to employers who hire,
for a period not to exceed 3 days in duration, agency-referred
individuals, the agency shall notify employers that, as a matter of
policy, it does not perform verifications for individuals hired for that
length of time, and that the employers must complete the identity and
employment eligibility requirements pursuant to 274a.2(b) of this part.
Such notification may be incorporated into the job order or other
referral form utilized by the state employment agency as appropriate.
(4) An employer to whom a state employment agency issues a
certification relating to an individual referred by the agency and hired
by the employer, shall be deemed to have complied with the verification
requirements of 274a.2(b) of this part provided that the employer:
(i) Reviews the identifying information contained in the
certification to ensure that it pertains to the individual hired;
(ii) Observes the signing of the certification by the individual at
the time of its receipt by the employer as provided for in paragraph
(d)(13) of this section;
(iii) Complies with the provisions of 274a.2(b)(1)(vii) of this part
by either:
(A) Updating the state employment agency certification in lieu of
Form I-9, upon expiration of the employment authorization date, if any,
which was noted on the certification issued by the state employment
agency pursuant to paragraph (d)(11) of this section; or
(B) By no longer employing an individual upon expiration of his or
her employment authorization date noted on the certification;
(iv) Retains the certification in the same manner prescribed for Form
I-9 in 274a.2(b)(2) of this part, to wit, three years after the date of
the hire or one year after the date the individual's employment is
terminated, whichever is later; and
(v) Makes it available for inspection to officers of the Service or
the Department of Labor, pursuant to the provisions of section
274A(b)(3) of the Act, and 274a.2(b)(2) of this part.
(5) Failure by an employer to comply with the provisions of paragraph
(c)(4)(iii) of this section shall constitute a violation of section
274A(a)(2) of the Act and shall subject the employer to the penalties
contained in section 274A(e)(4) of the Act, and 274a.10 of this part.
(d) Standards for state employment agency certifications. All
certifications issued by a state employment agency pursuant to paragraph
(c) of this section shall conform to the following standards. They
must:
(1) Be issued on official agency letterhead;
(2) Be signed by an appropriately designated official of the agency;
(3) Bear a date of issuance;
(4) Contain the employer's name and address;
(5) State the name and date of birth of the individual referred;
(6) Identify the position or type of employment for which the
individual is referred;
(7) Bear a job order number relating to the position or type of
employment for which the individual is referred;
(8) Identify the document or documents presented by the individual to
the state employment agency for the purposes of identity and employment
eligibility verification;
(9) State the identifying number or numbers of the document or
documents described in paragraph (d)(8) of this section;
(10) Certify that the agency has complied with the requirements of
section 274A(b) of the Act concerning verification of the identity and
employment eligibility of the individual referred, and has determined
that, to the best of the agency's knowledge, the individual is
authorized to work in the United States;
(11) Clearly state any restrictions, conditions, expiration dates or
other limitations which relate to the individual's employment
eligibility in the United States, or contain an affirmative statement
that the employment authorization of the referred individual is not
restricted;
(12) State that the employer is not required to verify the
individual's identity or employment eligibility, but must retain the
certification in lieu of Form I-9;
(13) Contain a space or a line for the signature of the referred
individual, requiring the individual under penalty of perjury to sign
his or her name before the employer at the time of receipt of the
certification by the employer; and
(14) State that counterfeiting, falsification, unauthorized issuance
or alteration of the certification constitutes a violation of federal
law pursuant to title 18, U.S.C. 1546.
(e) Retention of Form I-9 by state employment agencies. A Form I-9
utilized by a state employment agency in verifying the identity and
employment eligibility of an individual pursuant to 274a.2(b) of this
part must be retained by a state employment agency for a period of three
years from the date that the individual was last referred by the agency
and hired by an employer. A state employment agency may retain a Form
I-9 either in its original form, or on microfilm or microfiche.
(f) Retention of state employment agency certifications. A
certification issued by a state employment agency pursuant to this
section shall be retained:
(1) By a state employment agency, for a period of three years from
the date that the individual was last referred by the agency and hired
by an employer, and in a manner to be determined by the agency which
will enable the prompt retrieval of the information contained on the
original certification for comparison with the relating Form I-9;
(2) By the employer, in the original form, and in the same manner and
location as the employer has designated for retention of Forms I-9, and
for the period of time provided in paragraph (c)(4)(iv) of this section.
(g) State employment agency verification requirements in the case of
an individual who was previously referred and certified. When a state
employment agency refers an individual for whom the verification
requirements have been previously complied with and a Form I-9
completed, the agency shall inspect the previously completed Form I-9:
(1) If, upon inspection of the Form, the agency determines that the
Form I-9 pertains to the individual and that the individual remains
authorized to be employed in the United States, no additional
verification need be conducted and no new Form I-9 need be completed
prior to issuance of a new certification provided that the individual is
referred by the agency within 3 years of the execution of the initial
Form I-9.
(2) If, upon inspection of the Form, the agency determines that the
Form I-9 pertains to the individual but that the individual does not
appear to be authorized to be employed in the United States based on
restrictions, expiration dates or other conditions annotated on the Form
I-9, the agency shall not issue a certification unless the agency
follows the updating procedures pursuant to 274a.2(b)(1)(vii) of this
part; otherwise the individual may no longer be referred for employment
by the state employment agency.
(3) For the purposes of retention of the Form I-9 by a state
employment agency pursuant to paragraph (e) of this section, for an
individual previously referred and certified, the state employment
agency shall retain the Form for a period of 3 years from the date that
the individual is last referred and hired.
(h) Employer verification requirements in the case of an individual
who was previously referred and certified. When an employer rehires an
individual for whom the verification and certification requirements have
been previously complied with by a state employment agency, the employer
shall inspect the previously issued certification.
(1) If, upon inspection of the certification, the employer determines
that the certification pertains to the individual and that the
individual remains authorized to be employed in the United States, no
additional verification need be conducted and no new Form I-9 or
certification need be completed provided that the individual is rehired
by the employer within 3 years of the issuance of the initial
certification, and that the employer follows the same procedures for the
certification which pertain to Form I-9, as specified in
274a.2(c)(1)(i) of this part.
(2) If, upon inspection of the certification, the employer determines
that the certification pertains to the individual but that the
certification reflects restrictions, expiration dates or other
conditions which indicate that the individual no longer appears
authorized to be employed in the United States, the employer shall
verify that the individual remains authorized to be employed and shall
follow the updating procedures for the certification which pertain to
Form I-9, as specified in 274a.2(c)(1)(ii) of this part; otherwise the
individual may no longer be employed.
(3) For the purposes of retention of the certification by an employer
pursuant to this paragraph for an individual previously referred and
certified by a state employment agency and rehired by the employer, the
employer shall retain the certification for a period of 3 years after
the date that the individual is last hired, or one year after the date
the individual's employment is terminated, whichever is later.
(52 FR 43053, Nov. 9, 1987)
08 CFR 274a.7 Pre-enactment provisions for employees hired prior to
November 7, 1986.
(a) The penalty provisions set forth in section 274A (e) and (f) of
the Act for violations of sections 274A(a)(1)(B) and 274A(a)(2) of the
Act shall not apply to employees who were hired prior to November 7,
1986, and who are continuing in their employment and have a reasonable
expectation of employment at all times (as set forth in
274a.2(b)(1)(viii)), except those individuals described in section
274a.2 (b)(1)(viii)(A)(7)(iii) and (b)(1)(viii)(A)(8).
(b) For purposes of this section, an employee who was hired prior to
November 7, 1986 shall lose his or her pre-enactment status if the
employee:
(1) Quits; or
(2) Is terminated by the employer; the term termination shall
include, but is not limited to, situations in which an employee is
subject to seasonal employment; or
(3) Is excluded or deported from the United States or departs the
United States under a grant of voluntary departure; or
(4) Is no longer continuing his or her employment (or does not have a
reasonable expectation of employment at all times) as set forth in
274a.2(b)(1)(viii).
(52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988;
55 FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, 1991)
08 CFR 274a.8 Prohibition of indemnity bonds.
(a) General. It is unlawful for a person or other entity, in hiring
or recruiting or referring for a fee for employment of an individual, to
require the individual to post a bond or security, to pay or agree to
pay an amount, or otherwise to provide a financial guarantee or
indemnity, against any potential liability arising under this part
relating to such hiring, recruiting, or referring of the individual.
However, this prohibition does not apply to performance clauses which
are stipulated by agreement between contracting parties.
(b) Penalty. Any person or other entity who requires any individual
to post a bond or security as stated in this section shall, after notice
and opportunity for an administrative hearing in accordance with section
274A(e)(3)(B) of the Act, be subject to a civil fine of $1,000 for each
violation and to an administrative order requiring the return to the
individual of any amounts received in violation of this section or, if
the individual cannot be located, to the general fund of the Treasury.
08 CFR 274a.9 Enforcement procedures.
(a) Procedures for the filing of complaints. Any person or entity
having knowledge of a violation or potential violation of section 274A
of the Act may submit a signed, written complaint in person or by mail
to the Service office having jurisdiction over the business or residence
of the potential violator. The signed, written complaint must contain
sufficient information to identify both the complainant and the
potential violator, including their names and addresses. The complaint
should also contain detailed factual allegations relating to the
potential violation including the date, time and place of the alleged
violation and the specific act or conduct alleged to constitute a
violation of the Act. Written complaints may be delivered either by
mail to the appropriate Service office or by personally appearing before
any immigration officer at a Service office.
(b) Investigation. The Service may conduct investigations for
violations on its own initiative and without having received a written
complaint. When the Service receives a complaint from a third party, it
shall investigate only those complaints that have a reasonable
probability of validity. If it is determined after investigation that
the person or entity has violated section 274A of the Act, the Service
may issue and serve upon the alleged violator a Notice of Intent to
Fine. Service officers shall have reasonable access to examine any
relevant evidence of any person or entity being investigated.
(c) Notice of Intent to Fine. The proceeding to assess
administrative penalties under section 274A of the Act is commenced when
the Service issues a Notice of Intent to Fine on Form I-763. Service of
this Notice shall be accomplished pursuant to part 103 of this chapter.
The person or entity identified in the Notice of Intent to Fine shall be
known as the respondent. The Notice of Intent to Fine may be issued by
an officer defined in 242.1 of this chapter with concurrence of a
Service attorney.
(1) Contents of the Notice of Intent to Fine. (i) The Notice of
Intent to Fine will contain the basis for the charge(s) against the
respondent, the statutory provisions alleged to have been violated, and
the penalty that will be imposed.
(ii) The Notice of Intent to Fine will provide the following advisals
to the respondent:
(A) That the person or entity has the right to representation by
counsel of his or her own choice at no expense to the government;
(B) That any statement given may be used against the person or
entity;
(C) That the person or entity has the right to request a hearing
before an Administrative Law Judge pursuant to 5 U.S.C. 554-557, and
that such request must be made within 30 days from the service of the
Notice of Intent to Fine ;
(D) That the Service will issue a final order in 45 days if a written
request for a hearing is not timely received and that there will be no
appeal of the final order.
(d) Request for Hearing Before an Administrative Law Judge. If a
respondent contests the issuance of a Notice of Intent to Fine, the
respondent must file with the INS, within thirty days of the service of
the Notice of Intent to Fine, a written request for a hearing before an
Administrative Law Judge. Any written request for a hearing submitted
in a foreign language must be accompanied by an English language
translation. A request for a hearing is not deemed to be filed until
received by the Service office designated in the Notice of Intent to
Fine. In computing the thirty day period prescribed by this section,
the day of service of the Notice of Intent to Fine shall not be
included. If the Notice of Intent to Fine was served by ordinary mail,
five days shall be added to the prescribed thirty day period. In the
request for a hearing, the respondent may, but is not required to,
respond to each allegation listed in the Notice of Intent to Fine.
(e) Failure to file a request for hearing. If the respondent does
not file a request for a hearing in writing within thirty days of the
day of service of the Notice of Intent to Fine (thirty-five days if
served by ordinary mail), the INS shall issue a final order from which
there is no appeal.
(52 FR 16221, May 1, 1987, as amended at 53 FR 8613, Mar. 16, 1988;
55 FR 25935, June 25, 1990; 56 FR 41786, Aug. 23, 1991)
08 CFR 274a.10 Penalties.
(a) Criminal penalties. Any person or entity which engages in a
pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of
the Act shall be fined not more than $3,000 for each unauthorized alien,
imprisoned for not more than six months for the entire pattern or
practice, or both, notwithstanding the provisions of any other Federal
law relating to fine levels.
(b) Civil penalties. A person or entity may face civil penalties for
a violation of section 274A of the Act. Civil penalties may be imposed
by the Service or an administrative law judge for violations under
section 274A of the Act. In determining the level of the penalties that
will be imposed, a finding of more than one violation in the course of a
single proceeding or determination will be counted as a single offense.
However, a single offense will include penalties for each unauthorized
alien who is determined to have been knowingly hired or recruited or
referred for a fee.
(1) A respondent found by the Service or an administrative law judge
to have knowingly hired, or to have knowingly recruited or referred for
a fee, an unauthorized alien for employment in the United States or to
have knowingly continued to employ an unauthorized alien in the United
States, shall be subject to the following order:
(i) To cease and desist from such behavior;
(ii) To pay a civil fine according to the following schedule:
(A) First offense -- not less than $250 and not more than $2,000 for
each unauthorized alien, or
(B) Second offense -- not less than $2,000 and not more than $5,000
for each unauthorized alien; or
(C) More than two offenses -- not less than $3,000 and not more than
$10,000 for each unauthorized alien; and
(iii) To comply with the requirements of section 274a.2(b) of this
part, and to take such other remedial action as is appropriate.
(2) A respondent determined by the Service (if a respondent fails to
request a hearing) or by an administrative law judge to have failed to
comply with the employment verification requirements as set forth in
274a.2(b) of this part, shall be subject to a civil penalty in an amount
of not less than $100 and not more than $1,000 for each individual with
respect to whom such violation occurred. In determining the amount of
the penalty, consideration shall be given to:
(i) The size of the business of the employer being charged;
(ii) The good faith of the employer;
(iii) The seriousness of the violation;
(iv) Whether or not the individual was an unauthorized alien; and
(v) The history of previous violations of the employer.
(3) Where an order is issued with respect to a respondent composed of
distinct, physically separate subdivisions which do their own hiring, or
their own recruiting or referring for a fee for employment (without
reference to the practices of, and under the control of, or common
control with another subdivision) the subdivision shall be considered a
separate person or entity.
(c) Enjoining pattern or practice violations. If the Attorney
General has reasonable cause to believe that a person or entity is
engaged in a pattern or practice of employment, recruitment or referral
in violation of section 274A(a)(1)(A) or (2) of the Act, the Attorney
General may bring civil action in the appropriate United States District
Court requesting relief, including a permanent or temporary injunction,
restraining order, or other order against the person or entity, as the
Attorney General deems necessary.
(52 FR 16221, May 1, 1987, as amended at 55 FR 25935, June 25, 1990;
56 FR 41786, Aug. 23, 1991)
274a.11 (Reserved)
08 CFR 274a.10 Subpart B -- Employment Authorization
08 CFR 274a.12 Classes of aliens authorized to accept employment.
(a)Aliens authorized employment incident to status. Pursuant to the
statutory or regulatory reference cited, the following classes of aliens
are authorized to be employed in the United States without restrictions
as to location or type of employment as a condition of their admission
or subsequent change to one of the indicated classes. Any alien who is
within a class of aliens described in paragraphs (a)(3) through (a)(8)
or (a)(10) through (a)(13) of this section, and who seeks to be employed
in the United States, must apply to the Service for a document
evidencing such employment authorization.
(1) An alien who is a lawful permanent resident (with or without
conditions pursuant to section 216 of the Act), as evidenced by Form
I-151 or Form I-551 issued by the Service. An expiration date on the
Form I-551 reflects only that the card must be renewed, not that the
individual's work authorization has expired;
(2) An alien admitted to the United States as a lawful temporary
resident pursuant to sections 245A or 210 of the Act, as evidenced by an
employment authorization document issued by the Service;
(3) An alien admitted to the United States as a refugee pursuant to
section 207 of the Act for the period of time in that status, as
evidenced by an employment authorization document issued by the Service;
(4) An alien paroled into the United States as a refugee for the
period of time in that status, as evidenced by an employment
authorization document issued by the Service;
(5) An alien granted asylum under section 208 of the Act for the
period of time in that status, as evidenced by an employment
authorization document issued by the Service;
(6) An alien admitted to the United States as a nonimmigrant fiance
or fiancee pursuant to section 101(a)(15)(K) of the Act, or an alien
admitted as the child of such alien, for the period of admission of the
United States, as evidenced by an employment authorization document
issued by the Service;
(7) An alien admitted as a parent (N-8) or dependent child (N-9) of
an alien granted permanent residence under section 101(a)(27)(I) of the
Act, as evidenced by an employment authorization document issued by the
Service;
(8) An alien admitted to the United States as a citizen of the
Federated States of Micronesia (CFA/FSM) or of the Marshall Islands
(CFA/MIS) pursuant to agreements between the United States and the
former trust territories, as evidenced by an employment authorization
document issued by the Service;
(9) (Reserved)
(10) An alien granted withholding of deportation under section 243(h)
of the Act for the period of time in that status, as evidenced by an
employment authorization document issued by the Service; or
(11) An alien who has been granted extended voluntary departure by
the Attorney General as a member of a nationality group pursuant to a
request by the Secretary of State. Employment is authorized for the
period of time in that status as evidenced by an employment
authorization document issued by the Service;
(12) An alien granted Temporary Protected Status under section 244A
of the Act for the period of time in that status, as evidenced by an
employment authorization document issued by the Service; or
(13) An alien granted voluntary departure by the Attorney General
under the Family Unity Program established by section 301 of the
Immigration Act of 1990, as evidenced by an employment authorization
document issued by the Service.
(b) Aliens authorized for employment with a specific employer
incident to status. The following classes of nonimmigrant aliens are
authorized to be employed in the United States by the specific employer
and subject to the restrictions described in the section(s) of this
chapter indicated as a condition of their admission in, or subsequent
change to, such classification. An alien in one of these classes is not
issued an employment authorization document by the Service:
(1) A foreign government official (A-1 or A-2), pursuant to 214.2(a)
of this chapter. An alien in this status may be employed only by the
foreign government entity;
(2) An employee of a foreign government official (A-3), pursuant to
214.2(a) of this chapter. An alien in this status may be employed only
by the foreign government official;
(3) A foreign government official in transit (C-2 or C-3), pursuant
to 214.2(c) of this chapter. An alien in this status may be employed
only by the foreign government entity;
(4) (Reserved)
(5) A nonimmigrant treaty trader (E-1) or treaty investor (E-2),
pursuant to 214.2(e) of this chapter. An alien in this status may be
employed only by the treaty-qualifying company through which the alien
attained the status. Employment authorization does not extend to the
dependents of the principal treaty trader or treaty investor (also
designated ''E'1'' or ''E-2''), other than those specified in paragraph
(c)(2) of this section;
(6) A nonimmigrant (F-1) student who is in valid nonimmigrant student
status and pursuant to 8 CFR 214.2(f) is seeking:
(i) On-campus employment for not more than twenty hours per week when
school is in session or full-time employment when school is not in
session if the student intends and is eligible to register for the next
term or session. Part-time on-campus employment is authorized by the
school and no specific endorsement by a school official or Service
officer is necessary;
(ii) Part-time off-campus employment authorization based on an
approved attestation from the employer pursuant to 8 CFR 214.2(f) and
who presents an I-20 ID endorsed by the designated school official; or
(iii) Curricular practical training (internships, cooperative
training programs, or work-study programs which are part of an
established curriculum) after having been enrolled full-time in a
Service-approved institution for at least nine months. Curricular
practical training (part-time or full-time) is authorized by the
Designated School Official on the student's I-20 ID; no Service
endorsement is necessary.
(7) A representative of an international organization (G-1, G-2, G-3,
or G-4), pursuant to 214.2(g) of this chapter. An alien in this status
may be employed only by the foreign government entity or the
international organization;
(8) A personal employee of an official or representative of an
international organization (G-5), pursuant to 214.2(g) of this chapter.
An alien in this status may be employed only by the official or
representative of the international organization;
(9) A temporary worker or trainee (H-1, H-2A, H-2B, or H-3), pursuant
to 214.2(h) of this chapter. An alien in this status may be employed
only by the petitioner through whom the status was obtained;
(10) An information media representative (I), pursuant to 214.2(i)
of this chapter. An alien in this status may be employed only for the
sponsoring foreign news agency or bureau. Employment authorization does
not extend to the dependents of an information media representative
(also designated ''I'');
(11) An exchange visitor (J-1), pursuant to 214.2(j) of this chapter
and 22 CFR 514.24. An alien in this status may be employed only by the
exchange visitor program sponsor or appropriate designee and within the
guidelines of the program approved by the United States Information
Agency as set forth in the Certificate of Eligibility (Form IAP-66)
issued by the program sponsor;
(12) An intra-company transferee (L-1), pursuant to 214.2(1) of this
chapter. An alien in this status may be employed only by the petitioner
through whom the status was obtained;
(13) An alien having extraordinary ability in the sciences, arts,
education, business, or athletics (0-1), and an accompanying alien
(0-2), pursuant to 214.2(o) of this chapter. An alien in this status
may be employed only by the petitioner through whom the status was
obtained;
(14) An athlete, artist or entertainer (P-1, P-2 or P-3), pursuant to
214.2(p) of this chapter. An alien in this status may be employed only
by the petitioner through whom the status was obtained;
(15) An international cultural exchange visitor (Q), pursuant to
214.2(q) of this chapter. An alien in this status may only be employed
by the petitioner through whom the status was obtained;
(16) An alien having a religious occupation, pursuant to 214.2(r) of
this chapter. An alien in this status may be employed only by the
religious organization through whom the status was obtained;
(17) Officers and personnel of the armed services of nations of the
North Atlantic Treaty Organization, and representatives, officials, and
staff employees of NATO (NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 and
NATO-6), pursuant to 214.2(o) of this chapter. An alien in this status
may be employed only by NATO;
(18) An attendant, servant or personal employee (NATO-7) of an alien
admitted as a NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6,
pursuant to 214.2(o) of this chapter. An alien admitted under this
classification may be employed only by the NATO alien through whom the
status was obtained;
(19) A nonimmigrant pursuant to section 214(e) of the Act. An alien
in this status must be engaged in business activities at a professional
level in accordance with the provisions of chapter 15 of the United
States-Canada Free-Trade Agreement (FTA); or
(20) A nonimmigrant alien within the class of aliens described in
paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12),
(b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has
expired but who has filed a timely application for an extension of such
stay pursuant to 214.2 of this chapter. These aliens are authorized to
continue employment with the same employer for a period not to exceed
240 days beginning on the date of the expiration of the authorized
period of stay. Such authorization shall be subject to any conditions
and limitations noted on the initial authorization. However, if the
district director or service center director adjudicates the application
prior to the expiration of this 240 day period and denies the
application for extension of stay, the employment authorization under
this paragraph shall automatically terminate upon notification of the
denial decision.
(c) Aliens who must apply for employment authorization. An alien
within a class of aliens described in this section must apply for work
authorization. If authorized, such an alien may accept employment
subject to any restrictions stated in the regulations or cited on the
employment authorization document:
(1) An alien spouse or unmarried dependent child; son or daughter of
a foreign government official (A-1 or A-2) pursuant to 214.2(a)(2) of
this chapter and who presents a fully executed Form I-566 bearing the
endorsement of an authorized representative of the Department of State;
(2) An alien spouse or unmarried dependent son or daughter of an
alien employee of the Coordination Council for North American Affairs
(E-1) pursuant to 214.2(e) of this chapter;
(3) A nonimmigrant (F-1) student who:
(i) Is seeking employment for purposes of optional practical training
pursuant to 8 CFR 214.2(f), provided the alien will be employed only in
an occupation which is directly related to his or her area of studies
and that he or she presents an I-20 ID endorsed by the designated school
official;
(ii) Has been offered employment under the sponsorship of an
international organization within the meaning of the International
Organization Immunities Act (59 Stat. 669) and who presents a written
certification from the international organization that the proposed
employment is within the scope of the organization's sponsorship. The
F-1 student must also present an I-20 ID endorsed by the DSO in the last
30 days; or
(iii) Is seeking employment because of severe economic hardship
pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has filed the Form I-20, Form
I-538 and any other supporting materials such as affidavits which
further detail the unforeseen economic circumstances that require the
student to seek employment authorization and evidence the fact that the
student has attempted to find employment under 8 CFR 214.2(f)(9)(ii)(B);
(4) An alien spouse or unmarried dependent child; son or daughter of
an officer of, representative to, or employee of an international
organization (G-1, G-3 or G-4) pursuant to 214.2(g) of this chapter who
presents a fully executed Form I-566 bearing the endorsement of an
authorized representative of the Department of State;
(5) An alien spouse or minor child of an exchange visitor (J-2)
pursuant to 214.2(j) of this chapter;I11(6) A nonimmigrant (M-1)
student seeking employment for practical training pursuant to 8 CFR
214.2(m) following completion of studies. The alien may be employed
only in an occupation or vocation directly related to his or her course
of study as recommended by the endorsement of the designated school
official on the I-20 ID;
(6) A nonimmigrant (M-1) student seeking employment for practical
training pursuant to 8 CFR 214.2(m) following completion of studies.
The alien may be employed only in an occupation or vocation directly
related to his or her course of study as recommended by the endorsement
of the designated school official on the I-20 ID;
(7) A dependent of an alien classified as NATO-1 through NATO-7
pursuant to 214.2(n) of this chapter;
(8) An alien who has filed a non-frivolous application for asylum
pursuant to part 208 of this chapter. Employment authorization shall be
granted in increments not exceeding one year during the period the
application is pending (including any period when an administrative
appeal or judicial review is pending) and shall expire on a specified
date;
(9) An alien who has filed an application for adjustment of status to
lawful permanent resident pursuant to part 245 of this chapter.
Employment authorization shall be granted in increments not exceeding
one year during the period the application is pending (including any
period when an administrative appeal or judicial review is pending) and
shall expire on a specified date;
(10) An alien who has filed an application for suspension of
deportation pursuant to part 244 of this chapter, if the alien
establishes an economic need to work; if the alien establishes an
economic need to work. Employment authorization shall be granted in
increments not exceeding one year during the period the application is
pending (including any period when an administrative appeal or judicial
review is pending) and shall expire on a specified date;
(11) An alien paroled into the United States temporarily for emergent
reasons or reasons deemed strictly in the public interest pursuant to
212.5 of this chapter;
(12) A deportable alien granted voluntary departure, either prior to
or after hearing, for reasons set forth in 242.5(a)(2)(v), (a)(2)(vi),
or (a)(2)(viii) of this chapter may be granted permission to be employed
for that period of time prior to the date set for voluntary departure
including any extension granted beyond such date; if the alien
establishes an economic need to work. Factors which may be considered
in adjudicating the application for employment authorization of such an
alien granted voluntary departure include, but are not limited to, the
following:
(i) The length of voluntary departure granted;
(ii) The existence of a dependent spouse and/or children in the
United States who rely on the alien for support;
(iii) Whether there is a reasonable chance that legal status may
ensue in the near future; and
(iv) Whether there is a reasonable basis for consideration of
discretionary relief.
(13) Any non-detained alien against whom exclusion or deportation
proceedings have been instituted and who does not have a final order of
deportation or exclusion, may be granted employment authorization if the
district director determines that employment authorization is
appropriate. Factors which may be considered by the district director
in adjudicating the application for employment authorization include,
but are not limited to, the following:
(i) The existence of economic necessity to be employed;
(ii) The existence of a dependent spouse and/or children in the
United States who rely on the alien for support;
(iii) Whether there is a reasonable chance that legal status may
ensue in the near future; and
(iv) Whether there is a reasonable basis for consideration of
discretionary relief;
(14) An alien who has been granted deferred action, an act of
administrative convenience to the government which gives some cases
lower priority, if the alien establishes an economic necessity for
employment;
(15) (Reserved)
(16) Any alien who has filed an application for creation of record of
lawful admission for permanent residence pursuant to part 249 of this
chapter. Employment authorization shall be granted in increments not
exceeding one year during the period the application is pending
(including any period when an administrative appeal or judicial review
is pending) and shall expire on a specific date;
(17) A nonimmigrant visitor for business (B-1) who:
(i) Is a personal or domestic servant who is accompanying or
following to join an employer who seeks admission into, or is already
in, the United States as a nonimmigrant defined under sections
101(a)(15) (B), (E), (F), (H), (I), (J), (L) or section 214(e) of the
Act. The personal or domestic servant shall have a residence abroad
which he or she has no intention of abandoning and shall demonstrate at
least one year's experience as a personal or domestic servant. The
nonimmigrant's employer shall demonstrate that the employer/employee
relationship has existed for at least one year prior to the employer's
admission to the United States; or, if the employer/employee
relationship existed for less than one year, that the employer has
regularly employed (either year-round or seasonally) personal or
domestic servants over a period of several years preceding the
employer's admission to the United States;
(ii) Is a domestic servant of a United States citizen accompanying or
following to join his or her United States citizen employer who has a
permanent home or is stationed in a foreign country, and who is visiting
temporarily in the United States. The employer/employee relationship
shall have existed prior to the commencement of the employer's visit to
the United States; or
(iii) Is an employee of a foreign airline engaged in international
transportation of passengers freight, whose position with the foreign
airline would otherwise entitle the employee to classification under
section 101(a)(15)(E)(i) of the Immigration and Nationality Act, and who
is precluded from such classification solely because the employee is not
a national of the country of the airline's nationality or because there
is no treaty of commerce and navigation in effect between the United
States and the country of the airline's nationality.
(18) An alien against whom a final order of deportation exists and
who is released on an order of supervision under the authority contained
in section 242(d) of the Act may be granted employment authorization if
the district director determines that employment authorization is
appropriate. Factors which may be considered by the district director
in adjudicating the application for employment authorization include,
but are not limited to, the following:
(i) The existence of economic necessity to be employed;
(ii) The existence of a dependent spouse and/or children in the
United States who rely on the alien for support; and
(iii) The anticipated length of time before the alien can be removed
from the United States.
(19) An alien applying for Temporary Protected Status pursuant to
section 244A of the Act shall apply for employment authorization only in
accordance with the procedures set forth in part 240 of this chapter.
(d) Basic criteria to establish economic necessity. Title 45 --
Public Welfare, Poverty Guidelines, 45 CFR 1060.2 should be used as the
basic criteria to establish eligibility for employment authorization
when the alien's economic necessity is identified as a factor. The
alien shall submit an application for employment authorization listing
his or her assets, income, and expenses as evidence of his or her
economic need to work. Permission to work granted on the basis of the
alien's application for employment authorization may be revoked under
274a.14 of this chapter upon a showing that the information contained in
the statement was not true and correct.
(52 FR 16221, May 1, 1987, as amended at 53 FR 8614, Mar. 16, 1988;
53 FR 46855, Nov. 21, 1988; 54 FR 16, Jan. 3, 1989; 55 FR 25936, June
25, 1990; 56 FR 624, Jan. 7, 1991; 56 FR 23499, May 22, 1991; 56 FR
41787, Aug. 23, 1991; 56 FR 55616, Oct. 29, 1991; 57 FR 6462, Feb. 25,
1992; 57 FR 14627, Apr. 21, 1992; 57 FR 31956, July 20, 1992; 57 FR
42885, Sept. 17, 1992)
08 CFR 274a.13 Application for employment authorization.
(a) General. An application for employment authorization (Form
I-765) by an alien under 274a.12(a) (3) through (8) and (10)-(13) and
under 274a.12(c) of this part shall be filed in accordance with the
instructions on Form I-765 with the district director having
jurisdiction over the applicant's residence or the district director
having jurisdiction over the port of entry at which the alien applies.
The approval of an application for employment authorization shall be
within the discretion of the district director. Where economic
necessity had been identified as a factor, the alien must provide
information regarding his or her assets, income, and expenses in
accordance with the instructions on the Form I-765.
(b) Approval of application. If the application is granted, the
alien shall be notified of the decision and issued an INS employment
authorization document valid for a specific period and subject to any
terms and conditions as noted.
(c) Denial of application. If the application is denied, the
applicant shall be notified in writing of the decision and the reasons
for the denial. There shall be no appeal from the denial of the
application.
(d) Interim employment authorization. The district director shall
adjudicate the application within 90 days from the date of receipt of
the application by the Service. Failure to complete the adjudication
within 90 days will result in the grant of an employment authorization
document for a period not to exceed 240 days. Such authorization shall
be subject to any conditions noted on the employment authorization
document. However, if the district director adjudicates the application
prior to the expiration date of the interim employment authorization and
denies the individual's employment authorization application, the
interim employment authorization granted under this section shall
automatically terminate as of the date of the district director's
adjudication and denial.
(52 FR 16221, May 1, 1987, as amended at 53 FR 8614, Mar. 16, 1988;
55 FR 25937, June 25, 1990; 56 FR 41787, Aug. 23, 1991; 57 FR 6462,
Feb. 25, 1992; 57 FR 14627, Apr. 21, 1992)
08 CFR 274a.14 Termination of employment authorization.
(a) Automatic termination of employment authorization -- (1)
Employment authorization granted under 274a.12(c) of this chapter shall
automatically terminate upon the occurrence of one of the following
events:
(i) The expiration date specified by the Service on the employment
authorization document is reached;
(ii) Exclusion or deportation proceedings are instituted (however,
this shall not preclude the authorization of employment pursuant to
274a.12(c) of this part where appropriate); or
(iii) The alien is granted voluntary departure.
(2) Termination of employment authorization pursuant to this
paragraph does not require the service of a notice of intent to revoke;
employment authorization terminates upon the occurrence of any event
enumerated in paragraph (a)(1) of this section.
However, automatic revocation under this section does not preclude
reapplication for employment authorization under 274.12(c) of this
part.
(b) Revocation of employment authorization -- (1) Basis for
revocation of employment authorization. Employment authorization
granted under 274a.12(c) of this chapter may be revoked by the district
director:
(i) Prior to the expiration date, when it appears that any condition
upon which it was granted has not been met or no longer exists, or for
good cause shown; or
(ii) Upon a showing that the information contained in the application
is not true and correct.
(2) Notice of intent to revoke employment authorization. When a
district director determines that employment authorization should be
revoked prior to the expiration date specified by the Service, he or she
shall serve written notice of intent to revoke the employment
authorization. The notice will cite the reasons indicating that
revocation is warranted. The alien will be granted a period of fifteen
days from the date of service of the notice within which to submit
countervailing evidence. The decision by the district director shall be
final and no appeal shall lie from the decision to revoke the
authorization.
(c) Automatic termination of temporary employment authorization
granted prior to June 1, 1987 -- (1) Temporary employment authorization
granted prior to June 1, 1987, pursuant to 8 CFR 109.1(b), or its
redesignation as 274a.12(c) of this part, shall automatically terminate
on the date specified by the Service on the document issued to the
alien, or on June 1, 1988, whichever is earlier. Automatic termination
of temporary employment authorization does not preclude a subsequent
application for temporary employment authorization.
(2) A document issued by the Service prior to June 1, 1987, that
authorizes temporary employment authorization for any period beyond June
1, 1988, is null and void pursuant to paragraph (c)(1) of this section,
and must be surrendered to the Service on the date that the temporary
employment authorization terminates or on June 1, 1988, whichever is
earlier. The alien shall be issued a new employment authorization
document at the time the document is surrendered to the Service if the
alien is eligible for temporary employment authorization pursuant to
274a.12(c) of this chapter.
(3) No notice of intent to revoke is necessary for the automatic
termination of temporary employment authorization pursuant to this part.
(52 FR 16221, May 1, 1987, as amended at 53 FR 8614, Mar. 16, 1988;
53 FR 20087, June 1, 1988)
Effective Date Note: At 53 FR 20087, June 1, 1988, paragraph (c) of
274a.14 is stayed and suspended until further notice.
08 CFR 274a.14 PART 280 -- IMPOSITION AND COLLECTION OF FINES
08 CFR 274a.14 Pt. 280
Sec.
280.1 Notice of intention to fine; administrative proceedings not
exclusive.
280.2 Special provisions relating to aircraft.
280.3 Departure of vessel or aircraft prior to denial of clearance.
280.4 Data concerning cost of transportation.
280.5 Mitigation or remission of fines.
280.6 Bond to obtain clearance; form.
280.7 Approval of bonds or acceptance of cash deposit to obtain
clearance.
280.11 Notice of intention to fine; procedure.
280.12 Answer and request or order for interview.
280.13 Disposition of case.
280.14 Record.
280.15 Notice of final decision to district director of customs.
280.21 Seizure of aircraft.
280.51 Application for mitigation or remission.
280.52 Payment of fines.
Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 1283,
1284, 1285, 1286, 1322, 1323, and 1330; 66 Stat. 173, 195, 197, 201,
203, 212, 219, 221-223, 226, 227, 230.
Source: 22 FR 9807, Dec. 6, 1957, unless otherwise noted.
08 CFR 280.1 Notice of intention to fine; administrative proceedings
not exclusive.
Whenever a district director or the Associate Commissioner for
Examinations, or the Director for the National Fines Office has reason
to believe that any person has violated any of the provisions of the
Immigration and Nationality Act and has thereby become liable to the
imposition of an administrative fine under the Immigration and
Nationality Act, he shall cause a Notice of Intention to Fine, Form
I-79, to be served as provided in this part. Nothing in this subchapter
shall affect, restrict, or prevent the institution of a civil suit, in
the discretion of the Attorney General, under the authority contained in
section 280 of the Immigration and Nationality Act.
(22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989)
08 CFR 280.2 Special provisions relating to aircraft.
In any case in which the imposition of a fine is predicated upon an
alleged violation of a regulation promulgated under authority of section
239 of the Immigration and Nationality Act, the procedure prescribed in
this part shall be followed and the aircraft involved shall not be
granted clearance pending determination of the question of liability to
the payment of any fine, or while the fine remains unpaid; but
clearance may be granted prior to the determination of such question
upon the deposit of a sum sufficient to cover such fine or of a bond
with sufficient surety to secure the payment thereof, approved by the
Commisioner. If the alleged violation was by the owner or person in
command of the aircraft, the penalty provided for shall be a lien
against the aircraft, which, except as provided in 280.21, shall be
seized by the district director or by an immigration officer designated
by the district director, and placed in the custody of the customs
officer who is in charge of the port of entry or customs station nearest
the place of seizure. If the owner or owners of the airport at which
such aircraft is located are the owners of the seized aircraft, the
aircraft shall be removed to another suitable place for storage if
practicable.
(22 FR 9807, Dec. 6, 1957, as amended at 32 FR 17651, Dec. 12, 1967;
56 FR 26020, June 6, 1991)
08 CFR 280.3 Departure of vessel or aircraft prior to denial of
clearance.
If any vessel or aircraft which is subject to the imposition of a
fine shall have departed from the United States prior to the denial of
clearance by the district director of customs and such vessel or
aircraft is subsequently found in the United States, a Notice of
Intention to Fine, Form I-79, shall be served as provided in this part,
if such form has not been previously served for the same violation.
Clearance of such vessel or aircraft shall be withheld by the district
director of customs, and the procedure prescribed in this part shall be
followed to the same extent and in the same manner as though the vessel
or aircraft had not departed from the United States. Aircraft subject
to the provisions of 280.2, which shall have departed from the United
States prior to the time of seizure could be effected, shall be subject
to all of the provisions of this part, if subsequently found in the
United States, to the same extent as though it had not departed from the
United States.
(22 FR 9807, Dec. 6, 1957, as amended at 32 FR 17651, Dec. 12, 1967)
08 CFR 280.4 Data concerning cost of transportation.
Within five days after request therefor, transportation companies
shall furnish to the district director or the Associate Commissioner for
Examinations, or the Director for the National Fines Office pertinent
information contained in the original transportation contract of all
rejected aliens whose cases are within the purview of any of the
provisions of the Immigration and Nationality Act relating to refund of
passage monies, and shall specify the exact amounts paid for
transportation from the initial point of departure (which point shall be
indicated) to the foreign port of embarkation, from the latter to the
port of arrival in the United States and from the port of arrival to the
inland point of destination, respectively, and also the amount paid for
headtax, if any.
(22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989)
08 CFR 280.5 Mitigation or remission of fines.
In any case in which mitigation or remission of a fine is authorized
by the Immigration and Nationality Act, the party served with Notice of
Intention to Fine may apply in writing to the district director or the
Associate Commissioner for Examinations, or the Director for the
National Fines Office for such mitigation or remission.
(22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989)
08 CFR 280.6 Bond to obtain clearance; form.
A bond to obtain clearance of a vessel or aircraft under section 231,
237, 239, 243, 251, 253, 254, 255, 256, 272, or 273 of the Immigration
and Nationality Act shall be filed on Form I-310.
(22 FR 9807, Dec. 6, 1957, as amended at 54 FR 102, Jan. 4, 1989)
08 CFR 280.7 Approval of bonds or acceptance of cash deposit to obtain
clearance.
The district director of customs is authorized to approve the bond,
or accept the sum of money which is being offered for deposit under any
provision of the Immigration and Nationality Act or by this chapter for
the purpose of obtaining clearance of a vessel or aircraft with the
exception of sections 239, 251(d), 255, 256, 272, and 273(d) in which
the Commissioner of the Immigration and Naturalization Service is
authorized to approve the bond or accept the sum of money which is being
offered for deposit.
(22 FR 9807, Dec. 6, 1957, as amended at 32 FR 17651, Dec. 12, 1967;
56 FR 26020, June 6, 1991)
08 CFR 280.11 Notice of intention to fine; procedure.
Notice of Intention to Fine, Form I-79, shall be prepared in
triplicate, with one additional copy for each additional person on whom
the service of such notice is contemplated. The notice shall be
addressed to any or all of the available persons subject to fine. A
copy of the notice shall be served by personal service on each such
person. If the notice is delivered personally, the person upon whom it
is served shall be requested to acknowledge such service by signing his
name to the duplicate and triplicate copies. The officer effecting such
service shall attest to the service by signing his name thereon and
shall indicate thereon the date and place of service. If the person so
served refuses to acknowledge service, or if service is made by leaving
it at an office or mailing it, the person making such service shall
indicate the method and date on the duplicate and triplicate copies of
Form I-79, and shall sign his name upon such copies. The duplicate copy
shall be retained by the district director of immigration and
naturalization or the Associate Commissioner for Examinations, or the
Director for the National Fines Office and the triplicate copy shall be
delivered directly to the district director of customs for the district
in which the vessel or aircraft is located, and the district director of
customs shall withhold clearance until deposit is made or bond furnished
as provided in the Immigration and Nationality Act. If the vessel or
aircraft is located in a customs district which is outside the
jurisdiction of the office of the Service having jurisdiction over the
matter, the triplicate copy shall be forwarded to the office of the
Service nearest such customs district for delivery to the district
director of customs.
(22 FR 9807, Dec. 6, 1957, as amended at 32 FR 17651, Dec. 12, 1967;
37 FR 11471, June 8, 1972; 54 FR 18649, May 2, 1989)
08 CFR 280.12 Answer and request or order for interview.
Within 30 days following the service of the Notice of Intention to
Fine (which period the district director or the Associate Commissioner
for Examinations, or the Director for the National Fines Office may
extend for an additional period of 30 days upon good cause being shown),
any person upon whom a notice under this part has been served may file
with the district director or the Associate Commissioner for
Examinations, or the Director for the National Fines Office a written
defense, in duplicate, under oath setting forth the reasons why a fine
should not be imposed, or if imposed, why it should be mitigated or
remitted if permitted by the Immigration and Nationality Act, and
stating whether a personal appearance is desired. Documentary evidence
shall be submitted in support of such defense and a brief may be
submitted in support of any argument made. If a personal interview is
requested, the evidence in opposition to the imposition of the fine and
in support of the request for mitigation or remission may be presented
at such interview. An interview shall be conducted if requested by the
party as provided hereinabove or, if directed at any time by the Board,
the Commissioner, or the district director or the Associate Commissioner
for Examinations, or the Director for the National Fines Office.
(22 FR 9807, Dec. 6, 1957, as amended at 54 FR 18649, May 2, 1989)
08 CFR 280.13 Disposition of case.
(a) Allegations admitted or no answer filed. If a request for
personal appearance is not filed and (1) the answer admits the
allegations in the notice, or (2) no answer is filed, the district
director or the Associate Commissioner for Examinations, or the Director
for the National Fines Office shall enter such order in the case as he
deems appropriate and no appeal from his decision may be taken.
(b) Answer filed; personal appearance. Upon receipt of an answer
asserting a defense to the allegations in the notice without requesting
a personal appearance, or if a personal appearance is requested or
directed, the case shall be assigned to an immigration officer. The
immigration officer shall prepare a report summarizing the evidence and
containing his findings and recommendation. The record, including the
report and recommendation of the immigration officer, shall be forwarded
to the district director or the Associate Commissioner for Examinations,
or the Director for the National Fines Office. The district director or
the Associate Commissioner for Examinations, or the Director for the
National Fines Office shall note on the report of the immigration
officer whether he approves or disapproves the recommendation of the
immigration officer. The person shall be informed in writing of the
decision of the district director or the Associate Commissioner for
Examinations, or the Director for the National Fines Office and, if his
decision is that a fine shall be imposed or that the requested
mitigation or remission shall not be granted, of the reasons for such
decision. From the decision of the district director or the Associate
Commissioner for Examinations, or the Director for the National Fines
Office an appeal may be taken to the Board within 15 days after the
mailing of the notification of decision as provided in part 3 of this
chapter.
(22 FR 9808, Dec. 6, 1957, as amended at 23 FR 9124, Nov. 26, 1958;
54 FR 18649, May 2, 1989)
08 CFR 280.14 Record.
The record made under 280.13 shall include the request for the
interview or a reference to the order directing the interview; the
medical certificate, if any; a copy of any record of hearing before a
Board of Special Inquiry, Hearing Examiner, Hearing Officer, or Special
Inquiry Officer which is relevant to the fine proceedings; the
duplicate copy of the Notice of Intention to Fine; the evidence upon
which such Notice was based; the duplicate of any notices to detain,
deport, deliver, or remove aliens; notice to pay expenses; evidence as
to whether any deposit was made or bond furnished in accordance with the
Immigration and Nationality Act; reports of investigations conducted;
documentary evidence and testimony adduced at the interview; the
original of any affidavit or brief filed in opposition to the imposition
of fine; the application for mitigation or remission; and any other
relevant matter.
08 CFR 280.15 Notice of final decision to district director of customs.
At such time as the decision under this part is final, the regional
administrative officer shall be furnished a copy of the decision by the
district director of immigration and naturalization or the Associate
Commissioner for Examinations, or the Director for the National Fines
Office. The regional administrative officer shall notify the district
director of customs who was furnished a copy of the Notice of Intention
to Fine of the final decision made in the case. Such notification need
not be made if the regional administrative officer has been previously
furnished with a notice of collection of the amount of the penalty by
the district director of customs.
(32 FR 17651, Dec. 12, 1967, as amended at 54 FR 18649, May 2, 1989)
08 CFR 280.21 Seizure of aircraft.
Seizure of an aircraft under the authority of section 239 of the Act
and 280.2 will not be made if such aircraft is damaged to an extent
that its value is less than the amount of the fine which may be imposed.
If seizure of an aircraft for violation of section 239 of the Act is to
be made, Form G-297 (Order to Seize Aircraft) and Form G-298 (Public
Notice of Seizure) shall be prepared in septuple and the originals
furnished to the immigration officer who will effect the seizure. The
original of Form G-297, properly endorsed as to date and place of
seizure, shall be returned for retention in the relating file after
seizure is effected. The original of Form G-298 shall be placed on the
seized aircraft and a copy retained in the file. Copies of both forms
shall be served upon the owner of the aircraft and the pilot if other
than the owner. Copies shall also be furnished the district director of
customs and the United States Attorney for the district in which the
seizure was made. In addition, immediately upon the seizure of an
aircraft, or prior thereto, if circumstances permit, a full report of
the facts in the case shall be submitted by the district director to the
United States Attorney for the district in which the seizure was made,
together with copies of Form G-296 (Report of Violation) and Form I-79
(Notice of Intention to Fine). The report shall include the cost
incurred in seizing and guarding the aircraft and an estimate of the
further additional cost likely to be incurred.
(29 FR 14433, Oct. 21, 1964, as amended at 32 FR 17651, Dec. 12,
1967)
08 CFR 280.51 Application for mitigation or remission.
(a) When application may be filed. An application for mitigation or
remission of a fine may be filed as provided under 280.12 of this part;
or, within 30 days after the date of receipt of the district director's
or the Associate Commissioner for Examinations, or the Director for the
National Fines Office's decision to impose a fine whether or not the
applicant responded to the Notice of Intention to Fine.
(b) Form and contents of application. An application for mitigation
or remission shall be filed in duplicate under oath and shall include
information, supported by documentary evidence, as to the basis of the
claim to mitigation or remission, and as to the action, if any, which
may have been taken by the applicant, or as to the circumstances present
in the case which, in the opinion of the applicant, justified the
granting of his application.
(c) Disposition of application. The application, if filed with the
answer, shall be disposed of as provided in 280.13. In any other case
the application shall be considered and decided by the district director
or the Associate Commissioner for Examinations, or the Director for the
National Fines Office from whose decision an appeal may be taken to the
Board within 15 days after the mailing of the notification of decision
as provided in part 3 of this chapter.
(22 FR 9808, Dec. 6, 1957, as amended at 23 FR 9124, Nov. 26, 1958;
46 FR 28624, May 28, 1981; 54 FR 18649, May 2, 1989)
08 CFR 280.52 Payment of fines.
(a) All fines assessed pursuant to sections 231(d); 237(b); 239;
251(d); 254(a); 255; 256; 271(a); 272, 273 and 274(c) of the Act
shall be made payable to and collected by the Service.
(b) All fines collected pursuant to sections 271(a) and 273 of the
Act shall be deposited in the Immigration User Fee Account established
in accordance with the provisions of section 286 of the Act.
(c) From the amounts collected under paragraphs (a) and (b) of this
section, the increase in penalties collected resulting from the
amendments made by sections 203(b), 543(a), and 544 of the Immigration
Act of 1990, shall be credited to the appropriation for activities
authorized under section 280(b) of the Act.
(56 FR 26020, June 6, 1991)
08 CFR 280.52 PART 282 -- FORMS FOR SALE TO PUBLIC
Authority: Sec. 103, 66 Stat. 173; 8 U.S.C. 1103.
08 CFR 282.1 Forms printed by the Public Printer.
The Public Printer is authorized to print for sale to the public, the
forms listed in 299.3 of this chapter.
(45 FR 6777, Jan. 30, 1980)
08 CFR 282.1 PART 286 -- IMMIGRATION USER FEE
Sec.
286.1 Definitions.
286.2 Fee for arrival of passengers aboard commercial aircraft or
commercial vessels.
286.3 Exceptions.
286.4 Fee collection responsibility.
286.5 Remittance and statement procedures.
286.6 Maintenance of records.
286.7 Penalties.
286.8 Establishment of pilot programs for the charging of a land
border user fee for inspection services.
Authority: 8 U.S.C. 1103, 1356; 8 CFR part 2.
Source: 53 FR 5757, Feb. 26, 1988, unless otherwise noted.
08 CFR 286.1 Definitions.
The following definitions apply to the following terms in this part:
(a) The term adjacent islands means Anguilla, Antigua, Aruba,
Bahamas, Barbados, Barbuda, Bermuda, Bonaire, British Virgin Islands,
Cayman Islands, Cuba, Curacao, Dominica, the Dominican Republic,
Grenada, Guadeloupe, Haiti, Jamaica, Marie-Galante, Martinique,
Miquelon, Montserrat, Saba, Saint Barthe1lemy, Saint Christopher, Saint
Eustatius, Saint Kitts-Nevis, Saint Lucia, Saint Maarten, Saint Martin,
Saint Pierre, Saint Vincent and Grenadines, Trinidad and Tobago, Turks
and Caicos Islands, and other British, French and Netherlands territory
or possessions bordering on the Caribbean Sea.
(b) The term collector means an air or sea carrier, travel agent,
tour wholesaler, or other entity which collects, but may or may not be
required to remit, fees pursuant to this part.
(c) The term commercial aircraft means any civilian aircraft being
used to transport persons or property for compensation or hire.
(d) The term commercial vessel means any civilian vessel being used
to transport persons or property for compensation or hire.
(e) The term Comptroller means the Office of the Comptroller,
Immigration and Naturalization Service, Room 6307, 425 I Street NW.,
Washington, DC 20536.
(f) The term fee means the immigration user fee.
(g) The term port of entry means a port or place designated by the
Commissioner at which a person may apply for admission into the United
States.
(h) The term remitter means an air or sea carrier, travel agent, tour
wholesaler, or other entity which collects, including receipt of fees
collected by collectors which are not required to remit fees, and remits
fees pursuant to this part.
(i) The term territories or possessions of the United States means
American Samoa, Baker Island, Howland Island, Jarvis Island, Johnston
Atoll, Kingman Reef, Midway, the Northern Mariana Islands, Swains
Island, Palmyra Island, and Wake Island.
(j) The term document for transportation means any document accepted
by a carrier in return for transportation.
(k) The term United States, when used in a geographical sense, means
the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and
the Virgin Islands of the United States.
08 CFR 286.2 Fee for arrival of passengers aboard commercial aircraft
or commercial vessels.
Under the provisions of section 286(b) of the Act a $5.00 fee per
individual is charged and collected by the Commissioner for the
immigration inspection of each passenger aboard a commercial aircraft or
commercial vessel, arriving at a port of entry in the United States, or
for the preinspection of a passenger in a place outside the United
States prior to such arrival, except as provided in 286.3 of this part.
08 CFR 286.3 Exceptions.
The fee set forth in 286.2 of this part shall not be charged or
collected from passengers who fall within any one of the following
categories:
(a) Persons whose travel is limited to Canada, Mexico, the United
States, adjacent islands, and territories or possessions of the United
States;
(b) Persons directly connected with the operation, navigation, or
business of the commercial aircraft or commercial vessel including
working crew, deadheading crew, U.S. Federal Aviation Administration
inspectors, sky marshals, and commercial airline or commercial vessel
employees on official business;
(c) Persons who are listed as foreign diplomats on the accreditation
list maintained by the U.S. Department of State or who are in possession
of a diplomatic visa (A-1 and 2, G-1 thru 4) valid for entry into the
United States;
(d) Persons who are passengers on any commercial aircraft or
commercial vessel owned or operated exclusively by the Government of the
United States or a foreign government, including any agency or political
subdivision thereof, so long as that aircraft or vessel is not
transporting any persons or property for commercial purposes.
(e) Persons who are passengers on commercial aircraft or commercial
vessels under contract to the U.S. Department of Defense, if they have
been preinspected outside of the United States under a joint Service and
U.S. Department of Defense military inspection program;
(f) Persons arriving on an aircraft or vessel due to an emergency or
forced landing when the original destination of the aircraft or vessel
was not the United States; and
(g) Persons transiting the United States who are not inspected by the
Service. Transit without visa passengers who are inspected by the
Service are not excepted from payment of the fee under this section.
08 CFR 286.4 Fee collection responsibility.
(a) It is the responsibility of the air or sea carriers, travel
agents, tour wholesalers, or other parties, which issue tickets or
documents for transportation on or after December 1, 1986, to collect
the fee set forth in 286.2 of this part from all passengers transported
to the United States who are not excepted under 286.3 of this part.
(b) Tickets and documents for transportation shall be marked by the
collector of the fee to indicate that the required fee has been
collected. Such markings shall be in accordance with the procedures set
forth in the ARC Industry Agents Handbook, the SATO Ticketing Handbook,
or compatible procedures set forth in the operations manual of
individual collectors.
(c) It is the responsibility of the carrier transporting a passenger
from the United States to collect the fee upon departure, if the
passenger was not excepted under 286.3 of this part and tickets or
documents for transportation of the passenger do not reflect collection
of the fee at the time of issuance. If at the time of departure such a
passenger refuses to pay the fee, the carrier shall record the full
name, complete address, nationality, passport number, and alien file
number, if any, of the passenger and immediately notify the Comptroller.
08 CFR 286.5 Remittance and statement procedures.
(a) The air or sea carrier whose ticket stock or document for
transportation reflects collection of the fee is responsible for
remittance of the fee to the Service. The travel agent, tour
wholesaler, or other entity, which issues their own non-carrier related
ticket or document for transportation to an air or sea passenger who is
not excepted from the fee pursuant to 286.3 of this part, is
responsible for remittance of the fee to the Service, unless by contract
the carrier will remit the fee.
(b) Fee remittances shall be sent to the Immigration and
Naturalization Service, Post Office Box No. 93963, Chicago, Illinois
60673-3963, for receipt no later than 31 days after the close of the
calendar quarter in which the fees are collected. Late payments will be
subject to interest, penalty, and handling charges as provided in the
Debt Collection Act of 1982 (31 U.S.C. 3717). Refunds by a remitter of
fees collected in conjunction with unused tickets or documents for
transportation should be netted against the next subsequent remittance.
(c) Along with the remittance, as set forth in paragraph (b) of this
section, each remitter making such remittance shall attach a statement
which sets forth the following:
(1) Name and address;
(2) Taxpayer identification number;
(3) Calendar quarter covered by the payment; and
(4) Amount collected and remitted.
(d) Remittances must be made by check or money order, payable in U.S.
dollars, through a U.S. bank, to ''Comptroller, INS''.
(e) Annually, each U.S. based remitter, which retains an independent
accountant and which remits $10,000 or more in fees in any one calendar
quarter, shall submit to the Comptroller a report from the independent
accountant in accordance with the Statement on Auditing Standards for
Attestation Engagements on the application of Passenger User Fee
Collection and Remittance Procedures established by the American
Institute of Certified Public Accountants and the Service, to the
Comptroller. Each foreign-based remitter, which retains an independent
accountant and which remits $10,000 or more in fees in any one calendar
quarter, shall submit a similar report to the Comptroller from the
independent accountant in accordance with generally accepted accounting
principles of their respective countries. These reports from the
independent accountants are to be submitted for receipt by the
Comptroller no later than ninety (90) days after the close of the fiscal
year of each remitter. Each remitter, which does not retain an
independent accountant or which does not remit $10,000 or more in any
one calendar quarter, shall certify under oath on each statement
submitted pursuant to paragraph (c) of this section that they have
complied with the applicable statutes and regulations.
(f) The Commissioner reserves the right to conduct an independent
audit of any collector or remitter not providing the report or
certification required pursuant to paragraph (e) of this section or
based upon other information indicating non-compliance in order to
assure the accuracy of the remittances of fees collected and remitted
and compliance with the applicable statutes and regulations.
(g) In order to enforce compliance with the provisions of this part,
the Commissioner may issue a subpoena requiring the production of
records, evidence, and witnesses pursuant to the procedures set forth in
28.4 of this chapter. The authority to issue a subpoena pursuant to
this section is limited to the Commissioner, Deputy Commissioner,
Associate Commissioner for Management, Director for Program Inspection,
all Regional Commissioners; and all District Directors.
(53 FR 5757, Feb. 26, 1988, as amended at 55 FR 729, Jan. 9, 1990)
08 CFR 286.6 Maintenance of records.
Each collector and remitter shall maintain records necessary for the
Service to verify the accuracy of fees collected and remitted and to
otherwise determine compliance with the applicable statutes and
regulations. Such records shall be maintained for a period of two years
from the date of fee collection. Each remitter shall advise the
Comptroller of the name, address, and telephone number of a responsible
officer who shall have the authority to verify and produce any records
required to be maintained under this part. The Comptroller shall be
promptly notified of any changes of the responsible officer.
08 CFR 286.7 Penalties.
Failure of any air or sea carrier to comply with the provisions of
section 286 of the Act and this part shall subject it to one or more of
the following:
(a) Termination of existing agreements under the provisions of
section 238 of the Act; and
(b) Suspension of enroute inspections or preinspections.
08 CFR 286.8 Establishment of pilot programs for the charging of a land
border user fee for inspection services.
(a) General. Under the provisions of section 286(q) of the Act, the
Service may establish pilot programs at one or more land border ports of
entry to charge fees for immigration inspection services to be collected
by the Commissioner. Individual ports of entry selected by the
Commissioner to participate in such pilot programs may charge a fee to
enhance inspection services and to recover the cost of:
(1) Hiring additional immigration inspectors, including all
associated personnel costs such as salary, benefits, and overtime;
(2) Expansion, operation and maintenance of information systems for
nonimmigrant control;
(3) Minor construction costs of adding new primary traffic lanes
(with the concurrence of the General Services Administration);
(4) Procuring detection devices and conducting training to identify
fraudulent documents used by applicants for entry to the United States;
and
(5) Administration of the Land Border Inspection Fee Account.
(b) Establishment of dedicated commuter lanes at selected ports of
entry. Dedicated commuter lanes are vehicular traffic lanes through
which a group of identified low risk frequent border crossers, who have
been prescreened and preauthorized, transit the border. Individual
participation in the dedicated commuter lane program by border crossers
is voluntary. Individuals whose applications for participation in the
program are denied are not precluded from applying for admission to the
United States through the regular inspection lanes.
(1) Designation of participating ports of entry. The following
criteria shall be used in the selection of port of entry locations for
the establishment of dedicated commuter lanes under a pilot program:
(i) The location has an identifiable group of low risk frequent
border crossers, who cross a minimum of once weekly for a regular
definable purpose;
(ii) The institution of a dedicated commuter lane program shall not
significantly inhibit normal traffic flow; and
(iii) Sufficient Service personnel must be present to perform primary
and secondary inspection functions.
(2) Eligibility requirements for applicants. Applicants for
participation in the program must meet the following requirements:
(i) The applicant is a citizen of the United States or a citizen of
the country contiguous to the specific port of entry sponsoring the
commuter lane program in which the applicant seeks to participate;
(ii) Non-United States citizen applicants must be otherwise
admissible to the United States;
(iii) Applicant agrees to furnish all information requested on the
application, Form I-823, Application -- Dedicated Commuter Lane Program;
(iv) Applicant agrees to a physical inspection of the registered
vehicle prior to initial use of the dedicated commuter lane; and
(v) Applicant pays the required fee, upon approval of the
application.
(3) Conditions for use of the dedicated commuter lanes. Participants
in the dedicated commuter lane program must agree to abide by all
conditions imposed, including, but not limited to:
(i) Limitations on the number and identity of passengers permitted in
a designated vehicle;
(ii) Limitation of participation to individuals who cross in regular
passenger vehicles other than taxis and other vehicles operated for hire
by individuals or transportation companies;
(iii) The possibility of a full and complete vehicular and passenger
inspection at any time during use of the dedicated commuter lane for
entry into the United States;
(iv) State and federal laws regarding the importation of alcohol;
(v) All federal, state and local laws regarding the importation or
possession of controlled substances as defined in section 101 of the
Controlled Substance Act (21 U.S.C. 802); and
(vi) All other pertinent laws and regulations under the jurisdiction
of any other federal inspection agency.
(4) Approval of application. (i) Applications for participation in a
dedicated commuter lane program may be accepted, at the discretion of
the District Director, on either a continuous or periodic basis; and
(ii) At the discretion of the District Director, applications without
fee may be accepted from local, state, federal and foreign government
agencies for participation by employees of those agencies traveling in
specific government vehicles, while engaged in official government
business.
(iii) Applications for participation in the dedicated commuter lane
program must be submitted annually. Authorization documents, such as
decals or authorization letters, shall be valid for one year from date
of approval.
(5) Denial of application. An application for participation in a
dedicated commuter lane program may be denied at the discretion of the
District Director with no appeal. Applicants will be notified of such
denial.
(6) Violation of conditions of the program. A participant who
violates any condition for the use of the dedicated commuter lane may be
removed from the program at the discretion of the District Director, and
shall be subject to the imposition of applicable fines, penalties,
and/or sanctions as provided by law.
(7) Responsibility of participant. (i) It shall be the
responsibility of the participant to notify the Service if an approved
vehicle is sold, stolen, or disposed of otherwise. If the vehicle is
sold, it is the responsibility of the participant to remove or
obliterate any identifying decal or other authorization for
participation in the program from the vehicle at the time of such sale.
Upon purchase of a replacement vehicle, participants may submit a new
properly executed Form I-823 with fee in order to receive a new decal,
valid for one year from date of approval.
(ii) If a vehicle is stolen or damaged beyond repair, and an
identifying decal authorizing that vehicle to use a dedicated commuter
lane is affixed to the windshield, no replacement decal shall be issued.
Participants must submit a new properly executed Form I-823 with fee.
(iii) If a windshield becomes broken and must be replaced, and an
identifying decal authorizing that vehicle to use a dedicated commuter
lane is affixed to the broken windshield, the Service may issue a
replacement decal. The decal shall be valid to the date of the original
decal. The program participant must submit a properly executed Form
I-823, Application -- Dedicated Commuter Lane Program, without fee, as
well as a receipt, properly documented with the Vehicle Identification
Number and the vehicle license tag number, for the purchase of a new
windshield.
(c) Establishment of per vehicle user fees at selected ports of
entry. A pilot program for the collection of a per vehicle fee for the
immigration inspection of all travelers within a vehicle may be
established.
(1) The following criteria shall be employed in the selection of port
of entry locations for the establishment of programs charging a per
vehicle user fee:
(i) A participating port of entry shall be a class A port of entry
located within 25 miles of another class A port of entry;
(ii) Space shall be available for facility modification, if needed,
for the collection of such a per vehicle fee;
(iii) Sufficient Service personnel shall be present to perform
primary and secondary inspection functions;
(iv) A memorandum of understanding, concerning the establishment and
implementation of the per vehicle user fee, with all other affected
federal inspection agencies shall be in effect; and
(v) Site specific consultations shall be conducted, through
appropirate channels, with government representatives of the country
contiguous to the selected site as well as with representatives of the
affected states and local communities.
(2) A per vehicle user fee shall not be charged or collected from
passengers who:
(i) Travel in emergency vehicles;
(ii) Travel in United States, Canadian, or Mexican government
vehicles on official business;
(iii) Are listed as foreign diplomats on the accreditation list
maintained by the United States Department of State or who are in
possession of a diplomatic visa (A-1 and A-2, G-1 through G-4), valid
for entry into the United States;
(iv) Travel in International Water and Boundary Commission vehicles
on official business; or
(v) Are American Indians born in Canada, as defined in 8 CFR 289.1,
members of the United States armed forces entering under orders, and/or
members of a force of a NATO country signatory to Article III of the
Status of Forces Agreement entering under orders.
(56 FR 21919, May 13, 1991)
08 CFR 286.8 PART 287 -- FIELD OFFICERS; POWERS AND DUTIES
Sec.
287.1 Definitions.
287.2 Criminal violations; investigation and action.
287.3 Disposition of cases of aliens arrested without warrant.
287.4 Subpoena.
287.5 Power and authority to administer oaths.
287.6 Proof of official records.
287.7 Detainer provisions under section 287(d)(3) of the Act.
Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8 CFR
part 2.
08 CFR 287.1 Definitions.
(a)(1) External boundary. The term external boundary, as used in
section 287(a)(3) of the Act, means the land boundaries and the
territorial sea of the United States extending 12 nautical miles from
the baselines of the United States determined in accordance with
international law.
(2) Reasonable distance. The term reasonable distance, as used in
section 287(a) (3) of the Act, means within 100 air miles from any
external boundary of the United States or any shorter distance which may
be fixed by the district director, or, so far as the power to board and
search aircraft is concerned any distance fixed pursuant to paragraph
(b) of this section.
(b) Reasonable distance; fixing by district directors. In fixing
distances not exceeding 100 air miles pursuant to paragraph (a) of this
section, district directors shall take into consideration topography,
confluence of arteries of transportation leading from external
boundaries, density of population, possible inconvenience to the
traveling public, types of conveyances used, and reliable information as
to movements of persons effecting illegal entry into the United States:
Provided, That whenever in the opinion of a district director a distance
in his district of more than 100 air miles from any external boundary of
the United States would because of unusual circumstances be reasonable,
such district director shall forward a complete report with respect to
the matter to the Commissioner, who may, if he determines that such
action is justified, declare such distance to be reasonable.
(c) Exercise of power by immigration officers. Any immigration
officer is hereby authorized to exercise anywhere in the United States
all the powers conferred by section 287 of the Act.
(d) Disposition of felony cases. The cases of persons arrested for
felonies under paragraph (4) of section 287(a) of the Immigration and
Nationality Act shall be handled administratively in accordance with the
applicable provisions of 287.2 but in no case shall there be prejudiced
the right of the person arrested to be taken without unnecessary delay
before another near-by officer empowered to commit persons charged with
offenses against the laws of the United States.
(e) Power to arrest persons who bring in, transport, or harbor
certain aliens, or induce them to enter. Any immigration officer shall
have authority to make arrests for violations of any provision of
section 274 of the Immigration and Nationality Act.
(f) Patrolling the border. The phrase patrolling the border to
prevent the illegal entry of aliens into the United States as used in
section 287 of the Immigration and Nationality Act means conducting such
activities as are customary, or reasonable and necessary, to prevent the
illegal entry of aliens into the United States.
(g) Arrested by federal, state, or local law enforcement official.
The term arrested, as used in section 287(d) of the Act (as amended by
section 1701 (Subtitle M) of the Anti-Drug Abuse Act of 1986, Pub. L.
99-509), means that an alien has been --
(1) Physically taken into custody for a criminal violation of the
controlled substance laws; and
(2) Subsequently booked, charged or otherwise officially processed;
or
(3) Provided an initial appearance before a judicial officer where
the alien has been informed of the charges and the right to counsel.
(h) Law enforcement or other official. The phrase law enforcement
official (or other official), as used in section 287(d) of the Act, and
242.2(a) of this part means an officer or employee of an agency engaged
in the administration of criminal justice pursuant to statute or
executive order, including (1) courts; (2) a government agency or
component which performs the administration of criminal justice as
defined in 28 CFR part 20 including performance of any of the following
activities: detection, apprehension, detention, pretrial release,
post-trial release, prosecution, adjudication, correctional supervision,
or rehabilitation of accused persons or criminal offenders.
(i) Controlled substance. The term controlled substance, as used in
section 287(d)(3) of the Act, shall mean the same as that referenced in
the Controlled Substances Act, 21 U.S.C. 801 et seq. , and shall include
any substance contained in Schedules I through V of 21 CFR 1308.1 et
seq. For the purposes of this chapter, the term controlled substance
includes controlled substance analogues as defined in 21 U.S.C. 802(23)
and 813.
(22 FR 9808, Dec. 6, 1957, as amended at 29 FR 13244, Sept. 24, 1964;
53 FR 9283, Mar. 22, 1988; 57 FR 47258, Oct. 15, 1992)
08 CFR 287.2 Criminal violations; investigation and action.
Whenever a district director or chief patrol agent has reason to
believe that there has been a violation punishable under any criminal
provision of the laws administered or enforced by the Service, he shall
cause an investigation to be made immediately of all the pertinent facts
and circumstances and shall take or cause to be taken such further
action as the results of such investigation warrant.
(35 FR 16362, Oct. 20, 1970)
08 CFR 287.3 Disposition of cases of aliens arrested without warrant.
An alien arrested without a warrant of arrest under the authority
contained in section 287(a)(2) of the Immigration and Nationality Act
shall be examined as therein provided by an officer other than the
arresting officer. If no other qualified officer is readily available
and the taking of the alien before another officer would entail
unnecessary delay, the arresting officer, if the conduct of such
examination is a part of the duties assigned to him/her, may examine the
alien. If such examining officer is satisfied that there is prima facie
evidence establishing that the arrested alien was entering or attempting
to enter the United States in violation of the immigration laws, he/she
shall refer the case to an immigration judge for further inquiry in
accordance with parts 235 and 236 of this chapter or take whatever other
action may be appropriate or required under the laws or regulations
applicable to the particular case. If the examining officer is
satisfied that there is prima facie evidence establishing that the
arrested alien is in the United States in violation of the immigration
laws, further action in the case shall be taken as provided in part 242
of this chapter. After the examining officer has determined that formal
proceedings under sections 236, 237, or 242 of the Act, will be
instituted, an alien arrested without warrant of arrest shall be advised
of the reason for his/her arrest and the right to be represented by
counsel of his/her choice, at no expense to the government. The alien
shall also be provided with a list of the available free legal services
programs qualified under part 292a of this chapter and organizations
recognized pursuant to 292.2 of this chapter which are located in the
district where the deportation hearing will be held. It shall be noted
on Form I-213 that such a list was provided to the alien. The alien
shall also be advised that any statement made may be used against
him/her in a subsequent proceeding and that a decision will be made
within 24 hours as to whether he/she will be continued in custody or
released on bond or recognizance. Unless voluntary departure has been
granted pursuant to 242.5 of this chapter, the alien's case shall be
presented promptly, and in any event within 24 hours, for a
determination as to whether there is prima facie evidence that the
arrested alien is in the United States in violation of law and for
issuance of an order to show cause and warrant of arrest as prescribed
in part 242 of this chapter.
(51 FR 34082, Sept. 25, 1986)
08 CFR 287.4 Subpoena.
(a) Who may issue -- (1) Criminal or civil investigations. All
District Directors, Deputy District Directors, Chief Patrol Agents,
Deputy Chief Patrol Agents, Officers-in-Charge, Patrol Agents in Charge,
Assistant District Director, Investigations, Supervisory Criminal
Investigators (Anti-Smuggling), Regional Directors, Office of
Professional Responsibility, Service Center Directors, and Assistant
District Directors for Examinations, may issue a subpoena requiring the
production of records and evidence for use in criminal or civil
investigations.
(2) Proceedings other than naturalization proceedings -- (1) Prior to
commencement of proceedings. All District Directors, Deputy District
Directors, Chief Patrol Agents, Deputy Chief Patrol Agents, and
Officers-in-Charge, may issue a subpoena requiring the attendance of
witnesses or the production of documentary evidence, or both, for use in
any proceeding under this chapter, other than under part 335 of this
Chapter, or any application made ancillary to the proceeding.
(ii) Subsequent to commencement of any proceeding. (A) In any
proceeding under this chapter, other than under part 335 of this
chapter, and in any proceeding ancillary thereto, an immigration judge
having jurisdiction over the matter may, upon his/her own volition or
upon application of a trial attorney, the alien, or other party
affected, issue subpoenas requiring the attendance of witnesses or for
the production of books, papers and other documentary evidence, or both.
(B) Application for subpoena. A party applying for a subpoena shall
be required, as a condition precedent to its issuance, to state in
writing or at the proceeding, what he/she expects to prove by such
witnesses or documentary evidence, and to show affirmatively that he/she
has made diligent effort, without success, to produce the same.
(C) Issuance of subpoena. Upon being satisfied that a witness will
not appear and testify or produce documentary evidence and that the
witness' evidence is essential, the immigration judge shall issue a
subpoena.
(D) Appearance of witness. If the witness is at a distance of more
than 100 miles from the place of the proceeding, the subpoena shall
provide for the witnesses' appearance at the Service office nearest to
the witness to respond to oral or written interrogatories, unless the
Service indicates that there is no objection to bringing the witness the
distance required to enable him/her to testify in person.
(b) Form of subpoena. All subpoenas shall be issued on Form I-138.
(1) Criminal or civil investigations. The subpoena shall command the
person or entity to which it is addressed to attend and to give
testimony at a time or place specified. A subpoena shall also command
the person or entity to which it is addressed to produce the books,
papers, or documents specified in the subpoena. A subpoena may direct
the taking of a deposition before an officer of the Service.
(2) Proceedings other than naturalization proceedings. Every
subpoena issued under the provisions of this section shall state the
title of the proceeding and shall command the person to whom it is
directed to attend and to give testimony at a time and place specified.
A subpoena shall also command the person to whom it is directed to
produce the books, papers, or documents specified in the subpoena. A
subpoena may direct the making of a deposition before an officer of the
Service.
(c) Service. A subpoena issued under this section may be served by
any person, over 18 years of age not a party to the case, designated to
make such service by the District Director, Deputy District Director,
Chief Patrol Agent, Deputy Chief Patrol Agent, Patrol Agent in Charge,
Officer-in-Charge, Assistant District Director, Investigations,
Supervisory Criminal Investigator (Anti-Smuggling), and Regional
Director, Office of Professional Responsibility, having administrative
jurisdiction over the office in which the subpoena is issued. Service
of the subpoena shall be made by delivering a copy thereof to the person
named therein and by tendering to him/her the fee for one day's
attendance and the mileage allowed by law by the United States District
Court for the district in which the testimony is to be taken. When the
subpoena is issued on behalf of the Service, fee and mileage need not be
tendered at the time of service. A record of such service shall be made
and attached to the original copy of the subpoena.
(d) Invoking aid of court. If a witness neglects or refuses to
appear and testify as directed by the subpoena served upon him/her in
accordance with the provisions of this section, the officer issuing the
subpoena shall request the United States Attorney for the district in
which the subpoena was issued to report such neglect or refusal to the
United States District Court and to request such court to issue an order
requiring the witness to appear and testify and to produce the books,
papers or documents designated in the subpoena. If the subpoena was
issued by an immigration judge, he/she shall request the District
Director in the district in which the subpoena was issued to take the
action referred to in the previous sentence in the event the witness
neglects or refuses to appear and testify as directed by the subpoena
served upon him.
(50 FR 30134, July 24, 1985; 50 FR 47205, Nov. 15, 1985, as amended
at 55 FR 12628, Apr. 5, 1990)
08 CFR 287.5 Power and authority to administer oaths.
Any immigration officer, or any other employee individually
designated by a district director, shall have the power and authority to
administer oaths in or outside the United States.
(29 FR 12584, Sept. 4, 1964)
08 CFR 287.6 Proof of official records.
(a) Domestic. In any proceeding under this chapter, an official
record or entry therein, when admissible for any purpose, shall be
evidenced by an official publication thereof, or by a copy attested by
the official having legal custody of the record or by an authorized
deputy.
(b) Foreign: Countries not Signatories to Convention. (1) In any
proceeding under this chapter, an official record or entry therein, when
admissible for any purpose, shall be evidenced by an official
publication thereof, or by a copy attested by an officer so authorized.
This attested copy in turn may but need not be certified by any
authorized foreign officer both as to the genuineness of the signature
of the attesting officer and as to his/her official position. The
signature and official position of this certifying foreign officer may
then likewise be certified by any other foreign officer so authorized,
thereby creating a chain of certificates.
(2) The attested copy, with the additional foreign certificates if
any, must be certified by an officer in the Foreign Service of the
United States, stationed in the foreign country where the record is
kept. This officer must certify the genuineness of the signature and
the official position either of (i) the attesting officer; or (ii) any
foreign officer whose certification of genuineness of signature and
official position relates directly to the attestation or is in a chain
of certificates of genuineness of signature and official position
relating to the attestation.
(c) Foreign: Countries Signatory to Convention Abolishing the
Requirement of Legislation for Foreign Public Document. (1) In any
proceeding under this chapter, a public document or entry therein, when
admissible for any purpose, may be evidenced by an official publication,
or by a copy properly certified under the Convention. To be properly
certified, the copy must be accompanied by a certificate in the form
dictated by the Convention. This certificate must be signed by a
foreign officer so authorized by the signatory country, and it must
certify (i) the authenticity of the signature of the person signing the
document; (ii) the capacity in which that person acted, and (iii) where
appropriate, the identity of the seal or stamp which the document bears.
(2) No certification is needed from an officer in the Foreign Service
of public documents.
(3) In accordance with the Convention, the following are deemed to be
public documents:
(i) Documents emanating from an authority or an official connected
with the courts of tribunals of the state, including those emanating
from a public prosecutor, a clerk of a court or a process server;
(ii) Administrative documents;
(iii) Notarial acts; and
(iv) Official certificates which are placed on documents signed by
persons in their private capacity, such as official certificates
recording the registration of a document or the fact that it was in
existence on a certain date, and official and notarial authentication of
signatures.
(4) In accordance with the Convention, the following are deemed not
to be public documents, and thus are subject to the more stringent
requirements of 287.6(b) above:
(i) Documents executed by diplomatic or consular agents; and
(ii) Administrative documents dealing directly with commercial or
customs operations.
(d) Canada. In any proceedings under this chapter, an official
record or entry therein, issued by a Canadian governmental entity within
the geographical boundaries of Canada, when admissible for any purpose,
shall be evidenced by a certified copy of the original record attested
by the official having legal custody of the record or by an authorized
deputy.
(50 FR 37834, Sept. 18, 1985, as amended at 54 FR 39337, Sept. 26,
1989; 54 FR 48851, Nov. 28, 1989)
08 CFR 287.7 Detainer provisions under section 287(d)(3) of the Act.
(a) Detainers in general. (1) Only an immigration officer as defined
in section 101(a)(18) of the Act, or 103.1(q) of this chapter is
authorized to issue a detainer. Detainers may be issued only in the
case of an alien who is amenable to exclusion or deportation proceedings
under any provision of law.
(2) Availability of records. In order for the Service to accurately
determine the propriety of issuing a detainer, serving an order to show
cause, or taking custody of an alien in accordance with this section,
the criminal justice agency requesting such action or informing the
service of a conviction or act which renders an alien excludable or
deportable under any provision of law shall provide the Service with all
documentary records and information available from the agency which
reasonably relates to the alien's status in the United States, or which
may have an impact on conditions of release.
(3) Telephonic detainers. Issuance of a detainer in accordance with
this section may be authorized telephonically, provided such
authorizations are confirmed in writing on Form I-247, or by electronic
communications transfer media (e.g. the National Law Enforcement
Telecommunications System (NLETS)) within twenty-four hours of the
telephonic authorization. The contents of the electronic transfer shall
contain substantially the same language as the Form I-247.
(4) Temporary detention at Service request. Upon a determination by
the Service to issue a detainer for an alien not otherwise detained by a
criminal justice agency, such agency shall maintain custody of the alien
for a period not to exceed forty-eight hours, in order to permit
assumption of custody by the Service.
(5) Financial responsibility for detention. No detainer issued as a
result of a determination made under this chapter shall incur any fiscal
obligation on the part of the Service, until actual assumption of
custody by the Service, except as provided in paragraph (a)(4) of this
section.
(53 FR 9283, Mar. 22, 1988, as amended at 55 FR 43327, Oct. 29, 1990)
08 CFR 287.7 PART 289 -- AMERICAN INDIANS BORN IN CANADA
Sec.
289.1 Definition.
289.2 Lawful admission for permanent residence.
289.3 Recording the entry of certain American Indians born in Canada.
Authority: Secs. 103, 262, 289, 66 Stat. 173, 224, 234; 8 U.S.C.
1103, 1302, 1359; 45 Stat. 401, 54 Stat. 670; 8 U.S.C. 226a, 451.
08 CFR 289.1 Definition.
The term American Indian born in Canada as used in section 289 of the
Act includes only persons possessing 50 per centum or more of the blood
of the American Indian race. It does not include a person who is the
spouse or child of such an Indian or a person whose membership in an
Indian tribe or family is created by adoption, unless such person
possesses at least 50 per centum or more of such blood.
(29 FR 11494, Aug. 11, 1964)
08 CFR 289.2 Lawful admission for permanent residence.
Any American Indian born in Canada who at the time of entry was
entitled to the exemption provided for such person by the Act of April
2, 1928 (45 Stat. 401), or section 289 of the Act, and has maintained
residence in the United States since his entry, shall be regarded as
having been lawfully admitted for permanent residence. A person who
does not possess 50 per centum of the blood of the American Indian race,
but who entered the United States prior to December 24, 1952, under the
exemption provided by the Act of April 2, 1928, and has maintained his
residence in the United States since such entry shall also be regarded
as having been lawfully admitted for permanent residence. In the
absence of a Service record of arrival in the United States, the record
of registration under the Alien Registration Act, of 1940 (54 Stat. 670;
8 U.S.C. 451), or section 262 of the Act, or other satisfactory
evidence may be accepted to establish the date of entry.
(29 FR 11494, Aug. 11, 1964)
08 CFR 289.3 Recording the entry of certain American Indians born in
Canada.
The lawful admission for permanent residence of an American Indian
born in Canada shall be recorded on Form I-181.
(33 FR 7485, May 21, 1968)
08 CFR 289.3 PART 292 -- REPRESENTATION AND APPEARANCES
Sec.
292.1 Representation of others.
292.2 Organizations qualified for recognition; requests for
recognition; withdrawal of recognition; accreditation of
representatives; roster.
292.3 Discipline of attorneys and representatives.
292.4 Appearances.
292.5 Service upon and action by attorney or representative of
record.
292.6 Interpretation.
Authority: 8 U.S.C. 1103, 1252b, 1362.
08 CFR 292.1 Representation of others.
(a) A person entitled to representation may be represented by any of
the following:
(1) Attorneys in the United States. Any attorney as defined in
1.1(f) of this chapter.
(2) Law students and law graduates not yet admitted to the bar. A
law student who is enrolled in an accredited law school, or a law
graduate who is not yet admitted to the bar, provided that:
(i) He or she is appearing at the request of the person entitled to
representation;
(ii) In the case of a law student, he or she has filed a statement
that he or she is participating, under the direct supervision of a
faculty member or an attorney, in a legal aid program or clinic
conducted by the law school, and that he or she is appearing without
direct or indirect remuneration;
(iii) In the case of a law graduate, he or she has filed a statement
that he or she is appearing under the supervision of a licensed attorney
or accredited representative and that he or she is appearing without
direct or indirect remuneration; and
(iv) The law student's or law graduate's appearance is permitted by
the official before whom he or she wishes to appear (namely an
Immigration Judge, district director, officer-in-charge, regional
commissioner, the Commissioner, or the Board). The official or
officials may require that a law student be accompanied by the
supervising faculty member or attorney.
(3) Reputable individuals. Any reputable individual of good moral
character, provided that:
(i) He is appearing on an individual case basis, at the request of
the person entitled to representation;
(ii) He is appearing without direct or indirect renumeration and
files a written declaration to that effect;
(iii) He has a pre-existing relationship or connection with the
person entitled to representation (e.g., as a relative, neighbor,
clergyman, business associate or personal friend), provided that such
requirement may be waived, as a matter of administrative discretion, in
cases where adequate representation would not otherwise be available;
and
(iv) His appearance is permitted by the official before whom he
wished to appear (namely, a special inquiry officer, district director,
officer-in-charge, regional commissioner, the Commissioner, or the
Board), provided that such permission shall not be granted with respect
to any individual who regularly engages in immigration and
naturalization practice or preparation, or holds himself out to the
public as qualified to do so.
(4) Accredited representatives. A person representing an
organization described in 292.2 of this chapter who has been accredited
by the Board.
(5) Accredited officials. An accredited official, in the United
States, of the government to which an alien owes allegiance, if the
official appears solely in his official capacity and with the alien's
consent.
(6) Attorneys outside the United States. An attorney other than one
described in 1.1(f) of this chapter who is licensed to practice law and
is in good standing in a court of general jurisdiction of the country in
which he/she resides and who is engaged in such practice. Provided that
he/she represents persons only in matters outside the geographical
confines of the United States as defined in section 101(a)(38) of the
Act, and that the Service official before whom he/she wishes to appear
allows such representation as a matter of discretion.
(b) Persons formerly authorized to practice. A person, other than a
representative of an organization described in 292.2 of this chapter,
who on December 23, 1952, was authorized to practice before the Board
and the Service may continue to act as a representative, subject to the
provisions of 292.3 of this chapter.
(c) Former employees. No person previously employed by the
Department of Justice shall be permitted to act as a representative in
any case in violation of the provisions of 28 CFR 45.735-7.
(d) Amicus curiae. The Board may grant permission to appear, on a
case-by-case basis, as amicus curiae, to an attorney or to an
organization represented by an attorney, if the public interest will be
served thereby.
(e) Except as set forth in this section, no other person or persons
shall represent others in any case.
(40 FR 23271, May 29. 1975, as amended at 53 FR 7728, Mar. 10, 1988;
55 FR 49251, Nov. 27, 1990)
08 CFR 292.2 Organizations qualified for recognition; requests for
recognition; withdrawal of recognition; accreditation of
representatives; roster.
(a) Qualifications of organizations. A non-profit religious,
charitable, social service, or similar organization established in the
United States and recognized as such by the Board may designate a
representative or representatives to practice before the Service and the
Board. Such organization must establish to the satisfaction of the
Board that:
(1) It makes only nominal charges and assesses no excessive
membership dues for persons given assistance; and
(2) It has at its disposal adequate knowledge, information and
experience.
(b) Requests for recognition. An organization having the
qualifications prescribed in paragraph (a) of this section may file an
application for recognition on a Form G-27 directly with the Board,
along with proof of service of a copy of the application on the district
director having jurisdiction over the area in which the organization is
located. The district director, within 30 days from the date of
service, shall forward to the Board a recommendation for approval or
disapproval of the application and the reasons therefor, or request a
specified period of time in which to conduct an investigation or
otherwise obtain relevant information regarding the applicant. The
district director shall include proof of service of a copy of such
recommendation or request on the organization. The organization shall
have 30 days in which to file a response with the Board to a
recommendation by a district director that is other than favorable,
along with proof of service of a copy of such response on the district
director. If the Board approves a request for time to conduct an
investigation, or in its discretion remands the application to the
district director for further information, the organization shall be
advised of the time granted for such purpose. The Service shall
promptly forward the results of any investigation or inquiry to the
Board, along with its recommendations for approval or disapproval and
the reasons therefor, and proof of service of a copy of the submission
on the organization. The organization shall have 30 days from the date
of such service to file a response with the Board to any matters raised
therein, with proof of service of a copy of the response on the district
director. Requests for extensions of filing times must be submitted in
writing with the reasons therefor and may be granted by the Board in its
discretion. Oral argument may be heard before the Board in its
discretion at such date and time as the Board may direct. The
organization and Service shall be informed by the Board of the action
taken regarding an application. Any recognized organization shall
promptly notify the Board of any changes in its name, address, or public
telephone number.
(c) Withdrawal of recognition. The Board may withdraw the
recognition of any organization which has failed to maintain the
qualifications required by 292.2(a). Withdrawal of recognition may be
accomplished in accordance with the following procedure:
(1) The Service, by the district director within whose jurisdiction
the organization is located, may conduct an investigation into any
organization it believes no longer meets the standards for recognition.
(2) If the investigation establishes to the satisfaction of the
district director that withdrawal proceedings should be instituted, he
shall cause a written statement of the grounds upon which withdrawal is
sought to be served upon the organization, with notice to show cause why
its recognition should not be withdrawn. The notice will call upon the
organization to appear before a special inquiry officer for a hearing at
a time and place stated, not less than 30 days after service of the
notice.
(3) The special inquiry officer shall hold a hearing, receive
evidence, make findings of fact, state his recommendations, and forward
the complete record to the Board.
(4) The organization and the Service shall have the opportunity of
appearing at oral argument before the Board at a time specified by the
Board.
(5) The Board shall consider the entire record and render its
decision. The order of the Board shall constitute the final disposition
of the proceedings.
(d) Accreditation of representatives. An organization recognized by
the Board under paragraph (b) of this section may apply for
accreditation of persons of good moral character as its representatives.
An organization may apply to have a representative accredited to
practice before the Service alone or the Service and the Board
(including practice before immigration judges). An application for
accreditation shall fully set forth the nature and extent of the
proposed representative's experience and knowledge of immigration and
naturalization law and procedure and the category of accreditation
sought. No individual may submit an application on his or her own
behalf. An application shall be filed directly with the Board, along
with proof of service of a copy of the application on the district
director having jurisdiction over the area in which the requesting
organization is located. The district director, within 30 days from the
date of service, shall forward to the Board a recommendation for
approval or disapproval of the application and the reasons therefor, or
request a specified period of time in which to conduct an investigation
or otherwise obtain relevant information regarding the applicant. The
district director shall include proof of service of a copy of such
recommendation or request on the organization. The organization shall
have 30 days in which to file a response with the Board to a
recommendation by a distrct director that is other than favorable, with
proof of service of a copy of such response on the district director.
If the Board approves a request for time to conduct an investigation, or
in its discretion remands the application to the district director for
further information, the organization shall be advised of the time
granted for such purpose. The district director shall promptly forward
the results of any investigation or inquiry to the Board, along with a
recommendation for approval or disapproval and the reasons therefor, and
proof of service of a copy of the submission on the organization. The
organization shall have 30 days from the date of service to file a
response with the Board to any matters raised therein, with proof or
service of a copy of the response on the district director. Requests
for extensions of filing times must be submitted in writing with the
reasons therefor and may be granted by the Board in its discretion.
Oral argument may be heard before the Board in its discretion at such
date and time as the Board may direct. The Board may approve or
disapprove an application in whole or in part and shall inform the
organization and the district director of the action taken with regard
to an application. The accreditation of a representative shall be valid
for a period of three years only; however, the accreditation shall
remain valid pending Board consideration of an application for renewal
of accreditation if the application is filed at least 60 days before the
third anniversary of the date of the Board's prior accreditation of the
representative. Accreditation terminates when the Board's recognition
of the organization ceases for any reason or when the representative's
employment or other connection with the organization ceases. The
organization shall promptly notify the Board of such changes.
(e) Roster. The Board shall maintain an alphabetical roster of
recognized organizations and their accredited representatives. A copy
of the roster shall be furnished to the Commissioner and he shall be
advised from time to time of changes therein.
(40 FR 23272, May 29, 1975, as amended at 49 FR 44086, Nov. 2, 1984)
08 CFR 292.3 Discipline of attorneys and representatives.
(a) Grounds. The Immigration Judge, Board, or Attorney General may
suspend or bar from further practice before the Executive Office for
Immigration Review or the Service, or may take other appropriate
disciplinary action against, an attorney or representative if it is
found that it is in the public interest to do so. Appropriate
disciplinary sanctions may include disbarment, suspension, reprimand or
censure, or such other sanction as deemed appropriate. The suspension,
disbarment, or imposition of other appropriate disciplinary action
against an attorney or representative who is within one or more of the
following categories shall be deemed to be in the public interest, for
the purposes of this part, but the enumeration of the following
categories does not constitute the exclusive grounds for discipline in
the public interest:
(1) Who charges or receives, either directly or indirectly, any fee
or compensation for services which may be deemed to be grossly excessive
in relation to the services performed, or who, being an accredited
representative of an organization recognized under 1.1(j) of this
chapter, charges or receives either directly or indirectly any fee or
compensation for services rendered to any person, except that an
accredited representative of such an organization may be regularly
compensated by the organization of which he is an accredited
representative;
(2) Who, with intent to defraud or deceive, bribes, attempts to
bribe, coerces, or attempts to coerce, by any means whatsoever, any
person, including a party to a case, or an officer or employee of the
Service or Board, to commit an act or to refrain from performing an act
in connection with any case;
(3) Who willfully misleads, misinforms, or deceives an officer or
employee of the Department of Justice concerning any material and
relevant fact in connection with a case;
(4) Who willfully deceives, misleads, or threatens any party to a
case concerning any matter relating to the case;
(5) Who solicits practice in any unethical or unprofessional manner,
including but not limited to, the use of runners.
(6) Who represents, as an associate, any person who, known to him,
solicits practice in any unethical or unprofessional manner, including,
but not limited to, the use of runners, or advertising his availability
to handle immigration, naturalization, or nationality matters;
(7) Who has been temporarily suspended, and such suspension is still
in effect, or permanently disbarred, from practice in any court,
Federal, State (including the District of Columbia), territorial, or
insular;
(8) Who is temporarily suspended, and such suspension is still in
effect, or permanently disbarred, from practice in a representative
capacity before any executive department, board, commission, or other
governmental unit, Federal, State (including the District of Columbia),
territorial, or insular;
(9) Who, by use of his name, personal appearance, or any device, aids
and abets any person to practice during the period of his suspension or
disbarment, such suspension or disbarment being known to him;
(10) Who willfully made false and material statements or
representations with respect to his qualifications or authority to
represent others in any case;
(11) Who engages in contumelious or otherwise obnoxious conduct with
respect to a case in which he acts in a representative capacity, which
in the opinion of the Board, would constitute cause for suspension or
disbarment if the case was pending before a court, or which, in such a
judicial proceeding, would constitute a contempt of court;
(12) Who, having been furnished with a copy of any portion of the
record in a case, willfully fails to surrender such copy upon final
disposition of the case or upon demand, or willfully and without
authorization makes and retains a copy of the material furnished;
(13) Who has been convicted of a felony, or, having been convicted of
any crime is sentenced to imprisonment for a term of more than one year;
or
(14) Who has falsely certified a copy of a document as being a true
and complete copy of an original.
(15) Who has engaged in frivolous behavior in a proceeding before an
Immigration Judge, the Board of Immigration Appeals, or any other
administrative appellate body under title II of the Immigration and
Nationality Act.
(i) An attorney or representative engages in frivolous behavior when
he or she knows or reasonably should have known that his or her actions
lack an arguable basis in law or in fact, or are taken for an improper
purpose, such as to cause unnecessary delay. Actions that, if taken
improperly, may be subject to discipline include, but are not limited
to, the making of an argument on any factual or legal question, the
submission of an application for discretionary relief, the filing of a
motion, or the filing of an appeal. The signature of an attorney or an
accredited representative on any filing, application, motion, appeal,
brief, or other paper constitutes certification by the signer that the
signer has read the filing, application, motion, appeal, brief, or other
paper, and that, to the best of the signer's knowledge, information, and
belief, formed after reasonable inquiry, the document is well grounded
in fact, is warranted by existing law or by a good faith argument for
the extension, modification, or reversal of existing law, and is not
interposed for any improper purpose;
(ii) The imposition of disciplinary action for frivolous behavior
under this section in no way limits the Board's authority summarily to
dismissal an appeal pursuant to 8 CFR 3.1(d)(1-a).
(b) Procedure. (1) Non-Service attorneys and accredited
representatives.
(i) Investigation of charges. Complaints regarding the conduct of
attorneys and representatives practicing before the Service or the
Executive Office for Immigration Review pursuant to 8 CFR 292.1 shall be
investigated by the Service.
(ii) Service and filing of charges. If an investigation establishes,
to the satisfaction of the Service, that disciplinary proceedings should
be instituted, the General Counsel of the Service shall cause a copy of
written charges to be served upon the attorney/representative either by
personal service or by registered mail. The General Counsel shall also
file the written charges with the Office of the Chief Immigration Judge
immediately after service of the charges upon the
attorney/representative.
(iii) Service and filing of answer. The attorney/representative
shall answer the charges, in writing, within thirty (30) days after the
date of service, and shall file the answer with the Office of the Chief
Immigration Judge. Failure of the attorney/representative to answer the
written charges in a timely manner shall constitute an admission that
the facts and legal statements in the written charges are correct. The
attorney/representative shall also serve a copy of the answer on the
General Counsel. Proof of service on the opposing party must be
included with all documents filed.
(iv) Hearing. The Chief Immigration Judge shall designate an
Immigration Judge to hold a hearing and render a decision in the matter.
The designated Immigration Judge shall notify the
attorney/representative and the Service as to the time and the place of
the hearing. At the hearing, the attorney/representative may be
represented by an attorney at no expense to the Government and the
Service shall be represented by an attorney. At the hearing, the
attorney/representative shall have a reasonable opportunity to examine
and object to the evidence presented by the Service, to present evidence
on his or her own behalf, and to cross-examine witnesses presented by
the Service. The Service shall bear the burden of proving the grounds
for disciplinary action by clear, convincing, and unequivocal evidence.
The record of the hearing shall conform to the requirements of 8 CFR
242.15.
(v) Decision. The Immigration Judge shall consider the record and
render a decision in the case, including that the evidence presented
does not sufficiently prove grounds for disciplinary action or that
disciplinary action is justified. If the Immigration Judge finds that
the evidence presented does sufficiently prove grounds for disciplinary
action, the appropriate sanction shall be ordered. If the Immigration
Judge orders a suspension, the Immigration Judge shall set an amount of
time for the suspension.
(vi) Appeal. Either party may appeal the decision of the Immigration
Judge to the Board. The appeal must be filed within ten (10) days from
the date of the decision, if oral, or thirteen (13) days from the date
of mailing of the decision, if written. The appeal must be filed with
the office of the Immigration Judge holding the hearing. If an appeal
is not filed in a timely manner, or if the appeal is waived, the
decision of the Immigration Judge is final. If a case is appealed in a
timely manner, the Board shall consider the record and render a
decision. Receipt of briefs and the hearing of oral argument shall be
at the discretion of the Board. The Board's decision shall be final
except when a case is certified to the Attorney General pursuant to 8
CFR 3.1(h).
(2) Service attorneys. Complaints regarding the frivolous behavior
of Service attorneys within the scope of 292.3(a)(15) shall be directed
to, and investigated by, the Office of Professional Responsibility of
the Department of Justice. If disciplinary action is warranted, it
shall be administered pursuant to the attorney disciplinary procedures
of the Department of Justice.
(23 FR 2672, Apr. 23, 1958, as amended at 23 FR 9124, Nov. 26, 1958;
34 FR 12213, July 24, 1969; 36 FR 11903, June 23, 1971; 52 FR 24981,
July 2, 1987; 57 FR 11574, Apr. 6, 1992)
08 CFR 292.4 Appearances.
(a) An appearance shall be filed on the appropriate form by the
attorney or representative appearing in each case. During Immigration
Judge or Board proceedings, withdrawal and/or substitution of counsel is
permitted only in accordance with 3.16 and 3.36 respectively. During
proceedings before the Service, substitution may be permitted upon the
written withdrawal of the attorney or representative of record, or upon
notification of the new attorney or representative. When an appearance
is made by a person acting in a representative capacity, his or her
personal appearance or signature shall constitute a representation that
under the provisions of this chapter he or she is authorized and
qualified to represent. Further proof of authority to act in a
representative capacity may be required.
(b) Availability of records. During the time a case is pending, and
except as otherwise provided in 103.2(b) of this chapter, a party to a
proceeding or his attorney or representative shall be permitted to
examine the record of proceeding in a Service office. He may, in
conformity with 103.10 of this chapter, obtain copies of Service
records or information therefrom and copies of documents or transcripts
of evidence furnished by him. Upon request, he may in addition, be
loaned a copy of the testimony and exhibits contained in the record of
proceeding upon giving his receipt for such copies and pledging that it
will be surrendered upon final disposition of the case or upon demand.
If extra copies of exhibits do not exist, they shall not be furnished
free on loan; however, they shall be made available for copying or
purchase of copies as provided in 103.10 of this chapter.
(23 FR 2673, Apr. 23, 1958, as amended at 32 FR 9633, July 4, 1967;
52 FR 2941, Jan. 29, 1987)
08 CFR 292.5 Service upon and action by attorney or representative of
record.
(a) Representative capacity. Whenever a person is required by any of
the provisions of this chapter to give or be given notice; to serve or
be served with any paper other than a warrant of arrest or a subpoena;
to make a motion; to file or submit an application or other document;
or to perform or waive the performance of any act, such notice, service,
motion, filing, submission, performance, or waiver shall be given by or
to, served by or upon, made by, or requested of the attorney or
representative of record, or the person himself if unrepresented.
(b) Right to representation. Whenever an examination is provided for
in this chapter, the person involved shall have the right to be
represented by an attorney or representative who, except as otherwise
specifically provided in part 332 of this chapter, shall be permitted to
examine or cross-examine such person and witnessess, to introduce
evidence, to make objections which shall be stated succinctly and
entered on the record, and to submit briefs. Provided, that nothing in
this paragraph shall be construed to provide any applicant for admission
in either primary or secondary inspection the right to representation,
unless the applicant for admission has become the focus of a criminal
investigation and has been taken into custody.
(37 FR 11471, June 8, 1972 and 45 FR 81733, Dec. 12, 1980; 46 FR
2025, Jan. 8, 1981)
08 CFR 292.6 Interpretation.
Interpretations of this part will be made by the Board of Immigration
Appeals, subject to the provisions of part 3 of this chapter.
(32 FR 9633, July 4, 1967)
08 CFR 292.6 PART 292a -- LISTING OF FREE LEGAL SERVICES PROGRAMS
Sec.
292a.1 Listing.
292a.2 Qualifications.
292a.3 Applications.
292a.4 Approval and denial of applications.
292a.5 Removal of an organization from list.
Authority: Sec. 103; 8 U.S.C. 1103, interpret or apply secs. 242
and 292 (8 U.S.C. 1252 and 1362).
Source: 44 FR 4654, Jan. 23, 1979, unless otherwise noted.
08 CFR 292a.1 Listing.
District directors and officers-in-charge shall maintain a current
list of organizations qualified under this part and organizations
recognized under 292.2 of this chapter which have applied for listing
under 292a.3 of this part, located within their respective
jurisdictions, for the purpose of providing aliens in deportation or
exclusion proceedings with a list of such organizations as prescribed in
this chapter.
(45 FR 43681, June 30, 1980)
08 CFR 292a.2 Qualifications.
Except for an organization which is recognized under 292.2 of this
chapter and is available to render legal services in deportation or
exclusion proceedings, an organization which seeks to have its name
appear on the Service lists must show that it is established in the
United States, provides free legal services to indigent aliens, has on
its staff attorneys as defined in 1.1(f) of this chapter or retains, at
no expense to the alien, attorneys as defined in 1.1(f) of this
chapter, who are available to render such free legal services by
representation in deportation or exclusion proceedings. Bar
associations which provide a referral service of attorneys who render
pro bono assistance to aliens in deportation or exclusion proceedings
may also qualify to have their names appear on the Service list.
Listing of an organization qualified under this part is not equivalent
to recognition under 292.2 of this chapter.
(44 FR 4654, Jan. 23, 1979, as amended at 45 FR 43681, June 30, 1980)
08 CFR 292a.3 Applications.
Applications by organizations to qualify for listing under this part
shall be submitted to the district director or officer-in-charge having
jurisdiction over each area in which free legal services are being
provided by the organization. The application shall be supported by a
declaration signed by an authorized officer of the organization that the
organization complies with all the qualifications set out in 292a.2.
08 CFR 292a.4 Approval and denial of applications.
District Directors or officers-in-charge shall have the authority to
grant or deny an application submitted by an organization under this
part, within their respective jurisdiction. If an application is
denied, the applicant shall be notified of the decision in writing
giving the grounds of such denial. Denial must be based on the failure
of the organization to meet the qualifications specified in 292a.2. The
organization shall be advised of its right to appeal in accordance with
103.1 and 103.3 of this chapter.
(50 FR 2040, Jan. 15, 1985)
08 CFR 292a.5 Removal of an organization from list.
If the district director or officer-in-charge is satisfied that an
organization listed under 292a.1 does not meet the qualifications as
set out in 292a.2, he/she shall notify the organization concerned, in
writing, of his/her intention to remove its name from the Service list.
The organization may submit an answer within 30 days from the date the
notice was served. If, after considering the answer by the
organization, in the event an answer is submitted, the district director
or officer-in-charge determines that the organization does not qualify
under 292a.2, he/she shall remove its name from the list. Removal must
be based on the failure of the organization to meet the qualifications
specified in 292a.2 of this chapter. The organization shall be advised
of its right to appeal in accordance with 103.1 and 103.3 of this
chapter. If an organization applies to the district director or
officer-in-charge to have its name removed from the Service list, that
request shall be honored.
(49 FR 41015, Oct. 19, 1984)
08 CFR 292a.5 PART 293 -- DEPOSIT OF AND INTEREST ON CASH RECEIVED TO
SECURE IMMIGRATION BONDS
Sec.
293.1 Computation of interest.
293.2 Interest rate.
293.3 Simple interest table.
293.4 Payment of interest.
Authority: Sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interprets and
applies sec. 293, 84 Stat. 413.
Source: 36 FR 13677, July 23, 1971, unless otherwise noted.
08 CFR 293.1 Computation of interest.
Interest shall be computed from the date of deposit occurring after
April 27, 1966, or from the date cash deposited in the postal savings
system ceased to accrue interest, to and including the date of
withdrawal or date of breach of the immigration bond, whichever occurs
first. For purposes of this section, the date of deposit shall be the
date shown on the Receipt of Immigration Officer for the cash received
as security on an immigration bond. The date of withdrawal shall be the
date upon which the interest is certified to the Treasury Department for
payment. The date of breach shall be the date as of which the
immigration bond was concluded to have been breached as shown on Form
I-323, Notice -- Immigration Bond Breached. In counting the number of
days for which interest shall be computed, the day on which the cash was
deposited, or the day which cash deposited in the postal savings system
ceased to accrue interest, shall not be counted; however, the day of
withdrawal or the day of breach of the immigration bond shall be
counted. Interest shall be computed at the rate determined by the
Secretary of the Treasury and set forth in 293.2. The simple interest
table in 293.3 shall be utilized in the computation of interest under
this part.
08 CFR 293.2 Interest rate.
The Secretary of the Treasury has determined that effective from date
of deposit occurring after April 27, 1966, the interest rate shall be 3
per centum per annum.
08 CFR 293.3 Simple interest table.
Following is a simple interest table from which computation of
interest at 3 per centum per annum on a principal of $1,000 for a
fractional 365-day year may be derived by addition only. The interest
is stated in the form of a decimal fraction of $1.
Example: 3% on $500 for 93 days:
08 CFR 293.4 Payment of interest.
Interest shall be paid only at time of disposition of principal cash
when the immigration bond has been withdrawn or declared breached.
08 CFR 293.4 PART 299 -- IMMIGRATION FORMS
Sec.
299.1 Prescribed forms.
299.2 Distribution of Service forms.
299.3 Forms available from the Superintendent of Documents.
299.4 Reproduction of forms by private parties.
299.5 Display of control numbers.
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
08 CFR 299.1 Prescribed forms.
The forms listed below are hereby precribed for use in compliance
with the provisions of subchapter A and B of this chapter. To the
maximum extent feasible the forms used should bear the edition date
shown or as subsequent edition date.
AR-4 (8-30-72) -- Alien Registration Fingerprint Chart.
AR-11 (3-21-79) -- Alien's Change of Address Card.
CDC 4.417 (11-74) -- (Formerly HSM-240 or PHS-124) Medical
Certificate.
CDC 4.422-1 (10-84) -- Statement in Support of Application for Waiver
of Excludability under section 212(a)(1), Immigration and Nationality
Act.
CDC 4.422-2 (10-84) -- Statement in Support of Application for Waiver
of Excludability under section 212(a)(3), Immigration and Nationality
Act.
CDC 4.422-4 (10.84) -- Statement in Support of Application for Waiver
of Excludability under section 212(a)(1), Immigration and Nationality
Act-Military Dependent.
CDC 4.422-5 (10-84) -- Statement in Support of Application for Waiver
of Excludability under section 212(a)(3), Immigration and Nationality
Act-Military Dependent.
CDC 42.1 (4-81) -- Interstate Reciprocal Notification of Disease.
CDC 75.17 (4-82) -- Report on Alien with Tuberculosis not considered
active.
CDC 75.18 (4-82) -- Report on Alien with Tuberculosis Waiver.
IAP-66 (10-78) -- Certificate of Eligibility for Exchange Visitor
Status.
FD-258 (4-25-72) -- Applicant Card.
OF-157 (5-78) -- Medical Examination of Applicants for United States
Visas.
G-27 (9-30-82) -- Request for Recognition as a Non-Profit Religious,
Charitable, Social Service, or Similar Organization Established in the
United States under 8 CFR 292.2.
G-28 (10-25-79) -- Notice of Entry of Appearance as Attorney or
Representative.
G-56 (5-1-83) -- Call-in Notice.
G-296 (9-12-58) -- Report of Violation.
G-297 (5-28-70) -- Order to Seize Aircraft.
G-298 (9-12-58) -- Public Notice of Seizure.
G-325 (10-1-82) -- Biographic Information.
G-325A (10-1-82) -- Biographic Information.
G-325B (5-1-79) -- Biographic Information.
G-325C (10-1-82) -- Biographic Information.
G-639 (6-12-82) -- Freedom of Information Act/Privacy Act Request.
G-652 (2-1-78) -- Affidavit of Identity.
G-658 (11-1-75) -- Record of Information Disclosure (Privacy Act).
I-17 (4-4-83) -- Petition for Approval of School for Attendance by
Nonimmigrant Students.
I-17A (5-1-83) -- Designated School Officials.
I-17B (5-1-83) -- System Attachment.
I-20A-B/I-20ID (4-27-88) -- Certificate of Eligibility of
Nonimmigrant (F-1) Student Status -- For Academic and Language Students.
I-20 M-N (5-1-83) -- Certificate of Eligibility for Nonimmigrant
(M-1) Student Status -- For Vocational Students.
I-38 (7-25-77) -- Decision of the Immigration Judge.
I-39 (9-22-78) -- Decision of the Immigration Judge.
I-68 (9-1-84) -- Canadian Border Boat Landing Permit.
I-71 (11-30-82) -- Inquiry form sent to Employer for Revalidation of
Continuing Intent to Hire Alien.
I-72 (4-1-83) -- Form letter for Returning Deficient
Applications/Petitions.
I-79 (5-15-70) -- Notice of Intention to Fine under Immigration and
Nationality Act.
I-90 (10-01-91) -- Application to Replace Alien Registration Card.
I-92 (6-1-73) -- Aircraft/Vessel Report.
I-94 (10-1-85) -- Arrival-Departure Record.
I-94W (05-29-91) -- Nonimmigrant Visa Waiver Arrival/Departure Form.
I-95AB (9-1-64) -- Crewman's Landing Permit.
I-102 (10-01-91) -- Application for Replacement/Initial Nonimmigrant
Arrival-Departure Document.
I-104 (12-3-90) -- Alien Address Report Card.
I-122 (5-4-79) -- Notice to Applicant for Admission Detained for
Hearing before Immigration Judge.
I-126 (10-30-82) -- Report of Status by Treaty Trader of Investor.
I-129 (12-19-91) -- Petition for a Nonimmigrant Worker.
I-129B (7-1-83) -- Petition to Classify Nonimmigrant as Temporary
Worker or Trainee.
I-129F (10-7-87) -- Petition for Alien Fiance(e).
I-129L (1-14-87) -- Petition to Employ Intracompany Transferee.
I-129S (12-19-91) -- Nonimmigrant Petition based on Blanket L
Petition.
I-130 (2-28-87) -- Petition for Alien Relative.
I-131 (5-5-83) -- Application for Issuance of Permit to Reenter the
United States.
I-134 (7-1-83) -- Affidavit of Support.
I-138 (7-1-83) -- Subpoena.
I-140 (12-02-91) -- Immigrant Petition for Alien Worker.
I-141 (4-21-69) -- Medical Certificate.
I-147 (10-30-83) -- Notice of Temporary Exclusion.
I-151 (7-1-72) -- Alien Registration Receipt Card.
I-171 (3-4-82) -- Notice of Approval of Relative Immigrant Visa
Petition.
I-171C (7-1-83) -- Notice of Approval or Extension of Nonimmigrant
Visa Petition of H or L Alien.
I-171F (10-14-76) -- Notice of Approval of Nonimmigrant Visa Petition
for Fiance or Fiancee.
I-171H (12-15-82) -- Notice of Favorable Determination Concerning
Application for Advance Processing of Orphan Petition.
I-175 (4-1-75) -- Application for Nonresident Alien's Canadian Border
Crossing Card.
I-180 (9-1-81) -- Notice of Voidance of Form I-186.
I-181 (3-1-83) -- Memorandum of Creation of Record of Lawful
Permanent Residence.
I-184 (4-1-58) -- Alien Crewman Landing Permit and Identification
Card.
I-185 (1-1-75) -- Nonresident Alien Canadian Border Crossing Card.
I-186 (6-1-72) -- Nonresident Alien Mexican Border Crossing Card.
I-190 (3-1-75) -- Application for Nonresident Alien Mexican Border
Crossing Card.
I-191 (5-5-83) -- Application for Advance Permission to Return to
Unrelinquished Domicile.
I-192 (5-5-83) -- Application for Advance Permission to Enter as
Nonimmigrant.
I-193 (5-5-83) -- Application for Waiver of Passport and/or Visa.
I-194 (2-1-82) -- Notice of Approval of Advance Permission to Enter
as Nonimmigrant (Pursuant to Sec. 212(d)(3) (A) or (B) of the Act.
I-197 (5-1-76) -- U.S. Citizen Identification Card.
I-202 (11-15-79) -- Authorization for Removal.
I-205 (11-29-79) -- Warrant of Deportation.
I-212 (11-20-85) -- Application for Permission to Reapply for
Admission Into the United States After Deportation or Removal.
I-221 (7-1-73) -- Order to Show Cause and Notice of Hearing.
I-221S (8-1-77) -- Order to Show Cause, Notice of Hearing, and
Warrant for Arrest of Alien.
I-243 (9-27-75) -- Application for Removal.
I-246 (3-31-83) -- Application for Stay of Deportation.
I-247 (3-1-83) -- Immigration Detainer -- Notice of Action.
I-256A (12-30-83) -- Application for Suspension of Deportation.
I-259 (10-1-69) -- Notice to Detain, Deport, Remove or Present
Aliens.
I-259A (2-12-55) -- Agreement by Transportation Line to Assume
Responsibility for Removal of Aliens. (One-time basis.)
I-259C (6-13-88) -- Notice to Carrier.
I-260 (6-1-73) -- Notice to Take Testimony of Witness.
I-284 (12-20-66) -- Notice to Transportation Line Regarding
Deportation and Detention Expenses of Detained Alien.
I-286 (4-1-79) -- Notification to Alien of Conditions of Release of
Detention.
I-287 (4-10-72) -- Special Care and Attention for Alien.
I-288 (2-20-62) -- Notice to Transportation Line Regarding
Deportation Expenses of Alien Completely Ready for Deportation.
I-290A (10-31-79) -- Notice of Appeal to the Board of Immigration
Appeals.
I-290B (10-3-83) -- Notice of Appeal to Commissioner.
I-290C (9-30-66) -- Notice of Certification.
I-291 (11-1-83) -- Decision on Application for Status as Permanent
Resident.
I-292 (10-1-83) -- Decision.
I-296 (12-15-82) -- Notice to Alien Ordered Excluded by Immigration
Judge.
I-305 (5-1-76) -- Receipt of Immigration Officer -- United States
Bonds or Notes, or Cash, Accepted as Security on Immigration Bond.
I-310 (4-16-62) -- Bond for Payment of Sums and Fines Imposed under
Immigration and Nationality Act (Term or Single Entry).
I-312 (4-15-76) -- Designation of Attorney in Fact.
I-320B (9-1-75) -- Agreement Between Employer of Alien Labor and the
United States.
I-323 (3-15-77) -- Notice -- Immigration Bond Breached.
I-327 (10-1-82) -- Permit to Reenter the United States.
I-328 (6-5-74) -- Order on Motion to Reopen Proceedings.
I-342 (4-25-79) -- Determination of the Immigration Judge with
Respect to Custody.
I-351 (6-1-74) -- Bond Riders.
I-352 (6-1-84) -- Immigration Bond.
I-356 (9-27-75) -- Request for Cancellation of Public Charge Bond.
I-360 (09-19-91) -- Petition for Amerasian, Widow(er), or Special
Immigrant.
I-361 (7-1-84) -- Affidavit of Financial Support and Intent to
Petition for Legal Custody for Pub. L. 97-359 Amerasian.
I-365 (7-1-84) -- Notice of Completion of Preliminary Processing of
Petition for Pub. L. 97-359 Amerasian.
I-391 (3-14-77) -- Notice -- Immigration Bond Cancelled.
I-408 (4-1-83) -- Application to Pay off or Discharge Alien Crewman.
I-410 (5-1-83) -- Receipt for Crew List.
I-418 (7-1-74) -- Passenger List-Crew List.
I-420 (3-15-67) -- Agreement (Land-Border) between Transportation
Line and United States.
I-421 (6-29-58) -- Agreement (Overseas) Between Transportation Line
and United States.
I-425 (3-24-77) -- Agreement for Preinspection at Places Outside
United States.
I-426 (5-1-65) -- Immediate and Continuous Transit Agreement Between
a Transportation Line and United States of America (special direct
transit procedure).
I-444 (4-1-83) -- Mexican Border Visitors Permit.
I-464 A/E (10-20-80) -- Notice of Third/Sixth Preference Petition
Approved Under section 203(a) of the Immigration and Nationality Act, as
amended.
I-485 (2-27-87) -- Application for Permanent Residence.
I-485A (3-25-81) -- Application by Cuban Refugee for Permanent
Residence.
I-488 (10-1-78) -- Affidavit of Witness.
I-506 (7-1-84) -- Application for Change of Nonimmigrant Status.
I-508 (10-1-80) -- Waiver of Rights, Privileges, Exemptions, and
Immunities.
I-508F (6-1-70) -- Waiver of Rights, Privileges, Exemptions, and
Immunities (Under section 247(b) of the Act and under the Convention
between the United States of America and the French Republic with
respect to Taxes on Income and Property).
I-509 (5-31-83) -- Notice of Proposed Change of Status.
I-510 (11-15-82) -- Guarantee of Payment.
I-512 (10-1-82) -- Authorization for Parole of an Alien into the
United States.
I-515 (8-2-83) -- Notice to Student or Exchange Visitor Admitted
Without I-20 or IAP-66.
I-516 (8-1-83) -- Notice of Approval or Continuation of School
Approval.
I-517 (8-1-83) -- Review of School Approval.
I-526 (12-02-91) -- Immigrant Petition by Alien Entrepreneur.
I-538 (1-19-89) -- Application by Nonimmigrant Student for Extension
of Stay, School Transfer, or Permission to Accept or Continue
Employment.
I-539 (12-02-91) -- Application to Extend/Change Nonimmigrant Status.
I-541 (12-1-83) -- Order of Denial of Application for Extension of
Stay or Student Employment or Student Transfer.
I-543 (12-1-83) -- Order of Denial of Application for Change of
Nonimmigrant Status.
I-551 (Jan. 77) -- Alien Registration Receipt Card.
I-564 (10-1-82) -- Form Letter -- Reply to General Inquiries.
I-566 (9-21-79) -- Application for Employment by Spouse or Unmarried
Dependent Son or Daughter of A-1 or A-2 Official or Employee of
Diplomatic or Consular Establishment or G-4 Officer or Employee of
International Organization.
I-567 (9-21-79) -- Approval of Application for Employment by G-4
Dependent.
I-570 (10-1-84) -- Application for Issuance of Refugee Travel
Document.
I-571 (11-1-79) -- Refugee Travel Document.
I-586 (Apr. 77) -- Nonresident Alien Border Crossing Card.
I-589 (3-1-81) -- Request for Asylum in the United States.
I-590 (5-1-80) -- Registration for Classification as Refugee.
I-591 (5-1-84) -- Assurance by a United States Sponsor in Behalf of
an Applicant for Refugee Status.
I-594 (11-1-83) -- Notice to Appear for Adjustment of Status.
I-600 (5-5-83) -- Petition to Classify Orphan as an Immediate
Relative.
I-600A (5-5-83) -- Application for Advance Processing of Orphan
Petition.
I-601 (4-24-85) -- Application for Waiver of Grounds of
Excludability.
I-602 (9-10-80) -- Application by Refugee for Waiver of Grounds of
Excludability.
I-607 (2-1-72) -- Order Re Waiver of Excludability Pursuant to
Section 212 (h), (i) and Permission to Reapply.
I-612 (3-30-83) -- Application for Waiver of the Foreign Residence
Requirement of section 212(e) of the Immigration and Nationality Act, as
amended.
I-613 (3-30-83) -- Request for United States Information Agency
Recommendation section 212(e) Waiver.
I-644 (11-1-82) -- Supplementary Statement for Graduate Medical
Trainees.
I-687 (4-1-87) -- Application for Status as a Temporary Resident
(section 245A INA).
I-688 (5-87) -- Temporary Resident Card.
I-688A (5-87) -- Employment Authorization Card.
I-690 (2-14-87) -- Application for Waiver of Grounds of Excludability
under sections 245A or 210 of the Immigration and Nationality Act.
I-691 (5-5-87) -- Notice of Approval of Status as a Temporary
Resident.
I-692 (5-5-87) -- Notice of Denial for Status as a Temporary
Resident.
I-693 (9-1-87) -- Medical Examination of Aliens Seeking Adjustment of
Status.
I-694 (4-1-87) -- Notice of Appeal of Decision under section 210 or
245A of the Immigration and Nationality Act.
I-695 (2-24-87) -- Application for Replacement of Form I-688A,
Employment Authorization, or Form I-688, Temporary Residence Card (Under
Pub. L. 99-603).
I-697 (2-14-87) -- Change of Address Card for Legalization and
Special Agricultural Workers (SAW).
I-698 (08/10/88) -- Application to Adjust Status from Temporary to
Permanent Resident (Under section 245A of Pub. L. 99-603).
I-699 (10/20/88) -- Certificate of Satisfactory Pursuit.
I-700 (4-1-87) -- Application for Temporary Resident Status as a
Special Agricultural Worker (SAW) (Section 210 of the Immigration and
Nationality Act).
I-705 (3-12-87) -- Affidavit Confirming Seasonal Agricultural
Employment of an Applicant for Temporary Residence Status Under section
210 of the Immigration and Nationality Act.
I-730 (11-1-85) -- Refugee/Asylee Relative Petition.
I-736 (7-23-87) -- Guam Visa Waiver Information.
I-751 (12-04-91) -- Petition to Remove Conditions on Residence.
I-760 (7-22-87) -- Agreement Between Transportation Line, Operating
Between Foreign Territory and Guam, and United States.
I-762 (11-30-87) -- Citation Pursuant to Section 274A of the
Immigration and Nationality Act.
I-765 (8-24-89) -- Application for Employment Authorization.
I-772 (7-7-87) -- Declaration of Intending Citizen.
I-775 (5-26-88) -- Visa Waiver Pilot Program Agreement.
I-777 (6-16-88) -- Application for Issuance or Replacement of
Northern Mariana Card.
I-791 (5-26-88) -- Visa Waiver Pilot Program Information Form.
I-803 (09/27/88) -- Petition for Attorney General Recognition to
Provide Course of Study for Legalization: Phase II.
I-817 (09/10/91) -- Application for Voluntary Departure under the
Family Unity Program.
I-821 (12-27-90) -- Temporary Protected Status Eligibility
Questionnaire.
I-823 (XXX) -- Application -- Dedicated Commuter Lane Program.
I-824 (10-01-91) -- Application for Action on an Approved Application
or Petition.
ICAO -- International Civil Aviation Organization's General
Declaration.
MA 7-50 (4-70) -- Application for Alien Employment Certification.
(Part I -- Statement of Qualifications of Aliens MA 7-50A). (Part II --
Job Offer for Alien Employment MA 7-50B).
7507 (3-69) -- Bureau of Customs' General Declaration.
(53 FR 33444, Aug. 31, 1988, as amended at 54 FR 102, Jan. 4, 1989;
54 FR 7174, Feb. 17, 1989; 54 FR 29440, July 12, 1989; 54 FR 30370,
July 20, 1989; 54 FR 39337, Sept. 26, 1989; 54 FR 48231, Nov. 22,
1989; 55 FR 12629, Apr. 5, 1990; 56 FR 624, Jan. 7, 1991; 56 FR
21920, May 13, 1991; 57 FR 6183, Feb. 21, 1992: 57 FR 6462, Feb. 25,
1992; 57 FR 14627, Apr. 21, 1992)
08 CFR 299.2 Distribution of Service forms.
The distribution of official Immigration and Naturalization
applications, petitions, and related forms is as follows:
(a) Any officer or employee of the Service may issue official
application or petition and related forms to the person for whose use
the form is intended or to a person identified as a representative of
the intended user in the quantity required for filing the application or
petition and related forms.
(b) A small quantity, twenty-five (25) copies, may be issued to
organizations an practitioners who make written request to the Regional
Commissioner for the geographic location of the requester if such forms
have not been made available for purchase from the Superintendent of
Documents, Washington, DC 20402.
(c) Voluntary agencies (VOLAGS) participating in the Outreach Program
of the Service who make written request to the Regional Commissioner for
the geographic location of the requester may be furnished Service forms
gratis in the volumes requested.
(43 FR 14304, Apr. 5, 1978, as amended at 45 FR 6777, Jan. 30, 1980;
45 FR 21611, Apr. 2, 1980)
08 CFR 299.3 Forms available from Superintendent of Documents.
The immigration and naturalization forms indicated below may be
obtained upon prepayment from the Superintendent of Documents,
Washington, DC 20402.
Prices are set by the Superintendent of Documents, Government
Printing Office, and are subject to change without notice. A small
supply of the above forms shall be set aside by immigration officers for
free distribution and official use.
(49 FR 7104, Feb. 27, 1984, as amended at 52 FR 16195, May 1, 1987;
55 FR 12629, Apr. 5, 1990)
08 CFR 299.4 Reproduction of forms by private parties.
All forms required for compliance with the immigration and
nationality regulations which have been made available for purchase by
the Superintendent of Documents may be printed or otherwise reproduced
by an appropriate duplicating process by private parties at their own
expense. Forms printed or reproduced by private parties shall conform
to the officially printed forms currently in use with respect to size,
wording and language, arrangement, style and size of type, and paper
specifications. Such forms shall be printed or otherwise duplicated in
black ink or dye that will not fade or ''feather'' within 20 years.
(45 FR 6777, Jan. 30, 1980)
08 CFR 299.5 Display of control numbers.
The following listing includes those Immigration and Naturalization
Service public use forms which are cited for use throughout title 8.
The Information collection requirements contained in this title have
been approved by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act. The form numbers, titles,
and OMB control numbers read as follows:
(53 FR 33442, Aug. 31, 1988, as amended at 53 FR 43986, Oct. 31,
1988; 54 FR 7174, Feb. 17, 1989; 54 FR 29440, July 12, 1989; 54 FR
30370, July 20, 1989; 54 FR 48231, Nov. 22, 1989; 55 FR 12629, Apr.
5, 1990; 56 FR 624, Jan. 7, 1991; 56 FR 21920, May 13, 1991; 56 FR
22822, May 17, 1991; 56 FR 50480, Oct. 7, 1991; 57 FR 6183, Feb. 21,
1992; 57 FR 6462, Feb. 25, 1992)
08 CFR 299.5 SUBCHAPTER C -- NATIONALITY REGULATIONS
08 CFR 299.5 PART 306 -- SPECIAL CLASSES OF PERSONS WHO MAY BE
NATURALIZED: VIRGIN ISLANDERS
Sec.
306.1 Persons eligible.
306.2 United States citizenship; when acquired.
306.11 Preliminary application form; filing; examination.
306.12 Renunciation forms; disposition.
Authority: Secs. 103, 306, 332, 66 Stat. 173, 237, 252; 8 U.S.C.
1103, 1406, 1443.
Source: 22 FR 9812, Dec. 6, 1957, unless otherwise noted.
08 CFR 306.1 Persons eligible.
Any Danish citizen who resided in the Virgin Islands of the United
States on January 17, 1917, and in those Islands, Puerto Rico, or the
United States on February 25, 1927, and who had preserved his Danish
citizenship by making the declaration prescribed by Article VI of the
treaty entered into between the United States and Denmark on August 4,
1916, and proclaimed January 25, 1917, may renounce his Danish
citizenship before any court of record in the United States irrespective
of his place of residence, in accordance with the provisions of this
part.
08 CFR 306.2 United States citizenship; when acquired.
Immediately upon making the declaration of renunciation as described
in 306.12 the declarant shall be deemed to be a citizen of the United
States. No certificate of naturalization or of citizenship shall be
issued by the clerk of court to any person obtaining, or who has
obtained citizenship solely under section 306(a)(1) of the Immigration
and Nationality Act or under section 1 of the act of February 25, 1927.
08 CFR 306.11 Preliminary application form; filing; examination.
A person of the class described in 306.1 shall submit to the Service
on Form N-350 preliminary application to renounce Danish citizenship, in
accordance with the instructions contained therein. The applicant shall
be notified in writing when and where to appear before a representative
of the Service for examination as to his eligibility to renounce Danish
citizenship and for assistance in filing the renunciation.
08 CFR 306.12 Renunciation forms; disposition.
The renunciation shall be made and executed by the applicant under
oath, in duplicate, on Form N-351 and filed in the office of the clerk
of court. The usual procedural requirements of the Immigration and
Nationality Act shall not apply to proceedings under this part. The fee
shall be fixed by the court or the clerk thereof in accordance with the
law and rules of the court, and no accounting therefor shall be required
to be made to the Service. The clerk shall retain the original of Form
N-351 as the court record and forward the duplicate to the district
director exercising administrative naturalization jurisdiction over the
area in which the court is located.
08 CFR 306.12 PART 310 -- NATURALIZATION AUTHORITY
Sec.
310.1 Administrative naturalization authority.
310.2 Jurisdiction to accept applications for naturalization.
310.3 Administration of the oath of allegiance.
310.4 Judicial naturalization authority and withdrawal of petitions.
310.5 Judicial review.
Authority: 8 U.S.C. 1103, 1421, 1443, 1447, 1448; 8 CFR 2.1.
Source: 56 FR 50480, Oct. 7, 1991, unless otherwise noted.
08 CFR 310.1 Administrative naturalization authority.
(a) Attorney General. Commencing October 1, 1991, section 310 of the
Act confers the sole authority to naturalize persons as citizens of the
United States upon the Attorney General.
(b) Commissioner of the Immigration and Naturalization Service.
Pursuant to 2.1 of this chapter, the Commissioner of the Immigration
and Naturalization Service is authorized to perform such acts as are
necessary and proper to implement the Attorney General's authority under
the provisions of section 310 of the Act.
08 CFR 310.2 Jurisdiction to accept applications for naturalization.
The Service shall accept an application for naturalization from an
applicant who is subject to a continuous residence requirement under
section 316(a) or 319(a) of the Act as much as three months before the
date upon which the applicant would otherwise satisfy such continuous
residence requirement in the State or Service district where residence
is to be established for naturalization purposes. At the time of
examination on the application, the applicant will be required to prove
that he or she satisfies the residence requirements for the residence
reflected in the application.
08 CFR 310.3 Administration of the oath of allegiance.
An applicant for naturalization may elect, at the time of filing of,
or at the examination on, the application, to have the oath of
allegiance and renunciation under section 337(a) of the Act administered
in a public ceremony conducted by the Service or by any court described
in section 310(b) of the Act. The jurisdiction of all such courts
specified to administer the oath of allegiance shall extend only to
those persons who are resident within the respective jurisdictional
limits of such courts, except as otherwise provided in section 316(f)(2)
of the Act.
08 CFR 310.4 Judicial naturalization authority and withdrawal of
petitions.
(a) Jurisdiction. No court shall have jurisdiction under section
310(a) of the Act, to naturalize a person unless a petition for
naturalization with respect to that person was filed with the
naturalization court before October 1, 1991.
(b) Withdrawal of petitions. (1) In the case of any petition for
naturalization which was pending in any court as of November 29, 1990,
the petitioner may elect to withdraw such petition, and have the
application for naturalization considered under the administrative
naturalization process. Such petition must be withdrawn after October
1, 1991, but not later than December 31, 1991.
(2) Except as provided in paragraph (b)(1) of this section, the
petitioner shall not be permitted to withdraw his or her petition for
naturalization, unless the Attorney General consents to the withdrawal.
(c) Judicial proceedings. (1) All pending petitions not withdrawn in
the manner and terms described in paragraph (b) of this section, shall
be decided, on the merits, by the naturalization court, in conformity
with the applicable provisions of the judicial naturalization authority
of the prior statute. The reviewing court shall enter a final order.
(2) In cases where the petitioner fails to prosecute his or her
petition, the court shall decide the petition upon its merits unless the
Attorney General moves that the petition be dismissed for lack of
prosecution.
08 CFR 310.5 Judicial review.
(a) After 120 days following examination. An applicant for
naturalization may seek judicial review of a pending application for
naturalization in those instances where the Service fails to make a
determination under section 335 of the Act within 120 days after an
examination is conducted under part 335 of this chapter. An applicant
shall make a proper application for relief to the United States District
Court having jurisdiction over the district in which the applicant
resides. The court may either determine the issues brought before it on
their merits, or remand the matter to the Service with appropriate
instructions.
(b) After denial of an application. After an application for
naturalization is denied following a hearing before a Service officer
pursuant to section 336(a) of the Act, the applicant may seek judicial
review of the decision pursuant to section 310 of the Act.
08 CFR 310.5 PART 312 -- EDUCATIONAL REQUIREMENTS FOR NATURALIZATION
Sec.
312.1 Literacy requirements.
312.2 Knowledge of history and government of the United States.
312.3 Standardized citizenship testing.
312.4 Selection of interpreter.
312.5 Failure to meet educational and literacy requirements.
Authority: 8 U.S.C. 1103, 1423, 1443, 1447, 1448.
Source: 56 FR 50481, Oct. 7, 1991, unless otherwise noted.
08 CFR 312.1 Literacy requirements.
(a) General. Except as otherwise provided in paragraph (b) of this
section, no person shall be naturalized as a citizen of the United
States upon his or her own application unless that person can
demonstrate an understanding of the English language, including an
ability to read, write, and speak words in ordinary usage in the English
language.
(b) Exceptions. The following persons need not demonstrate an
ability to read, write and speak words in ordinary usage in the English
language:
(1) A person who, on the date of filing of his or her application for
naturalization, is over 50 years of age and has been living in the
United States for periods totalling at least 20 years subsequent to a
lawful admission for permanent residence;
(2) A person who, on the date of filing his or her application for
naturalization, is over 55 years of age and has been living in the
United States for periods totalling at least 15 years subsequent to a
lawful admission for permanent residence; or
(3) A person who is physically unable to comply with the literacy
requirements due to a permanent disability such as blindness or
deafness. A person who has a general incapacity to learn either because
of developmental disability or advanced age may not ordinarily be
considered to be physically unable to comply with the literacy
requirements.
(c) Literacy examination. (1) Verbal Skills. The ability of an
applicant to speak English shall be determined by a designated examiner
from the applicant's answers to questions normally asked in the course
of the examination.
(2) Reading and writing skills. Except as noted in 312.3, an
applicant's ability to read and write English shall be tested using
excerpts from one or more parts of the Service authorized Federal
Textbooks on Citizenship written at the elementary literacy level,
Service publications M-289 and M-291. These textbooks may be purchased
from the Superintendent of Documents, Government Printing Office,
Washington, DC 20402, and are available at certain public educational
institutions. An applicant's writing sample shall be retained in the
applicant's Service file.
08 CFR 312.2 Knowledge of history and government of the United States.
(a) General. No person shall be naturalized as a citizen of the
United States upon his or her own application unless that person can
demonstrate a knowledge and understanding of the fundamentals of the
history, and of the principles and form of government, of the United
States. A person who is exempt from the literacy requirement under
312.1(b) must still satisfy this requirement.
(b) History and government examination -- (1) Procedure. The
examination of an applicant's knowledge of the history and form of
government of the United States shall be given by a designated examiner
in the English language unless:
(i) The applicant is exempt from the English literacy requirement
under 312.1(b), in which case the examination may be conducted in the
applicant's native language with the assistance of an interpreter
selected in accordance with 312.4 of this part, but only if the
applicant's command of spoken English is insufficient to conduct a valid
examination in English;
(ii) The applicant is required to satisfy and has satisfied the
English literacy requirement under 3l2.1(d), but the officer conducting
the examination determines that an inaccurate or incomplete record of
the examination would result if the examination on technical or complex
issues were conducted in English. In such a case the examination may be
conducted in the applicant's native language, with the assistance of an
interpreter selected in accordance with 312.4;
(iii) The applicant has met the requirements of 312.3.
(2) Scope and substance. The scope of the examination shall be
limited to subject matters covered in the Service authorized Federal
Textbooks on Citizenship except for the identity of current
officeholders. In choosing the subject matters, in phrasing questions
and in evaluating responses, due consideration shall be given to the
applicant's education, background, age, length of residence in the
United States, opportunities available and efforts made to acquire the
requisite knowledge, and any other elements or factors relevant to an
appraisal of the adequacy of the applicant's knowledge and
understanding.
08 CFR 312.3 Standardized citizenship testing.
(a) An applicant for naturalization may satisfy the reading and
writing requirements of 312.1 and the knowledge requirements of 312.2
by passing a standardized citizenship test given by an entity authorized
by the Service to conduct such a test. An applicant who passes a
standardized citizenship test within one (1) year of the date on which
he or she submits an application for naturalization shall not be
reexamined at the Service naturalization interview on his or her ability
to read and write English or on his or her knowledge of the history and
form of government of the United States, unless the Service believes
that the applicant's test results were obtained through fraud or
misrepresentation. The applicant must still demonstrate his or her
ability to speak English in accordance with 312.1(c)(1). An applicant
who has failed a standardized citizenship test may continue to pursue
the application with the Service, and will not be prejudiced by that
failure during an examination conducted by the Service under 312.1 and
312.2.
(b) An applicant who has obtained lawful permanent resident alien
status pursuant to section 245A of the Act, and who, at that time
demonstrated English language proficiency in reading and writing, and
knowledge of the government and history of the United States through
either an examination administered by the Service or a standardized
section 312 test authorized by the Service for use with Legalization
applicants as provided in section 245A(b)(1)(D)(iii) of the Act, will
not be reexamined on those skills at the time of the naturalization
interview. However, such applicant must still establish eligibility for
naturalization through testimony in the English language.
08 CFR 312.4 Selection of interpreter.
An interpreter to be used under 312.2 may be selected either by the
applicant or by the Service. However, the Service reserves the right to
disqualify an interpreter provided by the applicant in order to insure
the integrity of the examination. Where the Service disqualifies an
interpreter, the Service must provide another interpreter for the
applicant.
08 CFR 312.5 Failure to meet educational and literacy requirements.
(a) An applicant for naturalization who fails the English literacy or
history and government test at the first examination will be afforded a
second opportunity to pass the test(s) within 90 days after the first
examination.
(b) If an applicant who receives notice of the second scheduled
examination date fails to appear for that second examination without
prior notification to the Service, the applicant will be deemed to have
failed this second examination. Before an applicant may request a
postponement of the second examination to a date that is more than 90
days after the initial examination, the applicant must agree in writing
to waive the requirement under section 336 of the Act that the Service
must render a determination on the application within 120 days from the
initial interview, and instead to permit the Service to render a
decision within 120 days from the second interview.
08 CFR 312.5 PART 313 -- MEMBERSHIP IN THE COMMUNIST PARTY OR ANY OTHER
TOTALITARIAN ORGANIZATIONS; SUBVERSIVES
Sec.
313.1 Definitions.
313.2 Prohibitions.
313.3 Statutory exemptions.
313.4 Procedure.
Authority: 8 U.S.C. 1103, 1424, 1443.
Source: 56 FR 50482, Oct. 7, 1991, unless otherwise noted.
08 CFR 313.1 Definitions.
For purposes of this part:
Advocate includes, but is not limited to, advising, recommending,
furthering by overt act, or admitting a belief in a doctrine, and may
include the giving, lending, or promising of support or of money or any
thing of value to be used for advocating such doctrine.
Advocating Communism means advocating the establishment of a
totalitarian communist dictatorship, including the economic,
international, and governmental doctrines of world communism, in all
countries of the world through the medium of an internationally
coordinated communist revolutionary movement.
Affiliation with an organization includes, but is not limited to, the
giving, lending, or promising of support or of money or any thing of
value, to that organization to be used for any purpose.
Circulate includes circulating, distributing, or displaying a work.
Communist Party includes:
(1) The Communist Party of the United States;
(2) The Communist Political Association;
(3) The Communist Party of any state of the United States, of any
foreign state, or of any political or geographical subdivision of any
foreign state;
(4) Any section, subsidiary, branch, affiliate, or subdivision of any
such association or party;
(5) The direct predecessors or successors of any such association or
party, regardless of what name such group or organization may have used,
may now bear, or may hereafter adopt; and
(6) Any communist-action or communist-front organization that is
registered or required to be registered under section 786 of title 50 of
the United States Code, provided that the applicant knew or had reason
to believe, while he or she was a member, that such organization was a
communist-front organization.
Organization includes, but is not limited to, an organization,
corporation, company, partnership, association, trust, foundation, or
fund, and any group of persons, whether incorporated or not, permanently
or temporarily associated together for joint action on any subject or
subjects.
Publication or publishing of a work includes writing or printing a
work; permitting, authorizing, or consenting to the writing or printing
of a work; and paying for the writing or printing of a work.
Subversive is any individual who advocates or teaches:
(1) Opposition to all organized government;
(2) The overthrow, by force or violence or other unconstitutional
means, of the Government of the United States or of all forms of law;
(3) The duty, necessity, or propriety of the unlawful assaulting or
killing, either individually or by position, of any officer or officers
of the United States or of any other organized government, because of
his, her, or their official character;
(4) The unlawful damage, injury, or destruction of property;
(5) Sabotage; or
(6) Terrorist activities or the engaging in terrorist activities, as
defined in section 212(a)(3)(B) (ii) and (iii) of the Act.
Totalitarian dictatorship and totalitarianism refer to systems of
government not representative in fact and characterized by:
(1) The existence of a single political party, organized on a
dictatorial basis, with so close an identity between the policies of
such party and the government policies of the country in which the party
exists that the government and the party constitute an indistinguishable
unit; and
(2) The forcible suppression of all opposition to such a party.
Totalitarian party includes:
(1) Any party in the United States which advocates totalitarianism;
(2) Any party in any State of the United States, in any foreign
state, or in any political or geographical subdivision of any foreign
state which advocates or practices totalitarianism;
(3) Any section, subsidiary, branch, affiliate, or subdivision of any
such association or party; and
(4) The direct predecessors or successors of any such association or
party, regardless of what name such group or organization may have used,
may now bear, or may hereafter adopt.
08 CFR 313.2 Prohibitions.
Except as provided in 313.3, no applicant for naturalization shall
be naturalized as a citizen of the United States if, within ten years
immediately preceding the filing of an application for naturalization or
after such filing but before taking the oath of citizenship, such
applicant:
(a) Is or has been a member of or affiliated with the Communist Party
or any other totalitarian party; or
(b) Is or has advocated communism or the establishment in the United
States of a totalitarian dictatorship; or
(c) Is or has been a member of or affiliated with an organization
that advocates communism or the establishment in the United States of a
totalitarian dictatorship, either through its own utterance or through
any written or printed matter published by such organization; or
(d) Is or has been a subversive, or a member of, or affiliated with,
a subversive organization; or
(e) Knowingly is publishing or has published any subversive written
or printed matter, or written or printed matter advocating communism;
or
(f) Knowingly circulates or has circulated, or knowingly possesses or
has possessed for the purpose of circulating, subversive written or
printed matter, or written or printed matter advocating communism; or
(g) Is or has been a member of, or affiliated with, any organization
that publishes or circulates, or that possesses for the purpose of
publishing or circulating, any subversive written or printed matter, or
any written or printed matter advocating communism.
08 CFR 313.3 Statutory exemptions.
(a) General. An applicant shall bear the burden of establishing that
classification in one of the categories listed under 313.2 is not a bar
to naturalization.
(b) Exemptions. Despite membership in or affiliation with an
organization covered by 313.2, an applicant may be naturalized if the
applicant establishes that such membership or affiliation is or was:
(1) Involuntary:
(2) Without awareness of the nature or the aims of the organization,
and was discontinued if the applicant became aware of the nature or aims
of the organization;
(3) Terminated prior to the attainment of age sixteen by the
applicant, or more than ten years prior to the filing of the application
for naturalization;
(4) By operation of law; or
(5) Necessary for purposes of obtaining employment, food rations, or
other essentials of living.
(c) Awareness and participation -- (1) Exemption applicable. The
exemption under paragraph (b)(2) of this section may be found to apply
only to an applicant whose participation in the activities of an
organization covered under 313.2 was minimal in nature, and who
establishes that he or she was unaware of the nature of the organization
while a member of the organization.
(2) Exemptions inapplicable. The exemptions under paragraphs (b)(4)
and (b)(5) of this section will not apply to any applicant who served as
a functionary of an organization covered under 313.2, or who was aware
of and believed in the organization's doctrines.
(d) Essentials of living -- (1) Exemption applicable. The exemption
under paragraph (b)(5) of this section may be found to apply only to an
applicant who can demonstrate:
(i) That membership in the covered organization was necessary to
obtain the essentials of living like food, shelter, clothing,
employment, and an education, which were routinely available to the rest
of the population -- for purposes of this exemption, higher education
will qualify as an essential of living only if the applicant can
establish the existence of special circumstances which convert the need
for higher education into a need as basic as the need for food or
employment: and,
(ii) That he or she participated only to the minimal extent necessary
to receive the essential of living.
(2) Exemption inapplicable. The exemption under paragraph (b)(5) of
this section will not be applicable to an applicant who became a member
of an organization covered under 313.2 to receive certain benefits:
(i) Without compulsion from the governing body of the relevant
country; or
(ii) Which did not qualify as essentials of living.
08 CFR 313.4 Procedure.
In all cases in which the applicant claims membership or affiliation
in any of the organizations covered by 313.2, the applicant shall
attach to the application a detailed written statement describing such
membership or affiliation, including the periods of membership or
affiliation, whether the applicant held any office in the organization,
and whether membership or affiliation was voluntary or involuntary. If
the applicant alleges that membership or affiliation was involuntary, or
that one of the other exemptions in 313.3 applies, the applicant's
statement shall set forth the basis of that allegation.
08 CFR 313.4 PART 315 -- PERSONS INELIGIBLE TO CITIZENSHIP: EXEMPTION
FROM MILITARY SERVICE
Sec.
315.1 Definitions.
315.2 Ineligibility and exceptions.
315.3 Evidence.
315.4 Exemption treaties.
Authority: 8 U.S.C. 1103, 1443.
Source: 56 FR 50483, Oct. 7, 1991, unless otherwise noted.
08 CFR 315.1 Definitions.
As used in this part:
Exemption from military service means either:
(1) A permanent exemption from induction into the Armed Forces or the
National Security Training Corps of the United States for military
training or military service; or
(2) The release or discharge from military training or military
service in the Armed Forces or in the National Security Training Corps
of the United States.
Induction means compulsory entrance into military service of the
United States whether by conscription or, after being notified of a
pending conscription, by enlistment.
Treaty national means an alien who is a national of a country with
which the United States has a treaty relating to the reciprocal
exemption of aliens from military training or military service.
08 CFR 315.2 Ineligibility and exceptions.
(a) Ineligibility. Except as provided in paragraph (b) of this
section, any alien who has requested, applied for, and obtained an
exemption from military service on the ground that he or she is an alien
shall be ineligible for approval of his or her application for
naturalization as a citizen of the United States.
(b) Exceptions. The prohibition in paragraph (a) of this section
does not apply to an alien who establishes by clear and convincing
evidence that:
(1) At the time that he or she requested an exemption from military
service, the applicant had no liability for such service even in the
absence of an exemption;
(2) The applicant did not request or apply for the exemption from
military service, but such exemption was automatically granted by the
United States government;
(3) The exemption from military service was based upon a ground other
than the applicant's alienage;
(4) In claiming an exemption from military service, the applicant did
not knowingly and intentionally waive his or her eligibility for
naturalization because he or she was misled by advice from a competent
United States government authority, or from a competent authority of the
government of his or her country of nationality, of the consequences of
applying for an exemption from military service and was, therefore,
unable to make an intelligent choice between exemption and citizenship;
(5) The applicant applied for and received an exemption from military
service on the basis of alienage, but was subsequently inducted into the
Armed Forces, or the National Security Training Corps, of the United
States; however, an applicant who voluntarily enlists in and serves in
the Armed Forces of the United States, after applying for and receiving
an exemption from military service on the basis of alienage, does not
satisfy this exception to paragraph (a) of this section;
(6) Prior to requesting the exemption from military service:
(i) The applicant was a treaty national who had served in the armed
forces of the country of which he or she was a national; however, a
treaty national who did not serve in the armed forces of the country of
nationality prior to requesting the exemption from military service does
not satisfy this exception to paragraph (a) of this section;
(ii) The applicant served a minimum of eighteen months in the armed
forces of a nation that was a member of the North Atlantic Treaty
Organization at the time of the applicant's service; or
(iii) The applicant served a minimum of twelve months in the armed
forces of a nation that was a member of the North Atlantic Treaty
Organization at the time of the applicant's service, provided that the
applicant applied for registration with the Selective Service
Administration after September 28, 1971; or
(7) The applicant is applying for naturalization pursuant to section
329 of the Act.
08 CFR 315.3 Evidence.
(a) The records of the Selective Service System and the military
department under which the alien served shall be conclusive evidence of
whether the alien was relieved or discharged from liability for military
service because he or she was an alien.
(b) The regulations of the Selective Service Administration and its
predecessors will be controlling with respect to the requirement to
register for, and liability for, service in the Armed Forces of the
United States.
08 CFR 315.4 Exemption treaties.
(a) The following countries currently have effective treaties
providing reciprocal exemption of aliens from military service:
Argentina (Art. X, 10 Stat. 1005, 1009, effective 1853)
Austria (Art. VI, 47 Stat. 1876, 1880, effective 1928)
China (Art. XIV, 63 Stat. 1299, 1311, effective 1946)
Costa Rica (Art. IX, 10 Stat. 916, 921, effective 1851)
Estonia (Art. VI, 44 Stat. 2379, 2381, effective 1925)
Honduras (Art. VI, 45 Stat. 2618, 2622, effective 1927)
Ireland (Art. III, 1 US 785, 789, effective 1950)
Italy (Art. XIII, 63 Stat. 2255, 2272, effective 1948)
Latvia (Art. VI, 45 Stat. 2641, 2643, effective 1928)
Liberia (Art. VI, 54 Stat. 1739, 1742, effective 1938)
Norway (Art. VI, 47 Stat. 2135, 2139, effective 1928)
Paraguay (Art. XI, 12 Stat. 1091, 1096, effective 1859)
Spain (Art. V, 33 Stat. 2105, 2108, effective 1902)
Switzerland (Art. II, 11 Stat. 587, 589, effective 1850)
Yugoslavia (Serbia) (Art. IV, 22 Stat. 963, 964, effective 1881)
(b) The following countries previously had treaties providing for
reciprocal exemption of aliens from military service:
El Salvador (Art. VI, 46 Stat. 2817, 2821, effective 1926 to February
8, 1958)
Germany (Art. VI, 44 Stat. 2132, 2136, effective 1923 to June 2,
1954)
Hungary (Art. VI, 44 Stat, 2441, 2445, effective 1925 to July 5,
1952)
Thailand (Siam) (Art. 1, 53 Stat. 1731, 1732, effective 1937 to June
8, 1968)
08 CFR 315.4 PART 316 -- GENERAL REQUIREMENTS FOR NATURALIZATION
Sec.
316.1 Definitions.
316.2 Eligibility.
316.3 Jurisdiction.
316.4 Application; documents.
316.5 Residence in the United States.
316.6 -- 316.9 (Reserved)
316.10 Good moral character.
316.11 Attachment to the Constitution; favorable disposition towards
the good order and happiness.
316.12 Applicant's legal incompetency during statutory period.
316.13 (Reserved)
316.14 Adjudication -- examination, grant, denial.
316.15 -- 316.19 (Reserved)
316.20 American institutions of research, public international
organizations, and designations under the International Immunities Act.
Authority: 8 U.S.C. 1103, 1181, 1182, 1443, 1447, 8 CFR 2.1.
Source: 56 FR 50484, Oct. 7, 1991, unless otherwise noted.
08 CFR 316.1 Definitions.
As used in this part:
Application means the form specified in 499.1 of this chapter on
which an applicant requests consideration for naturalization.
Service district means the geographical area over which an office of
the Immigration and Naturalization Service has jurisdiction, as defined
in 100.4 of this chapter.
08 CFR 316.2 Eligibility.
(a) General. Except as otherwise provided in this chapter, to be
eligible for naturalization, an alien must establish that he or she:
(1) Is at least 18 years of age;
(2) Has been lawfully admitted as a permanent resident of the United
States;
(3) Has resided continuously within the United States, as defined
under 316.5, for a period of at least five years after having been
lawfully admitted;
(4) Has been physically present in the United States for at least 30
months of the five years preceding the date of filing the application;
(5) Immediately preceding the filing of an application, or
immediately preceding the examination on the application if the
application was filed early pursuant to section 334(a) of the Act and
the three month period falls within the required period of residence
under section 316(a) or 319(a) of the Act, has resided, as defined under
316.5, for at least three months in a State or Service district having
jurisdiction over the applicant's actual place of residence, and in
which the alien seeks to file the application;
(6) Has resided continuously within the United States from the date
of application for naturalization up to the time of admission to
citizenship;
(7) For all relevant time periods under this paragraph, has been and
continues to be a person of good moral character, attached to the
principles of the Constitution of the United States, and favorably
disposed toward the good order and happiness of the United States; and
(8) Is not a person described in Section 314 of the Act relating to
deserters of the United States Armed Forces or those persons who
departed from the United States to evade military service in the United
States Armed Forces.
(b) Burden of proof. The applicant shall bear the burden of
establishing that he or she meets all of the requirements for
naturalization, including that the applicant was lawfully admitted as a
permanent resident to the United States, in accordance with the
immigration laws in effect at the time of the applicant's initial entry
or any subsequent reentry.
08 CFR 316.3 Jurisdiction.
Except as provided in 316.5, the applicant shall file an application
for naturalization with the Service office having jurisdiction, as
described in 100.4 of this chapter, over the applicant's residence at
the time of filing the application. The applicant may be required to
submit evidence of residence for at least three months immediately
preceding the filing of the application in the State or Service district
in which the applicant files the application. For purposes of this
section, the applicant's residence in a State where there are two or
more districts will be sufficient to comply with the jurisdictional
requirement of residence in any one of those districts.
08 CFR 316.4 Application; documents.
(a) The applicant shall apply for naturalization by filing:
(1) Form N-400 (Application for Naturalization);
(2) Evidence of lawful permanent residence in the United States in
the form of photocopies (front and back) of Forms I-551, or I-151 (Alien
Registration Receipt Card), or any other entry document;
(3) Form FD-258 (Fingerprint Card); and
(4) Three (3) photographs as described in 333.1 of this chapter.
(b) At the time of the examination on the application for
naturalization, the applicant may be required to establish the status of
lawful permanent resident by submitting the original evidence, issued by
the Service, of lawful permanent residence in the United States. The
applicant may be also required to submit any passports, or any other
documents that have been used to enter the United States at any time
after the original admission for permanent residence.
08 CFR 316.5 Residence in the United States.
(a) General. Unless otherwise specified, for purposes of this
chapter, including 316.2 (a)(3), (a)(5), and (a)(6), an alien's
residence is the same as that alien's domicile, or principal actual
dwelling place, without regard to the alien's intent, and the duration
of an alien's residence in a particular location is measured from the
moment the alien first establishes residence in that location.
(b) Residences in specific cases -- (1) Military personnel. For
applicants who are serving in the Armed Forces of the United States but
who do not qualify for naturalization under part 328 of this chapter,
the applicant's residence shall be:
(i) The State or Service District where the applicant is physically
present for at least three months, immediately preceding the filing of
an application for naturalization, or immediately preceding the
examination on the application if the application was filed early
pursuant to section 334(a) of the Act and the three month period falls
within the required period of residence under section 316(a) or 319(a)
of the Act;
(ii) The location of the residence of the applicant's spouse and/or
minor child(ren); or
(iii) The applicant's home of record as declared to the Armed Forces
at the time of enlistment and as currently reflected in the applicant's
military personnel file.
(2) Students. An applicant who is attending an educational
institution in a State or Service District other than the applicant's
home residence may apply for naturalization:
(i) Where that institution is located; or
(ii) In the State of the applicant's home residence if the applicant
can establish that he or she is financially dependent upon his or her
parents at the time that the application is filed and during the
naturalization process.
(3) Commuter aliens. An applicant who is a commuter alien, as
described in 211.5 of this chapter, must establish a principal dwelling
place in the United States with the intention of permanently residing
there, and must thereafter acquire the requisite period of residence
before eligibility for naturalization may be established. Accordingly,
a commuter resident alien may not apply for naturalization until he or
she has actually taken up permanent residence in the United States and
until such residence has continued for the required statutory period.
Such an applicant bears the burden of providing evidence to that effect.
(4) Residence in multiple states. If an applicant claims residence
in more than one State, the residence for purposes of this part shall be
determined by reference to the location from which the annual federal
income tax returns have been and are being filed.
(5) Residence during absences of less than one year. (i) An
applicant's residence during any absence of less than one year shall
continue to be the State or Service district where the applicant last
resided at the time of the applicant's departure abroad.
(ii) Return to the United States. If, upon returning to the United
States, an applicant returns to the State or Service district where the
applicant last resided, the applicant will have complied with the
continuous residence requirement specified in 316.2(a)(5) when at least
three months have elapsed, including any part of the applicant's
absence, from the date on which the applicant first established that
residence. If the applicant establishes residence in a State or Service
district other than the one in which he or she last resided, the
applicant must complete three months at that new residence to be
eligible for naturalization.
(c) Loss of Residence Status -- (1) Absence from the United States.
(i) For continuous periods of between six months and one year. Absences
from the United States for continuous periods of between six months and
one year during the periods for which continuous residence is required
under 316.2 (a)(3) and (a)(6) shall break the continuity of such
residence, and shall lead to the conclusion that the applicant has
abandoned lawful permanent residence in the United States for
naturalization purposes, unless the applicant can establish otherwise to
the satisfaction of the Service. This conclusion remains valid even if
the applicant proves that he or she did not apply for or otherwise
request a nonresident classification for tax purposes, that he or she
did not document an abandonment of lawful permanent resident status, and
that he or she is still considered a lawful permanent resident under
immigration laws. The types of documentation which may establish that
the applicant did not abandon his or her lawful permanent residence in
the United States during an extended absence include, but are not
limited to, evidence that during the absence:
(A) The applicant did not terminate his or her employment in the
United States;
(B) The applicant's immediate family remained in the United States;
(C) The applicant retained full access to his or her United States
abode; or
(D) The applicant did not obtain employment while abroad.
(ii) For period in excess of one year. Unless an applicant applies
for benefits in accordance with paragraph (d) of this section, absences
from the United States for a continuous period of one year or more
during the period for which continuous residence is required under
316.2 (a)(3) and (a)(5) shall break the continuity of the applicant's
residence. An applicant described in this paragraph who must satisfy a
five-year statutory residence period may file an application for
naturalization four years and one day following the date of the
applicant's return to the United States to resume permanent residence.
An applicant described in this paragraph who must satisfy a three-year
statutory residence period may file an application for naturalization
two years and one day following the date of the applicant's return to
the United States to resume permanent residence.
(2) Claim of nonresident alien status for income tax purposes after
lawful admission as a permanent resident. An applicant who is a
lawfully admitted permanent resident of the United States, but who
voluntarily claims nonresident alien status to qualify for special
exemptions from income tax liability, raises a rebuttable presumption
that the applicant has relinquished the privileges of permanent resident
status in the United States.
(3) Deportation and return. Any departure from the United States
while under an order of deportation terminates the applicant's status as
a lawful permanent resident and, therefore, breaks the continuity of
residence for purposes of this part.
(4) Readmission after a deferred inspection or exclusion proceeding.
An applicant who has been readmitted as a lawful permanent resident
after a deferred inspection or by the immigration judge during exclusion
proceedings shall satisfy the residence and physical presence
requirements under 316.2 (a)(3), (a)(4), (a)(5), and (a)(6) in the same
manner as any other applicant for naturalization.
(d) Application for benefits with respect to absences; appeal -- (1)
Preservation of residence under section 316(b) of the Act. (i) An
application for the residence benefits under section 316(b) of the Act
to cover an absence from the United States for a continuous period of
one year or more shall be submitted to the Service on Form N-470 with
the required fee, in accordance with the form's instructions. The
application may be filed either before or after the applicant's
employment commences, but must be filed before the applicant has been
absent from the United States for a continuous period of one year.
(ii) An approval of Form N-470 under section 316(b) of the Act shall
cover the spouse and dependent unmarried sons and daughters of the
applicant who are residing abroad as members of the applicant's
household during the period covered by the application. The notice of
approval, Form N-472, shall identify the family members so covered.
(iii) An applicant whose Form N-470 application under section 316(b)
of the Act has been approved, but who voluntarily claims nonresident
alien status to qualify for special exemptions from income tax
liability, raises a rebuttable presumption that the applicant has
relinquished a claim of having retained lawful permanent resident status
while abroad. The applicant's family members who were covered under
section 316(b) of the Act and who were listed on the applicant's Form
N-472 will also be subject to the rebuttable presumption that they have
relinquished their claims to lawful permanent resident status.
(2) Preservation of residence under section 317 of the Act. An
application for the residence and physical presence benefits of section
317 of the Act to cover any absences from the United States, whether
before or after December 24, 1952, shall be submitted to the Service on
Form N-470 with the required fee, in accordance with the form's
instructions. The application may be filed either before or after the
applicant's absence from the United States or the performance of the
functions or services described in section 317 of the Act.
(3) Approval, denial, and appeal. The applicant under paragraphs
(d)(1) or (d)(2) of this section shall be notified of the Service's
disposition of the application on Form N-472. If the application is
denied, the Service shall specify the reasons for the denial, and shall
inform the applicant of the right to appeal in accordance with the
provisions of part 103 of this chapter.
(56 FR 50484, Oct. 7, 1991, as amended at 56 FR 50487, Oct. 7, 1991)
316.6 -- 316.9 (Reserved)
08 CFR 316.10 Good moral character.
(a) Requirement of good moral character during the statutory period.
(1) An applicant for naturalization bears the burden of demonstrating
that, during the statutorily prescribed period, he or she has been and
continues to be a person of good moral character. This includes the
period between the examination and the administration of the oath of
allegiance.
(2) In accordance with section 101(f) of the Act, the Service shall
evaluate claims of good moral character on a case-by-case basis taking
into account the elements enumerated in this section and the standards
of the average citizen in the community of residence. The Service is
not limited to reviewing the applicant's conduct during the five years
immediately preceding the filing of the application, but may take into
consideration, as a basis for its determination, the applicant's conduct
and acts at any time prior to that period, if the conduct of the
applicant during the statutory period does not reflect that there has
been reform of character from an earlier period or if the earlier
conduct and acts appear relevant to a determination of the applicant's
present moral character.
(b) Finding of a lack of good moral character. (1) An applicant
shall be found to lack good moral character, if the applicant has been:
(i) Convicted of murder; or
(ii) Convicted of an aggravated felony as defined in section
101(a)(43) of the Act.
(2) An applicant shall be found to lack good moral character if
during the statutory period the applicant:
(i) Committed one or more crimes involving moral turpitude, other
than a purely political offense, for which the applicant was convicted,
except as specified in section 212(a)(2)(ii)(II) of the Act;
(ii) Committed two or more offenses for which the applicant was
convicted and the aggregate sentence actually imposed was five years or
more, provided that, if the offense was committed outside the United
States, it was not a purely political offense;
(iii) Violated any law of the United States, any State, or any
foreign country relating to a controlled substance, provided that the
violation was not a single offense for simple possession of 30 grams or
less of marijuana;
(iv) Admits committing any criminal act covered by paragraphs (b)(2)
(i), (ii), or (iii) of this section for which there was never a formal
charge, indictment, arrest, or conviction, whether committed in the
United States or any other country;
(v) Is or was confined to a penal institution for an aggregate of 180
days pursuant to a conviction or convictions (provided that such
confinement was not outside the United States due to a conviction
outside the United States for a purely political offense);
(vi) Has given false testimony to obtain any benefit from the Act, if
the testimony was made under oath or affirmation and with an intent to
obtain an immigration benefit; this prohibition applies regardless of
whether the information provided in the false testimony was material, in
the sense that if given truthfully it would have rendered ineligible for
benefits either the applicant or the person on whose behalf the
applicant sought the benefit;
(vii) Is or was involved in prostitution or commercialized vice as
described in section 212(a)(2)(D) of the Act;
(viii) Is or was involved in the smuggling of a person or persons
into the United States as described in section 212(a)(6)(E) of the Act;
(ix) Has practiced or is practicing polygamy;
(x) Committed two or more gambling offenses for which the applicant
was convicted;
(xi) Earns his or her income principally from illegal gambling
activities; or
(xii) Is or was a habitual drunkard.
(3) Unless the applicant establishes extenuating circumstances, the
applicant shall be found to lack good moral character if, during the
statutory period, the applicant:
(i) Willfully failed or refused to support dependents;
(ii) Had an extramarital affair which tended to destroy an existing
marriage; or
(iii) Committed unlawful acts that adversely reflect upon the
applicant's moral character, or was convicted or imprisoned for such
acts, although the acts do not fall within the purview of 316.10(b) (1)
or (2).
(c) Proof of good moral character in certain cases -- (1) Effect of
probation or parole. An applicant who has been on probation, parole, or
suspended sentence during all or part of the statutory period is not
thereby precluded from establishing good moral character, but such
probation, parole, or suspended sentence may be considered by the
Service in determining good moral character. An application will not be
approved until after the probation, parole, or suspended sentence has
been completed.
(2) Full and unconditional executive pardon -- (i) Before the
statutory period. An applicant who has received a full and
unconditional executive pardon prior to the beginning of the statutory
period is not precluded by 316.10(b)(1) from establishing good moral
character provided the applicant demonstrates that reformation and
rehabilitation occurred prior to the beginning of the statutory period.
(ii) During the statutory period. An applicant who receives a full
and unconditional executive pardon during the statutory period is not
precluded by 316.10(b)(2) (i) and (ii) from establishing good moral
character, provided the applicant can demonstrate that extenuating
and/or exonerating circumstances exist that would establish his or her
good moral character.
(3) Record expungement -- (i) Drug offenses. Where an applicant has
had his or her record expunged relating to one of the narcotics offenses
under section 212(a)(2)(A)(i)(II) and section 241(a)(2)(B) of the Act,
that applicant shall be considered as having been ''convicted'' within
the meaning of 316.10(b)(2)(ii), or, if confined, as having been
confined as a result of ''conviction'' for purposes of
316.10(b)(2)(iv).
(ii) Moral turpitude. An applicant who has committed or admits the
commission of two or more crimes involving moral turpitude during the
statutory period is precluded from establishing good moral character,
even though the conviction record of one such offense has been expunged.
08 CFR 316.11 Attachment to the Constitution; favorable disposition
towards the good order and happiness.
(a) General. An applicant for naturalization must establish that
during the statutorily prescribed period, he or she has been and
continues to be attached to the principles of the Constitution of the
United States and favorably disposed toward the good order and happiness
of the United States. Attachment implies a depth of conviction which
would lead to active support of the Constitution. Attachment and
favorable disposition relate to mental attitude, and contemplate the
exclusion from citizenship of applicants who are hostile to the basic
form of government of the United States, or who disbelieve in the
principles of the Constitution.
(b) Advocacy of peaceful change. At a minimum, the applicant shall
satisfy the general standard of paragraph (a) of this section by
demonstrating an acceptance of the democratic, representational process
established by the Constitution, a willingness to obey the laws which
may result from that process, and an understanding of the means for
change which are prescribed by the Constitution. The right to work for
political change shall be consistent with the standards in paragraph (a)
of this section only if the changes advocated would not abrogate the
current Government and establish an entirely different form of
government.
(c) Membership in the Communist Party or any other totalitarian
organization. An applicant who is or has been a member of or affiliated
with the Communist Party or any other totalitarian organization shall be
ineligible for naturalization, unless the applicant's membership meets
the exceptions in sections 313 and 335 of the Act and 313.4 of this
chapter.
08 CFR 316.12 Applicant's legal incompetency during statutory period.
(a) General. An applicant who is legally competent at the time of
the examination on the naturalization application and of the
administration of the oath of allegiance may be admitted to citizenship,
provided that the applicant fully understands the purpose and
responsibilities of the naturalization procedures.
(b) Legal incompetence. Naturalization is not precluded if, during
part of the statutory period, the applicant was legally incompetent or
confined to a mental institution.
(1) There is a presumption that the applicant's good moral character,
attachment, and favorable disposition which existed prior to the period
of legal incompetency continued through that period. The Service may,
however, consider an applicant's actions during a period of legal
incompetence, as evidence tending to rebut this presumption.
(2) If the applicant has been declared legally incompetent, the
applicant has the burden of establishing that legal competency has been
restored. The applicant shall submit legal and medical evidence to
determine and establish the claim of legal competency.
(3) The applicant shall bear the burden of establishing that any
crimes committed, regardless of whether the applicant was convicted,
occurred while the applicant was declared legally incompetent.
316.13 (Reserved)
08 CFR 316.14 Adjudication -- examination, grant, denial.
(a) Examination. The examination on an application for
naturalization shall be conducted in accordance with Section 335 of the
Act.
(b) Determination -- (1) Grant or denial. Subject to supervisory
review, the employee of the Service who conducts the examination under
paragraph (a) of this section shall determine whether to grant or deny
the application, and shall provide reasons for the determination, as
required under section 335(d) of the Act.
(2) Appeal. An applicant whose application for naturalization has
been denied may request a hearing, which shall be carried out in
accordance with section 336 of the Act.
316.15 -- 316.19 (Reserved)
08 CFR 316.20 American institutions of research, public international
organizations, and designations under the International Immunities Act.
(a) American institutions of research. The following-listed
organizations have been determined to be American Institutions of
research recognized by the Attorney General:
African Medical and Research Foundation (AMREF-USA).
Albert Einstein College of Medicine of Yeshiva University (only in
relationship to its research programs).
American Friends of the Middle East, Inc.
American Institutes of Research in the Behavioral Sciences (only in
relationship to research projects abroad).
American Universities Field Staff, Inc.
American University, The, Cairo, Egypt.
American University of Beirut (Near East College Associations).
Arctic Institute of North America, Inc.
Armour Research Foundation of Illinois Institute of Technology.
Asia Foundation, The (formerly Committee for a Free Asia, Inc.).
Association of Universities for Research in Astronomy (AURA, Inc.),
Tucson, AZ.
Atomic Bomb Casualty Commission.
Beirut University College.
Bermuda Biological Station for Research, Inc.
Bernice P. Biship Museum of Polynesian Antiquities, Ethnology and
Natural History at Honolulu, HI.
Brookhaven National Laboratory, Associated Universities, Inc.
Brown University (Department of Engineering), Providence, RI.
Buffalo Eye Bank and Research Society, Inc.
Burma Office of Robert N. Nathan Associates, Inc.
California State University at Long Beach, Department of Geological
Sciences.
Carleton College (Department of Sociology and Anthropology),
Northfield, MN.
Center of Alcohol Studies, Laboratory of Applied Biodynamics of Yale
University.
Central Registry of Jewish Losses in Egypt.
College of Engineering, University of Wisconsin.
College of Medicine, State University of New York.
Colorado State University (Research Foundation), Fort Collins, CO.
Colorado University (International Economic Studies Center), Boulder,
CO.
Columbia University (Parker School of Foreign and Comparative Law)
and (Faculty of Pure Science), New York, NY.
Cornell University (International Agricultural Development,
University of the Philippines-Cornell University Graduate Education
Program).
Dartmouth Medical School.
Department of French, Department of Scandinavian Languages, and
Department of Near Eastern Languages of the University of California,
Berkeley, CA.
Duke University.
Environmental Research Laboratory of the University of Arizona.
Fletcher School of Law and Diplomacy, Medford, MA.
Ford Foundation, 477 Madison Avenue, New York, NY.
Free Europe, Inc. (formerly Free Europe Committee, Inc.; National
Committee for a Free Europe (including Radio Free Europe)).
Georgetown University.
George Williams Hooper Foundation, San Francisco Medical Center,
University of California, San Francisco, CA.
Gorgas Memorial Institute of Tropical and Preventive Medicine, Inc.,
and its operating unit, the Gorgas Memorial Laboratory.
Graduate Faculty of Political and Social Science Division of the New
School for Social Research, New York, NY.
Harvard Institute for International Development.
Harvard-Yenching Institute.
Humboldt State University, School of Natural Resources, Wildlife
Management Department.
Institute for Development Anthropology, Inc.
Institute of International Education, Inc.
Institute of International Studies, University of California,
Berkeley, CA.
International Center for Social Research, New York, NY.
International Development Foundation, Inc.
International Development Services, Inc.
International Research Associates, Inc.
Inter-University Program for Chinese Language Studies (formerly
Stanford Center for Chinese Studies) in Taipei, Taiwan.
Iowa State University.
Iran Foundation, Inc., The.
Kossuth Foundation, Inc., The, New York, NY.
Louisiana State University.
Massachusetts Institute of Technology.
Michigan State University, East Lansing, MI.
Natural Science Foundation, Philadelphia, PA.
New York Zoological Society.
Paderewski Foundation, Inc.
Peabody Museum of Natural History of Yale University.
People to People Health Foundation, Inc., The (only in relationship
to the scientific research activities that will be carried on abroad by
the medical staff of the SS ''Hope'').
Pierce College (in relationship to research by an instructor,
Department of Psychology), Athens, Greece.
Population Council, The, New York, NY.
Radio Liberty Committee, Inc. (formerly American Committee for
Liberation, Inc.; American Committee for Liberation of the Peoples of
Russia, Inc.; American Committee for Liberation from Bolshevism, Inc.).
Rockefeller Foundation.
School of International Relations of the University of Southern
California.
SIRIMAR (Societa Internazionale Recerche Marine) Division, Office of
the Vice President for Research, Pennsylvania State University.
Social Science Research Council.
Solar Energy Research Institute (SERI).
Stanford Electronic Laboratories, Department of Electrical
Engineering, School of Engineering, Stanford University, Stanford, CA.
Stanford Research Institute, Menlo Park, CA.
Stanford University (the George Vanderbilt Foundation), Stanford, CA.
Syracuse University.
Tulane University Graduate School.
Tulane University Medical School.
University of Alabama.
University of Alabama Medical Center.
University of Chicago (as a participant in the International
Cooperation Administration Program No. W-74 only).
University of Colorado (Department of History), Boulder, CO.
University of Connecticut, College of Liberal Arts and Science
(Department of Germanic and Slavic Languages).
University of Hawaii, Honolulu, HI.
University of Ilinois at Urbana-Champaign, Austria-Illinois Exchange
Program.
University of Kansas, Office of International Programs.
University of Michigan (School of Natural Resources), Ann Arbor, MI.
University of Minnesota, Department of Plant Pathology (in
relationship to research project abroad).
University of Nebraska Mission in Columbia, South America.
University of North Carolina at Chapel Hill.
University of Notre Dame, Notre Dame, IN.
University of Puerto Rico.
University of Washington (Department of Marketing, Transportation,
and International Business) and (The School of Public Health and
Community Medicine), Seattle, WA.
Wayne State University, Detroit, MI.
Wenner-Gren Foundation for Anthropological Research, Inc.
Williams College, Economic Department, Williamstown, MA.
(b) Public international organizations of which the United States is
a member by treaty or statute. The following-listed organizations have
been determined to be public international organizations of which the
United States is a member by treaty or statute:
The North Atlantic Treaty Organization.
United Nations and all agencies and organizations which are a part
thereof.
(c) International Organizations Immunities Act designations. The
following public international organizations are entitled to enjoy the
privileges, exemptions, and immunities provided for in the International
Organizations Immunities Act, and are considered as public international
organizations of which the United States is a member by treaty or
statute within the meaning of section 316(b) of the Act and as public
international organizations in which the United States participates by
treaty or statute within the meaning of section 319(b) of the Act:
African Development Bank (E.O. 12403, Feb. 8, 1983).
African Development Fund (E.O. 11977, Mar. 14, 1977).
Asian Development Bank (E.O. 11334, Mar. 7, 1967).
Caribbean Organization (E.O. 10983, Dec. 30, 1961).
Criminal Police Organization (E.O. 12425, June 16, 1983).
Customs Cooperation Council (E.O. 11596, June 5, 1971).
European Space Research Organization (ESRO) (E.O. 11760, Jan. 17,
1974).
Food and Agriculture Organization, The (E.O. 9698, Feb 19, 1946).
Great Lakes Fishery Commission (E.O. 11059, Oct. 23, 1962).
Inter-American Defense Board (E.O. 10228, Mar. 26, 1951).
Inter-American Development Bank (E.O. 10873, Apr. 8, 1960).
Inter-American Institute for Cooperation on Agriculture (E.O. 9751,
July 11, 1946).
Inter-American Statistical Institute (E.O. 9751, July 11, 1946).
Inter-American Tropical Tuna Commission (E.O. 11059, Oct. 23, 1962).
Intergovernmental Committee for European Migration (formerly the
Provisional Intergovernmental Committee for the Movement of Migrants
from Europe) (E.O. 10335, Mar. 28, 1952).
Intergovernmental Maritime Consultative Organization (E.O. 10795,
Dec. 13, 1958).
International Atomic Energy Agency (E.O. 10727, Aug. 31, 1957).
International Bank for Reconstruction and Development (E.O. 9751,
July 11, 1946).
International Centre for Settlement of Investment Disputes (E.O.
11966, Jan. 19, 1977).
International Civil Aviation Organization (E.O. 9863, May 31, 1947).
International Coffee Organization (E.O. 11225, May 22, 1965).
International Cotton Advisory Committee (E.O. 9911, Dec. 19, 1947).
International Development Association (E.O. 11966, Jan. 19, 1977).
International Fertilizer Development Center (E.O. 11977, Mar. 14,
1977).
International Finance Corporation (E.O. 10680, Oct. 2, 1956).
International Food Policy Research Institute (E.O. 12359, Apr. 22,
1982).
International Hydrographic Bureau (E.O. 10769, May 29, 1958).
International Institute for Cotton (E.O. 11283, May 27, 1966).
International Joint Commission -- United States and Canada (E.O.
9972, June 25, 1948).
International Labor Organization, The (functions through staff known
as The International Labor Office) (E.O. 9698, Feb. 19, 1946).
International Maritime Satellite Organization (E.O. 12238, Sept. 12,
1980).
International Monetary Fund (E.O. 9751, July 11, 1946).
International Pacific Halibut Commission (E.O. 11059, Oct. 23, 1962).
International Secretariat for Volunteer Service (E.O. 11363, July 20,
1967).
International Telecommunication Union (E.O. 9863, May 31, 1947).
International Telecommunications Satellite Organization (INTELSAT)
(E.O. 11718, May 14, 1973).
International Wheat Advisory Committee (E.O. 9823, Jan. 24, 1947).
Multinational Force and Observers (E.O. 12359, Apr. 22, 1982).
Organization for European Economic Cooperation (E.O. 10133, June 27,
1950) (Now known as Organization for Economic Cooperation and
Development; 28 FR 2959, Mar. 26, 1963).
Organization of African Unity (OAU) (E.O. 11767, Feb. 19, 1974).
Organization of American States (includes Pan American Union) (E.O.
10533, June 3, 1954).
Pan American Health Organization (includes Pan American Sanitary
Bureau) (E.O. 10864, Feb. 18, 1960).
Preparatory Commission of the International Atomic Energy Agency
(E.O. 10727, Aug. 31, 1957).
Preparatory Commission for the International Refugee Organization and
its successor, the International Refugee Organization (E.O. 9887, Aug.
22, 1947).
South Pacific Commission (E.O. 10086, Nov. 25, 1949).
United International Bureau for the Protection of Intellectual
Property (BIRPI) (E.O. 11484, Sept. 29, 1969).
United Nations, The (E.O. 9698, Feb. 19, 1946).
United Nations Educational, Scientific, and Cultural Organizations
(E.O. 9863, May 31, 1947).
Universal Postal Union (E.O. 10727, Aug. 31, 1957).
World Health Organization (E.O. 10025, Dec. 30, 1948).
World Intellectual Property Organization (E.O. 11866, June 18, 1975).
World Meteorological Organization (E.O. 10676, Sept. 1, 1956).
(32 FR 9634, July 4, 1967. Redesignated and amended at 56 FR 50487,
Oct. 7, 1991)
Editorial Note: For Federal Register citations affecting 316.20,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
08 CFR 316.20 PART 318 -- PENDING DEPORTATION PROCEEDINGS
Authority: Secs. 103, 242, 318, 332, 66 Stat. 173, 208, as amended,
244, 252; 8 U.S.C. 1103, 1252, 1429, 1443.
08 CFR 318.1 Warrant of arrest.
For the purposes of section 318 of the act, an order to show cause
issued under part 242 of this chapter shall be regarded as a warrant of
arrest.
(22 FR 9813, Dec. 6, 1957)
08 CFR 318.1 PART 319 -- SPECIAL CLASSES OF PERSONS WHO MAY BE
NATURALIZED: SPOUSES OF UNITED STATES CITIZENS
Sec.
319.1 Person living in marital union with United States citizen
spouse.
319.2 Person whose United States citizen spouse is employed abroad.
319.3 Surviving spouses of United States citizens who died during a
period of honorable service in an active duty status in the Armed Forces
of the United States.
319.4 Persons continuously employed for 5 years by United States
organizations engaged in disseminating information.
319.5 Public international organizations in which the U.S.
participates by treaty or statute.
319.6 United States nonprofit organizations engaged abroad in
disseminating information which significantly promotes U.S. interests.
319.7 -- 319.10 (Reserved)
319.11 Filing of application.
Authority: 8 U.S.C. 1103, 1430, 1443.
08 CFR 319.1 Persons living in marital union with United States citizen
spouse.
(a) Eligibility. To be eligible for naturalization under section
319(a) of the Act, the spouse of a United States citizen must establish
that he or she:
(1) Has been lawfully admitted for permanent residence to the United
States;
(2) Has resided continuously within the United States, as defined
under 316.5 of this chapter, for a period of at least three years after
having been lawfully admitted for permanent residence;
(3) Has been living in marital union with the citizen spouse for the
three years preceding the date of examination on the application, and
the spouse has been a United States citizen for the duration of that
three year period;
(4) Has been physically present in the United States for periods
totaling at least 18 months;
(5) Has resided, as defined in 316.5 of this chapter, for at least 3
months immediately preceding the filing of the application, or
immediately preceding the examination on the application if the
application was filed early pursuant to section 334(a) of the Act and
the three month period falls within the required period of residence
under section 316(a) or 319(a) of the Act, in the State or Service
district having jurisdiction over the alien's actual place of residence
and in which the alien has filed the application;
(6) Has resided continuously within the United States from the date
of application for naturalization until the time of admission to
citizenship;
(7) For all relevant periods under this paragraph, has been and
continues to be a person of good moral character, attached to the
principles of the Constitution of the United States, and favorably
disposed toward the good order and happiness of the United States; and
(8) Has complied with all other requirements for naturalization as
provided in part 316 of this chapter, except for those contained in
316.2 (a)(3) through (a)(5) of this chapter.
(b) Marital union -- (1) General. An applicant lives in marital
union with a citizen spouse if the applicant actually resides with his
or her current spouse. The burden is on the applicant to establish, in
each individual case, that a particular marital union satisfies the
requirements of this part.
(2) Loss of Marital Union -- (i) Divorce, death or expatriation. A
person is ineligible for naturalization as the spouse of a United States
citizen under section 319(a) of the Act if, before or after the filing
of the application, the marital union ceases to exist due to death or
divorce, or the citizen spouse has expatriated. Eligibility is not
restored to an applicant whose relationship to the citizen spouse
terminates before the applicant's admission to citizenship, even though
the applicant subsequently marries another United States citizen.
(ii) Separation -- (A) Legal separation. Any legal separation will
break the continuity of the marital union required for purposes of this
part.
(B) Informal separation. Any informal separation that suggests the
possibility of marital disunity will be evaluated on a case-by-case
basis to determine whether it is sufficient enough to signify the
dissolution of the marital union.
(C) Involuntary separation. In the event that the applicant and
spouse live apart because of circumstances beyond their control, such as
military service in the Armed Forces of the United States or essential
business or occupational demands, rather than because of voluntary legal
or informal separation, the resulting separation, even if prolonged,
will not preclude naturalization under this part.
(c) Physical presence in the United States. In the event that the
alien spouse has never been in the United States, eligibility under this
section is not established even though the alien spouse resided abroad
in marital union with the citizen spouse during the three year period.
(56 FR 50488, Oct. 7, 1991)
08 CFR 319.2 Person whose United States citizen spouse is employed
abroad.
(a) Eligibility. To be eligible for naturalization under section
319(b) of the Act, the alien spouse of a United States citizen must:
(1) Establish that his or her citizen spouse satisfies the
requirements under section 319(b)(1) of the Act, including that he or
she is regularly stationed abroad. For purposes of this section, a
citizen spouse is regularly stationed abroad if he or she proceeds
abroad, for a period of not less than one year, pursuant to an
employment contract or orders, and assumes the duties of employment;
(2) At the time of examination on the application for naturalization,
be present in the United States pursuant to a lawful admission for
permanent residence;
(3) At the time of naturalization, be present in the United States;
(4) Declare in good faith, upon naturalization before the Service, an
intention:
(i) To reside abroad with the citizen spouse; and
(ii) To take up residence within the United States immediately upon
the termination of the citizen spouse's employment abroad;
(5) Be a person of good moral character, attached to the principles
of the Constitution of the United States, and favorably disposed toward
the good order and happiness of the United States; and
(6) Comply with all other requirements for naturalization as provided
in part 316 of this chapter, except for those contained in 316.2(a)(3)
through (a)(6) of this chapter.
(b) Alien spouse's requirement to depart abroad immediately after
naturalization. An alien spouse seeking naturalization under section
319(b) of the Act must:
(1) Establish that he or she will depart to join the citizen spouse
within 30 to 45 days after the date of naturalization;
(2) Notify the Service immediately of any delay or cancellation of
the citizen spouse's assignment abroad; and
(3) Notify the Service immediately if he or she is unable to reside
with the citizen spouse because the citizen spouse is employed abroad in
an area of hostilities where dependents may not reside.
(c) Loss of marital union due to death, divorce, or expatriation of
the citizen spouse. A person is ineligible for naturalization as the
spouse of a United States citizen under section 319(b) of the Act if,
before or after the filing of the application, the marital union ceases
to exist due to death or divorce, or the citizen spouse has expatriated.
Eligibility is not restored to an applicant whose relationship to the
citizen spouse terminates before the applicant's admission into
citizenship, even though the applicant subsequently marries another
United States citizen.
(56 FR 50488, Oct. 7, 1991)
08 CFR 319.3 Surviving spouses of United States citizens who died
during a period of honorable service in an active duty status in the
Armed Forces of the United States.
(a) Eligibility. To be eligible for naturalization under section
319(d) of the Act, the surviving spouse of a United States citizen must:
(1) Establish that his or her citizen spouse died during a period of
honorable service in an active duty status in the Armed Forces of the
United States;
(2) Establish that he or she was living in marital union with the
citizen spouse, in accordance with 319.1(b), at the time of that
spouse's death;
(3) At the time of examination on the application for naturalization,
reside in the United States pursuant to a lawful admission for permanent
residence;
(4) Be a person of good moral character, attached to the principles
of the Constitution of the United States, and favorably disposed toward
the good order and happiness of the United States; and
(5) Comply with all other requirements for naturalization as provided
in part 316 of this chapter, except for those contained in 316.2(a)(3)
through (a)(6) of this chapter.
(b) Remarriage of the surviving spouse. The surviving spouse of a
United States citizen described under paragraph (a)(1) of this section
remains eligible for naturalization under section 319(d) of the Act,
even if the surviving spouse remarries.
(56 FR 50488, Oct. 7, 1991)
08 CFR 319.4 Persons continuously employed for 5 years by United States
organizations engaged in disseminating information.
To be eligible for naturalization under section 319(c) of the Act, an
applicant must:
(a) Establish that he or she is employed as required under section
319(c)(1) of the Act;
(b) Reside in the United States pursuant to a lawful admission for
permanent residence;
(c) Establish that he or she has been employed as required under
paragraph (a) of this section continuously for a period of not less than
five years after a lawful admission for permanent residence;
(d) File his or her application for naturalization while employed as
required under paragraph (a) of this section, or within six months
following the termination of such employment;
(e) Be present in the United States at the time of naturalization;
(f) Declare in good faith, upon naturalization before the Service, an
intention to take up residence within the United States immediately upon
his or her termination of employment;
(g) Be a person of good moral character, attached to the principles
of the Constitution of the United States, and favorably disposed toward
the good order and happiness of the United States; and
(h) Comply with all other requirements for naturalization as provided
in part 316 of this chapter, except for those contained in 316.2(a)(3)
through (a)(6) of this chapter.
(56 FR 50489, Oct. 7, 1991)
08 CFR 319.5 Public international organizations in which the U.S.
participates by treaty or statute.
Organizations designated by the President as international
organizations pursuant to the International Organizations Immunities Act
are considered as public international organizations in which the United
States participates by treaty or statute within the meaning of section
319(b) or the Act. For a list of such organizations see 316.20(b) of
this chapter. In addition, the following have been determined to be
public international organizations within the purview of section 319(b)
of the Act:
The North Atlantic Treaty Organization.
The United Nations and all agencies and organizations which are a
part thereof.
The regional commissioner shall forward a copy of each decision
regarding a public international organization to the Assistant
Commissioner, Naturalization.
(32 FR 9635, July 4, 1967. Redesignated at 33 FR 255, Jan. 9, 1968.
Further redesignated and amended at 56 FR 50489, Oct. 7, 1991)
08 CFR 319.6 United States nonprofit organizations engaged abroad in
disseminating information which significantly promotes U.S. interests.
The following have been determined to be U.S. incorporated nonprofit
organizations principally engaged in conducting abroad through
communications media the dissemination of information which
significantly promotes U.S. interests abroad within the purview of
section 319(c) of the Act:
Free Europe, Inc.; formerly Free Europe Committee, Inc.; National
Committee for a Free Europe (including Radio Free Europe)).
Radio Liberty Committee, Inc. (formerly American Committee for
Liberation, Inc.; American Committee for Liberation of the Peoples of
Russia, Inc.; American Committee for Liberation from Bolshevism, Inc.).
(33 FR 255, Jan. 9, 1968. Redesignated and amended at 56 FR 50489,
Oct. 7, 1991)
319.7 -- 319.10 (Reserved)
08 CFR 319.11 Filing of application.
(a) General. An applicant covered by this part shall submit to the
Service an application for naturalization on Form N-400, with the
required fee, in accordance with the instructions contained therein. An
alien spouse applying for naturalization under section 319(b) of the Act
and 319.2 shall also submit a statement of intent containing the
following information about the citizen spouse's employment and the
applicant's intent following naturalization:
(1) The name of the employer and:
(i) The nature of the employer's business; or
(ii) The ministerial, religious, or missionary activity in which the
employer is engaged;
(2) Whether the employing entity is owned in whole or in part by
United States interests;
(3) Whether the employing entity is engaged in whole or in part in
the development of the foreign trade and commerce of the United States;
(4) The nature of the activity in which the citizen spouse is
engaged;
(5) The anticipated period of employment abroad;
(6) Whether the alien spouse intends to reside abroad with the
citizen spouse; and,
(7) Whether the alien spouse intends to take up residence within the
United States immediately upon the termination of such employment abroad
of the citizen spouse.
(b) Applications by military spouses -- (1) General. The alien
spouses of United States military personnel being assigned abroad must
satisfy the basic requirements of section 319(b) of the Act and of
paragraph (a) of this section.
(2) Government expense. In the event that transportation expenses
abroad for the alien spouse are to be paid by military authorities, a
properly executed Certificate of Overseas Assignment to Support
Application to File Petition for Naturalization, DD Form 1278 will be
submitted in lieu of the statement of intent required by paragraph (a)
of this section. Any DD Form 1278 issued more than 90 days in advance
of departure is unacceptable for purposes of this section.
(3) Private expense. In the event that the alien spouse is not
authorized to travel abroad at military expense, the alien spouse must
submit in lieu of the statement of intent required by paragraph (a) of
this section:
(i) A copy of the citizen spouse's military travel orders,
(ii) A letter from the citizen spouse's commanding officer indicating
that the military has no objection to the applicant traveling to and
residing in the vicinity of the citizen spouse's new duty station; and
(iii) Evidence of transportation arrangements to the new duty
station.
(56 FR 50489, Oct. 7, 1991)
08 CFR 319.11 PART 322 -- SPECIAL CLASSES OF PERSONS WHO MAY BE
NATURALIZED: CHILDREN OF CITIZEN PARENT
Sec.
322.1 (Reserved)
322.2 Eligibility.
322.3 Jurisdiction for filing application.
322.4 Application and examination on the application.
322.5 Oath of allegiance.
Authority: 8 U.S.C. 1103, 1433, 1443, 1448.
Source: 56 FR 50489, Oct. 7, 1991, unless otherwise noted.
322.1 (Reserved)
08 CFR 322.2 Eligibility.
(a) General. To be eligible for naturalization under section 322 of
the Act, a child on whose behalf an application for naturalization has
been filed by a parent who is, at the time of filing, a citizen of the
United States, must:
(1) Be unmarried and under 18 years of age, both at the time of
application and at the time of admission to citizenship;
(2) Reside permanently in the United States, in the physical and
legal custody of the applying citizen parent, pursuant to a lawful
admission for permanent residence;
(3) Be a person of good moral character, attached to the principles
of the Constitution of the United States, and favorably disposed toward
the good order and happiness of the United States; a child under the
age of fourteen will generally be presumed to satisfy this requirement;
(4) Comply with all other requirements for naturalization as provided
in the Act and in part 316 of this chapter, including the
disqualifications contained in sections 313, 314, 315, and 318 of the
Act, except:
(i) The child is not required to satisfy the residence requirements
under 316.2(a)(3), (a)(4), or (a)(6) of this chapter; and,
(ii) The child is exempt from the literacy and knowledge requirements
under section 312 of the Act.
(b) Definition of Child. For purposes of this part,
(1) The definition of child includes:
(i) A legitimate child;
(ii) A child who is legitimated before the child reaches age 16 under
the laws of the child's residence or domicile, or under the laws of the
father's residence or domicile, whether inside or outside of the United
States, if such legitimation takes place while the child is in the legal
custody of the legitimating parent or parents at the time of such
legitimation;
(iii) An illegitimate child if the application is being submitted by
the child's natural mother; or
(iv) A child who is adopted before the child reaches age 16 if such
adoption takes place while the child is in the legal custody of the
adopting parent or parents at the time of such adoption.
(2) The definition of child does not include:
(i) A stepchild; or
(ii) An illegitimate child, except as provided in paragraph
(b)(1)(iii) of this section, even if the child is recognized but not
legitimated by the father.
(c) Adopted children of a parent who meets the criteria of section
319(b)(1) of the Act. An adopted child who is in the United States at
the time of naturalization is also exempt from the residence
requirements of 316.2(a)(5) of this chapter if the child's adoptive
citizen parent:
(1) Meets the criteria of section 319(b)(1) of the Act;
(2) Applies for naturalization of the child under section 322(c) of
the Act; and
(3) Declares before the Service an intention in good faith to take up
residence within the United States immediately upon termination of
employment described in section 319(b)(1)(B) of the Act.
08 CFR 322.3 Jurisdiction for filing application.
(a) The application for naturalization under section 322(a) of the
Act must be filed with the office of the Service having jurisdiction
over the place of residence of the child and the child's citizen parent.
(b) An application for naturalization under section 322(c) of the Act
and 322.2(c) may be filed in any office of the Service without regard
to residence.
08 CFR 322.4 Application and examination on the application.
(a) An application for naturalization under this section in behalf of
a child shall be submitted on Form N-400 by the citizen parent. If the
child is over the age of fourteen, Form FD-258, fingerprint card, must
accompany the application.
(b) The application must be accompanied by proof of:
(1) The child's admission for lawful permanent residence;
(2) The applying citizen parent's United States citizenship; and
(3) The relationship between the child and applying citizen parent.
(c) In the case of an applicant under section 322(c) of the Act, the
citizen parent shall also submit a statement of intent containing the
following information about the citizen parent's employment and the
child's intentions following naturalization:
(1) The name of the employer and either the nature of the employer's
business, or the ministerial, religious, or missionary activity in which
the employer is engaged;
(2) Whether the employing entity is owned in whole or in part by
United States interests;
(3) Whether the employing entity is engaged in whole or in part in
the development of the foreign trade and commerce of the United States;
(4) The nature of the activity in which the citizen parent is
engaged;
(5) The anticipated period of employment abroad;
(6) The child's intention to reside abroad with the citizen parent:
and
(7) Whether the citizen parent intends to take up residence within
the United States immediately upon the termination of such employment
abroad of the citizen parent.
(d) In the case of a citizen parent whose employment abroad is in
connection with his or her membership in the Armed Forces of the United
States, a properly executed DD Form 1278 will satisfy the requirements
of paragraph (c) of this section.
(e) The child and the citizen parent must both appear at the
examination on the application.
08 CFR 322.5 Oath of allegiance.
(a) A child, as defined in 322.2(b), must take the oath of
allegiance in compliance with part 337 of this chapter, if the child is
capable of understanding the meaning of the oath.
(b) If the child is not exempt from the requirement to take the oath
of allegiance, the citizen parent must be present at the oath taking
ceremony, unless such parent has been excused for good cause.
08 CFR 322.5 PART 324 -- SPECIAL CLASSES OF PERSONS WHO MAY BE
NATURALlZED: WOMEN WHO HAVE LOST UNITED STATES CITIZENSHIP BY MARRIAGE
AND FORMER CITIZENS WHOSE NATURALIZATION IS AUTHORIZED BY PRlVATE LAW
Sec.
324.1 Definitions.
324.2 Former citizen at birth or by naturalization.
324.3 Women, citizens of the United States at birth, who lost or are
believed to have lost citizenship by marriage and whose marriage has
terminated.
324.4 Women restored to United States citizenship by the act of June
25, 1936, as amended by the act of July 2, 1940.
324.5 Former citizen of the United States whose naturalization by
taking the oath is authorized by a private law.
Authority: 8 U.S.C. 1103, 1435, 1443, 1448, 1101 note.
08 CFR 324.1 Definitions.
As used in this part:
Oath means the Oath of Allegiance as prescribed in section 337 of the
Act.
(56 FR 50490, Oct. 7, 1991)
08 CFR 324.2 Former citizen at birth or by naturalization.
(a) Eligibility. To be eligible for naturalization under section
324(a) of the Act, an applicant must establish that she:
(1) Was formerly a United States citizen;
(2) Lost or may have lost United States citizenship:
(i) Prior to September 22, 1922, by marriage to an alien, or by the
loss of United States citizenship of the applicant's spouse; or
(ii) On or after September 22, 1922, by marriage before March 3, 1931
to an alien ineligible to citizenship;
(3) Did not acquire any other nationality by affirmative act other
than by marriage;
(4) Either:
(i) Has resided in the United States continuously since the date of
the marriage referred to in paragraph (a)(2) of this section; or
(ii) Has been lawfully admitted for permanent residence prior to
filing an application for naturalization;
(5) Has been and is a person of good moral character, attached to the
principles of the Constitution of the United States, and favorably
disposed toward the good order and happiness of the United States, for
the period of not less than five years immediately preceding the
examination on the application for naturalization up to the time of
admission to citizenship; and
(6) Complies with all other requirements for naturalization as
provided in part 316 of this chapter, except that:
(i) The applicant is not required to satisfy the residence
requirements under 316.2(a)(3) through (a)(6) of this chapter; and,
(ii) The applicant need not set forth an intention to reside
permanently within the United States.
(b) Application. An applicant for naturalization under this section
must submit an application on Form N-400, as required by 316.4 of this
chapter. The application must be accompanied by a statement describing
the applicant's eligibility as provided in paragraph (a) of this section
as well as any available documentation to establish those facts. An
application under this section shall be filed with the Service office
having jurisdiction over the place of residence of the applicant.
(56 FR 50490, Oct. 7, 1991)
08 CFR 324.3 Women, citizens of the United States at birth, who lost or
are believed to have lost citizenship by marriage and whose marriage has
terminated.
(a) Eligibility. To be eligible for naturalization under section
324(c) of the Act, an applicant must establish:
(1) That she was formerly a United States citizen by birth;
(2) That she lost or may have lost her United States citizenship:
(i) Prior to September 22, 1922, by marriage to an alien; or
(ii) On or after September 22, 1922, by marriage to an alien
ineligible to citizenship before March 3, 1931;
(3) That the marriage specified in paragraph (a)(2) of this section
terminated subsequent to January 12, 1941;
(4) That she did not acquire any other nationality by affirmative act
other than by marriage; and
(5) That she is not proscribed from naturalization under section 313
of the Act.
(b) Procedures -- (1) Application. An applicant eligible for
naturalization pursuant to paragraph (a) of this section, who desires to
regain citizenship pursuant to section 324(c) of the Act, shall submit,
without fee, an Application for Naturalization, form N-400, to the
office of the Service having jurisdiction over her place of residence as
evidence of her desire to take the oath.
(2) Oath of Allegiance. The district director shall review the
applicant's submission, and shall inform the applicant of her
eligibility under section 324(c) of the Act to take the oath in
conformity with part 337 of this chapter. After the applicant has taken
the oath, the applicant will be furnished with a copy of the oath by the
clerk of the Court or the Service, as appropriate, properly certified,
for which a fee not exceeding $5 may be charged. The oath may also be
taken abroad before any diplomatic or consular officer of the United
States, in accordance with such regulations as may be prescribed by the
Secretary of State.
(56 FR 50490 and 50491, Oct. 7, 1991)
08 CFR 324.4 Women restored to United States citizenship by the act of
June 25, 1936, as amended by the act of July 2, 1940.
A woman who was restored to citizenship by the act of June 25, 1936,
as amended by the act of July 2, 1940, but who failed to take the oath
of allegiance prescribed by the naturalization laws prior to December
24, 1952, may take the oath before any naturalization court or office of
the Service within the United States. Such woman shall comply with the
procedural requirements of 324.4(b) and (c) except that a fee not
exceeding $1.00 may be charged if the woman requests a copy of the oath.
(22 FR 9814, Dec. 6, 1957. Redesignated and amended at 56 FR 50490
and 50491, Oct. 7, 1991)
08 CFR 324.5 Former citizen of the United States whose naturalization
by taking the oath is authorized by a private law.
A former citizen of the United States whose naturalization by taking
the oath before any naturalization court or office of the Service within
the United States is authorized by a private law shall submit to the
Service an application on Form N-400, without fee. The application to
the court shall be made on Form N-400, in triplicate, amended as set
forth in this chapter. A copy of the private law shall be attached to
Form N-408. The provisions of 324.5(c) relating to fees and copies of
the oath will apply to a proceeding under this section.
(23 FR 2673, Apr. 23, 1958. Redesignated and amended at 56 FR 50490
and 50491, Oct. 7, 1991)
08 CFR 324.5 PART 325 -- NATIONALS BUT NOT CITIZENS OF THE UNITED
STATES; RESIDENCE WITHIN OUTLYING POSSESSIONS
Sec.
325.1 (Reserved)
325.2 Eligibility.
325.3 Residence.
325.4 Application; documents.
Authority: 8 U.S.C. 1103, 1436, 1443.
Source: 56 FR 50491, Oct. 7, 1991, unless otherwise noted.
325.1 (Reserved)
08 CFR 325.2 Eligibility.
An applicant for naturalization under section 325 of the Act who owes
permanent allegiance to the United States, and who is otherwise
qualified may be naturalized if:
(a) The applicant becomes a resident of any State; and
(b) The applicant complies with all of the applicable requirements in
parts 316 or 319 of this chapter, as appropriate, except as modified in
this part.
08 CFR 325.3 Residence.
(a) For purposes of applying the residence and physical presence
requirements in parts 316 and 319 of this chapter, except as they relate
to the required three months' residence in a State or Service district,
residence and physical presence in an outlying possession of the United
States will count as residence and physical presence in the United
States.
(b) An applicant who intends to resume residence in an outlying
possession after naturalization will be regarded as having established
that he or she intends to reside permanently in the United States.
08 CFR 325.4 Application; Documents.
(a) An application for naturalization under this part shall be
submitted in compliance with 316.4(a) of this chapter.
(b) The applicant shall submit with the application:
(1) A birth certificate or other evidence of national status;
(2) Proof of identity; and
(3) Evidence of actual residence in the State or Service district in
the United States where the application is filed for three months
immediately preceding the filing of the application, or immediately
preceding the examination on the application if the application was
filed early pursuant to section 334(a) of the Act and the three month
period falls within the required period of residence under section
316(a) or 319(a) of the Act.
08 CFR 325.4 PART 327 -- SPECIAL CLASSES OF PERSONS WHO MAY BE
NATURALIZED: PERSONS WHO LOST UNITED STATES CITlZENSHIP THROUGH SERVICE
IN ARMED FORCES OF FOREIGN COUNTRY DURlNG WORLD WAR II
Sec.
327.1 Eligibility.
327.2 Procedure for naturalization.
Authority: 8 U.S.C. 1103, 1438, 1443.
08 CFR 327.1 Eligibility.
To be eligible for naturalization under section 327 of the Act, an
applicant must establish that:
(a) The applicant, on or after September 1, 1939 and on or before
September 2, 1945:
(1) Served in the military, air or naval forces of any country at war
with a country with which the United States was at war after December 7,
1941 and before September 2, 1945; or
(2) Took an oath of allegiance or obligation for purposes of entering
or serving in the military, air, or, naval forces of any country at war
with a country with which the United States was at war after December 7,
1941 and before September 2, 1945;
(b) The applicant was a United States citizen at the time of the
service or oath specified in paragraph (a) of this section;
(c) The applicant lost United States citizenship as a result of the
service or oath specified in paragraph (a) of this section;
(d) The applicant has been lawfully admitted for permanent residence
and intends to reside permanently in the United States;
(e) The applicant is, and has been for a period of at least five
years immediately preceding taking the oath required in 327.2(c), a
person of good moral character, attached to the principles of the
Constitution of the United States, and favorably disposed toward the
good order and happiness of the United States; and
(f) The applicant has complied with all other requirements for
naturalization as provided in part 316 of this chapter, except for those
contained in 316.2 (a)(3) through (a)(6) of this chapter.
(56 FR 50492, Oct. 7, 1991)
08 CFR 327.2 Procedure for naturalization.
(a) Application. An applicant who is eligible for naturalization
pursuant to section 327 of the Act and 327.1 shall submit an
Application for Naturalization, Form N-400, in accordance with 316.4 of
this chapter, to the Service office having jurisdiction over the
applicant's place of residence. Such application must be accompanied by
a statement describing the applicant's eligibility under 327.1 (a),
(b), and (c) and any available documentation to establish those facts.
(b) Oath of Allegiance. Upon naturalization of the applicant, the
district director shall transmit a copy of the oath of allegiance taken
by the applicant to the Department of State.
(56 FR 50492, Oct. 7, 1991)
08 CFR 327.2 PART 328 -- SPECIAL CLASSES OF PERSONS WHO MAY BE
NATURALIZED: PERSONS WITH THREE YEARS SERVICE IN ARMED FORCES OF THE
UNITED STATES
Sec.
328.1 Definitions.
328.2 Eligibility.
328.3 Jurisdiction.
328.4 Application.
Authority: 8 U.S.C. 1103, 1439, 1443.
Source: 56 FR 50492, Oct. 7, 1991, unless otherwise noted.
08 CFR 328.1 Definitions.
As used in this part:
Honorable service means only that military service which is
designated as honorable service by the executive department under which
the applicant performed that military service. Any service that is
designated to be other than honorable will not qualify under this
section.
Service in the Armed Forces of the United States means:
(1) Active or reserve service in the United States Army, United
States Navy, United States Marines, United States Air Force, or United
States Coast Guard; or
(2) Service in a National Guard unit during such time as the unit is
Federally recognized as a reserve component of the Armed Forces of the
United States.
08 CFR 328.2 Eligibility.
To be eligible for naturalization under section 328(a) of the Act, an
applicant must establish that the applicant:
(a) Has served honorably in and, if separated, has been separated
honorably from, the Armed Forces of the United States;
(b) Has served under paragraph (a) of this section for a period of
three or more years, whether that service is continuous or
discontinuous;
(c) Is a lawful permanent resident of the United States at the time
of the examination on the application;
(d) Has been, during any period within five years preceding the
filing of the application for naturalization, or the examination on the
application if eligible for early filing under section 334(a) of the
Act, and continues to be, of good moral character, attached to the
principles of the Constitution of the United States, and favorably
disposed toward the good order and happiness of the United States.
(1) An applicant is presumed to satisfy the requirements of this
paragraph during periods of honorable service under paragraph (a) of
this section.
(2) An applicant must establish that he or she satisfies the
requirements of this paragraph from the date of discharge from military
until the date of admission to citizenship.
(3) An applicant whose honorable service is discontinuous must also
demonstrate that he or she satisfies the requirements of this paragraph
for those periods of time when that applicant is not in honorable
service.
(e) Has complied with all other requirements for naturalization as
provided in part 316 of this chapter, except that:
(1) An applicant who files an application for naturalization while
still in honorable service, or within six months after termination of
such service, is generally not required to satisfy the residence
requirements under 316.2(a)(3) through (a)(6) of this chapter;
however, if the applicant's military service is discontinuous, that
applicant must establish, for periods between honorable service during
the five years immediately preceding the date of filing the application,
or the examination on the application if eligible for early filing under
section 334(a) of the Act, that he or she resided in the United States
and in the State or Service district in the United States in which the
application is filed.
(2) An applicant who files an application for naturalization more
than six months after terminating honorable service must satisfy the
residence requirements under 316.2(a)(3) through (a)(6) of this
chapter. However, any honorable service by the applicant within the
five years immediately preceding the date of filing of the application
shall be considered as residence within the United States for purposes
of 316.2(a)(3) of this chapter.
08 CFR 328.3 Jurisdiction.
An application filed within 6 months after discharge may be filed
with any office of the Service within the United States regardless of
place of residence of the applicant. An application filed more than 6
months after discharge shall be filed with the Service office having
jurisdiction over the State or Service district where the applicant has
been residing for at least three months immediately preceding the filing
of the application, or immediately preceding the examination on the
application if the application was filed early pursuant to section
334(a) of the Act and the three month period falls within the required
period of residence under section 316(a) or 319(a) of the Act.
08 CFR 328.4 Application.
An applicant for naturalization under this part must submit an
Application for Naturalization, Form N-400, as provided in 316.4 of
this chapter. The application must be accompanied by Form N-426,
Certificate of Military or Naval Service; and Form G-325B, Biographic
Form.
08 CFR 328.4 PART 329 -- SPECIAL CLASSES OF PERSONS WHO MAY BE
NATURALIZED: NATURALIZATION BASED UPON ACTIVE DUTY SERVICE IN THE
UNITED STATES ARMED FORCES DURING SPECIFIED PERIODS OF HOSTILITIES
Sec.
329.1 Definitions.
329.2 Eligibility.
329.3 Jurisdiction.
329.4 Application and evidence.
329.5 Natives of the Philippines with active duty service during
World War II.
Authority: 8 U.S.C. 1103, 1440, 1443.
08 CFR 329.1 Definitions.
As used in this part:
Honorable service and separation means service and separation from
service which the executive department under which the applicant served
determines to be honorable, including:
(1) That such applicant had not been separated from service on
account of alienage;
(2) That such applicant was not a conscientious objector who
performed no military, air or naval duty; and
(3) That such applicant did not refuse to wear a military uniform.
Service in an active duty status in the Armed Forces of the United
States means active service in the following organizations:
(1) United States Army, United States Navy, United States Marines,
United States Air Force, United States Coast Guard; or
(2) A National Guard unit during such time as the unit is Federally
recognized as a reserve component of the Armed Forces of the United
States and that unit is called for active duty.
World War I means the period beginning on April 6, 1917, and ending
on November 11, 1918.
(56 FR 50493, Oct. 7, 1991)
08 CFR 329.2 Eligibility.
To be eligible for naturalization under section 329(a) of the Act, an
applicant must establish that he or she:
(a) Has served honorably in an active duty status in the Armed Forces
of the United States during:
(1) World War I;
(2) The period beginning on September 1, 1939 and ending on December
31, 1946;
(3) The period beginning on June 25, 1950 and ending on July 1, 1955;
(4) The period beginning on February 28, 1961 and ending on October
15, 1978;
(5) The period beginning on October 25, 1983 and ending on November
2, 1983, for active service conducted:
(i) On the Islands of Grenada, Carriacou, Green Hog, and those
islands adjacent to Grenada in the Atlantic seaboard where such service
was in direct support of the military operations in Grenada; or
(ii) In the air space above Grenada; or
(iii) In the seas adjacent to Grenada where military operations were
conducted; or
(iv) At the Grantly Adams International Airport in Barbados; or
(6) Any other period as may be designated by the President in an
Executive Order pursuant to section 329(a) of the Act;
(b) If separated, has been separated honorably from service in the
Armed Forces of the United States under paragraph (a) of this section;
(c) Satisfies the permanent residence requirement in one of the
following ways:
(1) Any time after enlistment or induction into the Armed Forces of
the United States, the applicant was lawfully admitted to the United
States as a permanent resident; or
(2) At the time of enlistment or induction, the applicant was
physically present in the geographical territory of the United States,
the Canal Zone, American Samoa, Midway Island (prior to August 21,
1959), or Swain's Island, or in the ports, harbors, bays, enclosed sea
areas, or the three-mile territorial sea along the coasts of these land
areas, whether or not the applicant has been lawfully admitted to the
United States as a permanent resident;
(d) Has been, for at least one year prior to filing the application
for naturalization, and continues to be, of good moral character,
attached to the principles of the Constitution of the United States, and
favorably disposed toward the good order and happiness of the United
States; and
(e) Has complied with all other requirements for naturalization as
provided in part 316 of this chapter, except that:
(1) The applicant may be of any age;
(2) The applicant is not required to satisfy the residence
requirements under 316.2 (a)(3) through (a)(6) of this chapter; and
(3) The applicant may be naturalized even if an outstanding order to
show cause exists under part 242 of this chapter.
(56 FR 50493, Oct. 7, 1991)
08 CFR 329.3 Jurisdiction.
Except as noted in 329.5, an application under this part may be
filed in any office of the Service within the United States regardless
of the place of residence of the applicant.
(56 FR 50493, Oct. 7, 1991)
08 CFR 329.4 Application and evidence.
(a) Application. An applicant for naturalization under section 329
of the Act must submit an Application for Naturalization, Form N-400, as
provided in 316.4 of this chapter. The application must be accompanied
by Form N-426, Certificate of Military or Naval Service, in triplicate,
and Form G-325B, Biographic Form.
(b) Evidence. The applicant's eligibility for naturalization under
329.2 (a), (c)(1), or (c)(2) shall be established only by the
certification of the executive department under which the applicant
served or is serving.
(56 FR 50493, Oct. 7, 1991)
08 CFR 329.5 Natives of the Philippines with active duty service during
World War II.
(a) A person desiring to naturalize in accordance with section 405 of
the Immigration Act of 1990 shall establish that he/she:
(1) Was born in the Philippines;
(2) Served honorably at any time during the period beginning
September 1, 1939, and ending December 31, 1946 --
(i) In an active-duty status under the command of the United States
Armed Forces in the Far East, or
(ii) Within the Commonwealth Army of the Philippines, the Philippine
Scouts, or recognized guerrilla units; and
(3) Resided in the Philippines prior to the service described in
paragraph (a)(2) of this section.
(b) An application under this section shall be submitted in
compliance with 329.2. In addition to the forms and documentation
required in 329.2 and the appropriate fee as required in 103.7 of this
chapter, an applicant shall submit:
(1) Proof of birth in the Philippines;
(2) Police clearance for any place of residence for more than six
months in the previous 5 years if such residence was not in the United
States; and
(3) Proof of identity.
(c) If the applicant is residing in the United States, the
application shall be submitted to the district or sub-office of the
Service having jurisdiction over the place of residence in accordance
with 100.4 (b) and (c) of this chapter. A person residing outside the
United States shall submit the application to the Northern Service
Center, 100 Centennial Mall North, room B26, Lincoln, Nebraska 68509.
(d) A person residing outside the United States shall be examined on
his application at a location in the United States designated by the
Service. Any person residing outside the United States who wishes to be
examined on his application at a location in the United States other
than that designated by the Service shall submit with the application a
statement as to the desired location and the reasons therefor. The
Service may interview the applicant at other than the designated site
for good cause. The Service Center Director will determine whether good
cause exists and there shall be no appeal from the determination.
(e) To be considered an application for naturalization under section
405, the application must be received by the Service no earlier than
November 29, 1990 and no later than November 30, 1992.
(f) No decision to approve or deny an application for naturalization
under section 405 of the Immigration Act of 1990 may be made prior to
May 1, 1991.
(56 FR 11061, Mar. 15, 1991)
08 CFR 329.5 PART 330 -- SPECIAL CLASSES OF PERSONS WHO MAY BE
NATURALIZED: SEAMEN
Sec.
330.1 Eligibility.
330.2 Application.
Authority: 8 U.S.C. 1103, 1443.
08 CFR 330.1 Eligibility.
To be eligible for naturalization under section 330 of the Act, an
applicant must establish that he or she:
(a) Has been lawfully admitted as a permanent resident of the United
States;
(b) Has served honorably or with good conduct, during such periods of
lawful residence, in a capacity other than as a member of the Armed
Forces of the United States, on board:
(1) A vessel operated by the United States, or an agency thereof, the
full legal and equitable title to which is in the United States; or
(2) A vessel, whose home port is the United States, and
(i) Which is registered under the laws of the United States; or
(ii) The full legal and equitable title to which is in a citizen of
the United States, or a corporation organized under the laws of any of
the several States of the United States;
(c) Served in the capacity specified in paragraph (b) of this section
within five years immediately preceding the date on which the applicant
filed the application for naturalization, or on which the alien is
examined, if the application was filed early pursuant to section 334(a)
of the Act.
(d) Has been, during the five years preceding the filing of the
application for naturalization, or the examination on the application if
the application was filed early under section 334(a) of the Act, and
continues to be, of good moral character, attached to the principles of
the Constitution of the United States, and favorably disposed toward the
good order and happiness of the United States.
(1) An applicant is presumed to satisfy the requirements of this
paragraph during periods of service in accordance with paragraphs (b)
and (c) of this section, as reflected by the records and certificates
submitted by the applicant under 330.2(b).
(2) An applicant must demonstrate that he or she satisfies the
requirements of this paragraph for those required periods when that
applicant did not perform service in accordance with paragraphs (b) and
(c) of this section; and
(e) Has complied with all other requirements for naturalization as
provided in part 316 of this chapter, except that, for purposes of the
residence requirements under paragraphs 316.2 (a)(3) and (a)(4) of this
chapter, service satisfying the conditions of this section shall be
considered as residence and physical presence within the United States.
(56 FR 50493, Oct. 7, 1991)
08 CFR 330.2 Application.
(a) An applicant for naturalization under section 330 of the Act must
submit an Application for Naturalization, Form N-400, to the Service
office exercising jurisdiction over the applicant's actual residence in
the United States. For the purpose of this section, the term ''actual
residence'' means the applicant's residence and abode ashore as may have
been established during the period of qualifying service as a seaman
immediately prior to the filing of the application.
(b) An applicant under this part must submit authenticated copies of
the records and certificates of either:
(1) The Executive Department or Agencies having custody of records
reflecting the applicant's service on a vessel in United States
Government Service, if the applicant provided service under
330.1(b)(1); or
(2) The masters of those vessels maintaining a home port in the
United States, and either registered under the laws of the United States
or owned by United States citizens or corporations, if the applicant
provided service under 330.1(b)(2).
(56 FR 50493, Oct. 7, 1991)
08 CFR 330.2 PART 331 -- ALIEN ENEMIES; NATURALIZATION UNDER SPECIFIED
CONDITIONS AND PROCEDURES
Sec.
331.1 Definitions.
331.2 Eligibility.
331.3 Investigation.
331.4 Procedures.
Authority: 8 U.S.C. 1103, 1443.
Source: 56 FR 50494, Oct. 7, 1991, unless otherwise noted.
08 CFR 331.1 Definitions.
As used in this part:
Alien enemy means any person who is a native, citizen, subject or
denizen of any country, state or sovereignty with which the United
States is at war, for as long as the United States remains at war, as
determined by proclamation of the President or resolution of Congress.
Denizen includes, but is not limited to, any person who has been
admitted to residence and is entitled to certain rights in a country
other than the one of the person's nationality. A person holding a
status in another country equivalent to that of a lawful permanent
resident in the United States would be considered to be a denizen.
08 CFR 331.2 Eligibility.
An alien enemy may be naturalized as a citizen of the United States
under section 331 of the Act if:
(a) The alien's application for naturalization is pending at the
beginning of the state of war, or the Service has granted the alien an
exception from the classification as an alien enemy after conducting an
investigation in accordance with 331.3;
(b) The alien's loyalty to the United States is fully established
upon investigation by the Service in accordance with 331.3; and
(c) The alien is otherwise entitled to admission to citizenship.
08 CFR 331.3 Investigation.
The Service shall conduct a full investigation of any alien enemy
whose application for naturalization is pending upon declaration of war
or at any time thereafter. This investigation may take place either
prior to or after the examination on the application. This
investigation shall encompass, but not be limited to, the applicant's
loyalty to the United States and attachment to the country, state, or
sovereignty with which the United States is at war.
08 CFR 331.4 Procedures.
(a) Upon determining that an applicant for naturalization is an alien
enemy, the Service shall notify the applicant in writing of its
determination. Upon service of this notice to the applicant, the
provisions of section 336(b) of the Act will no longer apply to such
applicant, until that applicant is no longer classifiable as an alien
enemy.
(b) Upon completion of the investigation described in 331.3, if the
Service concludes that the applicant's loyalty and attachment to the
United States have been fully established, the application may be
granted.
08 CFR 331.4 PART 332 -- NATURALIZATION ADMINISTRATION
Sec.
332.1 Designation of service employees to administer oaths and
conduct examinations and hearings.
332.2 Establishment of photographic and fingerprinting studios.
332.3 Instruction and training in citizenship responsibilities.
332.4 Cooperation with official National and State organizations.
332.5 Official forms for use by clerks of court.
Authority: 8 U.S.C. 1103, 1443, 1447.
08 CFR 332.1 Designation of service employees to administer oaths and
conduct examinations and hearings.
(a) Examinations. All immigration examiners are hereby designated to
conduct the examination for naturalization required under section 335 of
the Act. A district director may also designate other officers of the
Service, who are classified at grade levels equal to or higher than the
grade of the immigration examiners, to conduct the examination under
section 335 of the Act, provided that each officer so designated has
received appropriate training.
(b) Hearings. Section 336 of the Act authorizes immigration officers
to conduct hearings under that section. A district director may
designate the officers who are designated under paragraph (a) of this
section to conduct hearings under section 336 of the Act.
(c) Depositions. All immigration officers and other officers or
employees of the Service who are classified at grade levels equal to or
higher than the grade of the immigration officers are hereby designated
to take depositions in matters relating to the administration of
naturalization and citizenship laws.
(d) Oaths and affirmations. All immigration officers and other
officers or employees of the Service who are classified at grade levels
equal to or higher than the grade of the immigration officers are hereby
designated to administer oaths or affirmations except for the oath of
allegiance as provided in 337.2 of this chapter.
(56 FR 50494, Oct. 7, 1991)
08 CFR 332.2 Establishment of photographic and fingerprinting studios.
District directors shall after investigation recommend to the
appropriate regional commissioner the establishment and operation of
studios providing photographic services, fingerprinting services or
both. The studios shall be operated by sponsoring organizations on a
nonprofit basis solely for the benefit of persons seeking to comply with
the requirements of the immigration and naturalization laws. Such
studios must be in a building occupied by the Service and be conducted
under the supervision of the district director. Each sponsoring
organization shall submit an annual accounting of the conduct of each
studio to the regional commissioner through the district director.
(51 FR 35628, Oct. 7, 1986. Redesignated and amended at 56 FR 50494,
Oct. 7, 1991)
08 CFR 332.3 Instruction and training in citizenship responsibilities.
(a) Headquarters and the field offices of the Service shall cooperate
with appropriate authorities or organizations in the community to
establish and maintain classes within, or under the supervision of, the
public schools, for the purpose of preparing applicants for
naturalization to accept the duties and responsibilities of citizenship.
Service officers shall, whenever practical, visit such classes or
otherwise provide necessary liaison with those authorities or
organizations that are providing such educational preparation.
(b) Citizenship textbooks and other study materials are intended for
the free use of applicants for naturalization who are enrolled in
instructional courses in or under the supervision of the public schools
as provided in paragraph (a) of this section. Such textbooks and other
study materials shall be distributed by the regional offices of the
Service to the appropriate representatives of the public schools upon
their written and signed requests.
(c) Public school certificates attesting to the attendance and
progress of enrollees shall be given favorable consideration by Service
officers in determining the applicant's overall knowledge and
understanding of the fundamentals of the history, principles, and form
of government of the United States, and the applicant's ability to read,
write, and speak the English language.
(56 FR 50495, Oct. 7, 1991)
08 CFR 332.4 Cooperation with official National and State
organizations.
The Central Office and the field offices shall take steps to obtain
the aid of and to cooperate with official National and State
organizations in the Service's program of promoting instruction and
training of applicants for naturalization for their citizenship duties
and responsibilities. Similar action shall be taken in relation to duly
accredited unofficial educational, social service, welfare, and other
organizations having as one of their objects the preparation of
applicants for naturalization for their citizenship duties and
responsibilities.
(22 FR 9818, Dec. 6, 1957. Redesignated at 56 FR 50495, Oct. 7, 1991)
08 CFR 332.5 Official forms for use by clerks of court.
(a) Official forms essential to exercise of jurisdiction. Before
exercising jurisdiction in naturalization proceedings, the
naturalization court shall direct the clerk of such court upon written
application to obtain from the Service, in accordance with section
310(c) of the Immigration and Nationality Act, proper forms, records,
booked, and supplies required in naturalization proceedings. Such
jurisdiction may not be exercised until such official forms, records,
and books have been supplied to such court. Only such forms as are
supplied shall be used in naturalization proceedings. Where sessions of
the court are held at different places, the judge of such court may
require the clerk to obtain a separate supply of official forms, records
and books for each such place.
(b) Official forms prescribed for use of clerks of naturalization
courts. Clerks of courts shall use only the forms listed in 499.1 of
this chapter in the exercise of naturalization jurisdiction.
(c) Initial application for official forms. Whenever the initial
application for forms, records, books and supplies is made by a State
court of record, it shall be accompanied by a certificate of the
Attorney General of the State, certifying that the said court is a court
of record, having a seal, a clerk, and jurisdiction in actions at law or
in equity, or at law and in equity, in which the amount in controversy
is unlimited.
(d) Subsequent application for use of official forms. Included with
the initial supply of official forms, records, and books furnished to
the various courts by the Service shall be Form N-3 entitled
''Requisition for Forms and Binders,'' and thereafter such forms shall
be used by clerks of courts in making requisition for forms, records,
books, and supplies for use in naturalization proceedings in their
respective courts.
(22 FR 9817, Dec. 6, 1957. Redesignated and amended at 56 FR 50495,
Oct. 7, 1991)
08 CFR 332.5 PART 333 -- PHOTOGRAPHS
Sec.
333.1 Description of required photographs.
333.2 Attachment of photographs to documents.
Authority: 8 U.S.C. 1103, 1443.
08 CFR 333.1 Description of required photographs.
(a) Every applicant required to furnish photographs of himself or
herself under section 333 of the Act and this chapter shall submit three
identical color photographs that shall have a glossy finish and shall be
no smaller than 40 mm in length by 35 mm in width, and no larger than 80
mm in length by 60 mm in width; shall be unmounted and printed on a
thin paper; shall have a white background; shall clearly show a
three-quarter profile view of the features of the applicant with head
bare (unless the applicant is wearing a headdress as required by a
religious order of which he or she is a member), with the distance from
the top of the head to point of chin approximately 30 mm; and shall
have been taken within 30 days of the date they are furnished. The
image must be at least 26 mm in width. Photographs must be in natural
color.
(b) The applicant, except in the case of a child or other person
physically incapable of signing his or her name, shall sign each copy of
the photograph on the front of the photograph with his or her full true
name, in such manner as not to obscure the features. An applicant
unable to write may make the signature by a mark. An applicant for
naturalization must sign the photographs in the English language, unless
the applicant is exempt from the English language requirement of part
312 of this chapter and is unable to sign in English, in which case the
photographs may be signed in any language.
(c) (1) If a child is unable to sign his or her name, the photographs
must be signed by a parent or guardian, the signature reading ''(name of
child) by (name of parent or guardian).''
(2) If an adult is physically unable to sign or make a mark, a
guardian or the Service employee conducting the interview will sign the
photographs as provided in paragraph (c)(1) of this section.
(d) The photographs must be signed when submitted with an application
if the instructions accompanying the application so require. If
signature is not required by the instructions, the photographs are to be
submitted without being signed and shall be signed at such later time
during the processing of the application as may be appropriate.
(56 FR 50495, Oct. 7, 1991)
08 CFR 333.2 Attachment of photographs to documents.
A signed photograph of the applicant must be securely and permanently
attached to each certificate of naturalization or citizenship, to each
original and duplicate declaration of intention issued by the Service,
and to each replacement copy of a declaration of intention, certificate
of naturalization, or certificate of citizenship issued by the Service.
If a seal is affixed to the document, the imprint of a part of the seal
must extend over the lower portion of the photograph in such a manner as
not to obscure the features of the applicant.
(56 FR 50495, Oct. 7, 1991)
08 CFR 333.2 PART 334 -- APPLICATION FOR NATURALIZATION
Sec.
334.1 Filing of application for naturalization.
334.2 Application for naturalization.
334.3 Oath or affirmation on application.
334.4 Investigation and report if applicant is sick or disabled.
334.5 Amendment of application for naturalization, reopening
proceedings.
334.6 -- 334.10 (Reserved)
334.11 Declaration of intention.
334.12 -- 334.15 (Reserved)
334.16 Amendment of petition for naturalization.
334.17 Transfer of petition for naturalization.
334.18 Withdrawal of petition and failure to prosecute.
Authority: 8 U.S.C. 1103, 1443.
08 CFR 334.1 Filing of application for naturalization.
Any person who is an applicant under sections 316, 319, 322, 324,
325, 327, 328, 329, or 330 of the Act and the corresponding parts of
this chapter, may apply for naturalization in accordance with the
procedures prescribed in this chapter at the Service office indicated in
the appropriate part of this chapter.
(56 FR 50496, Oct. 7, 1991)
08 CFR 334.2 Application for naturalization.
(a) An applicant may file an application for naturalization by filing
a completed Form N-400 signed in the applicant's own handwriting, if
physically able to do so, and by including any other documents required
by parts 316, 319, 322, 324, 325, 327, 328, 329, and 330 of this
chapter, as appropriate. An application prepared for a person
physically unable to write shall be signed by the preparer, in the space
marked ''Preparer's signature.'' The applicant shall include the fee as
required in 103.7 of chapter B of this title, and a photocopy of the
applicant's Alien Registration Card (Form I-551 or Form I-151).
(b) An application for naturalization may be filed up to 90 days
prior to the completion of the required period of residence, which may
include the three-month period of residence required to establish
jurisdiction under section 316(a) or 319(a) of the Act.
(56 FR 50496, Oct. 7, 1991)
08 CFR 334.3 Oath or affirmation on application.
The application for naturalization shall be executed under the
following oath (or affirmation): ''I swear (affirm) and certify under
penalty of perjury under the laws of the United States of America that I
know that the contents of this application for naturalization subscribed
by me, and the evidence submitted with it, are true and correct to the
best of my knowledge and belief.''
(56 FR 50496, Oct. 7, 1991)
08 CFR 334.4 Investigation and report if applicant is sick or disabled.
Whenever it appears that an applicant for naturalization may be
unable, because of sickness or other disability, to appear for the
initial examination on the application or for any subsequent hearing,
the district director shall cause an investigation to be conducted to
determine the circumstances surrounding the sickness or disability. The
district director shall determine, based on available medical evidence,
whether the sickness or disability is of a nature which so incapacitates
the applicant as to prevent the applicant's appearance at a Service
office or court having jurisdiction over the applicant's place of
residence. If so, the district director may designate another place
where the applicant may appear for the requisite naturalization
proceedings.
(56 FR 50496, Oct. 7, 1991)
08 CFR 334.5 Amendment of application for naturalization; reopening
proceedings.
(a) Clerical amendments -- (1) By applicant. An applicant may
request that the application for naturalization be amended either prior
to or subsequent to the administration of the oath of allegiance.
(2) By Service. The Service may amend, at any time, an application
for naturalization when in receipt of information that clearly indicates
that a clerical error has occurred.
(3) Amendment procedure. Any amendment will be limited to the
correction of clerical errors arising from oversight or omission. If
the amendment is approved, the amended application shall be filed with
the original application for naturalization.
(b) Substantive amendments. Any substantive amendments which affect
the jurisdiction or the decision on the merits of the application will
not be authorized. When the Service is in receipt of any information
that would indicate that an application for naturalization should not
have been granted on the merits, the Service may institute proceedings
to reopen the application before admission to citizenship, or to revoke
the naturalization of a person who has been admitted to citizenship, in
accordance with section 340 of the Act and 335.5 of this chapter.
(56 FR 50496, Oct. 7, 1991)
334.6 -- 334.10 (Reserved)
08 CFR 334.11 Declaration of intention.
Any person who is a lawful permanent resident over 18 years of age
may file an application for a declaration of intention to become a
citizen of the United States. Such application, with the requisite fee,
shall be filed on Form N-300 with the district director of the Service
office having jurisdiction over the applicant's place of residence. The
original application for the declaration of intention shall be retained
and filed in the applicant's Service file. The duplicate copy of the
application shall be filed in chronological order in the official files
of the district office. The declaration of intention shall be delivered
to the applicant.
(56 FR 50496, Oct. 7, 1991)
334.12 -- 334.15 (Reserved)
08 CFR 334.16 Amendment of petition for naturalization.
(a) During pendency of petition. An application to amend a petition
for naturalization, filed prior to October 1, 1991, while such petition
is pending, shall be made by the petitioner on Form N-410, with copies
thereof equal to the number of copies of the petition for
naturalization, and presented to the court at the hearing on the
petition for naturalization. The application shall be accompanied by
the fee specified in 103.7(b)(1) of this chapter, unless it was
initiated by, and for the convenience of, the government. When the
court orders the petition amended, the original order shall be filed
with the original petition and the copies attached to the respective
copies of the petition.
(b) After final action on petition. Whenever an application is made
to the court to amend a petition for naturalization after final action
thereon has been taken by the court, a copy of the application shall be
served upon the district director having administrative jurisdiction
over the territory in which the court is located, in the manner and
within the time provided by the rules of court in which application is
made. No objection shall be made to the amendment of a petition for
naturalization after the petitioner for naturalization has been admitted
to citizenship if the motion or application is to correct a clerical
error arising from oversight or omission. A representative of the
Service may appear at the hearing upon such application and be heard in
favor of or in opposition thereto. When the court orders the petition
amended, the clerk of court shall transmit a copy of the order to the
district director for inclusion in the Service file.
(22 FR 9819, Dec. 6, 1957, as amended at 32 FR 9635, July 4, 1967;
45 FR 10313, Feb. 15, 1980; 56 FR 50496, Oct. 7, 1991)
08 CFR 334.17 Transfer of petition for naturalization.
(a) Application for transfer. An application to transfer a petition
for naturalization, filed prior to October 1, 1991, shall be made on
Form N-455, in quadruplicate, to the district diector exercising
administrative jurisdiction over the place where the court in which the
petition is filed is located.
(b) Action by district director. If the district director consents
to the transfer, he shall so indicate on each copy of Form N-455, which
shall be filed with the clerk of court in which the petition is pending.
If the district director does not consent to the transfer he shall so
indicate on each copy of Form N-455 which shall be filed with the clerk
of court, with a memorandum of the district director setting forth the
reasons for the denial. The applicant shall be notified by the district
director of the filing of Form N-455 with the clerk of court, and
whether consent has been given by the district director.
(c) Action by court in which petition is filed. The court in which
the petition is filed shall enter an order on the original copy of Form
N-455, approving or disapproving the application. If the application is
approved, the original copy of Form N-455 shall be filed with the
naturalization record in the office of the clerk of court, the duplicate
and triplicate copies, duly attested and certified, transmitted to the
court to which the petition is to be transferred, and the quadruplicate
copy, also attested and certified, transmitted to the district director.
If the application is disapproved, the original Form N-455 shall be
filed with the naturalization record in the office of the clerk of court
and the remaining copies transmitted to the district director, who shall
notify the applicant of the disapproval.
(d) Action by court to which petition is transferred. The court to
which the petition is to be transferred shall enter an order on the
duplicate copy of Form N-455, approving or disapproving the transfer.
The duplicate copy shall be filed with the clerk of the court to which
the petition is to be transferred, and the triplicate copy, duly
attested and certified, transmitted to the clerk of the court in which
the petition is filed. If the application is disapproved, the clerk of
court receiving the triplicate copy shall notify the district director,
who shall notify the applicant of the disapproval.
(e) Transfer of petition and record. If the court to which the
petition is to be transferred approves the transfer, the clerk of court
in which the petition is filed shall file the triplicate copy of Form
N-455 with the naturalization record and forward a certified copy of the
petition, and the originals of all documents filed relating thereto, to
the court to which the petition is being transferred, and notify the
district director having administrative jurisdiction over the place in
which the petition is filed, of the action taken. Upon receipt of the
certified copy and record, the clerk of court to which the petition is
transferred shall index it, number it consecutively in the order in
which it is received, prefixed by the letters TR, and in a series
separate from petitions originally filed in the court. The petition
shall be made a part of the record of the naturalization court. No fee
shall be charged by the clerk of the court to which the petition is
transferred for the filing of the transferred petition or the issuance
of a certificate of naturalization.
(22 FR 9820, Dec. 6, 1957; 22 FR 9520, Nov. 28, 1957, as amended at
23 FR 5820, Aug. 1, 1958; 56 FR 50496, Oct. 7, 1991)
08 CFR 334.18 Withdrawal of petition and failure to prosecute.
(a) A petitioner who desires to withdraw his petition for
naturalization, filed prior to October 1, 1991, shall make request for
withdrawal on Form N-404, in duplicate. The original shall be filed
with the clerk of court and the duplicate with the office of the Service
exercising administrative jurisdiction over the district in which the
court is located. At the final hearing upon the petition, the officer
in attendance shall inform the court whether the district director
consents to the withdrawal of the petition. In cases in which the
district director does not consent to the withdrawal, the court shall
determine the petition on its merits.
(b) At the final hearing upon a petition for naturalization which the
petitioner has failed to prosecute, the officer in attendance shall
inform the court whether the district director consents to dismissal of
the petition for lack of prosecution. In cases in which the district
director does not move that the petition be dismissed for lack of
prosecution, the court shall determine the petition on its merits.
(22 FR 9819, Dec. 6, 1957, as amended at 56 FR 50496, Oct. 7, 1991)
08 CFR 334.18 PART 335 -- EXAMINATION ON APPLICATION FOR NATURALIZATION
Sec.
335.1 Investigation of applicant.
335.2 Examination of applicant.
335.3 Determination on application; continuance of examination.
335.4 Use of record of examination.
335.5 Receipt of derogatory information after grant.
335.6 -- 335.8 (Reserved)
335.9 Transfer of application.
335.10 Withdrawal of application.
335.11 Preliminary examinations on petitions for naturalization filed
prior to October 1, 1991.
335.12 Recommendations on petitions for naturalization of the
designated examiner and regional administrator; notice.
335.13 Notice of recommendation on petitions for naturalization of
designated examiner.
Authority: 8 U.S.C. 1103, 1443, 1447.
08 CFR 335.1 Investigation of applicant.
Subsequent to the filing of an application for naturalization, the
Service shall conduct an investigation of the applicant. The
investigation shall consist, at a minimum, of a review of all pertinent
records, police department checks, and a neighborhood investigation in
the vicinities where the applicant has resided and has been employed, or
engaged in business, for at least the five years immediately preceding
the filing of the application. The district director may waive the
neighborhood investigation of the applicant provided for in this
paragraph.
(56 FR 50497, Oct. 7, 1991)
08 CFR 335.2 Examination of applicant.
(a) General. Subsequent to the filing of an application for
naturalization, each applicant shall appear in person before a Service
officer designated to conduct examinations pursuant to 332.l of this
chapter. The examination shall be uniform throughout the United States
and shall encompass all factors relating to the applicant's eligibility
for naturalization. The applicant may request the presence of an
attorney or representative who has filed an appearance in accordance
with part 292 of chapter B of this title, to observe the examination and
make notes without otherwise participating in the examination procedure.
(b) Procedure. Prior to the beginning of the examination, the
Service officer shall make known to the applicant the official capacity
in which the officer is conducting the examination. The applicant shall
be questioned, under oath or affirmation, in a setting apart from the
public. Whenever necessary, the examining officer shall correct written
answers in the application for naturalization to conform to the oral
statements made under oath or affirmation. The Service officer shall
maintain, for the record, brief notations of the examination for
naturalization. At a minimum, the notations shall include a record of
the test administered to the applicant on English literacy and basic
knowledge of the history and government of the United States. The
Service officer may have a stenographic, mechanical, electronic, or
videotaped transcript made, or may prepare an affidavit covering the
testimony of the applicant. The questions to the applicant shall be
repeated in different form and elaborated, if necessary, until the
officer conducting the examination is satisfied that the applicant
either fully understands the questions or is unable to understand
English. The applicant and the Service shall have the right to present
such oral or documentary evidence and to conduct such cross-examination
as may be required for a full and true disclosure of the facts.
(c) Witnesses. Witnesses, if called, shall be questioned to discover
their own credibility and competency, as well as the extent of their
personal knowledge of the applicant and his or her qualifications to
become a naturalized citizen.
(1) Issuance of subpoenas. Subpoenas requiring the attendance of
witnesses or the production of documentary evidence, or both, may be
issued by the examining officer upon his or her own volition, or upon
written request of the applicant or his or her attorney or
representative. Such written request shall specify, as nearly as
possible, the relevance, materiality, and scope of the testimony or
documentary evidence sought and must show affirmatively that the
testimony or documentary evidence cannot otherwise be produced.
(2) Service of subpoenas. Subpoenas shall be issued on Form I-138,
and a record shall be made of service. The subpoena may be served by
any person over 18 years of age, not a party to the case, designated to
make such service by the district director.
(3) Witness fees. Mileage and fees for witnesses subpoenaed under
this section shall be paid by the party at whose instance the subpoena
is issued, at rates allowed and under conditions prescribed by the
Service. Before issuing a subpoena, the officer may require the deposit
of an amount adequate to cover the fees and mileage involved.
(4) Failure to appear. If the witness subpoenaed neglects or refuses
to testify or to produce documentary evidence as directed by the
subpoena, the district director shall request that the United States
Attorney for the proper district report such neglect or refusal to any
District Court of the United States, and file a motion in such court for
an order directing the witness to appear and to testify and produce the
documentary evidence described in the subpoena.
(5) Extraterritorial testimony. The testimony of a witness may be
taken outside the United States. The witness's name and address shall
be sent to the Service office abroad which has jurisdiction over the
witness's residence. The officer taking the statement shall be given
express instructions regarding any aspect of the case which may require
special development or emphasis during the interrogation of the witness.
(d) Record of examination. At the conclusion of the examination, all
corrections made on the application form and all supplemental material
shall be consecutively numbered and listed in the space provided on the
applicant's affidavit contained in the application form. The affidavit
must then be subscribed and sworn to, or affirmed, by the applicant and
signed by the Service officer. Evidence received by the officer shall
be placed into the record for determination of the case. All
documentary or written evidence shall be properly identified and
introduced into the record as exhibits by number, unless read into the
record. A deposition or statement taken by a Service officer during the
initial examination or any subsequent examination shall be included as
part of the record on the application.
(e) Use of interpreter. If the use of an interpreter is authorized
pursuant to 312.4 of this chapter, the examining officer shall note on
the application the use and identity of any interpreter. If the Service
officer is proficient in the applicant's native language, the Service
officer may conduct the examination in that language with the consent of
the applicant.
(56 FR 50497, Oct. 7, 1991)
08 CFR 335.3 Determination on application; continuance of examination.
(a) The Service officer shall grant the application if the applicant
has complied with all requirements for naturalization under this
chapter. A decision to grant or deny the application shall be made at
the time of the initial examination or within 120-days after the date of
the initial examination of the applicant for naturalization under
335.2. The applicant shall be notified that the application has been
granted or denied and, if the application has been granted, of the
procedures to be followed for the administration of the oath of
allegiance pursuant to part 337 of this chapter.
(b) Rather than make a determination on the application, the Service
officer may continue the initial examination on an application for one
reexamination, to afford the applicant an opportunity to overcome
deficiencies on the application that may arise during the examination.
The officer must inform the applicant of the grounds to be overcome.
The applicant shall not be required to appear for a reexamination
earlier than 60 days after the first examination. However, the
reexamination on the continued case shall be scheduled within the
120-day period after the initial examination, except as otherwise
provided under 312.5(b) of this chapter. If the applicant is unable to
overcome the deficiencies in the application, the application shall be
denied pursuant to 336.1 of this chapter.
(56 FR 50497, Oct. 7, 1991)
08 CFR 335.4 Use of record of examination.
In the event that an application is denied, the record of the
examination on the application for naturalization, including the
executed and corrected application form and supplements, affidavits,
transcripts of testimony, documents, and other evidence, shall be
submitted to the Service officer designated in 332.1 of this chapter to
conduct hearings on denials of applications for naturalization in
accordance with part 336 of this chapter. The record of the examination
shall be used for examining the petitioner and witnesses, if required to
properly dispose of issues raised in the matter.
(56 FR 50498, Oct. 7, 1991)
08 CFR 335.5 Receipt of derogatory information after grant.
In the event that the Service receives derogatory information
concerning an applicant whose application has already been granted as
provided in 335.3(a) of this chapter, but who has not yet taken the
oath of allegiance as provided in part 337 of this chapter, the Service
shall remove the applicant's name from any list of granted applications
or of applicants scheduled for administration of the oath of allegiance,
until such time as the matter can be resolved. The Service will notify
the applicant of the receipt of derogatory information, with a motion to
reopen the previously adjudicated application, giving the applicant 15
days to respond. If the applicant overcomes the derogatory information,
the application will be granted and the applicant will be scheduled for
administration of the oath of allegiance. Otherwise the motion to
reopen will be granted and the application will be denied pursuant to
336.1 of this chapter.
(56 FR 50498, Oct. 7, 1991)
335.6 -- 335.8 (Reserved)
08 CFR 335.9 Transfer of application.
(a) Request for transfer of application. An applicant who, after
filing an application for naturalization, changes residence, or plans to
change residence within three months, may request, in writing, that a
pending application be transferred from the current Service office to
the Service office having jurisdiction over the applicant's new place of
residence. The request shall be submitted to the office where the
application was originally filed. The request shall include the
applicant's name, alien registration number, date of birth, complete
current address including name of the county, complete address at the
time of filing the application, reason for the request to transfer the
application, and the date the applicant moved or intends to move to the
new jurisdiction.
(b) Discretion to authorize transfer. The district director may
authorize the transfer of an application for naturalization after such
application has been filed. In the event that the district director
does not consent to the transfer of the application, the application for
naturalization shall be adjudicated on its merits by the Service office
retaining jurisdiction, and, if denied, a final order will be issued.
(56 FR 50498, Oct. 7, 1991)
08 CFR 335.10 Withdrawal of application.
An applicant may request, in writing, that his or her application,
filed with the Service, be withdrawn. If the district director consents
to the withdrawal, the application will be denied without further notice
to the applicant and without prejudice to any future application. The
withdrawal by the applicant will constitute a waiver of any review
pursuant to part 336 of this chapter. If the district director does not
consent to the withdrawal, the application for naturalization shall be
adjudicated on its merits.
(56 FR 50498, Oct. 7, 1991)
08 CFR 335.11 Preliminary examinations on petitions for naturalization
filed prior to October 1, 1991.
(a) When held. Continued preliminary examinations shall be held on
petitions for naturalization filed prior to October 1, 1991 when it is
determined that further testimony is needed for the designated examiner
to prepare a recommendation to the court consistent with 335.12. The
examinations shall be open to the public.
(b) Conduct of examination. Preliminary examinations shall be held
before an employee of the Service designated by the district director to
conduct such proceedings and to make findings and recommendations
thereon to the naturalization court, who shall be known as the
''designated examiner.'' The petitioner and his or her witnesses and the
witnesses produced on behalf of the Government shall be present. The
designated examiner shall, prior to the commencement of the examination,
make known to the petitioner his or her official capacity and that of
any other officer of the Service who may participate in the proceeding.
The designated examiner shall have before him or her the entire record
of the preliminary interrogation, including the petitioner's application
to file a petition for naturalization (Form N-400) and any other
evidence or data that may be relevant or material to the inquiry. All
testimony taken at the examination shall be under oath or affirmation
administered by the designated examiner. The designated examiner may
interrogate the petitioner and witnesses produced in behalf of the
petitioner or the Government, and present evidence touching upon the
petitioner's admissibility to citizenship. He shall regulate the course
of the examination, rule upon applications for the issuance of subpoenas
and issue such subpoenas in proper cases, grant or deny continuances,
and rule on all objections to the introduction of evidence, which
rulings shall be entered on the record. Evidence held by the designated
examiner to be inadmissible shall nevertheless be received into the
record subject to the ruling of the court. The petitioner and the
Government shall have the right to present such oral or documentary
evidence and to conduct such cross-examination as may be required for a
full and true disclosure of the facts. If the petitioner is not
represented by an attorney or representative, the designated examiner
shall assist the petitioner in the introduction of all evidence
available in his or her behalf. All documentary or written evidence
shall be properly identified and introduced into the record as exhibits
by number, unless read into the record.
(c) Assignment of examining officer at preliminary examination. The
district director may in his or her discretion assign an employee of the
Service to act as examining officer at the preliminary examination.
Such employee shall examine and cross-examine witnesses produced in
behalf of the Government or the petitioner and present evidence
pertinent to the petitioner's admissibility to citizenship. The
designated examiner may take such part in the interrogation of the
petitioner and witnesses and the introduction of evidence as he or she
may deem necessary.
(d) Stenographic reporting of proceedings; mechanical recording
equipment. A stenographer shall be in attendance whenever, in the
opinion of the designated examiner, such attendance is desirable, and in
every case to which an examining officer is assigned. The stenographer
shall record verbatim the entire proceedings, including the oaths
administered and rulings on objections, but shall not record arguments
in support of objections, or statements made off the record with the
consent of the petitioner. The stenographer shall certify that the
transcribed minutes constitute a complete and accurate record of the
examination. Whenever, in the opinion of the designated examiner the
use of mechanical recording equipment in lieu of a stenographer is
deemed desirable, the proceedings may be recorded by such equipment.
(e) Issuance of subpoenas; attendance and mileage fees. Subpenas
requiring the attendance of witnesses or the production of documentary
evidence, or both, may be issued by the designated examiner, upon his or
her own volition or upon written application of the petitioner or his or
her attorney or representative, the examining officer, or the Service.
Such written application shall specify, as nearly as may be, the
relevance, materiality, and scope of the testimony or documentary
evidence sought and show affirmatively that the testimony or documentary
evidence cannot otherwise be produced. Subpenas shall be issued on Form
I-138 and due record shall be made of their service. The subpoena may
be served by any person over 18 years of age, not a party to the case,
designated to make such service by the district director. Mileage and
fees for witnesses subpoenaed under this section shall be paid by the
party at whose instance the subpoena is issued at rates allowed and
under conditions prescribed by the naturalization court in which the
petition is pending. Before issuing a subpoena the designated examiner
may require a deposit of an amount adequate to cover the fees and
mileage involved. If the witness subpoenaed neglects or refuses to
testify or produce documentary evidence as directed by the subpoena, the
district director shall request the United States Attorney for the
proper district to report such neglect or refusal to any court
exercising naturalization jurisdiction and to file a motion in such
court for an order directing the witness to appear and testify and to
produce the documentary evidence described in the subpoena.
(f) Briefs. At the conclusion of the preliminary examination the
petitioner or his or her attorney or representative, and the examining
officer if one was assigned, may submit briefs in support of arguments
made or issues raised at the examination.
(g) Representation by attorney or representative; absence of
representative; advice to petitioner. The petitioner may be
represented by an attorney or representative who has filed an appearance
in accordance with part 292 of this chapter. If at any stage of the
preliminary examination it appears to the designated examiner that he or
she may recommend denial of the petition, or granting thereof with the
facts to be presented to the court, he or she shall advise the
petitioner of his or her right to be represented by an attorney or
representative. A continuance of the examination shall be granted upon
the petitioner's motion for the purpose of obtaining an attorney or
representative. The petitioner's attorney or a representative shall be
permitted to be present at all times during the preliminary examination
or at any subsequent examinations and the petitioner shall not in any
such examination or subsequent examinations be interrogated in the
absence of his or her attorney or representative, unless the petitioner
waives such appearance. The attorney or a representative shall be
permitted to offer evidence to meet any evidence presented or adduced by
the Government or the designated examiner. A petitioner who is not
represented by an attorney or a representative shall be entitled to all
the benefits and the privileges provided for in this section.
(22 FR 9821, Dec. 6, 1957, as amended at 23 FR 2673, Apr. 23, 1958;
45 FR 83195, Dec. 18, 1980; 46 FR 5861, Jan. 21, 1981; 47 FR 10778,
Mar. 12, 1982; 56 FR 50498, Oct. 7, 1991)
08 CFR 335.12 Recommendations on petitions for naturalization of the
designated examiner and regional administrator; notice.
As soon as practicable after conclusion of the preliminary
examination on a petition for naturalization filed prior to October 1,
1991, the designated examiner shall prepare an appropriate
recommendation to the court. If the recommendation is for denial, or
for granting with the facts to be presented to the court, the designated
examiner shall prepare a memorandum summarizing the evidence, and
setting forth findings of fact and conclusions of law, and his or her
recommendation. No evidence dehors the record or evidence not
admissible in judicial proceedings under recognized rules of evidence
shall be considered in the preparation of the memorandum. The
memorandum shall be submitted before final hearing to the regional
operations liaison officer, in those cases or classes of cases
designated by him or her, for review and recommendation. If the
regional operations liaison officer does not agree with the
recommendation of the designated examiner, he or she shall prepare an
appropriate memorandum, with findings of fact, conclusions of law, and
the recommendation of the Service, subject to review and approval by the
Commissioner in those cases or classes of cases designated by him or
her, for presentation to the court with the designated examiner's
memorandum. In the preparation of memoranda, designated examiners and
regional operations liaison officers shall be bound by the
interpretations and rulings by the Attorney General or the Commissioner
on Questions of law.
(38 FR 29878, Oct. 30, 1973, as amended at 56 FR 50498, Oct. 7, 1991)
08 CFR 335.13 Notice of recommendation on petitions for naturalization
of designated examiner.
(a) Recommendation that petition be denied. When the designated
examiner proposes to recommend denial of the petition filed prior to
October 1, 1991, the petitioner or his or her attorney or representative
shall be notified thereof and furnished a copy of the designated
examiner's memorandum. The notice shall be given in conjunction with
notification of the date, place, and time of holding the final hearing.
The notice shall be sent by certified mail, with return receipt
requested, after any review made by the regional administrator.
(b) Recommendation that petition be granted. When the designated
examiner proposes to recommend granting of the petition filed prior to
October 1, 1991 and to present the facts and issues to the court, the
petitioner or his or her attorney or representative shall be notified of
the recommendation and furnished a copy of the designated examiner's
memorandum prior to the date of the hearing, and after any review made
by the regional administrator.
(c) Disagreement between recommendations of designated examiner and
the regional administrator. In those cases reviewed by the regional
administrator in which his or her views and recommendations do not agree
with those of the designated examiner, the notice required by paragraphs
(a) and (b) of this section shall also advise the petitioner of the
recommendation of the regional administrator and that both
recommendations will be presented to the court. There shall also be
enclosed with such notice a copy of the regional administrator's
memorandum.
(d) Briefs. If the petitioner intends to file a brief or memorandum
at the final hearing, he or she shall furnish a copy thereof to the
Service office from which the notice on Form N-425 emanated at least 5
days prior to the date of the final hearing. Failure to do so will
result in a motion for a continuance if deemed essential for the proper
presentation of the Government's case.
(22 FR 9822, Dec. 6, 1957, as amended at 35 FR 17530, Nov. 14, 1970;
56 FR 50498, Oct. 7, 1991)
08 CFR 335.13 PART 336 -- HEARINGS ON DENIALS OF APPLICATIONS FOR
NATURALIZATION
Sec.
336.1 Denial after section 335 examination.
336.2 Hearing before an immigration officer.
336.3 -- 336.8 (Reserved)
336.9 Judicial review of denial determinations on applications for
naturalization.
Authority: 8 U.S.C. 1103, 1443, 1447, 1448.
Source: 56 FR 50499, Oct. 7, 1991, unless otherwise noted.
08 CFR 336.1 Denial after section 335 examination.
(a) After completing all examination procedures contained in part 335
of this chapter and determining to deny an application for
naturalization, the Service shall serve a written notice of denial upon
an applicant for naturalization no later than 120 days after the date of
the applicant's first examination on the application.
(b) A notice of denial shall be prepared in a written, narrative
format, and shall recite, in clear concise language, the pertinent facts
upon which the determination was based, the specific legal section or
sections applicable to the finding of ineligibility, and the conclusions
of law reached by the examining officer in rendering the decision. Such
notice of denial shall also contain a specific statement of the
applicant's right either to accept the determination of the examining
officer, or request a hearing before an immigration officer.
(c) Service of the notice of denial may be made in person or by
certified mail to the applicant's last known address, or upon the
attorney or representative of record as provided in part 292 of this
chapter.
08 CFR 336.2 Hearing before an immigration officer.
(a) The applicant, or his or her authorized representative, may
request a hearing on the denial of the applicant's application for
naturalization by filing a request with the Service within thirty days
after the applicant receives the notice of denial under 336.1.
(b) Upon receipt of a timely request for a hearing, the Service shall
schedule a review hearing before an immigration officer, within a
reasonable period of time not to exceed 180 days from the date upon
which the appeal is filed. The review shall be with an officer other
than the officer who conducted the original examination under section
335 of the Act or who rendered the Service determination upon which the
hearing is based, and who is classified at a grade level equal to or
higher than the grade of the examining officer. The reviewing officer
shall have the authority and discretion to review the application for
naturalization, to examine the applicant, and either to affirm the
findings and determination of the original examining officer or to
redetermine the original decision of the Service in whole or in part.
The reviewing officer shall also have the discretion to review any
administrative record which was created as part of the examination
procedures as well as Service files and reports. He or she may receive
new evidence or take such additional testimony as may be deemed relevant
to the applicant's eligibility for naturalization. Based upon the
complexity of the issues to be reviewed or determined, and upon the
necessity of conducting further examinations with respect to essential
naturalization requirements, such as literacy or civics knowledge, the
reviewing immigration officer may, in his or her discretion, conduct a
full de novo hearing or may utilize a less formal review procedure, as
he or she deems reasonable and in the interest of justice.
336.3 -- 336.8 (Reserved)
08 CFR 336.9 Judicial review of denial determinations on applications
for naturalization.
(a) General. The provisions in part 310 of this chapter shall
provide the sole and exclusive procedures for requesting judicial review
of final determinations on applications for naturalization made pursuant
to section 336(a) of the Act and the provisions of this chapter by the
Service on or after October 1, 1991.
(b) Filing a petition. Under these procedures an applicant shall
file a petition for review in the United States District Court having
jurisdiction over his or her place of residence, in accordance with
chapter 7 of title 5, United States Code, within a period of not more
than 120 days after the Service's final determination. The petition for
review shall be brought against the Immigration and Naturalization
Service, and service of the petition for review shall be made upon the
Attorney General of the United States, and upon the official in charge
of the Service office where the hearing was held pursuant to 336.2.
(c) Standard of review. The review will be de novo, and the court
will make its own findings of fact and conclusions of law. The court
may also conduct, at the request of the petitioner, a hearing de novo on
the application for naturalization.
(d) Exhaustion of remedies. A Service determination denying an
application for naturalization under section 335(a) of the Act shall not
be subject to judicial review until the applicant has exhausted those
administrative remedies available to the applicant under section 336 of
the Act. Every petition for judicial review shall state whether the
validity of the final determination to deny an application for
naturalization has been upheld in any prior administrative proceeding
and, if so, the nature and date of such proceeding and the forum in
which such proceeding took place.
08 CFR 336.9 PART 337 -- OATH OF ALLEGIANCE
Sec.
337.1 Oath of allegiance.
337.2 Oath administered by the Immigration and Naturalization
Service.
337.3 Oath of allegiance administered to sick and disabled.
337.4 When requests for change of name granted.
337.5 -- 337.7 (Reserved)
337.8 Oath administered by the courts.
337.9 Effective date of naturalization.
Authority: 8 U.S.C. 1103, 1443, 1448.
08 CFR 337.1 Oath of allegiance.
(a) Form of oath. Except as otherwise provided in the Act and after
receiving notice from the district director that such applicant is
eligible for naturalization pursuant to 335.3 of this chapter, an
applicant for naturalization shall, before being admitted to
citizenship, take in a public ceremony held within the United States the
following oath of allegiance, to a copy of which the applicant shall
affix his or her signature:
I hereby declare, on oath, that I absolutely and entirely renounce
and abjure all allegiance and fidelity to any foreign prince, potentate,
state, or sovereignty, of whom or which I have heretofore been a subject
or citizen; that I will support and defend the Constitution and laws of
the United States of America against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the same; that I will
bear arms on behalf of the United States when required by the law; that
I will perform noncombatant service in the Armed Forces of the United
States when required by the law; that I will perform work of national
importance under civilian direction when required by the law; and that
I take this obligation freely, without any mental reservation or purpose
of evasion; so help me God.
(b) Alteration of form of oath; affirmation in lieu of oath. In
those cases in which a petitioner or applicant for naturalization is
exempt from taking the oath prescribed in paragraph (a) of this section
in its entirety, the inapplicable clauses shall be deleted and the oath
shall be taken in such altered form. When a petitioner or applicant for
naturalization, by reason of religious training and belief (or
individual interpretation thereof), or for other reasons of good
conscience, cannot take the oath prescribed in paragraph (a) of this
section with the words ''on oath'' and ''so help me God'' included, the
words ''and solemnly affirm'' shall be substituted for the words ''on
oath,'' the words ''so help me God'' shall be deleted, and the oath
shall be taken in such modified form. Any reference to 'oath of
allegiance' in this chapter is understood to mean equally 'affirmation
of allegiance' as described in this paragraph.
(c) Obligations of oath. A petitioner or applicant for
naturalization shall, before being naturalized, establish that it is his
or her intention, in good faith, to assume and discharge the obligations
of the oath of allegiance, and that his or her attitude toward the
Constitution and laws of the United States renders him or her capable of
fulfilling the obligations of such oath.
(d) Renunciation of title or order of nobility. A petitioner or
applicant for naturalization who has borne any hereditary title or has
been of any of the orders of nobility in any foreign state shall, in
addition to taking the oath of allegiance prescribed in paragraph (a) of
this section, make under oath or affirmation in public an express
renunciation of such title or order of nobility, in the following form:
(1) I further renounce the title of (give title or titles) which I
have heretofore held; or
(2) I further renounce the order of nobility (give the order of
nobility) to which I have heretofore belonged.
(22 FR 9824, Dec. 6, 1957, as amended at 24 FR 2584, Apr. 3, 1959;
32 FR 13756, Oct. 3, 1967; 56 FR 50499, Oct. 7, 1991)
08 CFR 337.2 Oath administered by the Immigration and Naturalization
Service.
(a) Public ceremony. An applicant for naturalization who has elected
to have his or her oath of allegiance administered by the Service shall
appear in person in a public ceremony. Such ceremony shall be held at a
time and place designated by the Service within the United States and
within the jurisdiction where the application for naturalization was
filed, or into which the application for naturalization was transferred
pursuant to 335.9 of this chapter. Such ceremonies shall be conducted
at regular intervals, but in all events at least once monthly. Such
ceremonies shall be presented in such a manner as to preserve the
dignity and significance of the occasion. District directors shall
assure that ceremonies conducted in their districts, inclusive of those
held by suboffice managers, are in keeping with the Model Plan for
Naturalization Ceremonies. Organizations traditionally involved in
activities surrounding the ceremony should be encouraged to participate
in Service-administered ceremonies by local arrangement.
(b) Authority to administer oath of allegiance. The authority of the
Attorney General to administer the Oath of Allegiance shall be delegated
to the following officers of the Service: the Commissioner; district
directors; deputy district directors; officers-in-charge; or persons
acting in behalf of such officers due to their absence or because their
positions are vacant. In exceptional cases where the district director
or officer-in-charge determines that it is appropriate for employees of
a different rank to conduct ceremonies, the district director or
officer-in-charge may make a request through the Commissioner to the
Assistant Commissioner, Adjudications, for permission to delegate such
authority. The request shall furnish the reasons for seeking exemption
from the requirements of this paragraph. The Commissioner may delegate
such authority to such other officers of the Service or the Department
of Justice as he may deem appropriate.
(56 FR 50500, Oct. 7, 1991)
08 CFR 337.3 Oath of allegiance administered to sick and disabled.
Whenever it appears that an applicant for naturalization may be
unable, because of sickness or other disability, to take the oath of
allegiance in a public ceremony, the district director shall cause an
investigation to be conducted to determine the circumstances surrounding
the sickness or disability. The district director shall also determine
whether, as a matter of discretion, the oath may be administered at
another place within his or her area of jurisdiction in the United
States. The exercise of this alternative method of administering the
oath shall be deemed appropriate only in those circumstances where the
sickness or other disability so incapacitates the applicant as to
prevent him or her from appearing at a public oath administration
ceremony.
(56 FR 50500, Oct. 7, 1991)
08 CFR 337.4 When requests for change of name granted.
When the court has granted the petitioner's change of name request,
the petitioner shall subscribe his or her new name to the written oath
of allegiance.
(56 FR 50500, Oct. 7, 1991)
337.5 -- 337.7 (Reserved)
08 CFR 337.8 Oath administered by the courts.
(a) An applicant for naturalization shall notify the Service at the
time of the filing of, or no later than at the examination on, the
application, of his or her election to have the oath of allegiance
administered in an appropriate court having jurisdiction over the
applicant's place of residence. In order to assist the applicant in
making an informed election, the Service shall advise the candidate for
naturalization of the upcoming administrative and court oath ceremonies
at which the applicant's naturalization may be scheduled if the
applicant is found eligible for naturalization.
(b) In those instances in which the applicant has elected to have the
oath administered in a court ceremony, the Service shall notify both the
applicant and the clerk of court, in writing, that the applicant has
been determined by the Attorney General to be eligible for admission to
United States citizenship upon taking the requisite oath of allegiance
and renunciation in a public ceremony to be scheduled by the court.
(c) After administering the oath of allegiance, the clerk of court
shall issue to each person appearing in such ceremonies a document
evidencing that such an oath was administered in accordance with 339.1
of this chapter and shall make and keep on file, as part of the court's
record system, evidence that such document was issued. The document
prepared by the clerk shall not constitute proof of naturalization, and
such document shall clearly reflect on its face the ceremonial nature of
the oath-taking. Such document shall not be considered as evidence of
United States citizenship.
(d) Within thirty days after the applicant has appeared in court to
take the oath, the clerk of the court that administered the oath shall
forward to the Service evidence of the oath having been administered, on
forms prescribed for such purpose. The court shall also advise the
Service of any change of name, or other judicial relief that may have
been granted by the court as part of the oath administration proceeding,
by forwarding a certified copy of the court order reflecting the
exercise of judicial authority in the matter.
(e) Upon receipt of written confirmation from the court that the oath
of allegiance has been administered, the Service shall deliver to the
applicant within a reasonable period thereafter, a Certificate of
Naturalization in accordance with part 338 of this chapter. The
presence of a Service employee at the judicial ceremony to assist in the
personal delivery of the Certificate of Naturalization shall not relieve
the clerk of court of the requirements of paragraph (d) of this section.
(56 FR 50500, Oct. 7, 1991)
08 CFR 337.9 Effective date of naturalization.
(a) An applicant for naturalization shall be deemed a citizen of the
United States as of the date on which the applicant takes the prescribed
oath of allegiance, administered either by the Service in an
administrative ceremony or in a ceremony conducted by an appropriate
court under 337.8.
(b) When the taking of the oath is waived for a child pursuant to
part 322 of this chapter, the child shall be deemed a citizen of the
United States as of the date upon which the waiver was granted by the
Service. The appearance of the child and the child's parent(s) at an
oath ceremony, if the oath is waived under this paragraph, is not
required. Nothing in this paragraph is to be construed as preventing
the appearance of the child and parent(s) at an oath ceremony.
(56 FR 50500, Oct. 7, 1991)
08 CFR 337.9 PART 338 -- CERTIFICATE OF NATURALIZATION
Sec.
338.1 Execution and issuance of certificate.
338.2 Execution in case name is changed.
338.3 Delivery of certificates.
338.4 Signing of certificate.
338.5 Correction of certificates.
338.6 -- 338.10 (Reserved)
338.11 Execution and Issuance of Certificate of Naturalization by
clerk of court.
338.12 Endorsement by clerk of court in case name is changed.
338.13 Spoiled certificate.
Authority: 8 U.S.C. 1103, 1443.
08 CFR 338.1 Execution and issuance of certificate.
(a) Issuance. When an applicant for naturalization has taken and
subscribed to the oath of allegiance in accordance with 337.1, 337.2,
and 337.3 of this chapter, a Certificate of Naturalization shall be
issued to the applicant by the Service. When the oath of allegiance was
taken before a Federal or State court in accordance with 337.8 of this
chapter, the Certificate shall not be issued until verification of the
date and place of oathtaking is received from the court. The
certificate shall be signed by the applicant. The Commissioner's
signature shall be affixed to the certificate.
(b) Execution of certificate. The certificate shall be issued to the
applicant in his or her true, full, and correct name as it exists at the
time of the administration of the oath of allegiance. The certificate
shall show, under ''former nationality,'' the name of the applicant's
last country of citizenship, as shown in the application and Service
records, even though the applicant may be stateless at the time of
admission to citizenship. Photographs shall be affixed to the
certificate in the manner provided by part 333 of this chapter. The
original certificate shall be delivered to the applicant in person or by
certified mail.
(56 FR 50501, Oct. 7, 1991)
08 CFR 338.2 Execution in case name is changed.
Whenever the name of an applicant has been changed by order of a
court as a part of a naturalization, the clerk of court, or his or her
authorized deputy, shall forward a copy of the order changing the
applicant's name with the notifications required by part 339 of this
chapter. The Certificate of Naturalization will be issued to the
applicant in the name as changed.
(56 FR 50501, Oct. 7, 1991)
08 CFR 338.3 Delivery of certificates.
No Certificate of Naturalization will be delivered in any case in
which the naturalized person has not surrendered his or her alien
registration receipt card to the Service. Upon a finding that the card
is destroyed or otherwise unavailable, the district director may waive
the surrender of the card and the Certificate of Naturalization shall
then be delivered to the naturalized person.
(56 FR 50501, Oct. 7, 1991)
08 CFR 338.4 Signing of certificate.
If a child who has been admitted to citizenship under section 322 of
the Act is unable to sign his or her name, the Certificate of
Naturalization must be signed by the citizen parent who submitted the
application for the child. The signature will read ''(name of
naturalized child) by (signature of parent)''. A naturalized person
whose application was signed in a foreign language may sign the
certificate of naturalization in the same manner.
(56 FR 50501, Oct. 7, 1991)
08 CFR 338.5 Correction of certificates.
(a) Whenever a Certificate of Naturalization has been delivered which
does not conform to the facts shown on the application for
naturalization, or a clerical error was made in preparing the
certificate, an application for issuance of a corrected certificate,
Form N-565, without fee, may be filed by the naturalized person. The
application shall be filed at the Service office having jurisdiction
over the place of residence of the applicant.
(b) If the certificate was originally issued by a clerk of court
under a prior statute and the district director finds that a correction
is justified and can be made without mutilating the certificate, he or
she shall authorize the clerk of the issuing court, or his or her
authorized deputy, on Form N-459, in duplicate, to make the necessary
correction and to place a dated endorsement on the reverse of the
certificate, over the clerk's or deputy's signature and the seal of the
court, explaining the correction. The authorization shall be filed with
the naturalization record of the court, the corrected certificate shall
be returned to the naturalized person, and the duplicate Form N-459
shall be endorsed to show the date and nature of the correction and
endorsement made, and then returned to the district director. No fee
shall be charged the naturalized person for the correction. The
district director shall forward the duplicate endorsed authorization to
the official Service file.
(c) If the certificate was originally issued by the Service, and the
district director finds that a correction was justified, the necessary
correction shall be made to the certificate and a dated endorsement made
on the reverse of the certificate, over the signature of the district
director and the seal of the Department of Justice. A notation
regarding the correction shall be placed on the Form N-565 which shall
be forwarded to the Service file.
(d) When a correction made pursuant to paragraph (b) or (c) of this
section would or does result in mutilation of a certificate, the
district director shall issue a replacement certificate on Form N-570
and the surrendered certificate shall be destroyed.
(e) The correction will not be deemed to be justified where the
naturalized person later alleges that the name or date of birth which
the applicant stated to be his or her correct name or date of birth at
the time of naturalization was not in fact his or her name or date of
birth at the time of the naturalization.
(56 FR 50501, Oct. 7, 1991)
338.6 -- 338.10 (Reserved)
08 CFR 338.11 Execution and Issuance of Certificate of Naturalization
by clerk of court.
(a) When a petitioner for naturalization, whose petition for
naturalization was filed prior to October 1, 1991, has taken and
subscribed to the oath of allegiance, and a final order of citizenship
has been signed by the court, a certificate of naturalization shall be
issued in duplicate by the clerk of court on Form N-550 (rev. 11-1-87)
or N-550C. If the court maintains naturalization records using the
certificate stub, the certificates and the stub of the original
certificate shall be signed by the petitioner. If the court maintains
naturalization records on an electronic database then only the
certificates shall be signed by the petitioner and the information
contained on the stub shall be entered into and maintained in the
court's electronic database.
(b) The certificate shall show under ''former nationality'' the name
of the country of which the petitioner was last a citizen, as shown on
the petition, even though the petitioner may have been stateless at the
time of admission to citizenship. The clerk of court or the authorized
deputy shall endorse the alien registration number on the certificate
stub, or if using automation equipment, ensure it is part of the
electronic database record. The clerk of court or the authorized deputy
shall personally sign the certificate, and ensure that the essential
facts from the certificate are on the stub or entered into the
electronic database record. Both certificates and stubs shall be
prepared in one operation unless an automated system is used.
Photographs shall be affixed to the original and duplicate certificates
in the manner prescribed in 8 CFR part 333.
(c) The stub of the original certificate or the information recorded
from the stub that is maintained on the electronic database shall be
retained by the clerk of court. Courts using the certificate stub shall
file and maintain the stub in a 3'' 5'' card file container. The
electronic record shall be maintained in an accessible database with a
back-up system to ensure protection and integrity of data. The original
certificate shall be delivered to the petitioner. The duplicate
certificate shall not be separated from the stub, and shall be forwarded
to the appropriate office of the Immigration and Naturalization Service
with all other duplicate papers or records in accordance with 8 CFR part
333.
(56 FR 30679, July 5, 1991, as amended at 56 FR 50501, Oct. 7, 1991)
08 CFR 338.12 Endorsement by clerk of court in case name is changed.
Whenever the name of a petitioner, whose petition for naturalization
was filed prior to October 1, 1991, has been changed by order of a court
as part of a naturalization, the clerk of court or his or her authorized
deputy shall make the following endorsement on the front of the original
and duplicate certificate of naturalization: ''Name changed by decree
of court from XXXX, as part of the naturalization.'' inserting in full
the original name of the petitioner. This notation will be inserted
immediately following the year of naturalization. If the stubs are
being kept as naturalization records, a similar notation will be made on
the stubs of the original and duplicate certificates, an the stub of the
original certificate will be signed by the petitioner in the name as
changed. If the court is using an electronic database for
naturalization recordkeeping, the name change information will be
maintained in that database. The original certificate will be issued
and the duplicate, with or without the stub, depending on the specific
courts recordkeeping system, will be sent to the Immigration and
Naturalization Service.
(56 FR 30680, July 5, 1991; 56 FR 38485, Aug. 13, 1991, as amended
at 56 FR 50501, Oct. 7, 1991)
08 CFR 338.13 Spoiled certificate.
Whenever a certificate of naturalization is damaged, mutilated,
defaced, or otherwise spoiled before delivery by the clerk, the original
and duplicate, with stubs intact, shall be marked ''Spoiled'' and
transmitted to the appropriate immigration and naturalization office, in
the manner described in 339.2 of this chapter, with the monthly report
of the clerk on Form N-4. This section applies to certificates prepared
by the clerk of court pursuant to 338.11.
(22 FR 9824, Dec. 6, 1957, as amended at 56 FR 50502, Oct. 7, 1991)
08 CFR 338.13 PART 339 -- FUNCTlONS AND DUTIES OF CLERKS OF COURT
REGARDING NATURALIZATION PROCEEDINGS
Sec.
339.1 Administration of oath of allegiance to applicants for
naturalization.
339.2 Monthly reports.
339.3 Relinquishment of naturalization jurisdiction.
339.4 Binding of naturalization records.
339.5 Recordkeeping.
Authority: 8 U.S.C. 1103, 1443, 1448.
08 CFR 339.1 Administration of oath of allegiance to applicants for
naturalization.
It shall be the duty of a judge of a court that administers an oath
of allegiance to insure that such oath is administered to each applicant
for naturalization who has chosen to appear before the court. The clerk
of court shall issue to each person to whom such an oath is administered
a written notification verifying that such an oath has been
administered. The written notification shall include the applicant's
correct name, record of any name change, date of the administration of
the oath, and the applicant's alien registration number.
(56 FR 50502, Oct. 7, 1991)
08 CFR 339.2 Monthly reports.
(a) Administration of oath of allegiance. The clerk of court shall
submit to the Service office having administrative jurisdiction over the
place in which the court is located, a monthly report of all applicants
who have had the oath of allegiance administered by that court. The
report shall include each applicant's name, change of name, alien
registration number, and date of the administration of the oath. The
report shall be submitted within 30 days after the close of the month in
which the oath was administered.
(b) Petitions filed for de novo hearings. The clerk of court shall
submit to the district director having administrative jurisdiction over
the place in which the court is located, a monthly report of all persons
who have filed de novo review petitions before the court. The report
shall include each petitioner's name, alien registration number, date of
filing of the petition for a de novo review, and, once an order has been
entered, the disposition.
(c) Reports relating to petitions filed prior to October 1, 1991.
The clerks of court shall, on the first day of each month, submit to the
district director or officer in charge having administrative
jurisdiction over the place in which the court is located, a report on
Form N-4, in duplicate, listing all certificates of naturalization
issued or spoiled pursuant to 338.11 of this chapter during the
preceding month in accordance with the instructions contained in Form
N-4. The report shall be accompanied by all duplicates of certificates
of naturalization with stubs intact.
(56 FR 50502, Oct. 7, 1991)
08 CFR 339.3 Relinquishment of naturalization jurisdiction.
Whenever a court relinquishes naturalization jurisdiction, the clerk
of court shall, within ten days following the date of relinquishment,
furnish the district director having administrative jurisdiction over
the place in which the court is located, a certified copy of the order
of court relinquishing jurisdiction. A representative of the Service
shall thereafter examine the naturalization records in the office of the
clerk of court and shall bind and lock them. The clerk of court shall
return all unused forms and blank certificates of naturalization to the
district director with his monthly report on Form N-4.
(22 FR 9825, Dec. 6, 1957)
08 CFR 339.4 Binding of naturalization records.
Whenever a volume of petitions for naturalization, applications to
take the oath of allegiance, declarations of intention, orders of court,
or other documents affecting or relating to the naturalization of
persons is completed, it shall be bound and locked by the clerk of
court.
(22 FR 9825, Dec. 6, 1957)
08 CFR 339.5 Recordkeeping.
The maintenance of records and submission of reports under this
chapter may be accomplished by either electronic or paper means.
(56 FR 50502, Oct. 7, 1991)
08 CFR 339.5 PART 340 -- REVOCATION OF NATURALIZATION
Authority: 8 U.S.C. 1103, 1443.
08 CFR 340.11 Reports.
Whenever it appears that any grant of naturalization may have been
illegally procured or procured by concealment of a material fact or by
willful misrepresentation, the facts shall be reported to the district
director having jurisdiction over the naturalized person's last known
place of residence in the United States. If the district director is
satisfied that a prima facie showing has been made that grounds for a
revocation exist, he or she shall report the facts in writing to the
regional commissioner with a recommendation as to whether a revocation
proceeding should be instituted. If it appears that naturalization was
procured in violation of section 1425 of title 18 of the United States
Code the facts in regard thereto may be presented by the district
director to the appropriate United States Attorney for possible criminal
prosecution. It shall be the responsibility of the district director to
advise the Service office that originated the information upon which the
revocation inquiry is based about the progress of the investigation and
report the findings of the inquiry as soon as practicable.
(29 FR 2740, Feb. 27, 1964, as amended at 56 FR 50502, Oct. 7, 1991)
08 CFR 340.11 PART 341 -- CERTIFICATES OF CITIZENSHIP
Sec.
341.1 Application.
341.2 Examination upon application.
341.3 Depositions.
341.4 Surrender of immigration documents.
341.5 Report and recommendation.
341.6 Denial of application.
341.7 Issuance of certificate.
Authority: 66 Stat. 173, 238, 254, 264, as amended; 8 U.S.C.
1103, 1409(c), 1443, 1444, 1448, 1452, 1455; 8 CFR part 2.
Source: 30 FR 5472, Apr. 16, 1965, unless otherwise noted.
08 CFR 341.1 Application.
Form N-600. An application for a certificate of citizenship by or in
behalf of a person who claims to have acquired United States citizenship
under section 309(c) or to have acquired or derived United States
citizenship as specified in section 341 of the Act shall be submitted on
Form N-600 in accordance with the instructions thereon, accompanied by
the fee specified in 103.7(b)(1) of this chapter. The application
shall be supported by documentary and other evidence essential to
establish the claimed citizenship, such as birth, adoption, marriage,
death, and divorce certificates.
(Approved by the Office of Management and Budget under control number
1115-0018)
(52 FR 19719, May 27, 1987)
08 CFR 341.2 Examination upon application.
(a) Personal appearance of applicant and parent or guardian -- (1)
When testimony may be omitted. An application received at a Service
office having jurisdiction over the applicant's residence may be
processed without interview if accompanied by one of the following:
(i) A Department of State Form FS-240 (Report of Birth Abroad of a
Citizen of the United States);
(ii) An unexpired United States passport issued initially for a full
five/ten-year period to the applicant as a citizen of the United States,
or
(iii) The applicant's parent(s)' naturalization certificate(s).
(2) Testimony required. Each applicant, when notified to do so,
shall appear in person before an officer for examination under oath or
affirmation upon the application. A person under 18 years of age must
have a parent or guardian apply, appear, and testify for the applicant,
unless one is unavailable and the district director is satisfied that
the applicant is old enough to provide reliable testimony. The same
rule will apply for incompetent applicants. At the examination the
applicant and the acting parent or guardian, if necessary, shall present
testimony and evidence pertinent to the claim to citizenship and shall
have the right to review and rebut any adverse evidence on file, and to
cross-examine witnesses called by the Government.
(b) Witness -- (1) Personal appearance. A witness shall be called to
testify under oath or affirmation at the district director's option only
if that person's testimony is needed to prove a particular point, and
only if alternative proof is unavailable or more difficult to produce
than is the witness.
(2) Substitution and waiver. When testimony is deemed necessary by
the district director and the presentation of the person or persons
through whom citizenship is claimed is precluded by reason of death,
refusal to testify, unknown whereabouts, advanced age, mental or
physical incapacity, or severe illness or infirmity, another witness or
witnesses shall be produced. A substitute witness also may be produced
in lieu of such person if such person is a member of the United States
Armed Forces serving outside the United States in an area where his
testimony could not be taken without imposing extreme hardship upon him,
or without unduly delaying action on the application, and no issue is
present which can be resolved only by this testimony.
(c) Proof. The burden of proof shall be upon the claimant, or his
parent or guardian if one is acting in his behalf, to establish the
claimed citizenship by a preponderance of the evidence.
(d) Assignment and authority of officer. A district director shall
assign an officer of the Service to conduct the examination provided for
in paragraphs (a) and (b) of this section. The assigned officer shall
have authority to administer oaths or affirmations; to present and
receive evidence; to rule upon offers of proof; to take or cause to be
taken depositions or interrogatories; to regulate the course of the
examination; to examine and cross-examine all witnesses appearing in
the proceedings; to grant or order continuances; to consider and rule
upon objections to the introduction of evidence; to make a report and
recommendation to the district director as to whether the application
shall be granted or denied, and to take such other action as may be
appropriate to the conduct of the examination and the disposition of the
application.
(e) Conduct of examination. The assigned officer shall, at the
commencement of the examination of the claimant or the acting parent or
guardian, advise them of their rights as set forth in paragraphs (a) and
(f) of this section, and shall interrogate them under oath or
affirmation with regard to each assertion made in the application and
any other matter pertinent to the claim to citizenship; in addition,
when a witness is deemed necessary, he shall interrogate each witness
with regard to pertinent matters within the personal knowledge of the
witness, such as the relationship between the claimant and the citizen
source or sources; the citizenship of the latter, and any possible
expatriatory acts performed by the claimant and the citizen source or
sources. He may, in his discretion, have a transcript made of the
testimony. At the conclusion of the examination of the claimant or the
action parent or guardian, all corrections made on the applications form
shall be consecutively numbered and recorded in the space provided
therefor in the form. The affidavit shall then be signed and sworn to
or affirmed by the claimant or the acting parent or guardian; and the
remainder of the affidavit completed and signed by the assigned officer.
(f) Representation during proceedings. The claimant shall have the
right to representation during the proceedings, as provided in part 292
of this chapter, and such representative shall have the right to examine
and cross-examine witnesses appearing in the proceedings; to introduce
evidence; to object to the introduction of evidence, which objections
shall be stated succinctly and entered on the record, and to submit
briefs. If the claimant is not represented by an attorney or
representative, the assigned officer shall assist him in the
introduction of all evidence available in his behalf.
(g) Assignment of additional officer. The district director may, in
his discretion, assign an officer of the Service to examine and
cross-examine the applicant and any witnesses produced by the applicant
or by the Government and present evidence pertinent to the applicant's
claim to citizenship. The officer of the Service assigned to conduct
the examination under this part may take such part in the proceedings as
he may deem necessary.
(30 FR 5472, Apr. 16, 1965; 30 FR 5621, Apr. 21, 1965, as amended at
32 FR 6260, Apr. 21, 1967; 45 FR 84011, Dec. 22, 1980; 51 FR 35629,
Oct. 7, 1986)
08 CFR 341.3 Depositions.
If satisfied that a witness whose testimony is essential is not
available for examination in the United States, the assigned officer may
authorize the taking of a deposition abroad by written interrogatories
before an officer of the Service or a United States consular official.
08 CFR 341.4 Surrender of immigration documents.
Each claimant shall surrender any immigration identification and
alien registration receipt cards in his possession.
08 CFR 341.5 Report and recommendation.
The officer assigned to act on the application shall report his/her
findings and recommendation by completing the Report and Recommendation
section of the Form N-600 application, or by formal order, as
appropriate. The record, including the report and recommendation, shall
be submitted to the distict director, who shall sign the report either
approving or disapproving the recommendation.
(50 FR 39649, Sept. 30, 1985; 50 FR 41480, Oct. 11, 1985)
08 CFR 341.6 Denial of application.
If it is the decision of the district director to deny the
application for a Certificate of Citizenship, the applicant shall be
furnished the reasons for denial and advised of the right to appeal in
accordance with the provisions of 8 CFR 103.3(a). After an application
for a Certifcate of Citizenship has been denied and the appeal time has
run, a second application submitted by the same individual shall be
rejected and the applicant instructed to submit a motion for reopening
or reconsideration in accordance with 8 CFR 103.5. The motion shall be
accompanied by the rejected application and the fee specified in 8 CFR
103.7 reduced by the amount of the fee paid with the rejected
application. A decision shall be issued with notification of appeal
rights in all Certificate of Citizenship cases, including any case
denied due to the applicant's failure to prosecute the application.
(50 FR 39649, Sept. 30, 1985)
08 CFR 341.7 Issuance of certificate.
(a) If the application is granted, a Certificate of Citizenship shall
be issued and, unless the claimant is unable by reason of mental
incapacity or young age to understand the meaning thereof, he or she
shall take and subscribe to the oath of renunciation and allegiance,
prescribed by part 337 of this chapter, before a member of the Service
within the United States. Thereafter, delivery of the certificate shall
be made in the United States to the claimant or the acting parent or
guardian, either personally or by certified mail.
(b) The child on whose behalf an application for issuance of a
Certificate of Citizenship is made pursuant to section 341(c) of the Act
must meet the requirements of section 341(c)(2) at the time the
application is approved. The child becomes a citizen of the United
States upon approval of the application. The Certificate of Citizenship
issued pursuant to such approval will reflect the approval date of the
application.
(55 FR 31037, July 31, 1990)
08 CFR 341.7 PART 342 -- ADMINISTRATIVE CANCELLATION OF CERTIFICATES,
DOCUMENTS, OR RECORDS
Sec.
342.1 Notice.
342.2 Service of notice.
342.3 Allegations admitted; no answer filed; no personal appearance
requested.
342.4 Answer asserting defense; personal appearance requested.
342.5 Conduct of examination.
342.6 Depositions.
342.7 Report and recommendation.
342.8 Appeals.
342.9 Notice re 18 U.S.C. 1428.
Authority: Secs. 103, 342, 66 Stat. 173, 263; 8 U.S.C. 1103, 1453.
Source: 28 FR 209, Jan. 9, 1963, unless otherwise noted.
08 CFR 342.1 Notice.
If it shall appear to a district director that a person has illegally
or fraudulently obtained or caused to be created a certificate,
document, or record described in section 342 of the Act, a notice shall
be served upon the person of intention to cancel the certificate,
document, or record. The notice shall contain allegations of the
reasons for the proposed action and shall advise the person that he may
submit, within 60 days of service of the notice, an answer in writing
under oath or affirmation showing cause why the certificate, document,
or record should not be canceled, that he may appear in person before a
naturalization examiner in support of, or in lieu of his written answer,
and that he may have present at that time, without expense to the
Government, an attorney or representative qualified under part 292 of
this chapter. In such proceedings the person shall be known as the
respondent.
(29 FR 5511, Apr. 24, 1964, as amended at 37 FR 2767, Feb. 5, 1972)
08 CFR 342.2 Service of notice.
(a) Service. The notice required by 342.1 shall be served
personally by an employee of the Government by delivery to the
respondent, or by delivery to a person of suitable age and discretion at
the respondent's dwelling house or usual place of abode, or by mailing
to the respondent's last known address by registered or certified mail,
return receipt requested.
(b) Proof of Service. The post office return receipt, or the
certificate of the employee serving the notice by personal delivery,
setting forth the date and manner of service, shall constitute proof of
service. In the case of a mentally incompetent respondent or a child
under 14 years of age, service shall be made upon his guardian, near
relative or friend, and the person so served shall be permitted to
appear on behalf of the respondent.
(29 FR 5511, Apr. 24, 1964)
08 CFR 342.3 Allegations admitted; no answer filed; no personal
appearance requested.
If the answer admits all material allegations in the notice, or if no
answer is filed within the 60-day period or any extension thereof and no
personal appearance is requested within such period or periods, it shall
be deemed to authorize the district director, without further notice to
respondent, to find the facts to be as alleged in the notice and to
cancel the certificate, document, or record. No appeal shall lie from
such decision. Written notice of the decision shall be served upon the
respondent with demand for surrender of the certificate, document, or
record forthwith.
08 CFR 342.4 Answer asserting defense; personal appearance requested.
If the respondent files an answer within the prescribed period
asserting a defense to the allegations in the notice, or requests a
personal appearance, with or without an answer, the district director
shall designate a naturalization examiner to consider the case. The
respondent shall be notified that he may appear in person or through
counsel with any witnesses and evidence in defense of the allegations,
and shall be informed of the date, time, and place for such appearance.
08 CFR 342.5 Conduct of examination.
(a) Authority of naturalization examiner. The naturalization
examiner assigned to consider the case shall have authority to
administer oaths or affirmations to respondent and witnesses, issue
subpoenas, present and receive evidence, rule upon offers of proof, take
or cause depositions or interrogatories to be taken, regulate the course
of the examination, take testimony of respondent and witnesses, grant
continuances, consider and rule upon objections to the introduction of
evidence, make recommendations to the district director as to whether
cancellation shall be ordered or the proceedings terminated, and to take
any other action as may be appropriate to the conduct and disposition of
the case.
(b) Assignment of additional officer. The district director may, in
his discretion, assign an officer of the Service to examine and
cross-examine the respondent and witnesses and to present evidence
pertinent to the case. The naturalization examiner designated under
342.4 may take such part in the proceedings as he may deem necessary.
(c) Examination. The naturalization examiner designated under 342.4
shall, prior to commencement of the examination, make known to the
respondent his official capacity and that of any officer assigned
pursuant to paragraph (b) of this section, the nature of the
proceedings, his right to representation by counsel, to examine or
object to evidence against him, to present evidence in his own behalf,
to cross-examine witnesses presented by the Government, and shall read
the allegations in the notice to respondent and, if necessary, explain
them to him. The respondent shall be asked whether he admits or denies
the material allegations in the notice, or any of them, and whether he
concedes illegality or fraud. If respondent admits all the material
allegations and that the certificate, document, or record was procured
by fraud or illegality, and no issue of law or fact remains, the
naturalization examiner may determine that fraud or illegality has been
established on the basis of the respondent's admissions. The
allegations in the notice shall be taken as admitted if respondent,
without reasonable cause, fails or refuses to attend or remain in
attendance at the examination. The examination shall be recorded
verbatim except for statements made off the record with the permission
of the naturalization examiner.
(d) Prior statements. The naturalization examiner assigned to
consider the case may receive in evidence any oral or written statement
which is material and relevant to any issue in the case previously made
by the respondent or by any other person during any investigation,
examination, hearing, trial, proceeding, or interrogation.
(28 FR 209, Jan. 9, 1963, as amended at 32 FR 3340, Feb. 28, 1967)
08 CFR 342.6 Depositions.
Upon good cause shown, the testimony of any witness may be taken by
depositions, either orally or upon written interrogatories before a
person having authority to administer oaths (affirmations), as may be
designated by the naturalization examiner.
(37 FR 2767, Feb. 5, 1972)
08 CFR 342.7 Report and recommendation.
The naturalization examiner shall prepare a report summarizing the
evidence, discussing the applicable law, and containing his findings and
recommendations. The record, including the report and recommendation,
shall be forwarded to the district director, who shall sign the report,
either approving or disapproving the recommendation. If the decision of
the district director is that the proceedings be terminated, the
respondent shall be so informed.
08 CFR 342.8 Appeals.
Should the district director find that the certificate, document, or
record was fraudulently or illegally obtained, he shall enter an order
that it be cancelled and the certificate or document surrendered to the
Service forthwith. Written notification of such action shall be given
the respondent, with a copy of the decision, findings and decision of
the district director, and he shall be informed of his right of appeal
in accordance with the provisions of part 103 of this chapter.
08 CFR 342.9 Notice re 18 U.S.C. 1428.
The notice to surrender a cancelled certificate of citizenship or
copy thereof, prescribed by section 1428 of Title 18 of the United
States Code, shall be given by the district director in whose district
the person who has possession or control of such document resides.
(28 FR 9282, Aug. 23, 1963)
08 CFR 342.9 PART 343 -- CERTIFICATE OF NATURALIZATION OR REPATRIATION;
PERSONS WHO RESUMED CITIZENSHIP UNDER SECTION 323 OF THE NATIONALITY
ACT OF 1940, AS AMENDED, OR SECTION 4 OF THE ACT OF JUNE 29, 1906
Authority: Secs. 103, 332, 343, 344, 405, 66 Stat. 173, 252, 263,
264, 280; 8 U.S.C. 1101, 1103, 1443, 1454, 1455.
08 CFR 343.1 Application.
A person who lost citizenship of the United States incidental to
service in one of the allied armies during World War I or II, or by
voting in a political election in a country not at war with the United
States during World War II, and who was naturalized under the provisions
of section 323 of the Nationality Act of 1940, as amended, or a person
who, before January 13, 1941, resumed United States citizenship under
the twelfth subdivision of section 4 of the act of June 29, 1906, may
obtain a certificate evidencing such citizenship by making application
therefor on Form N-580. The applicant shall be required to appear in
person before an assigned officer for interrogation under oath or
affirmation upon the application. When the application is approved, a
certificate of naturalization or repatriation shall be issued and
delivered in person, in the United States only, upon the applicant's
signed receipt therefor. If the application is denied, the applicant
shall be notified of the reasons therefor and his right to appeal in
accordance with the provisions of part 103 of this chapter.
(23 FR 9125, Nov. 26, 1958, as amended at 32 FR 9635, July 4, 1967)
08 CFR 343.1 PART 343a -- NATURALIZATION AND CITIZENSHIP PAPERS LOST,
MUTILATED, OR DESTROYED; NEW CERTIFICATE IN CHANGED NAME; CERTIFIED
COPY OF REPATRIATION PROCEEDINGS
Sec.
343a.1 Application for replacement of or new papers relating to
naturalization, citizenship, or repatriation.
343a.2 Return or replacement of surrendered certificate of
naturalization or citizenship.
Authority: Secs. 103, 324, 332, 343, 344, 405, 66 Stat. 173, 246,
247, 252, 263, 264, 265, 280; 8 U.S.C. 1101 note, 1103, 1435, 1443,
1454, 1455.
08 CFR 343a.1 Application for replacement of or new papers relating to
naturalization, citizenship, or repatriation.
(a) Lost, mutilated, or destroyed naturalization papers. A person
whose declaration of intention, certificate of naturalization,
citizenship, or repatriation, or whose certified copy of proceedings
under the act of June 25, 1936, as amended, or under section 317(b) of
the Nationality Act of 1940, or under section 324(c) of the Immigration
and Nationality Act, or under the provisions of any private law, has
been lost, mutilated, or destroyed, shall apply on Form N-565 for a new
paper in lieu thereof.
(b) New certificate in changed name. A naturalized citizen whose
name has been changed after naturalization by order of court or by
marriage shall apply on Form N-565 for a new certificate of
naturalization, or of citizenship, in the changed name.
(c) Disposition. The applicant shall only be required to appear in
person before an officer for interview under oath or affirmation in
specific cases. Those cases which necessitate an interview enabling an
officer to properly adjudicate the application at the office having
jurisdiction will be determined by a supervising officer. If an
application for a new certificate of naturalization, citizenship, or
repatriation or a new declaration of intention is approved, the new
certificate or declaration shall be issued and delivered by personal
service in accordance with 103.5a(a)(2) of this chapter. If an
application for a new certified copy of the proceedings under the Act of
June 25, 1936, as amended, or under section 317(b) of the Nationality
Act of 1940, or under section 324(c) of the Immigration and Nationality
Act, or under the provisions of any private law is approved, a certified
positive photocopy of the record of the proceedings filed with the
Service shall be issued. If, subsequent to naturalization or
repatriation, the applicant's name was changed by marriage, the
certification of the positive photocopy shall show both the name in
which the proceedings were conducted and the changed name. The new
certified copy shall be personally delivered to the applicant upon his
or her signed receipt therefor. If the application is denied, the
applicant shall be notified of the reasons therefor and of the right to
appeal in accordance with the provisions of part 103 of this chapter.
(23 FR 9125, Nov. 26, 1958, as amended at 32 FR 9635, July 7, 1967;
51 FR 35629, Oct. 7, 1986)
08 CFR 343a.2 Return or replacement of surrendered certificate of
naturalization or citizenship.
A certificate of naturalization or citizenship which is contained in
a Service file, and which was surrendered on a finding that loss of
nationality occurred directly or through a parent as a result of the
application of any of the following sections of law may, upon request,
be returned to the person to whom it was originally issued,
notwithstanding the fact that he or she has since been naturalized or
repatriated in the United States or abroad:
(a) Section 404 (b) or (c) of the Nationality Act of 1940;
(b) Section 352 of the Immigration and Nationality Act, which was
invalidated by Schneider v. Rusk, 377 U.S. 163;
(c) Section 401(e) of the Nationality Act of 1940;
(d) Section 349(a)(5) of the Immigration and Nationality Act, which
was invalidated by Afroyim v. Rusk, 387 U.S. 253;
(e) Section 301(b) of the Immigration and Nationality Act
(f) Section 301(c) of the Immigration and Nationality Act relative to
persons born after May 24, 1934, which was invalidated by amendment to
section 301(b) on October 27, 1972, Public Law 92-584.
If, after having been surrendered to the Department of State or to
the Service, the certificate was lost, mutilated, or destroyed as a
result of action by the Service or that Department, a replacement
certificate may be issued in the name shown in the surrendered
certificate without fee and without requiring the submission of Form
N-565. A surrendered certificate shall not be regarded as mutilated and
a replacement shall not be issued solely because of holes made in it to
accommodate a fastener, unless the citizen declines to accept the return
of the surrendered certificate in that condition and insists upon
issuance of a replacement. When it is desired that the replacement
certificate be furnished in a name other than the one shown in the
surrendered certificate, the regular application procedure with payment
of fee must be followed.
(51 FR 35629, Oct. 7, 1986)
08 CFR 343a.2 PART 343b -- SPECIAL CERTIFICATE OF NATURALIZATION FOR
RECOGNITION BY A FOREIGN STATE
Sec.
343b.1 Application.
343b.2 Number of applications required.
343b.3 Interrogation.
343b.4 Applicant outside of United States.
343b.5 Verification of naturalization.
343b.11 Disposition of application.
Authority: 8 U.S.C. 1103, 1443, 1454, 1455.
08 CFR 343b.1 Application.
A naturalized citizen who desires to obtain recognition as a citizen
of the United States by a foreign state shall submit an application on
Form N-565. He shall not be furnished with verification of his
naturalization for such purpose in any other way. An applicant who is a
claimant against a foreign government for property damage pursuant to
the provisions of a peace treaty shall not be requested to furnish the
name, official title, and address of a foreign official unless such
information is available when the investigation of the applicant is
conducted. The applicant shall be required to appear in person before
an assigned officer for interrogation under oath or affirmation upon the
application.
(32 FR 9636, July 4, 1967, as amended at 56 FR 50502, Oct. 7, 1991)
08 CFR 343b.2 Number of applications required.
A special certificate of naturalization is delivered to one foreign
government official only. An applicant who desires recognition as a
U.S. citizen by more than one foreign official, whether in the same
country or not, must file a separate application for each certificate
required.
(32 FR 9636, July 4, 1967)
08 CFR 343b.3 Interrogation.
When Form N-577 presents a prima facie case, it shall be forwarded to
the district director, without first interrogating the applicant, for
issuance of the certificate. Interrogation of the applicant shall be
conducted before the application is forwarded if he appears in person to
file the application or if it is necessary in order to properly
adjudicate the case. In that event the officer interviewing the
applicant will complete the report on page 2 of Form N-577 before
transmitting the application to the district director. In all other
cases the interview shall take place at any time before the certificate
is transmitted to the State Department (unless the applicant is abroad)
and the report completed after the interview.
(32 FR 9636, July 4, 1967)
08 CFR 343b.4 Applicant outside of United States.
If the application is received by a Service officer stationed outside
the United States, he shall, when practicable, interrogate the applicant
before the application is forwarded to the district director in the
United States having jurisdiction over the applicant's place of
residence for issuance of the certificate. When such interrogation is
not practicable, or is not conducted because the application is
submitted directly to the Commissioner or a district director of the
Service in the United States, the certificate may nevertheless be issued
and the recommendation conditioned upon satisfactory interrogation by a
State Department representative. When forwarding the certificate in
such a case, the Secretary of State shall be informed that the applicant
has not been interviewed, and requested to have his representative
abroad interview the applicant regarding identity and possible
expatriation. If identity is not established or if expatriation has
occurred, the request shall be made that the certificate be returned to
the Service.
(37 FR 7584, Apr. 18, 1972)
08 CFR 343b.5 Verification of naturalization.
The application shall not be granted without first obtaining
verification of the applicant's naturalization.
(32 FR 9636, July 4, 1967)
08 CFR 343b.11 Disposition of application.
(a) Issuance of certificate. If the application is granted, a
special certificate of naturalization of Form N-578 shall be issued by
the district director and forwarded to the Secretary of State for
transmission to the proper authority of the foreign state. The district
director shall forward the original certificate by letter, in
triplicate, to the Secretary of State, Attention: Office of Citizens'
Consular Service, Department of State, Washington, DC 20520; forward
the application and the duplicate certificate to the official Service
file, and send Form N-568 to the applicant.
(b) Application denied. If the application is denied, the applicant
shall be notified of the reasons therefor and of his right to appeal in
accordance with the provisions of part 103 of this chapter.
(23 FR 9126, Nov. 26, 1958 and 32 FR 9636, July 4, 1967, as amended
at 36 FR 11636, June 17, 1971; 45 FR 38340, June 9, 1980)
08 CFR 343b.11 PART 343c -- CERTIFICATIONS FROM RECORDS
Authority: 5 U.S.C. 552 (80 Stat. 383); as amended by Pub. L.
93-502 (88 Stat. 1561); sec. 103 Immigration and Nationality Act (66
Stat. 173; 8 U.S.C. 1103).
08 CFR 343c.1 Application for certification of naturalization record of
court or certificate of naturalization or citizenship.
An application for certification of a naturalization record of any
court, or of any part thereof, or of any certificate of naturalization,
repatriation, or citizenship, under section 343(e) of the Act for use in
complying with any statute, Federal or State, or in any judicial
proceeding, shall be made on Form G-641.
(40 FR 50703, Oct. 31, 1975)
08 CFR 343c.1 PART 349 -- LOSS OF NATIONALITY
Authority: Sec. 103, 66 Stat. 173; 8 U.S.C. 1103. Interprets or
applies 401(i), 54 Stat. 1169; 8 U.S.C. 801, 1946 ed.
08 CFR 349.1 Japanese renunciation of nationality.
A Japanese who renounced United States nationality pursuant to the
provisions of section 401(i), Nationality Act of 1940, who claims that
his renunciation is void, shall complete Form N-576, Supplemental
Affidavit to be Submitted with Applications of Japanese Renunciants.
The affidavit shall be submitted to the Assistant Attorney General,
Civil Division, Department of Justice, Washington, DC 20530, with a
covering letter requesting a determination of the validity of the
renunciation.
(32 FR 9636, July 4, 1967)
08 CFR 349.1 PART 392 -- SPECIAL CLASSES OF PERSONS WHO MAY BE
NATURALIZED: PERSONS WHO DIE WHILE SERVING ON ACTIVE DUTY WITH THE
UNITED STATES ARMED FORCES DURING CERTAIN PERIODS OF HOSTILITIES
Sec.
392.1 Definitions.
392.2 Eligibility for posthumous citizenship.
392.3 Application for posthumous citizenship.
392.4 Issuance of a certificate of citizenship.
Authority: 8 U.S.C. 1103, 1440 and note, and 1440-1; 8 CFR part 2.
Source: 56 FR 22822, May 17, 1991, unless otherwise noted.
08 CFR 392.1 Definitions.
As used in this part:
Active-duty status means full-time duty in the active military
service of the United States, and includes full-time training duty,
which constitutes qualifying service under section 329(a) of the Act.
Active service in the United States Coast Guard during one of the
periods of hostilities specified herein shall constitute service in the
military, air, or naval forces of the United States. Active-duty status
also includes annual training duty and attendance, while in the active
military service, at a service school designated by the military
authorities under 10 U.S.C. 101(22). The order of a national guardsman
into active duty for training under 10 U.S.C. 672 constitutes service in
active-duty status in the military forces of the United States. Active
duty in a noncombatant capacity is qualifying service.
Decedent means the person on whose behalf an application for a
certificate of posthumous citizenship is made.
Induction, enlistment, and reenlistment, refer to the decedent's
place of entry into active duty military service.
Korean Hostilities relates to the period from June 25, 1950, to July
1, 1955, inclusive.
Lodge Act means the Act of June 30, 1950, which qualified for
naturalization nonresident aliens who served honorably for 5 years in
the United States Army during specified periods, notwithstanding that
they never formally became lawful permanent residents of the United
States.
Next-of-kin means the closest surviving blood or legal relative of
the decedent in the following order of succession:
(1) The surviving spouse;
(2) The decedent's surviving son or daughter, if the decedent has no
surviving spouse;
(3) The decedent's surviving parent, if the decedent has no surviving
spouse or sons or daughters; or,
(4) The decedent's surviving brother or sister, if none of the
persons described in paragraphs (1) through (3) of this definition
survive the decedent.
Other periods of military hostilities means any period designated by
the President under Executive Order as a period in which Armed Forces of
the United States are or were engaged in military operations involving
armed conflict with a hostile foreign force.
Representative means:
(1) The duly appointed executor or administrator of the decedent's
estate, including a special administrator appointed for the purpose of
seeking the decedent's naturalization; or,
(2) The duly appointed guardian, conservator, or committee of the
decedent's next-of-kin; or,
(3) A service organization listed in 38 U.S.C. 3402, or chartered by
Congress, or State, or other service organization recognized by the
Department of Veterans Affairs.
Vietnam Hostilities relates to the period from February 28, 1961, to
October 15, 1978, inclusive.
World War I relates to the period from April 6, 1917, to November 11,
1918, inclusive.
World War II relates to the period from September 1, 1939, to
December 31, 1946, inclusive.
08 CFR 392.2 Eligibility for posthumous citizenship.
(a) General. Any alien or noncitizen national of the United States
is eligible for posthumous United States citizenship who:
(1) Served honorably in an active-duty status with the military, air,
or naval forces of the United States during World War I, World War II,
the Korean Hostilities, the Vietnam Hostilities, or in other periods of
military hostilities designated by the President under Executive Order;
and,
(2) Died as a result of injury or disease incurred in or aggravated
by service in the United States Armed Forces during a period of military
hostilities listed in paragraph (a)(1) of this section. Where the
person died subsequent to separation from military service, the death
must have resulted from an injury or disease that was sustained,
acquired, or exacerbated during active-duty service in a qualifying
period of military hostilities as specified in this part.
(b) Qualifying enlistment. In conjunction with the qualifying
service as described in paragraph (a)(1) of this section, the decedent
must have:
(1) Enlisted, reenlisted, or been inducted in the United States, the
Canal Zone, American Samoa, or Swains Island;
(2) Been lawfully admitted to the United States for permanent
residence, at any time; or,
(3) Enlisted or reenlisted in the United States Army pursuant to the
provisions of the Lodge Act. In such case, the decedent shall be
considered to have been lawfully admitted to the United States as a
permanent resident for purposes of this section, provided he or she:
(i) Entered the United States, its outlying possessions, or the Canal
Zone, at some time during the period of army service, pursuant to
military orders; and
(ii) Was honorably discharged following completion of at least 5 full
years of active duty service, even though the active-duty service may
not have occurred during a qualifying period of hostilities specified in
section 329(a) of the Act.
(c) Character of military service. Where the character of military
service is not certified as honorable by the executive department under
which the person served, or where the person was dishonorably discharged
or discharged under conditions other than honorable, such service shall
not satisfy the requirement of paragraph (a)(1) of this section.
(d) Certification of eligibility. (1) The executive department under
which the decedent served shall determine whether:
(i) The decedent served honorably in an active-duty status;
(ii) The separation from such service was under honorable conditions;
and,
(iii) The decedent died as a result of injury or disease incurred in,
or aggravated by active duty service during a qualifying period of
military hostilities.
(2) The certification required by section 329A(c)(2) of the Act to
prove military service and service-connected death shall be requested by
the applicant on Form N-644, Application for Posthumous Citizenship.
Form N-644 shall also be used to verify the decedent's place of
induction, enlistment or reenlistment.
08 CFR 392.3 Application for posthumous citizenship.
(a) Persons who may apply. (1) Only one person who is either the
next-of-kin or another representative of the decedent shall be permitted
to apply for posthumous citizenship on the decedent's behalf. A person
who is a next-of-kin who wishes to apply for posthumous citizenship on
behalf of the decedent, shall, if there is a surviving next-of-kin in
the line of succession above him or her, be required to obtain
authorization to make the application from all surviving next-of-kin in
the line of succession above him or her. The authorization shall be in
the form of an affidavit stating that the affiant authorizes the
requester to apply for posthumous citizenship on behalf of the decedent.
The affidavit must include the name and address of the affiant, and the
relationship of the affiant to the decedent.
(2) When there is a surviving next-of-kin, an application for
posthumous citizenship shall only be accepted from a representative
provided authorization has been obtained from all surviving next-of-kin.
However, this requirement shall not apply to the executor or
administrator of the decedent's estate. In the case of a service
organization acting as a representative, authorization must also have
been obtained from any appointed representative. A veterans service
organization must submit evidence of recognition by the Department of
Veterans Affairs.
Once the Service has granted posthumous citizenship to a person, no
subsequent applications on his or her behalf shall be approved, nor
shall any additional original certificates be issued, except in the case
of an application for issuance of a replacement certificate for one
lost, mutiliated, or destroyed.
(b) Filing of application. (1) An application for posthumous
citizenship shall be submitted by mail on Form N-644, according to the
instructions on the form, to the INS Service Center having jurisdiction
over the applicant's state of residence. Persons residing outside the
United States must mail their applications to any one of the four
Service Centers.
(2) Form N-644 must be accompanied by the appropriate fee specified
by and remitted in accordance with the provisions of 103.7 (a) and (b)
of this chapter. The fee may not be waived or refunded. To facilitate
the certification process, a legible copy of each of the following
documents, if available, should be submitted with Form N-644:
(i) DD Form 214, Certificate of Release or Discharge from Active
Duty;
(ii) DD Form 1300, Report of Casualty/Military Death Certificate;
or,
(iii) Other military or State-issued death certificate.
(c) Application period for requesting posthumous citizenship. Form
N-644 shall be filed with the appropriate INS Service Center not later
than March 5, 1992, or 2 years after the date of the person's death,
whichever date is later.
(d) Denial of application. When the application is denied, the
applicant shall be notified of the decision and the reason(s) for
denial. There is no appeal from the denial of an application under this
part.
08 CFR 392.4 Issuance of a certificate of citizenship.
(a) Approval of application. If the application (Form N-644) is
approved, the director of the Service Center shall issue a Certificate
of Citizenship, Form N-645, to the applicant, in the name of the
decedent.
(b) Delivery of certificate. Delivery of the Certificate of
Citizenship shall be made by registered mail to the address designated
by the applicant. If the applicant resides outside the United States,
the certificate shall be sent by registered mail to the Service office
abroad, if one is located where delivery is to be made; otherwise, it
shall be forwarded to the nearest American Embassy or Consulate.
(c) Effective date of citizenship. Where the Service has approved an
Application for Posthumous Citizenship (Form N-644), the decedent shall
be considered a United States citizen as of the date of his or her
death.
(d) Ineligibility for immigration benefits. The granting of
posthumous citizenship under section 329A of the Immigration and
Naturalization Act, as amended, and issuance of a certificate under
paragraph (a) of this section, shall not entitle the surviving spouse,
parent, son, daughter, or other relative of the decedent to any benefit
under any provision of the Act. Nor shall such grant make applicable
the provisions of section 319(d) of the Act to the surviving spouse.
(e) Replacement certificate. An application for a replacement
Certificate of Citizenship (Form N-645) shall be made on Form N-565,
Application for a New Naturalization or Citizenship Paper, for a lost,
mutilated, or destroyed certificate. Form N-565 shall be completed
according to the instructions on the form and submitted by mail with the
appropriate fee to the INS Service Center having jurisdiction over the
applicant's state of residence. Persons residing outside the United
States must mail their application to the Service Center that issued the
original certificate.
08 CFR 392.4 PART 499 -- NATIONALITY FORMS
Authority: 8 U.S.C. 1103; 8 CFR part 2.
08 CFR 499.1 Prescribed forms.
The forms listed below are hereby prescribed for use in compliance
with the provisions of this subchapter C. To the maximum extent
feasible the forms used should bear the edition date shown or a
subsequent edition date.
G-639 (6-12-82) -- Freedom of Information/Privacy Act Request.
G-652 (2-1-78) -- Affidavit of Identity.
G-658 (11-1-75) -- Record of Information Disclosure (Privacy Act).
I-138 (11-5-70) -- Subpoena.
M-288 (1987) -- United States History 1600-1987, Level II.
M-289 (1987) -- United States History 1600-1987, Level I.
M-290 (1987) -- U.S. Government Structure, Level II.
M-291 (1987) -- U.S. Government Structure, Level I.
M-302 (3-16-89) -- For The People * * *, U.S. Citizenship Education
and Naturalization Information.
M-303 (3-16-89) -- By The People * * *, U.S. Government Structure.
M-304 (3-16-89) -- Of The People * * *, U.S. History 1600-1988.
N-3 (1-30-83) -- Requisition for Forms and Binders.
N-4 (12-31-82) -- Monthly Report -- Naturalization Papers Forwarded.
N-5 (12-24-52) -- Continuation Sheet of Monthly Report --
Naturalization Papers Forwarded.
N-300 (5-5-83) -- Application to File Declaration of Intention.
N-336 ( ) -- Request for Hearing on a Decision in Naturalization
Proceedings under section 336 of the Act.
N-400 (12-5-86) -- Application for Naturalization.
N-404 (8-1-65) -- Request for Withdrawal of Petition for
Naturalization.
N-410 (5-5-83) -- Motion for Amendment of Petition (application).
N-425 (2-12-82) -- Notice to Petitioner of Proposed Recommendation of
Denial of Petition for Naturalization.
N-426 (5-12-77) -- Certification of Military or Naval Service.
N-445 (4-15-82) -- Notice to Petitioner to Appear in Court for Final
Hearing on Petition for Naturalization, and Questionnaire to be
Submitted by Petitioner at the Final Hearing or to Applicant to Appear
for Oath Ceremony, and Questionnaire to be Submitted at the Oath
Ceremony.
N-445B (4-20-82) -- Notice to Petitioner to Appear in Court for Final
Hearing on Petition for Naturalization Filed in Behalf of his Natural or
Adopted Child, and Questionnaire to be Submitted by Petitioner at the
Final Hearing.
N-455 (5-5-83) -- Application for Transfer of Petition for
Naturalization.
N-458 (1-30-83) -- Application to Correct Certificate of
Naturalization.
N-459 (12-15-58) -- Authorization to Clerk of Court to Correct
Certificate of Naturalization.
N-470 (5-5-83) -- Application to Preserve Residence for
Naturalization Purposes (under Sec. 316(b) or 317, Immigration and
Nationality Act).
N-472 (4-5-82) -- Approval of Application to Preserve Residence for
Naturalization Purposes.
N-480 (2-5-68) -- Naturalization Petitions Recommended to be Granted
(and) Order of Court Granting Petitions for Naturalization.
N-481 (9-20-67) -- Naturalization Petitions Recommended to be
Granted. (Continuation Sheet)
N-484 (2-5-68) -- Naturalization Petitions Recommended to be Denied
(and) Order of Court Denying Petitions for Naturalization.
N-485 (2-5-68) -- Naturalization Petitions Recommended to be Granted
(on behalf of children) (and) Order of Court Granting Petitions for
Naturalization.
N-550 (3-1-80) -- Certificate of Naturalization.
N-565 (5-5-83) -- Application to Replace a Naturalization/Citizenship
Certificate.
N-578 (10-3-62) -- Special Certificate of Naturalization.
N-600 (5-5-83) -- Application for Certificate of Citizenship.
N-642 (4-14-88) -- Data Sheet for Derivative Citizenship.
N-643 (4-14-88) -- Application for Certificate of Citizenship in
behalf of an Adopted Child.
N-644 ( ) -- Application for Posthumous Citizenship.
N-645 ( ) -- Certificate of Citizenship.
(49 FR 7104, Feb. 27, 1984, as amended at 53 FR 33445, Aug. 31, 1988;
54 FR 7174, Feb. 17, 1989; 55 FR 12629, Apr. 5, 1990; 56 FR 22824,
May 17, 1991; 56 FR 50502, 50503, Oct. 7, 1991)
08 CFR 499.1 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Chap.
08 CFR 499.1 Table of CFR Titles and Chapters
08 CFR 499.1 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
08 CFR 499.1 Title 2 -- (Reserved)
08 CFR 499.1 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
08 CFR 499.1 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
08 CFR 499.1 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Counsel (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
08 CFR 499.1 Title 6 -- Economic Stabilization (Reserved)
08 CFR 499.1 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
08 CFR 499.1 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
08 CFR 499.1 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
08 CFR 499.1 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
08 CFR 499.1 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
08 CFR 499.1 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of the Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIII Farm Credit System Assistance Board (Parts 1300 -- 1399)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Thrift Depositor Protection Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
08 CFR 499.1 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
08 CFR 499.1 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
08 CFR 499.1 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board, Department of Commerce (Parts 400 --
499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
08 CFR 499.1 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
08 CFR 499.1 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
08 CFR 499.1 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
08 CFR 499.1 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
08 CFR 499.1 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
08 CFR 499.1 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
III Office of National Drug Control Policy (Parts 1400 -- 1499)
08 CFR 499.1 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
08 CFR 499.1 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
08 CFR 499.1 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
08 CFR 499.1 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
08 CFR 499.1 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
08 CFR 499.1 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
08 CFR 499.1 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
08 CFR 499.1 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200 -- 1299)
XII Federal Mediation and Conciliation Service (Parts 1400 -- 1499)
XIV Equal Employment Opportunity Commission (Parts 1600 -- 1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
08 CFR 499.1 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
08 CFR 499.1 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
08 CFR 499.1 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200 -- 1299)
XVI Selective Service System (Parts 1600 -- 1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
XXIX Presidential Commission on the Assignment of Women in the Armed
Forces (Part 2900)
08 CFR 499.1 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
08 CFR 499.1 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
08 CFR 499.1 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
08 CFR 499.1 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900 -- 999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
08 CFR 499.1 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400 -- 499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
08 CFR 499.1 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
08 CFR 499.1 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
08 CFR 499.1 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
08 CFR 499.1 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
08 CFR 499.1 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
08 CFR 499.1 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
08 CFR 499.1 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
08 CFR 499.1 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services
(Parts 200 -- 299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Administration for Children and Families, Department of Health
and Human Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Administration for Children and
Families Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Administration for Children and
Families, Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (Parts
2200 -- 2299)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400 --
2499)
08 CFR 499.1 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
08 CFR 499.1 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
08 CFR 499.1 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900 -- 9999)
08 CFR 499.1 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Federal Transit Administration, Department of Transportation
(Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
08 CFR 499.1 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
08 CFR 499.1 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Tables of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies
Appearing in the CFR
08 CFR 499.1 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on National and Community Service 45, XXV
Committee for Purchase from People who are Blind or Severely Disabled
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 12, VI
Farm Credit System Assistance Board 12, XIII
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National and Community Service, Commission on 45, XXV
National Credit Union Administration 12, VII
National Drug Control Policy, Office of 21, III
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I; 48, XX
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Office of National Drug Control Policy 21, III
Office of Navajo and Hopi Indian Relocation 25, IV
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Commission on the Assignment of Women in the Armed
Forces 32, XXIX
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Depositor Protection Oversight Board 12, XV
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Administration 15, XII
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
08 CFR 499.1 8 CFR (1-1-93 Edition)
08 CFR 499.1 List of CFR Sections Affected
08 CFR 499.1 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven
separate volumes.
08 CFR 499.1 1986
8 CFR
51 FR
Page
Chapter I
100.2 (a)(4) and (b)(2) revised 19824
100.4 (a) and (e) revised 34439
(c)(2) amended 42080
103 Authority citation revised 39994
103.1 (d) and (j) revised 19824
(s) revised 34439
103.7 (d)(3) revised 8183
(b)(1) amended 39994
109.1 (a)(7) added 44782
204.1 (d)(2) revised 18571
(d)(2) (i) and (ii) corrected 20794
212.1 (e)(3) amended 18769
Heading and (d) revised 44783
212.4 (a) revised 32295
214.2 (b)(3) added; eff. 1-8-87 44267
223 Authority citation revised 12596
223.1 Revised 12596
223a Authority citation revised 12596
223a.3 Revised 12596
238 Authority citation revised; section authority citations removed
8643
238.3 (b) amended 4158,
5988, 13210, 16288, 23215, 26375, 27157, 28060, 29085, 30475, 35205,
35499
238.4 Amended 8643,
13210, 18769, 21510, 21511, 26375, 28923, 30838
242.1 (a) revised 34081
242.2 (a) revised 34081
242.7 (a) revised 34082
243.3 Revised 23042
245.2 (a)(3) revised; authority citation removed 7432
(a) (2) through (4) revised; (a)(5) added 25357
287.3 Revised 34082
316a Authority citation revised 40124
316a.2 Amended 34582
316a.21 Revised 40124
332c.1 Revised 35628
341.2 (a) revised 35629
343a.1 Heading and (c) revised 35629
343a.2 Revised 35629
08 CFR 499.1 1987
8 CFR
52 FR
Page
Chapter I
1 Authority citation revised; section authority citations removed
2936
1.1 (h) revised 2936
3 Authority citation revised; section authority citations removed
2936
Nomenclature change 2941
3.1 (b)(3) revised 2943
(d)(3) revised 24981
3.3 (a) amended; (b) revised 2936
3.4 Amended 2936
3.7 Revised 2936
Corrected 7369
3.11 Added 2942
3.12 -- 3.38 (Subpart C) Added 2936
100 Authority citation revised 16191
100.2 (c)(3) (iv) and (v) amended; (c)(3)(vi) added 16191
100.4 (f) added 16191
(c)(4) revised 22629
103 Authority citation revised; section authority citations removed
2939
Authority citation revised 16192
103.1 (l)(1) amended 2985
(f)(1) (iv) and (v) and (q) amended; (f)(1)(vi) and (2) (xxvii)
through (xxxii), (n)(2) and (t) added; (n) redesignated as (n)(1) 16192
(o)(2) revised 22629
103.2 (c) added 16192
103.3 (a) redesignated as (a)(1); (a)(2) added 16192
103.4 Revised 661
Existing text designated as (a); (b) added 16192
103.5 Existing text designated as (a); (b) added 16193
103.7 (d) (1) and (4) revised 3
(c)(1) revised 2939
(b)(1) amended 16193, 19719
103.8 Introductory text republished; (c) revised 2942
103.10 (b)(1)(ii) removed; (b)(1) (iii) through (vi) redesignated as
(b)(1) (ii) through (v) 2942
103.37 Added 16193
109 Removed 16220
204 Authority citation revised 30900, 33797
204.1 (d)(2) revised 30900
(a)(2)(iii) amended 44593
204.2 (c)(7) revised 16233
204.5 Revised 33797
210 Added 16199
210.1 (k) amended 28662
210.2 (a)(3) and (c)(1) amended 28662
210.6 Added 28663
211 Authority citation revised 16193
211.1 (d) added 16193
211.5 (d) added 16193
212 Authority citation revised 16193,
16372, 48083, 48802
212.1 (e) through (j) redesignated as (f) through (k); new (e) added
48083
212.3 Revised 2943, 11621
212.5 (b) amended; (d)(2) redesignated as (d)(2)(i); (d)(2)(ii)
added 16194
(f) added 48802
212.11 Added; interim 16372
212.12 Added 48802
212.13 Added 48804
214 Authority citation revised 13226,
20555, 45446, 48084
214.1 (a) revised 45446
214.2 (h)(6)(i) and (9) and (l) revised; (h)(6)(ii), (10), (11),
(12), (13), and (14) redesignated as (h)(6)(v), (11), (13), (10), (14),
and (15); new (h)(10) and (11) revised; new (h)(6)(ii), (iii), and
(iv) and (12) added 5750
(l) correctly designated; (l)(3)(i) corrected 7063
(f)(4)(ii), (5), (6) (ii) through (v), (7), (8), and (10) revised
13226
(h) (3) through (15) redesignated as (h) (4) through (16); new
(h)(3) added; new (h)(4) heading revised; (h)(4)(ii)(B) amended;
interim 20555
(b)(3) addition at 51 FR 44267 clarification 30329
(b)(1) amended 48084
214.3 (g)(1) (i) through (xii) revised; flush text following
(g)(1)(xii) added 13229
234 Authority citation revised 16194
234.2 (b) amended 16194
236 Authority citation revised; section authority citations removed
2939
236.5 (a), (b), and (c) removed; (d) and (e) redesignated as (b) and
(c); new (a) added 2939
236.6 Revised 2939
236.7 Revised 2939
238 Authority citation revised 26944, 26945, 48084
238.3 (b) amended 2670, 26945
(a) revised 48084
238.4 Amended 26944
238.5 Added 48084
241 Heading and authority citation revised; interim 16372
241.2 Added; interim 16372
242 Authority citation revised; section authority citations removed
2939
Authority citation revised 16194, 16372
242.1 (a) and (b) revised 2939
(a) revised 3098
(a) introductory text corrected 5616
Effective date corrected 6133
242.2 (a) introductory text amended; (b) revised 2939
(a) revised 3098
(a)(1)(viii) corrected 5616
Effective date corrected 6133
(a) through (e) redesignated as (b) through (f); (a) and (g) added;
interim 16372
242.5 (b) amended 2940
242.7 (a) and (b) revised 2940
(a) revised 3099
(a)(3) corrected 5616
Effective date corrected 6133
242.12 Revised 2940
242.13 Revised 2940
242.14 (e) revised 2940
242.16 (d) amended 2940
242.20 Revised 2941
242.21 Existing text designated as (a); (b) added 16194
242.22 Revised 26470
244.2 Revised 24982
245 Authority citation revised 34764, 48084
245.1 (b)(5) through (8) and (c) through (f) redesignated as (b)(7)
through (10) and (d) through (g); new (b)(5) and (6) and (c) added;
interim 6321
(b)(11) added 48084
245.2 (a)(3)(iv) revised 34764
245.6 Redesignated as 245.7; new 245.6 added; interim 6322
(c)(3) corrected 13827
245.7 Redesignated as 245.8; new 245.7 redesignated from 245.6;
interim 6322
245.8 Redesignated as 245.9; new 245.8 redesignated from 245.7;
interim 6322
245.9 Redesignated from 245.8; interim 6322
245a Added 16208
245a.1 (c)(1), (d)(2), (e), and (l) amended; (d)(4) added; interim
43845
245a.2 (a)(2)(ii), (b)(8), (c)(8), (d)(4)(iii), (e) (1) and (2), (g),
(k)(4), (m)(2)(i) and (3), (n) (1) and (2), (q), (t)(5), (u)(1)
introductory text and (ii) and (w) amended; (b) introductory text and
(s) heading revised; (b) (9) through (15) added; interim 43845
245a.3 (a) and (b)(4)(i) amended; (b)(4)(ii) revised; (b)(4)(iii)
removed; interim 43846
248 Authority citation revised 11621, 48084
248.1 (e) added; interim 11621
248.2 (e) added 48084
249.2 Revised; interim 6322
264 Authority citation revised 16194
264.1 (a), (b), and (c) amended 16194
274a Added 16221
Authority citation revised 43052
274a.6 Revised; interim 43053
287 Authority citation revised 16372
287.1 (g) through (i) added; interim 16372
287.7 Added; interim 16373
292 Authority citation revised; section authority citations removed
2941
292.3 (a) introductory text, (5) and (b) revised 24981
292.4 (a) revised 2941
299 Authority citation revised 16195, 48084
299.1 Amended 16195, 48084
299.3 Amended 16195
316a Authority citation revised 46739
316a.2 Amended 46739
341.1 Revised 19719
341.7 Revised; interim 13229
08 CFR 499.1 1988
8 CFR
53 FR
Page
Chapter I
1 Authority citation revised 30016
1.1 (o) added 30016
3.1 (a)(1) revised 15659
100 Authority citation revised 15194, 23603
100.4 (c)(2) amended 15194
(b)(14) and (d) amended 23603
(f) amended; interim 43985
103 Authority citation revised 26034
103.1 (n)(2) amended; interim 10064
(q) amended 35799
(n)(3) added; interim 43985
103.2 (b)(2) redesignated as (b)(3) and revised; new (b)(2) added
26034
103.4 (b) revised; interim 43985
103.7 (b)(1) amended; interim 43985
103.37 Removed; interim 43986
204 Authority citation revised 30016
204.1 (a) (2) through (4) and (d) (2) through (4) redesignated as (a)
(3) through (5) and (d) (3) through (5); new (a)(2) and (d)(2) added
30016
204.5 (c) corrected 2824
205 Authority citation revised 30016
205.1 (a)(10) added 30017
210 Revised; interim 10064
210.3 (b)(4) added; interim 27335
211 Authority citation revised 18260, 30017
211.1 (b)(1) revised 30017
211.5 (a) and (b) revised; (d) removed; interim 18260
212 Authority citation revised 9282,
17450, 24900, 30017, 40667
212.1 (i) added 24900
212.4 (e) revised 40867
212.5 (a)(2)(ii) revised 17450
212.7 (a) revised 30017
212.11 Revised 9282
214 Authority citation revised 3331,
24900, 30017, 46852
214.2 (n) redesignated as (o); new (n) added; interim 3331
(b)(3) redesignated as (b)(4); new (b)(3) added 24900
(n) revised 26231
(k) revised 30017
(a) (2), (3), and (g)(2) revised; (a) (4) through (10) and (g)(3)
through (11) added; interim 46852
216 Added 30018
217 Added 24901
Authority citation revised 50160
217.2 (d) added 50160
217.3 (c) heading and introductory text amended; (d) added 50160
217.5 (a) revised 50161
223 Authority citation revised 30021
223.2 Revised 30021
223a Authority citation revised 30021
223a.4 Revised 30021
223a.5 (a) revised 30021
235 Authority citation revised 23380, 30021
235.11 Added 30021
235.12 Added 23380
236 Authority citation revised 24902
236.9 Added 24903
241 Heading and authority citation revised 9282
241.2 Revised 9282
242 Authority citation revised 9282,
10064, 17450, 24903, 30022
242.1 (a) introductory text amended; (d) added 24903
242.2 (a) revised; (g) removed; (b) through (f) redesignated as (c)
through (g); new (b) added; new (c)(2), (d), and (e) amended 9283
242.7 (a) revised 30022
242.17 (a) revised 30022
242.21 (b) heading and text amended; interim 10064
242.24 Added 17450
245 Authority citation revised 24903, 30022
245.1 (b)(15) added 24903
(b) (12), (13) and (14) and (h) added 30022
245.8 Revised 30023
245a Heading and authority citation revised; interim 9274, 43992
245a.1 (o) and (p) revised 9863
(d)(4) revised 23382
(h) revised; (r) through (u) added; interim 43992
245a.2 (b) (8), (9), (11), and (12), (d)(4)(iii), (r), and (t)(4)
revised 23382
245a.3 (b)(3) revised 23382
Revised; interim 43993
245a.4 Added; interim 9274
248 Authority citation revised 24903
248.2 (f) added 24903
264 Authority citation revised 43986
264.1 (c) amended; interim 43986
271 Added 26036
274 Revised 43187
274a Authority citation revised 8612
274a.1 Introductory text amended 8612
274a.2 A. redesignated as (a); (b)(1)(v)(B)(1) introductory text
revised; (b)(1)(ii)(A), (v)(B)(1)(i), (2), (3) introductory text, (i),
and (iii), (vi), (vii) and (viii) (C) and (G), and (2)(i)(B) and (ii)
amended; (b)(1)(v)(B)(4) and (2)(iii) added 8612
274a.3 Amended 8613
274a.7 (a) and (b)(3) amended 8613
274a.9 (c) amended; (d) revised 8613
274a.12 (a)(11), (b) (10), (11) and (15), and (c) (1), (3) (i) and
(ii) and (15) amended; (b)(6) revised 8614
(c) (1) and (4) amended; interim 46855
274a.13 (a) amended 8614
274a.14 (b)(1)(i) amended 8614
(c) suspended 20087
286 Added 5757
287 Authority citation revised 9283
287.1 (g) through (i) revised 9283
287.7 Revised 9283
292.1 (a)(6) revised 7728
299 Authority citation revised 24903,
33442, 33444
299.1 Amended 24903
Revised 33444
299.5 Added 33442
Table amended (OMB numbers); interim 43986
337 Authority citation revised 23603
337.2 Revised 23603
341 Authority citation revised 23603
341.7 Revised 23603
499.1 Amended 33445
08 CFR 499.1 1989
8 CFR
54 FR
Page
Chapter I
100.2 (c)(3)(vii) added 18649
100.4 (c)(2) amended 2994, 39336
(f) amended 29439
(c) (2) and (3) amended 47674
101 Authority citation revised 5927
101.5 Added 5927
103 Authority citation revised 29441,
29881, 47348, 51870
103.1 (q) amended 6876
(f)(3) and (u) added 18649
(f)(2)(xxxii) removed 29439
(f)(2)(xxxii) added 29441
(f)(2) (xxxi), (xxxii), and (t) revised; (f)(2)(xxxiii) and (n)(4)
added; interim 29881
103.2 (d) added; interim 29881
103.3 (a)(3) added; interim 29881
103.5 (c) added; interim 29881
103.7 (b)(1) amended; interim 13, 29882, 48231
(b) (1) and (3) amended 13515
(b)(1) amended 47348
Regulation at 54 FR 13 confirmed 48577
(b)(1) amended; eff. 1-18-90 51870
204 Authority citation revised 11161
204.1 (a)(3) (ii) and (iii) revised 34142
204.2 (c) (3), (4), and (5) revised; interim 11161
(c) (3) through (5) revised 36754
210 Authority citation revised 4757
210.1 (b) through (r) redesignated as (c) through (s); new (b) added
50339
210.3 (b)(4) revised 4757
210.5 (b)(2) removed; (b)(3) redesignated as (b)(2); (b) heading,
(1), and new (2) revised 50339
210a Added; interim 29882
210a.1 (d) amended; interim 36277
210a.2 (c)(1) amended; interim 36277
210a.3 (a), (b), (c) and (d)(1) amended; interim 36277
210a.5 (i)(1), (3), (4), (5) and (6) revised; interim 36277
210a.6 (g) amended; interim 36277
210a.7 (c) amended; interim 36277
211 Authority citation revised 8184, 30369
211.1 (b)(1) revised 30369
211.5 (a) and (b) revised 8184
212.1 (l) added; interim 13
Regulation at 54 FR 13 confirmed 48577
214 Authority citation revised 10979, 48577
214.2 (b)(1) revised; (b)(4) redesignated as (b)(5); new (b)(4) and
(l)(17) added; interim 14
(e) redesignated as (e)(1); new (e)(1) heading and (2) added 10979
Regulation at 54 FR 14 confirmed; (b) (1) and (4) and (l)(17)
revised 48577
(l)(17) designation corrected; (l)(17)(i) corrected 51816
214.3 (e)(2), and (h) revised 19544
214.4 (a)(1)(iii) revised; (a)(1)(xviii) added 19544
214.6 Added; interim 15
Revised 48579
216 Authority citation revised 30369
216.4 (a)(4) revised 30369
217.5 (a) revised 27120
232 Revised 101
233 Removed 101
235 Authority citation revised; section authority citations removed
101
235.3 (d) revised; (a) amended; (e) and (f) added 101
(f) corrected 6365
235.5 (c) removed 101
237 Authority citation revised 102
237.4 Amended 102
237.5 Existing text designated as (a); (b) added 102
237.6 (a)(5) added 102
238.3 (c) added 102
(b) amended 47675
238.4 Amended 47675
239 Authority citation revised 102
239.2 (b) removed; (c), (d), and (e) redesignated as (b), (c), and
(d) 102
(d) correctly redesignated as (c) 1050
242.21 (b) amended 29439
243 Authority citation revised 39337
243.2 Revised 39337
245 Authority citation revised 29441, 47348, 47968
245.1 (b)(5), (6), (c)(1) introductory text, (2) introductory text,
(ii) and (3) revised 29441
(c)(1) introductory text correctly designated 47676
245.2 (a)(5)(ii) revised 29441
(a)(3)(iv) amended 47348
(a)(5)(ii) corrected 47676
245.6 (a), (c)(2) and (d)(2) revised; (f), (g) and (h) added 29441
(a), (d)(2), and (g)(2) corrected 47676
245.9 Revised (temporary) 47968
245a Authority citation revised 6505
245a.1 (i), (r), (s) (2) through (5) revised; (s) introductory text
republished; (v) added 29448
245a.2 (a)(2)(i) and (c)(5) removed; (d)(4) introductory text and
(k)(4) revised 29449
245a.3 (a) revised; interim 13361
Revised 29449
(b)(6), (12)(iii) and (c)(3) corrected 43384
245a.4 Revised 6505
(a)(10), (b)(4)(v) introductory text, (b)(11)(iv)(C) and (c) revised
29455
(c) corrected 47676
245a.5 Added 29437
(c) table amended 49964
264.1 (c) revised; interim 50340
(c)(3)(v) (B) and (C) correctly designated 51816
274a.12 (b)(16) added; interim 16
Regulation at 54 FR 16 confirmed 48577
280 Authority citation revised; section authority citations removed
102
280.1 Amended 18649
280.4 Amended 18649
280.5 Amended 18649
280.6 Amended 102
280.11 Amended 18649
280.12 Amended 18649
280.13 Amended 18649
280.15 Amended 18649
280.51 (a) and (c) amended 18649
280.52 Added 102
286.2 Immigration user fee 47677
287 Authority citation revised 39337, 48851
287.6 (c) heading revised 39337
(d) added 48851
299 Authority citation revised 39337
299.1 Amended 102,
7173, 29440, 30370, 39337
Amended; interim 48231
299.5 Amended 7174,
29440, 30370
Table amended; interim 48231
316a.2 Amended 47677
499 Authority citation revised 7174
499.1 Amended 7174
08 CFR 499.1 1990
8 CFR
55 FR
Page
Chapter I
3.1 (b)(9) added 30680
3.22 (b)(1) amended 30680
103 Authority citation revised 12627
Fee review; comments discussion 20261
103.1 (f)(1)(v) revised 20769
Regulation at 54 FR 29881 confirmed; (n)(4) amended 20774 (s)
amended 12627
(n)(1) and (q) amended; (v) added 30680
(f)(2)(ix) revised 41988
Technical correction 43439
103.2 Regulation at 54 FR 29881 confirmed 20774
(b)(3) correctly removed; CFR correction 12815
103.3 Regulation at 54 FR 29881 confirmed; (a)(3)(i) amended 20775
(a)(1), (b), and (c) revised; (a)(2) and (3) redesignated as
(a)(3) and (4); new (a)(2) added; (d) and (e) removed 20769
(a)(2)(v)(A)(1) and (2)(iii) corrected 23345
103.4 (a) revised 20770
103.5 (a) revised 20770
Regulation at 54 FR 29881 confirmed; (c)(1) amended 20775
(a) amended; interim 25931
103.7 (b)(1) amended 12629
Regulation at 54 FR 29882 confirmed 20775
Regulation at 54 FR 48231 confirmed 29342
208 Authority citation revised 2805
Revised 30680
208.5 Existing text designated as (a); new (a) heading and (b)
added; interim 2805
210.2 (e)(3) revised; interim 12629
210.3 (d)(2) amended; (d)(3) added; interim 12629
210.4 (d)(2) revised; (d)(3) added; interim 12629
210a Regulation at 54 FR 29882 and 54 FR 36277 confirmed; revised
20775
210a.1 Regulation at 54 FR 36277 confirmed 20774
(j) corrected 23345
210a.2 Regulation at 54 FR 36277 confirmed 20774
210a.3 Regulation at 54 FR 36277 confirmed 20774
210a.4 (d)(1) corrected 23345
210a.5 Regulation at 54 FR 36277 confirmed 20774
210a.6 Regulation at 54 FR 36277 confirmed 20774
210a.7 Regulation at 54 FR 36277 confirmed 20774
(j) corrected 23345
212 Authority citation revised 24859, 36259
212.1 (e)(3) revised 36259
212.2 (a) revised; interim 24859
214 Authority citation revised 5573
214.2 (h)(1) through (16) redesignated as (h)(2) through (17); new
(h)(1) added; new (h)(2), (3), and (5) through (17) revised 2621
(a)(5) through (7), (g)(2), (3), (5), (6), (7), (9), and (11) revised
5573
(h)(2)(i)(B), (C), (F)(2), (v), (4)(i)(D), (ii), (vi)(B), (viii)(B),
(ix) 7881
(h)(8)(ii)(A), (B), (C), and (iii)(C) amended 7882
(h)(1)(i), (ii)(A), (2)(i)(A), (iii) and (iv) revised; (h)(3)(v)(C)
removed; (h)(3) through (17) redesignated as (h)(4) through (18); new
(h)(3) added; new (h)(4)(vii)(D), (5)(x), (9)(iii)(A), (13)(ii),
(14)(i), (15)(i)(A) through (C), (ii)(B) and (17)(iii)(A) revised;
interim 34897
(h)(2)(i)(D) and (v) amended; nomenclature change; interim 34900
(h)(4)(i), (A), (C), (iii)(C), (v)(A)(1)(i), (ii), (iii), (B)(2)(ii),
(vi)(A), (vii)(A), and (E) amended; interim 34900
(h)(5)(i)(A), (D), (ii), (vi)(B), (viii)(B), (ix) amended; interim
34900
(h)(6)(iii)(C) amended; interim 34900
(h)(9)(ii)(A) through (C), (iii)(B)(1) and (2) amended; interim
34900
(h)(13)(iv), (15)(ii)(A), (16)(i) heading, (A)(1), (A)(1)(i), (B)(1)
and (ii) amended; interim 34900
(h)(16)(ii) amended; interim 34901
214.4 (b) through (h) revised; (i), (j), and (k) removed 41988
Technical correction 43439
235.12 Application deadline 14234
236 Authority citation revised 30686
236.3 Revised 30686
238 Authority citation revised 3715
238.3 (b) amended 1578, 3715
238.4 Amended 1578, 3715
241 Authority citation revised 11153
241.1 Revised 11153
242 Authority citation revised 1579, 2805, 24859, 30686, 43327
242.1 (a) revised 1579
(a)(15) and (16) amended; (a)(17) added 12627
242.2 (c)(1) revised 1579
(c)(1) introductory text revised; (c)(2) amended; interim 24859
(a)(1) revised; interim 43327
242.5 (a)(1) amended 12627
(a)(2) amended; interim 24859
242.17 (c) revised; interim 2805
(c) revised 30687
244 Authority citation revised 24859
244.1 Amended; interim 24859
245 Fee review; comments discussion 20261
245.1 (c)(2)(iv) and (d)(3) added; (f)(1) revised; interim 10397
245.2 (a)(5)(ii) amended; interim 10397
245.10 Added; interim 24860
253 Authority citation revised 30687
253.1 (f) revised 30687
264.1 Regulation at 54 FR 50340 confirmed; (c)(1)(ii), (2)(ii),
(iii)(B), (D), (iv)(A) and (3)(iii)(C) amended; (c)(2)(i)(F) removed;
(c)(2)(i)(C) through (E) redesignated as (c)(2)(i)(D) through (F); new
(c)(2)(i)(C) added; new (c)(2)(i)(E) and (F) revised 20262
274a Authority citation revised 5576
274a.1 (c), (h), (j) and (k) revised; (l) added; interim 25931
274a.2 (a), (b)(1)(i), (ii), (iii), (iv), (v) introductory text, (A)
introductory text, (1), (6) through (7) and (B)(1) revised;
(b)(1)(v)(A)(8) through (10) added; interim 25932
(b)(1)(v)(C), (vi), (vii), and (viii) revised; interim 25933
(b)(2)(ii), (3), (c)(1), (d)(1) and (2) revised; interim 25934
274a.5 Revised; interim 25934
274a.7 (a) revised; (b)(3) amended; (b)(4) added; interim 25935
274a.9 (a) revised; (c) heading, (1) introductory text heading, (i)
and (d) amended; (e) added; interim 25935
274a.10 (a), (b) introductory text, (1) introductory text, (ii)(A)
through (C) and (3) revised; interim 25935
274a.11 Removed; interim 25935
274a.12 (c)(4) revised 5576
(a) introductory text and (b)(15) revised; (a)(9) and (b)(4)
removed; interim 25935
(c) introductory text, (1), (4), (8), (9), (10), (11), (12), and (13)
revised; (c)(15) removed; (c)(16) and (17) added; interim 25936
274a.13 (a), (b), and (d) revised; interim 25937
286.5 (b), (c), and (d) revised; interim 729
Regulation at 55 FR 729 confirmed 18860
287.4 (a)(1) amended 12628
287.7 (a)(1) revised; interim 43327
292.1 (a)(2) revised 49251
299.1 Amended 12629
Regulation at 54 FR 48231 confirmed 29342
299.3 Amended 12629
299.5 Amended 12629
Regulation at 54 FR 48231 confirmed 29342
316a Authority citation revised 31037
316a.2 Amended 31037
334 Authority citation revised 31037
334.13 Amended 31037
341 Authority citation revised 31037
341.7 Revised 31037
499.1 Amended 12629
08 CFR 499.1 1991
8 CFR
56 FR
Page
Chapter I
3.1 (b)(10) added; interim 624
Regulation at 56 FR 624 confirmed 23496
100 Authority citation revised 50811
100.4 (g) added; interim 50811
101.6 Added; interim 23208
103 Authority citation revised 12649, 21919
103.1 (b)(3)(ii) revised; (f)(2)(xxxii) and (xxxiii) amended;
(f)(2)(xxxiv) added; interim 624
(f)(2)(xxxiii) and (xxxiv) amended; (f)(2)(xxxv) and (xxxvi) added;
interim 23209
Regulation at 56 FR 624 confirmed 23496
(f)(2)(ii) revised 60905
103.2 (b)(3)(i) amended; (b)(3)(ii) revised 624
103.5 (a) revised 41782
103.7 (b)(1) amended; interim 624, 21919, 22822, 31060
(b)(1) and (3) amended 12649
Regulation at 56 FR 624 confirmed 23496
(b)(1) amended 23498
(c)(4) added; interim 32501
Regulation at 56 FR 22822 confirmed 49672
(b)(1) amended; (b)(3) removed; interim 50480
204 Authority citation revised 60905
204.1 (a)(2)(iii) revised; interim 28312
204.5 Revised 60905
204.6 Revised 60910
204.8 Added; interim 23210
208 Authority citation revised 50812
208.3 (a) amended; interim 50812
208.4 (a) revised; (b) redesignated as (c); new (b) added; interim
50812
209 Authority citation revised 26898
209.2 Introductory text added; (a) revised; (b), (c) and (f)
amended; interim 26898
210a.8 (b)(3) amended; interim 38333
212.2 Revised; inerim 23212
212.3 Revised; interim 50034
214 Authority citation revised 38333
Authority citation revised 61119
214.1 (e), (f) and (g) amended; interim 38333
214.2 (c)(1) amended 480
(q) added; interim 41624
(b)(4)(i)(D)(1) revised 482
(g)(1) revised 2841
(h)(3)(i)(B) and (v)(C) amended; (h)(3)(iv)(E) removed 11916
(h)(17) revised 11917
(d) revised; interim; effective to 12-31-91 26017
Regulation at 56 FR 26017 comment time extended 31305
(j)(1)(v) revised 33371
(a)(10), (e)(1), (f)(12)(i)(E), (g)(10) and (m)(16)(i)(E) amended;
interim 38333
(f) and (m)(14)(iii) revised; (m)(14)(ii) amended 55613
(h)(4)(iv) an d(v) removed; (h)(4)(vi), (vIII) and (9)(iii)(A)
through (C) redesignated as (h)(4)(iv), (v) and (9)(iii)(B) through (D);
(h)(1), (2)(i)(A), (B), (D), (E), (ii), (4) heading, (i) through (iiI),
new (iv), (8), new (9)(iii)(B), (D), (10)(ii), (iii), (11)(i), (13)
through (16) and (18) revised; new (h)(4)(vi) through (ix), (6)(vi)(E),
(7)(iv), and (9)(iii)(A) added 61119
(h)(2)(iii), (iv), (4)(v)(E), (5)(i)(A), (6)(iii)(E), (vi), (7), (i),
(ii), (iii), (9)(i) and (ii)(A) through (c) amended; (l)(3)(vi) and
(viiI) redesignated as (l)(3)(vii) and (viii); (l)(1)(i), (ii)(A)(,
(B), (C), (D), (F), (G), (H), (K), (L), (2)(i), (3)(iii), (v),
(5)(ii)(C), (6), (7)(i) introductory text, (C), (ii), (8)(ii), (iii),
(9)(i), (10)(i), (12), (14)(i), (15) and (16) revised; new (l)(3)(vi)
added 61127
(l)(1)(ii)(M), (2)(i) through (ii), (3) introductory text, (iii),
(v), (4)(iv) introductory text, (5)(ii)(A), (B), (7)(i)(A)(1), (B)(1),
(9)(iii)(B), (13) heading, (i), (ii), (14)(ii) introductory text, (D),
(ii)(A), (17)(i), (ii), (iv), (v)(A) and (B) amended 61130
(o) redesignated as (s); new (o) and (p) added 61130
(r) added 66967
214.6 (d)(2)(ii) revised 482
216 Authority citation revised 22637
216.5 (a)(1), (2), (e)(2)(ii) and (iii) revised; (a)(3) and (e)(3)
added; interim 22637
217.2 (a) introductory text, (4) and (b) through (d) revised; (a)(5)
and (6) removed; (a)(7) and (8) redesignated as (a)(5) and (6) 32953
217.4 (b) and (d) revised 32953
217.5 (a) revised; interim 46716
217.6 (a), (b)(1)(ii), (iv), (v), (2)(i) and (iv) revised;
(b)(2)(vi) added 32954
235 Authority citation revised 50812
235.6 (a) amended; interim 50812
237 Authority citation revised 23214
237.4 Removed 23214
240 Added; interim 619
Regulation at 56 FR 619 confirmed 23496
240.1 Amended 23497
240.2 (a) amended 23497
240.4 (a) amended 23497
240.5 (a) amended 23497
240.6 Amended 23497
240.7 (d) amended 23497
240.8 Amended 23497
240.9 (a)(1) introductory text, (2) introductory text, (2)(i)
introductory text, (3) and (c) amended 23497
240.10 (c) introductory text, (d) introductory text, (2), (f)(3), (3)
and (4)(iii) amended; (e)(1) introductory text, (f)(1), (2)
introductory text and (4)(ii) revised 23497
240.11 Amended 23497
240.12 (a) amended 23498
240.14 (b)(1) and (3) amended; (d) removed 23498
240.15 (a) and (b) amended 23498
240.17 (a) and (b) revised 23498
240.18 (a), (b) and (d) amended 23498
240.41 Amended 23498
240.42 (a) amended 23498
(d) revised 41445
240.43 (a) amended 23498
240.46 Revised 23498
240.47 Introductory text amended; (b) revised 23498
240.48 Added; interim 32501
241 Heading revised 8906
241.1 Removed; new 241.1 redesignated from 241.2 8906
Amended; interim 38333
241.2 Redesignated as 241.1 8906
242 Authority citation revised 23214, 38333
242.1 (a)(16) and (17) amended; (a)(18) and (19) added 18502
(a)(19) amended; (a)(20) and (21) added; interim 50812
242.2 (c)(1)(xv) and (xvi) amended; (c)(1)(xvii) and (xviii) added
18503
(h) added 23214
Regulation at 55 FR 43327 confirmed 33205
242.5 (a)(1) and (c) amended 18503
242.7a Amended; interim 38333
242.8 (a) amended; interim 38333
242.16 (c) amended 8907
242.17 (d) amended; interim 38333
242.23 (c) and (d) amended; interim 38333
243 Authority citation revised 48730
243.8 Amended 48730
245.1 (b) introductory text, (4), (c)(1), (2)(iv), (d)(3) and (f)(1)
revised; interim 28040
(b)(14) revised; interim 28313
(b)(8), (10) and (12) amended; (d)(2) and (g) removed; (d)(3) and
(h) redesignated as (d)(2) and (g); (d)(1), (f) and new (g) revised
49840
245.2 (a)(5)(ii) amended; interim 28042
(a)(1) and (3)(i) amended; (a)(2)(i), (iii), (3)(iii), (4)(iii),
(5)(iii), (b) and (e) removed; (a)(2)(ii), (iv), (3)(iv), (4)(iv),
(5)(iv), (c) and (d) redesignated as (a)(2)(i), (ii), (3)(iii),
(4)(iii), (5)(iii), (b) and (c); new (a)(2)(i) revised 49841
245.4 Removed; new 245.4 redesignated from 245.7 49841
245.5 Removed; new 245.5 redesignated from 245.8 and revised 49841
245.6 Removed; new 245.6 redesignated from 245.9 and amended 49841
245.7 Redesignated as 245.4; new 245.7 redesignated from 245.10
49841
245.8 Redesignated as 245.5 and revised 49841
245.9 Redesignated as 245.6 and amended 49841
245.10 Redesignated as 245.7 49841
245a Authority citation revised 31061
245a.1 (e) amended; interim 31061
245a.2 (u)(1)(iv) amended; interim 31061
245a.3 (a)(2), (b)(1), (c)(3) and (d)(6) amended; (a)(3) added;
interim 31061
251 Authority citation revised 26017
251.1 (a) and (d) revised; interim; effective to 12-31-91 26017
Regulation at 56 FR 26017 comment time extended 31305
258 Added; interim; effective to 12-31-91 26018
Regulation at 56 FR 26018 comment time extended 31305
264.1 (c)(2)(iv)(A) amended 483
264.3 Added 1566
274.9 (a) amended 8686
274.10 (a) introductory text, (4) and concluding text amended 8686
274.11 Amended 8686
274.12 Amended 8686
274a.1 (c), (j), (k) and (l) revised 41783
274a.2 (b)(1)(v)(B)(1)(iii) through (viii) redesignated as
(b)(1)(v)(B)(1)(iv) through (ix); (a) introductory text, (b)(1)(i)(A),
(v) introductory text, (A)(1), (B)(1)(i), new (v) and (C)(3) amended;
new (b)(1)(v)(B)(1)(iii) added; (b)(1)(v)(C)(4), (8) and (vi) through
(viii) revised 41784
(b)(2)(ii) and (iii) revised; (b)(3) amended 41785
(c)(1), (d)(1)(i), and (ii) revised; (d)(1) introductory text and
(2) amended 41786
274a.7 (a) revised 41786
274a.9 (b), (d) and (e) amended; (c) introductory text and (1)(i)
revised 41786
274a.10 (b) nomenclature change; (b) introductory text, (1)
introductory text, and (3) amended 41786
274a.12 (a) introductory text revised; (a)(11) amended; (a)(12) and
(c)(19) added; interim 624
Regulation at 56 FR 624 confirmed 23498
(a) concluding text added 23499
(a) introductory text, (1), (b)(15), (c) introductory text, (1), (4),
(10), (12) introductory text, (13) introductory text, and (17)(i)
amended; (c)(18) added 41787
(b)(6), (c)(3) and (6) revised 55616
274a.13 (a) revised; (d) amended 41787
280.2 Amended; interim 26020
Regulation at 56 FR 26020 confirmed 45885
280.7 Amended; interim 26020
Regulation at 56 FR 26020 confirmed 45885
280.52 Revised; interim 26020
Regulation at 56 FR 26020 confirmed 45885
286 Authority citation revised 21919
286.8 Added; interim 21919
287.7 Regulation at 55 FR 43327 confirmed 33205
299.1 Amended; interim 624
Amended; interim 21920
Regulation at 56 FR 624 confirmed 23496
299.5 Amended; interim 624
Amended; interim 21920
Table amended (OMB numbers); interim 22822
Regulation at 56 FR 624 confirmed 23496
Regulation at 56 FR 22822 confirmed 49672
Amended; interim 50480
310 Added; interim 50480
312 Revised; interim 50481
313 Added; interim 50482
315 Added; interim 50483
316 Added; interim 50484
316.5 (d) redesignated from 316a.21 and revised; interim 50487
316.20 (a), (b) and (c) redesignated from 316a.2, 316a.3 and 316a.4;
(a) heading, (b) heading, and (c) heading added; interim 50487
316a Removed; interim 50487
316a.2 Redesignated as 316.20(a); (a) heading added; interim 50487
316a.3 Redesignated as 316.20(b); (b) heading added; interim 50487
316a.4 Redesignated as 316.20(c); (c) heading added; interim 50487
316a.21 Redesignated as 316.5(d) and revised; interim 50487
319 Authority citation revised 50487
319.1 Revised; interim 50488
319.2 Revised; interim 50488
319.3 Revised; interim 50488
319.4 Redesignated as 319.5 and amended; new 319.4 added; interim
50489
319.5 Redesignated as 319.6; new 319.5 redesignated from 319.4;
interim 50489
319.6 Redesignated from 319.5; interim 50489
319.11 Revised; interim 50489
322 Revised; interim 50489
324 Heading and authority citation revised; interim 50490
324.1 Added; interim 50490
324.2 Redesignated from 324.11 and revised; interim 50490
324.3 Redesignated from 324.12; interim 50490
Revised; interim 50491
324.4 Redesignated from 324.13; interim 50490
Amended; interim 50491
324.5 Redesignated from 324.14; interim 50490
Amended; interim 50491
324.11 Redesignated as 324.2; interim 50490
324.12 Redesignated as 324.3; interim 50490
324.13 Redesignated as 324.4; interim 50490
324.14 Redesignated as 324.5; interim 50490
324.15 Removed; interim 50491
325 Added; interim 50491
327 Revised; interim 50492
328 Revised; interim 50492
329 Heading and authority citation revised; interim 11061
Authority citation revised 50493
329.1 Revised; interim 50493
329.2 Revised; interim 50493
329.3 Added; interim 50493
329.4 Added; interim 50493
329.5 Added; interim 11061
330 Revised; interim 50493
331 Added; interim 50494
332 Heading and authority citation revised; interim 50494
332.1 Redesignated from 332d.1 and revised; interim 50494
332.2 Redesignated from 332c.1 and amended; interim 50495
332.3 Added; interim 50495
332.4 Redesignated from 332b.5; interim 50495
332.5 Added; (a) through (d) redesignated from 332a.1, 332a.2,
332a.11, and 332a.12; new (b) revised; new (a) heading, new (c)
heading and new (d) heading added; interim 50495
332.11 Redesignated as 335.2; interim 50494
332.13 Redesignated as 335.3; interim 50494
332a Removed; interim 50495
332a.1 Redesignated as 332.5(a); (a) heading added; interim 50495
332a.2 Redesignated as 332.5(b) and revised; interim 50495
332a.11 Redesignated as 332.5(c); (c) heading added; interim 50495
332a.12 Redesignated as 332.5(d); (d) heading added; interim 50495
332b Removed; interim 50495
332b.1 Removed; interim 50495
332b.3 Removed; interim 50495
332b.4 Removed; interim 50495
332b.5 Redesignated as 332.4; interim 50495
332c Removed; interim 50495
332c.1 Redesignated as 332.2 and amended; interim 50495
332d Removed; interim 50495
332d.1 Redesignated as 332.1 and revised; interim 50494
333 Revised; interim 50495
334 Heading revised; interim 50495
Authority citation revised 50496
334.1 Revised; interim 50496
334.2 Redesignated as 334.3 and revised; new 334.2 redesignated from
334.11 and revised; interim 50496
334.3 Removed; interim 50496
Redesignated from 334.2 and revised; interim 50496
334.4 Redesignated from 334.14 and revised; interim 50496
334.5 Added; interim 50496
334.11 Redesignated as 334.2 and revised; new 334.11 redesignated
from 334a.1 and revised; interim 50496
334.13 Removed; interim 50496
334.14 Redesignated as 334.4 and revised; interim 50496
334.15 Removed; interim 50496
334.16 Heading revised; (a) and (b) amended; interim 50496
334.17 (a) amended; interim 50496
334.18 (a) amended; interim 50496
334.21 Removed; interim 50496
334a Removed; interim 50496
334a.1 Redesignated as 334.11 and revised; interim 50496
335 Heading revised; interim 50496
Authority citation revised 50497
335.1 Added; interim 50497
335.2 Redesignated from 332.11; interim 50494
Revised; interim 50497
335.3 Redesignated from 332.13; interim 50494
Revised; interim 50497
335.4 Added; interim 50498
335.5 Added; interim 50498
335.9 Added; interim 50498
335.10 Added; interim 50498
335.11 Heading and (a) revised; (b) through (g) amended; (h)
removed; interim 50498
335.12 Heading revised; amended; interim 50498
335.13 Heading revised; (a) through (d) amended; nomenclature
change; interim 50498
335a Removed; interim 50498
335c Removed; interim 50498
336 Revised; interim 50499
337 Authority citation revised 50499
337.1 (a) revised; (b) and (c) amended; (d) added; interim 50499
337.2 Redesignated as 337.9 and revised; new 337.2 added; interim
50500
337.3 Removed; new 337.3 redesignated from 337.11 and revised;
interim 50500
337.4 Revised; interim 50500
337.8 Added; interim 50500
337.9 Redesignated from 337.2 and revised; interim 50500
337.11 Redesignated as 337.3 and revised; interim 50500
338 Authority citation revised 30679, 50501
338.1 Added; interim 50501
338.2 Added; interim 50501
338.3 Redesignated from 338.14 and revised; interim 50501
338.4 Redesignated from 338.15 and revised; interim 50501
338.5 Redesignated from 338.16 and revised; interim 50501
338.11 Revised 30679
Heading revised; (a) amended; interim 50501
338.12 Revised 30680
Corrected 38485
Heading revised; amended; interim 50501
338.13 Amended; interim 50502
338.14 Redesignated as 338.3 and revised; interim 50501
338.15 Redesignated as 338.4 and revised; interim 50501
338.16 Redesignated as 338.5 and revised; interim 50501
339 Heading and authority citation revised; interim 50502
339.1 Revised; interim 50502
339.2 Revised; interim 50502
339.5 Revised; interim 50502
340 Authority citation revised 50502
340.11 Amended; interim 50502
343b Authority citation revised 50502
343b.1 Amended; interim 50502
343b.2 Amended; interim 50502
344 Removed; interim 50502
392 Added; interim 22822
Regulation at 56 FR 22822 confirmed 49672
499.1 Table amended; interim 22824
Regulation at 56 FR 22824 confirmed 49672
Amended; interim 50502, 50503
08 CFR 499.1 1992
8 CFR
57 FR
Page
Chapter I
3 Authority citation revised 11570
3.1 (d)(1-a) revised 11570
3.12 Revised 11571
3.13 Revised 11571
3.14 Revised 11571
3.15 Redesignated as 3.16; new 3.15 added 11571
3.16 Redesignated as 3.17; new 3.16 redesignated from 3.15 11571
3.17 Redesignated as 3.18; new 3.17 redesignated from 3.16 and
revised 11571
3.18 Redesignated as 3.19; new 3.18 redesignated from 3.17 11571
3.19 Redesignated as 3.20; new 3.19 redesignated from 3.18 and
revised 11571
3.20 Redesignated as 3.21; new 3.20 redesignated from 3.19 11571
Revised 11572
3.21 Redesignated as 3.22; new 3.21 redesignated from 3.20 11571
Revised 11572
3.22 Redesignated as 3.23; new 3.22 redesignated from 3.21 11571
3.23 Redesignated as 3.24; new 3.23 redesignated from 3.22 11571
3.24 Redesignated as 3.25; new 3.24 redesignated from 3.23 11571
3.25 Redesignated as 3.27; new 3.25 redesignated from 3.24 11571
3.26 Redesignated as 3.28 11571
Added 11572
3.27 Redesignated as 3.29; new 3.27 redesignated from 3.25 11571
(c) amended 11572
3.28 Redesignated as 3.30; new 3.28 redesignated from 3.26 11571
3.29 Redesignated as 3.31; new 3.29 redesignated from 3.27 11571
3.30 Redesignated as 3.32; new 3.30 redesignated from 3.28 11571
3.31 Redesignated as 3.33; new 3.31 redesignated from 3.29 11571
Revised 11572
3.32 Redesignated as 3.34; new 3.32 redesignated from 3.30 11571
(a) amended 11572
3.33 Redesignated as 3.35; new 3.33 redesignated from 3.31 11571
Revised 11572
3.34 Redesignated as 3.36; new 3.34 redesignated from 3.32 11571
3.35 Redesignated as 3.37; new 3.35 redesignated from 3.33 11571
3.36 Redesignated as 3.38; new 3.36 redesignated from 3.34 11571
3.37 Redesignated as 3.39; new 3.37 redesignated from 3.35 11571
Revised 11573
3.38 Redesignated as 3.40; new 3.38 redesignated from 3.36 11571
3.39 Redesignated from 3.17 11571
Amended 11573
3.40 Redesignated from 3.38 11571
103 Authority citation revised 5227, 11573
103.1 (f)(2)(xxxv) and (xxxvi) amended; (f)(2)(xxxvii) added;
interim 33861
103.3 (a)(1)(v) added 11573
103.7 Regulation at 56 FR 31060 confirmed 3926
(b)(1) revised 5227
(b)(1) amended 6182
(b)(1) amended; interim 6460
(a) amended 11573
(c)(4) amended 34507
204 Heading and authority citation revised 41056
204.1 Revised 41056
204.2 Revised 41057
204.3 Revised 41063
204.4 Revised 41066
204.6 (a) and (h)(3) corrected 1860
204.8 Regulation at 56 FR 23210 confirmed; (a) and (b) amended;
(d)(1) revised; (d)(2) redesignated as (d)(3); new (d)(2) added 14792
(e)(1) and (g)(3) amended 14793
204.9 Added; interim 33861
209.2 (a)(1)(v) amended 42883
(c) amended 42884
214 Authority citation revised 40832
214.2 (h)(4)(v)(E) and (6)(vi) introductory text corrected 749
(d) added; interim; eff. 2-12-92 through 3-31-92 6184
Regulation at 57 FR 6184 comment time extended 10978
(h)(1)(ii)(B)(1), (4)(i)(B)(1) through (6), (iii)(B)(1), (vi)(A)(2),
(ix) and (9)(iii)(B)(1) revised; interim 12178
(h)(1)(i), (ii)(B)(3), (4) heading, (i)(A)(3), (C), (ii), (vii)(A),
(B), (C), (9)(iii)(B)(3), (13)(iii)(A) and (15)(ii)(B)(1) revised;
(h)(1)(ii)(B)(4), (4)(i)(A)(4), (D), (vii)(D), (viii) and (9)(iii)(B)(4)
removed; (h)(4)(ix) redesignated as (h)(4)(viii) 12181
(o)(4) through (15) redesignated as (o)(5) through (16); (o)(1),
(2)(ii)(C), (3)(i), (ii), (iii), (iv) introductory text, new (o)(5),
(6)(ii) and (iv), (7)(iii) revised; (o)(3)(v), (4) and (17) added 12182
(p)(5) through (15) redesignated as (p)(7) through (17); (p)(4)
redesignated as (p)(5); (o)(2)(i), (7)(ii)(A), (B), (C), (iv)(12) and
(13)(ii) amended; (p)(1), (2)(i), (ii)(C), (F), (3), (5), (i)(A), new
(p)(7), (8)(iii), and (14)(iii) revised; (p)(2)(ii)(H), (4), (6) and
(18) added 12186
(p)(5)(ii)(D), (8)(ii)(A), (B) and (C) amended 12190
Regulation at 57 FR 6184 effective date extended through 10-31-92
29193
(f)(9)(ii) revised; interim 31955
(f)(10)(ii) revised; (f)(11) introductory text amended; interim
31956
(c)(1) amended 33426
(d) revised 40832
(n)(4) amended 42884
(q) revised 55060
214.6 (d)(2)(ii) revised 33273
238.1 Revised; interim 59907
238.2 Revised; interim 59907
240.20 Redesignated from 240.48 and revised 34507
240.48 Redesignated as 240.20 and revised 34507
242 Authority citation revised 6461, 11573
242.2 (d) revised; (h) added 11573
Corrected 30898
242.6 Added; interim 6461
242.8 (a) amended 11574
245 Authority citation revised 56812
245.1 (b)(4)(iii); (d)(2)(i)(A), (C), (D), (ii), (iii)(A) through
(D), (iv)(B), (C) and (v) revised 56812
(d)(2)(vi)(B)(1) amended 56813
245.2 (a)(5)(ii) amended 56813
245.6 Revised; interim 49375
245.8 Added; interim 33862
245a Authority citation revised 3926
245a.1 Regulation at 56 FR 31061 confirmed 3926
245a.2 Regulation at 56 FR 31061 confirmed 3926
245a.3 Regulation at 56 FR 31061 confirmed; (e) amended 3926
251 Authority citation revised 6185, 40833
251.1 (a) and (d) added; interim; eff. 2-21-92 through 3-13-92 6185
Regulation at 57 FR 6185 comment time extended 10978
Regulation at 57 FR 6185 effective date extended through 10-31-92
29193
(a) and (d) revised 40833
258 Added; interim; eff. 2-21-92 through 3-13-92 6185
Regulation at 57 FR 6185 comment time extended 10978
Regulation at 57 FR 6185 effective date extended through 10-31-92
29193
Revised 40834
264 Authority citation revised 6462
264.1 (a) amended; interim 6462
(a) corrected 14627
270 Added 33866
274a Authority citation revised 6462, 42884
274a.12 (a) introductory text and (12) revised; (a)(13) added;
interim 6462
Corrected 14627
(c)(3) revised; interim 31956
(b)(13), (14), (15) and (16) redesignated as (b)(17), (18), (20) and
(19); new (b)(18), (19) and (20) amended; new (b)(13), (14), (15) and
(16) added 42884
274a.13 (a) amended; interim 6462
(a) corrected 14627
287.1 (a)(1) revised 47258
292 Authority citation revised 11574
292.3 Heading, (a) introductory text and (b) revised; (a)(15) added
11574
299.1 Amended 6183, 6462
Corrected 14627
299.5 Table amended; interim (OMB numbers) 6183, 6462
Aliens and Nationality
8
Revised as of January 1, 1993
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1993
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
Washington, DC 20402-9328
08 CFR 499.1 Table of Contents
Page
Explanation v
Title 8:
Chapter I -- Immigration and Naturalization Service, Department of
Justice
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
08 CFR 499.1 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 1993), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-512-1557). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
January 1, 1993.
08 CFR 499.1 THIS TITLE
Title 8 -- Aliens and Nationality is composed of one volume. The
contents of this volume represent all current regulations issued by the
Immigration and Naturalization Service, Department of Justice as of
January 1, 1993.
For this volume, Robert J. Sheehan was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.