January 30, 2008 CODE OF FEDERAL REGULATIONS 8 Revised as of January 1, 2008 Aliens and Nationality Containing a codification of documents of general applicability and future effect As of January 1, 2008 With Ancillaries

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Phone: toll-free (866) 512-1800; DC area (202) 512-1800 Table of Contents Page Explanation v Title 8: Chapter I—Department of Homeland Security 3 Chapter V—Executive Office for Immigration Review, Department of Justice 825 Finding Aids: Table of CFR Titles and Chapters 1153 Alphabetical List of Agencies Appearing in the CFR 1171 List of CFR Sections Affected 1181

Cite this Code: CFR To cite the regulations in this volume use title, part and section number. Thus, 8 CFR 1.1 refers to title 8, part 1, section 1. 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, 2008), 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. INCORPORATION BY REFERENCE

What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:

(a) The incorporation will substantially reduce the volume of material published in the Federal Register.

(b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.

(c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

Properly approved incorporations by reference in this volume are listed in the Finding Aids at the end of this volume.

What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed in the Finding Aids of this volume as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, Washington DC 20408, or call 202-741-6010. 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). 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.

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Raymond A. Mosley,

Director,

Office of the Federal Register.

January 1, 2008.      THIS TITLE

Title 8—Aliens and Nationality is composed of one volume. Chapter I contains regulations of the Department of Homeland Security. Chapter V contains regulations of the Executive Office for Immigration Review, Department of Justice. The contents of this volume represent all current regulations codified under this title of the CFR as of January 1, 2008.

For this volume, Susannah C. Hurley and Moja N. Mwaniki were Chief Editors. The Code of Federal Regulations publication program is under the direction of Michael L. White, assisted by Ann Worley. <LRH>8 CFR Ch. I (1–1–08 Edition) <RRH>Department of Homeland Security <CFRTITLE> <TITLEHD><PRTPAGE P='1'><HED>Title 8—Aliens and Nationality</TITLEHD> <CFRTOC> <PTHD>Part <CHAPTI> <SUBJECT><E T='04'>chapter i—</E>Department of Homeland Security <PG>1 <SUBJECT><E T='04'>chapter v—</E>Executive Office for Immigration Review, Department of Justice <PG>1001 <CHAPTER> <TOC> <TOCHD><PRTPAGE P='3'><HED>CHAPTER I—DEPARTMENT OF HOMELAND SECURITY</TOCHD> <NOTE><HED>Note:<P>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.</NOTE> <GPOTABLE COLS='8' OPTS='L0' CDEF='s36,xl36,r36,xl36,r36,xl36,r36,xl36'> <BOXHD><CHED H='1'>Sections 8 USC <CHED H='1'>Sections I. & N. Act and 8 CFR <CHED H='1'>Sections 8 USC <CHED H='1'>Sections I. & N. Act and 8 CFR <CHED H='1'>Sections 8 USC <CHED H='1'>Sections I. & N. Act and 8 CFR <CHED H='1'>Sections 8 USC <CHED H='1'>Sections I. & N. Act and 8 CFR <ROW><ENT I='01'>1101*<ENT>101<ENT>1254<ENT>244<ENT>1355*<ENT>285<ENT>1438<ENT>327 <ROW><ENT I='01'>1102*<ENT>102<ENT>1255<ENT>245<ENT>1356*<ENT>286<ENT>1439<ENT>328 <ROW><ENT I='01'>1103*<ENT>103<ENT>1256<ENT>246<ENT>1357<ENT>287<ENT>1440<ENT>329 <ROW><ENT I='01'>1104*<ENT>104<ENT>1257<ENT>247<ENT>1358*<ENT>288<ENT>1441<ENT>330 <ROW><ENT I='01'>1105*<ENT>105<ENT>1258<ENT>248<ENT>1359<ENT>289<ENT>1442*<ENT>331 <ROW><ENT I='01'>1105a*<ENT>106<ENT>1259<ENT>249<ENT>1360*<ENT>290<ENT>1443<ENT>332 <ROW><ENT I='01'>1151*<ENT>201<ENT>1260<ENT>250<ENT>1361*<ENT>291<ENT>1444<ENT>333 <ROW><ENT I='01'>1152*<ENT>202<ENT>1281<ENT>251<ENT>1362<ENT>292<ENT>1445<ENT>334 <ROW><ENT I='01'>1153*<ENT>203<ENT>1282<ENT>252<ENT>1401*<ENT>301<ENT>1446<ENT>335 <ROW><ENT I='01'>1154<ENT>204<ENT>1283<ENT>253<ENT>1402*<ENT>302<ENT>1447<ENT>336 <ROW><ENT I='01'>1155<ENT>205<ENT>1284*<ENT>254<ENT>1403*<ENT>303<ENT>1448<ENT>337 <ROW><ENT I='01'>1156*<ENT>206<ENT>1285*<ENT>255<ENT>1404*<ENT>304<ENT>1449<ENT>338 <ROW><ENT I='01'>1181<ENT>211<ENT>1286*<ENT>256<ENT>1405*<ENT>305<ENT>1450<ENT>339 <ROW><ENT I='01'>1182<ENT>212<ENT>1287*<ENT>257<ENT>1406<ENT>306<ENT>1451<ENT>340 <ROW><ENT I='01'>1183<ENT>213<ENT>1301*<ENT>261<ENT>1407*<ENT>307<ENT>1452<ENT>341 <ROW><ENT I='01'>1184<ENT>214<ENT>1302*<ENT>262<ENT>1408*<ENT>308<ENT>1453<ENT>342 <ROW><ENT I='01'>1185<ENT>215<ENT>1303*<ENT>263<ENT>1409*<ENT>309<ENT>1454<ENT>343 <ROW><ENT I='01'>1201<ENT>221<ENT>1304<ENT>264<ENT>1421*<ENT>310<ENT>1455<ENT>344 <ROW><ENT I='01'>1202*<ENT>222<ENT>1305<ENT>265<ENT>1422*<ENT>311<ENT>1457*<ENT>346 <ROW><ENT I='01'>1203<ENT>223<ENT>1306*<ENT>266<ENT>1423<ENT>312<ENT>1458*<ENT>347 <ROW><ENT I='01'>1204*<ENT>224<ENT>1321*<ENT>271<ENT>1424*<ENT>313<ENT>1459*<ENT>348 <ROW><ENT I='01'>1221<ENT>231<ENT>1322*<ENT>272<ENT>1425*<ENT>314<ENT>1481<ENT>349 <ROW><ENT I='01'>1222<ENT>232<ENT>1323*<ENT>273<ENT>1426*<ENT>315<ENT>1482*<ENT>350 <ROW><ENT I='01'>1223<ENT>233<ENT>1324<ENT>274<ENT>1427<ENT>316<ENT>1483*<ENT>351 <ROW><ENT I='01'>1224<ENT>234<ENT>1325*<ENT>275<ENT>1428*<ENT>317<ENT>1484*<ENT>352 <ROW><ENT I='01'>1225<ENT>235<ENT>1326*<ENT>276<ENT>1429<ENT>318<ENT>1485*<ENT>353 <ROW><ENT I='01'>1226<ENT>236<ENT>1327*<ENT>277<ENT>1430<ENT>319<ENT>1486*<ENT>354 <ROW><ENT I='01'>1227<ENT>237<ENT>1328*<ENT>278<ENT>1431*<ENT>320<ENT>1487*<ENT>355 <ROW><ENT I='01'>1228<ENT>238<ENT>1329*<ENT>279<ENT>1432*<ENT>321<ENT>1488*<ENT>356 <ROW><ENT I='01'>1229<ENT>239<ENT>1330<ENT>280<ENT>1433<ENT>322<ENT>1489*<ENT>357 <ROW><ENT I='01'>1230*<ENT>240<ENT>1351*<ENT>281<ENT>1434<ENT>323<ENT>1501*<ENT>358 <ROW><ENT I='01'>1251<ENT>241<ENT>1352<ENT>282<ENT>1435<ENT>324<ENT>1502*<ENT>359 <ROW><ENT I='01'>1252<ENT>242<ENT>1353*<ENT>283<ENT>1436*<ENT>325<ENT>1503*<ENT>360 <ROW><ENT I='01'>1253<ENT>243<ENT>1354*<ENT>284<ENT>1437<ENT>326</GPOTABLE> <SUBCHAP><HED>SUBCHAPTER A—GENERAL PROVISIONS <PTHD>Part <PGHD>Page <CHAPTI> <PT>1 <SUBJECT>Definitions <PG>9 <PT>2 <SUBJECT>Authority of the Secretary of Homeland Security <PG>11 <PRTPAGE P='4'><PT>3 <SUBJECT>Executive Office for Immigration Review <PG>11 <SUBCHAP><HED>SUBCHAPTER B—IMMIGRATION REGULATIONS <CHAPTI> <PT>100 <SUBJECT>Statement of organization <PG>13 <PT>101 <SUBJECT>Presumption of lawful admission <PG>31 <PT>103 <SUBJECT>Powers and duties; availability of records <PG>36 <PT>109 <RESERVED>[Reserved] <PT>204 <SUBJECT>Immigrant petitions <PG>68 <PT>205 <SUBJECT>Revocation of approval of petitions <PG>155 <PT>207 <SUBJECT>Admission of refugees <PG>158 <PT>208 <SUBJECT>Procedures for asylum and withholding of removal <PG>162 <PT>209 <SUBJECT>Adjustment of status of refugees and aliens granted asylum <PG>191 <PT>210 <SUBJECT>Special agricultural workers <PG>194 <PT>211 <SUBJECT>Documentary requirements: Immigrants; waivers <PG>205 <PT>212 <SUBJECT>Documentary requirements: Nonimmigrants; waivers; admission of certain inadmissible aliens; parole <PG>208 <PT>213 <SUBJECT>Admission of aliens on giving bond or cash deposit <PG>247 <PT>213a <SUBJECT>Affidavits of support on behalf of immigrants <PG>247 <PT>214 <SUBJECT>Nonimmigrant classes <PG>261 <PT>215 <SUBJECT>Controls of aliens departing from the United States <PG>424 <PT>216 <SUBJECT>Conditional basis of lawful permanent residence status <PG>430 <PT>217 <SUBJECT>Visa waiver program <PG>439 <PT>221 <SUBJECT>Admission of visitors or students <PG>442 <PT>223 <SUBJECT>Reentry permits, refugee travel documents, and advance parole documents <PG>442 <PT>231 <SUBJECT>Arrival and departure manifests <PG>444 <PT>232 <SUBJECT>Detention of aliens for physical and mental examination <PG>446 <PT>233 <SUBJECT>Contracts with transportation lines <PG>447 <PT>234 <SUBJECT>Designation of ports of entry for aliens arriving by civil aircraft <PG>448 <PT>235 <SUBJECT>Inspection of persons applying for admission <PG>450 <PT>236 <SUBJECT>Apprehension and detention of inadmissible and deportable aliens; removal of aliens ordered removed <PG>468 <PT>237 <RESERVED>[Reserved] <PT>238 <SUBJECT>Expedited removal of aggravated felons <PG>479 <PT>239 <SUBJECT>Initiation of removal proceedings <PG>481 <PT>240 <SUBJECT>Proceedings to determine removability of aliens in the United States <PG>483 <PT>241 <SUBJECT>Apprehension and detention of aliens ordered removed <PG>496 <PT>242–243 <RESERVED>[Reserved] <PRTPAGE P='5'><PT>244 <SUBJECT>Temporary protected status for nationals of designated states <PG>522 <PT>245 <SUBJECT>Adjustment of status to that of person admitted for permanent residence <PG>533 <PT>245a <SUBJECT>Adjustment of status to that of persons admitted for lawful temporary or permanent resident status under section 245A of the Immigration and Nationality Act <PG>587 <PT>246 <SUBJECT>Rescission of adjustment of status <PG>639 <PT>247 <SUBJECT>Adjustment of status of certain resident aliens <PG>641 <PT>248 <SUBJECT>Change of nonimmigrant classification <PG>642 <PT>249 <SUBJECT>Creation of records of lawful admission for permanent residence <PG>646 <PT>250 <SUBJECT>Removal of aliens who have fallen into distress <PG>647 <PT>251 <SUBJECT>Arrival and departure manifests and lists: Supporting documents <PG>647 <PT>252 <SUBJECT>Landing of alien crewmen <PG>650 <PT>253 <SUBJECT>Parole of alien crewmen <PG>654 <PT>258 <SUBJECT>Limitations on performance of longshore work by alien crewmen <PG>656 <PT>264 <SUBJECT>Registration and fingerprinting of aliens in the United States <PG>659 <PT>265 <SUBJECT>Notices of address <PG>667 <PT>270 <SUBJECT>Penalties for document fraud <PG>668 <PT>271 <SUBJECT>Diligent and reasonable efforts to prevent the unauthorized entry of aliens by the owners of railroad lines, international bridges or toll roads <PG>670 <PT>273 <SUBJECT>Carrier responsibilities at foreign ports of embarkation; reducing, refunding, or waiving fines under section 273 of the Act <PG>671 <PT>274 <SUBJECT>Seizure and forfeiture of conveyances <PG>672 <PT>274a <SUBJECT>Control of employment of aliens <PG>681 <PT>280 <SUBJECT>Imposition and collection of fines <PG>707 <PT>286 <SUBJECT>Immigration user fee <PG>712 <PT>287 <SUBJECT>Field officers; powers and duties <PG>717 <PT>289 <SUBJECT>American Indians born in Canada <PG>732 <PT>292 <SUBJECT>Representation and appearances <PG>732 <PT>293 <SUBJECT>Deposit of and interest on cash received to secure immigration bonds <PG>741 <PT>299 <SUBJECT>Immigration forms <PG>742 <SUBCHAP><HED>SUBCHAPTER C—NATIONALITY REGULATIONS <CHAPTI> <PT>301 <SUBJECT>Nationals and citizens of the United States at birth <PG>751 <PT>306 <SUBJECT>Special classes of persons who may be naturalized: Virgin Islanders <PG>751 <PT>310 <SUBJECT>Naturalization authority <PG>752 <PRTPAGE P='6'><PT>312 <SUBJECT>Educational requirements for naturalization <PG>754 <PT>313 <SUBJECT>Membership in the Communist Party or any other totalitarian organizations <PG>757 <PT>315 <SUBJECT>Persons ineligible to citizenship: Exemption from military service <PG>759 <PT>316 <SUBJECT>General requirements for naturalization <PG>761 <PT>318 <SUBJECT>Pending removal proceedings <PG>770 <PT>319 <SUBJECT>Special classes of persons who may be naturalized: Spouses of United States citizens <PG>770 <PT>320 <SUBJECT>Child born outside the United States and residing permanently in the United States; requirements for automatic acquisition of citizenship <PG>774 <PT>322 <SUBJECT>Child born outside the United States; requirements for application for certificate of citizenship <PG>776 <PT>324 <SUBJECT>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 <PG>779 <PT>325 <SUBJECT>Nationals but not citizens of the United States; residence within outlying possessions <PG>780 <PT>327 <SUBJECT>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 <PG>781 <PT>328 <SUBJECT>Special classes of persons who may be naturalized: Persons with three years service in Armed Forces of the United States <PG>782 <PT>329 <SUBJECT>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 <PG>783 <PT>330 <SUBJECT>Special classes of persons who may be naturalized: Seamen <PG>785 <PT>331 <SUBJECT>Alien enemies; naturalization under specified conditions and procedures <PG>786 <PT>332 <SUBJECT>Naturalization administration <PG>787 <PT>333 <SUBJECT>Photographs <PG>789 <PT>334 <SUBJECT>Application for naturalization <PG>789 <PT>335 <SUBJECT>Examination on application for naturalization <PG>792 <PT>336 <SUBJECT>Hearings on denials of applications for naturalization <PG>799 <PT>337 <SUBJECT>Oath of allegiance <PG>801 <PT>338 <SUBJECT>Certificate of naturalization <PG>805 <PT>339 <SUBJECT>Functions and duties of clerks of court regarding naturalization proceedings <PG>807 <PT>340 <SUBJECT>Revocation of naturalization <PG>808 <PT>341 <SUBJECT>Certificates of citizenship <PG>811 <PRTPAGE P='7'><PT>342 <SUBJECT>Administrative cancellation of certificates, documents, or records <PG>814 <PT>343 <SUBJECT>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 <PG>816 <PT>343a <SUBJECT>Naturalization and citizenship papers lost, mutilated, or destroyed; new certificate in changed name; certified copy of repatriation proceedings <PG>816 <PT>343b <SUBJECT>Special certificate of naturalization for recognition by a foreign state <PG>817 <PT>343c <SUBJECT>Certifications from records <PG>819 <PT>349 <SUBJECT>Loss of nationality <PG>819 <PT>392 <SUBJECT>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 <PG>819 <PT>499 <SUBJECT>Nationality forms <PG>822</TOC> <SUBCHAP TYPE='N'><PRTPAGE P='9'><HED>SUBCHAPTER A—GENERAL PROVISIONS <PART><EAR>Pt. 1<HED>PART 1—DEFINITIONS <AUTH><HED>Authority:<P>8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public Law 107–296, 116 Stat. 2135 (6 U.S.C. 1 <E T='03'>et seq.</E>). <SECTION> <SECTNO>§&thnsp;1.1 <SUBJECT>Definitions. <P>As used in this chapter: <P>(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. <P>(b) The term <E T='03'>Act</E> means the Immigration and Nationality Act, as amended. <P>(c) The term <E T='03'>Service</E> means the Immigration and Naturalization Service, as it existed prior to March 1, 2003. Unless otherwise specified, references to the Service after that date mean the Bureau of Citizenship and Immigration Services, the Bureau of Customs and Border Protection, and the Bureau of Immigration and Customs Enforcement. <P>(d) The term <E T='03'>Commissioner</E> means the Commissioner of the Immigration and Naturalization Service prior to March 1, 2003. Unless otherwise specified, references after that date mean the Director of the Bureau of Citizenship and Immigration Services, the Commissioner of the Bureau of Customs and Border Protection, and the Assistant Secretary for the Bureau of Immigration and Customs Enforcement. <P>(e) The term <E T='03'>Board</E> means the Board of Immigration Appeals. <P>(f) The term <E T='03'>attorney</E> 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. <P>(g) Unless the context otherwise requires, the term <E T='03'>case</E> 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. <P>(h) The term <E T='03'>day</E> 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. <P>(i) The term <E T='03'>practice</E> 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. <P>(j) The term <E T='03'>representative</E> refers to a person who is entitled to represent others as provided in §§&thnsp;292.1(a) (2), (3), (4), (5), (6), and 292.1(b) of this chapter. <P>(k) The term <E T='03'>preparation,</E> 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. <P>(l) The term <E T='03'>immigration judge</E> means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 240 of the Act. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service. <PRTPAGE P='10'><P>(m) The term <E T='03'>representation</E> before the Board and the Service includes practice and preparation as defined in paragraphs (i) and (k) of this section. <P>(n) The term <E T='03'>Executive Office</E> means Executive Office for Immigration Review. <P>(o) The terms <E T='03'>director</E> or <E T='03'>district director</E> prior to March 1, 2003, mean the district director or regional service center director, unless otherwise specified. On or after March 1, 2003, pursuant to delegation from the Secretary of Homeland Security or any successive re-delegation, the terms mean, to the extent that authority has been delegated to such official: service center director; special agent in charge; field office director; district director for services; district director for interior enforcement; or director, field operations. The terms also mean such other official, including an official in an acting capacity, within the Bureau of Citizenship and Immigration Services, the Bureau of Customs and Border Protection, the Bureau of Immigration and Customs Enforcement, or other component of the Department of Homeland Security who is delegated the function or authority above referenced for a particular geographic district, region, or area. <P>(p) The term <E T='03'>lawfully admitted for permanent residence</E> means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. Such status terminates upon entry of a final administrative order of exclusion, deportation, or removal. <P>(q) The term <E T='03'>arriving alien</E> means an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act. <P>(r) The term <E T='03'>respondent</E> means a person named in a Notice to Appear issued in accordance with section 239(a) of the Act, or in an Order to Show Cause issued in accordance with §&thnsp;242.1 of this chapter as it existed prior to April 1, 1997. <P>(s) The term <E T='03'>Service counsel</E> means any immigration officer assigned to represent the Service in any proceeding before an immigration judge or the Board of Immigration Appeals. <P>(t) The term <E T='03'>aggravated felony</E> means a crime (or a conspiracy or attempt to commit a crime) described in section 101(a)(43) of the Act. This definition is applicable to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996, but shall apply under section 276(b) of the Act only to violations of section 276(a) of the Act occurring on or after that date. <P>(u) The term <E T='03'>Department,</E> unless otherwise noted, means the Department of Homeland Security. <P>(v) The term <E T='03'>Secretary,</E> unless otherwise noted, means the Secretary of Homeland Security. <P>(w) The term <E T='03'>Bureau</E> means generally, unless otherwise noted, the Bureau of Citizenship and Immigration Services, the Bureau of Customs and Border Protection, and the Bureau of Immigration and Customs Enforcement, as created by the Homeland Security Act of 2002, as amended, Pub. L. 107–296, November 25, 2002, 116 Stat. 2135, and the President's Reorganization Plan, as modified. <P>(x) The term <E T='03'>BCIS</E> means the Bureau of Citizenship and Immigration Services. <P>(y) The term <E T='03'>CBP</E> means the Bureau of Customs and Border Protection. <PRTPAGE P='11'><P>(z) The term <E T='03'>ICE</E> means the Bureau of Immigration and Customs Enforcement. <CITA>[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; 61 FR 18904, Apr. 29, 1996; 62 FR 10330, Mar. 6, 1997; 63 FR 19383, Apr. 20, 1998; 68 FR 10923, Mar. 6, 2003; 68 FR 35275, June 13, 2003; 71 FR 27591, May 12, 2006] <PART><EAR>Pt. 2<HED>PART 2—AUTHORITY OF THE SECRETARY OF HOMELAND SECURITY <AUTH><HED>Authority:<P>8 U.S.C. 1103; 5 U.S.C. 301; Public Law 107–296, 116 Stat. 2135 (6 U.S.C. 1 <E T='03'>et seq.</E>). <SECTION> <SECTNO>§&thnsp;2.1 <SUBJECT>Authority of the Secretary of Homeland Security. <P>All authorities and functions of the Department of Homeland Security to administer and enforce the immigration laws are vested in the Secretary of Homeland Security. The Secretary of Homeland Security may, in the Secretary's discretion, delegate any such authority or function to any official, officer, or employee of the Department of Homeland Security, including delegation through successive redelegation, or to any employee of the United States to the extent authorized by law. Such delegation may be made by regulation, directive, memorandum, or other means as deemed appropriate by the Secretary in the exercise of the Secretary's discretion. A delegation of authority or function may in the Secretary's discretion be published in the <E T='04'>Federal Register,</E> but such publication is not required. <CITA>[68 FR 10923, Mar. 6, 2003] <PART><EAR>Pt. 3<HED>PART 3—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW <AUTH><HED>Authority:<P>5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949–1953 Comp., p. 1002; section 203 of Pub. L. 105–100, 111 Stat. 2196–200; sections 1506 and 1510 of Pub. L. 106–386; 114 Stat. 1527–29, 1531–32; section 1505 of Pub. L. 106–554, 114 Stat. 2763A–326 to –328. <SECTION> <SECTNO>§&thnsp;3.0 <SUBJECT>Executive Office for Immigration Review <P>Regulations of the Executive Office for Immigration Review relating to the adjudication of immigration matters before immigration judges (referred to in some regulations as special inquiry officers) and the Board of Immigration Appeals are located in 8 CFR chapter V, part 1003. <CITA>[68 FR 9831, Feb. 28, 2003] <SUBCHAP TYPE='N'><PRTPAGE P='13'><HED>SUBCHAPTER B—IMMIGRATION REGULATIONS <PART><EAR>Pt. 100<HED>PART 100—STATEMENT OF ORGANIZATION <CONTENTS> <SECHD>Sec. <SECTNO>100.1<SUBJECT>Introduction. <SECTNO>100.2<SUBJECT>Organization and functions. <SECTNO>100.3<SUBJECT>Places where, and methods whereby, information may be secured or submittals or requests made. <SECTNO>100.4<SUBJECT>Field Offices. <SECTNO>100.5<SUBJECT>Regulations. <SECTNO>100.6<SUBJECT>Rule making. <SECTNO>100.7<SUBJECT>OMB control numbers assigned to information collections.</CONTENTS> <AUTH><HED>Authority:<P>8 U.S.C. 1103; 8 CFR part 2. <SOURCE><HED>Source:<P>32 FR 9616, July 4, 1967, unless otherwise noted. <SECTION> <SECTNO>§&thnsp;100.1 <SUBJECT>Introduction. <P>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. <CITA>[48 FR 37201, Aug. 17, 1983] <SECTION> <SECTNO>§&thnsp;100.2 <SUBJECT>Organization and functions. <P>(a) <E T='03'>Office of the Commissioner.</E> 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. <P>(1) <E T='03'>Office of the General Counsel.</E> Headed by the General Counsel, the office provides legal advice to the Commissioner, the Deputy Commissioner, and staff; prepares legislative reports; assists in litigation; prepares briefs and other legal memoranda when necessary; directs the activities of the regional counsel; oversees the professional activities of all Service attorneys assigned to field offices; and, makes recommendations on all personnel matters involving Service attorneys. <P>(2) <E T='03'>Office of Congressional Relations.</E> Headed by the Director of Congressional Relations, the office is responsible for establishing and maintaining effective liaison with the Congress, Department of Justice, and other agencies on such matters as bills, mark-ups, hearings, and Congressional inquiries. <P>(3) <E T='03'>Office of Public Affairs.</E> Headed by the Director of Public Affairs, the office is responsible for establishing and maintaining public affairs policy, serving as liaison with various constituent communities (intergovernmental, public, news organization, etc.) to communicate Service initiatives, such as naturalization and employer education, and producing public information products. <P>(4) <E T='03'>Office of Internal Audit.</E> Headed by the Director of Internal Audit, the office promotes economy, efficiency, and effectiveness within the Service by managing the Service's systems for resolving alleged mismanagement and misconduct by Service employees; reviewing and evaluating the efficiency and effectiveness of Service operations and programs; collecting and analyzing data to identify patterns of deficiencies or other weaknesses warranting investigative or audit follow-up; making recommendations on disciplinary policies and procedures of the Service; overseeing Service systems to eliminate fraud, waste, and abuse in the workplace; and acting as the Service's liaison with outside audit/inspection agencies. These duties are executed in coordination with other components of the Service and other Department of Justice components. <P>(b) <E T='03'>Office of the Deputy Commissioner.</E> Headed by the Deputy Commissioner, the office is authorized to exercise all <PRTPAGE P='14'>power and authority of the Commissioner unless any such power or authority is required by law to be exercised by the Commissioner personally. The Deputy Commissioner advises and assists the Commissioner in formulating and implementing Service policies and programs, and provides supervision and direction to all organizational units of the Service. The Deputy Commissioner also performs such other duties as may be assigned from time-to-time by the Commissioner. In addition, the Deputy Commissioner supervises the four Executive Associate Commissioners for Programs, Field Operations, Policy and Planning, and Management. <P>(c) <E T='03'>Office of the Executive Associate Commissioner for Programs</E>—(1) <E T='03'>General.</E> (i) Headed by the Executive Associate Commissioner for Programs, the office is responsible for policy development and review as well as integration of the Service's enforcement and examinations programs. This office has primary responsibility for the planning, oversight, and advancement of programs engaged in interpretation of the immigration and nationality laws and the development of regulations to assist in activities, including: <P>(A) The granting of benefits and privileges to those qualified to receive them; <P>(B) Withholding of benefits from those ineligible; <P>(C) Control of the borders and prevention of illegal entry into the United States; <P>(D) Detection, apprehension, detention, and removal of illegal aliens; and <P>(E) Enforcement of employer sanctions and other provisions of immigration-related law. <P>(ii) In addition to overseeing enforcement and examination policy matters, the Office of Programs is also responsible for immigration records. The Executive Associate Commissioner for Programs promulgates policy, provides direction and supervises the activities of the Offices of Enforcement and Examinations. <P>(2) <E T='03'>Office of Enforcement.</E> Headed by the Associate Commissioner for Enforcement, the office is responsible for the planning, oversight, and advancement of enforcement programs engaged in interpretation of the immigration and nationality laws, and the development of Service policies to assist enforcement activities. The Associate Commissioner for Enforcement directly supervises the Headquarters: <P>(i) Border Patrol Division; <P>(ii) Investigations Division; <P>(iii) Detention and Deportation Division; <P>(iv) Intelligence Division; and <P>(v) Asset Forfeiture Office. <P>(3) <E T='03'>Office of Examinations.</E> Headed by the Associate Commissioner for Examinations, the office is responsible for the planning, oversight, and advancement of examinations programs engaged in interpretation of the immigration and nationality laws, and the development of Service policies to assist examinations activities. The Office of Examinations is also responsible for all district and service center records and all records operations, except records policy. The Associate Commissioner for Examinations directly supervises the Headquarters: <P>(i) Adjudications and Nationality Division; <P>(ii) Inspections Division; <P>(iii) Service Center Operations Division; <P>(iv) Records Division; and <P>(v) Administrative Appeals Office. <P>(d) <E T='03'>Office of the Executive Associate Commissioner for Field Operations</E>—(1) <E T='03'>General.</E> (i) Headed by the Executive Associate Commissioner for Field Operations, the office is responsible for implementing policies related to the Service's field operations. This office has primary responsibility for oversight and coordination of all field operations relating to the administration of immigration law, including: <P>(A) The granting of benefits and privileges to those qualified to receive them; <P>(B) Withholding of benefits from those ineligible; <P>(C) Control of the borders and prevention of illegal entry into the United States; <P>(D) Detection, apprehension, detention, and removal of illegal aliens; <P>(E) Enforcement of employer sanctions and other provisions of immigration-related law; and <PRTPAGE P='15'><P>(F) Refugee processing, adjudication of relative applications/petitions filed by citizens and legal permanent residents, and overseas deterrence of alien smuggling and fraud activities. <P>(ii) The Executive Associate Commissioner for Field Operations provides direction to, and supervision of, the three Regional Directors (Eastern, Central, and Western), and the Director, International Affairs. <P>(2) <E T='03'>Offices of the Regional Directors.</E> (i) <E T='03'>General.</E> Headed by regional directors, these offices are responsible for directing all aspects of the Service's field operations within their assigned geographic areas of activity. The regional directors provide general guidance and supervision to: <P>(A) Service districts within their regions; and <P>(B) Border Patrol sectors within their regions. <P>(ii) <E T='03'>Service districts.</E> Headed by district directors, who may be assisted by deputy district directors, these offices 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 either 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 director, except that district directors outside of the United States are subject to the general supervision and direction of the Director for International Affairs. <P>(iii) <E T='03'>Border Patrol Sectors.</E> Headed by chief patrol agents who may be assisted by deputy chief patrol agents, these offices 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 director. <P>(3) <E T='03'>Office of International Affairs.</E> Headed by a Director of International Affairs, the office is responsible for ensuring that the foreign affairs mission of the Service reflects a full partnership between the Service, the Executive Branch agencies, and the Congress, the administration of U.S. immigration law on foreign soil, and the U.S. domestic asylum program. The Director for International Affairs provides general guidance and supervision to: <P>(i) Foreign districts; <P>(ii) Asylum Division; and <P>(iii) Refugee and Parole Division. <P>(e) <E T='03'>Office of the Executive Associate Commissioner for Policy and Planning.</E> Headed by the Executive Associate Commissioner for Policy and Planning, the office is responsible for directing and coordinating Servicewide policy and planning activities, and conducting analysis of these as well as other issues which cross program lines or have national implications. <P>(f) <E T='03'>Office of the Executive Associate Commissioner for Management</E>—(1) <E T='03'>General.</E> Headed by the Executive Associate Commissioner for Management, the office is responsible for planning, developing, directing, coordinating, and reporting on Service management programs and activities. The Executive Associate Commissioner for Management promulgates Servicewide administrative policies and coordinates all financial, human resource, administrative, and information resources management functions. The Executive Associate Commissioner for Management provides direction to, and supervision of, the: <P>(i) Office of Security; <P>(ii) Office of Equal Employment Opportunity; <P>(iii) Office of Human Resources and Administration; <P>(iv) Office of Finance; <P>(v) Office of Information Resources Management; <P>(vi) Office of Files and Forms Management; and <P>(vii) Administrative Centers. <P>(2) <E T='03'>Office of Security.</E> Headed by the Director of Security, the office is responsible for all security programs of the Service, including those related to personnel, physical, information and documents, automated data processing, <PRTPAGE P='16'>telecommunications, and emergency preparedness planning. <P>(3) <E T='03'>Office of Equal Employment Opportunity.</E> Headed by the Director of Equal Employment Opportunity, the office is responsible for developing, planning, directing, managing, and coordinating equal employment opportunity programs and evaluating programs relating to the civil rights of all employees and applicants to ensure compliance with the law. This office also coordinates the affirmative employment and discrimination complaints programs of the Service and those of the Department of Justice as they apply to the Service. <P>(4) <E T='03'>Office of Human Resources and Administration.</E> Headed by the Associate Commissioner for Human Resources and Administration, the office is responsible for planning, developing, directing, managing, and coordinating the personnel, career development, contracting, facilities, and administrative support programs of the Service. The Associate Commissioner for Human Resources and Administration directly supervises the: <P>(i) Human Resources and Development Division; and <P>(ii) Administration Division. <P>(5) <E T='03'>Office of Finance.</E> Headed by the Associate Commissioner for Finance, the office is responsible for planning, developing, directing, managing, coordinating, and reporting on, the budget, accounting, and resource management programs of the Service. The Associate Commissioner for Finance directly supervises the: <P>(i) Budget Division; and <P>(ii) Financial Management Division. <P>(6) <E T='03'>Office of Information Resources Management.</E> Headed by the Associate Commissioner for Information Resources Management, the office is responsible for planning, developing, directing, managing, coordinating, and reporting on Service information management programs and activities including automated data processing, telecommunications, and radio communications. The Associate Commissioner for Information Resources Management directly supervises the: <P>(i) Data Systems Division; and <P>(ii) Systems Integration Division. <P>(7) <E T='03'>Office of Files and Forms Management.</E> Headed by the Director of Files and Forms Management, the office is responsible for the administration of records policy, and correspondence files. The Director of Files and Forms Management directly supervises the: <P>(i) National Records Center; <P>(ii) National Forms Center; <P>(iii) Systematic Alien Verification Entitlement (SAVE) Program; and <P>(iv) Centralized Freedom of Information Act and Privacy Act (FOIA/PA) program. <P>(8) <E T='03'>Office of the Administrative Center.</E> Headed by directors, these offices are responsible for administrative servicing, monitoring, and liaison functions within their respective geographic boundaries. The directors direct and supervise regional staff who administer human resources, administrative, information systems, security, and financial functions. <CITA>[59 FR 60068, Nov. 22, 1994] <SECTION> <SECTNO>§&thnsp;100.3 <SUBJECT>Places where, and methods whereby, information may be secured or submittals or requests made. <P>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. <SECTION> <PRTPAGE P='17'><SECTNO>§&thnsp;100.4 <SUBJECT>Field Offices. <P>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: <P>(a) <E T='03'>Regional Offices.</E> The Eastern Regional Office, located in Burlington, Vermont, has jurisdiction over districts 2, 3, 4, 5, 6, 7, 8, 21, 22, 24, 25, 26, 27, and 28; border patrol sectors 1, 2, 3, 4, 5, 20, and 21. The Central Regional Office, located in Dallas, Texas, has jurisdiction over districts 9, 10, 11, 14, 15, 19, 20, 29, 30, 38, and 40; border patrol sectors 6, 7, 15, 16, 17, 18, and 19. The Western Regional Office, located in Laguna Niguel, California, has jurisdiction over districts 12, 13, 16, 17, 18, 31, 32, and 39; and border patrol sectors 8, 9, 10, 11, 12, 13, and 14. <P>(b) <E T='03'>District Offices.</E> The following districts, which are designated by numbers, have fixed headquarters and are divided as follows: <P>(1) [Reserved] <P>(2) <E T='03'>Boston, Massachusetts.</E> 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. <P>(3) <E T='03'>New York City, New York.</E> 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. <P>(4) <E T='03'>Philadelphia, Pennsylvania.</E> The district office in Philadelphia, Pennsylvania, has jurisdiction over the States of Pennsylvania, Delaware, and West Virginia. <P>(5) <E T='03'>Baltimore, Maryland.</E> The district office in Baltimore, Maryland, has jurisdiction over the State of Maryland, except Andrews Air Force Base Port-of-Entry. <P>(6) <E T='03'>Miami, Florida.</E> 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. <P>(7) <E T='03'>Buffalo, New York.</E> The district office in Buffalo, New York, has jurisdiction over the State of New York except the part within the jurisdiction of District No. 3; also, over the United States immigration office at Toronto, Ontario, Canada; and the office located at Montreal, Quebec, Canada. <P>(8) <E T='03'>Detroit, Michigan.</E> The district office in Detroit, Michigan, has jurisdiction over the State of Michigan. <P>(9) <E T='03'>Chicago, Illinois.</E> The district office in Chicago, Illinois, has jurisdiction over the States of Illinois, Indiana, and Wisconsin. <P>(10) <E T='03'>St. Paul, Minnesota.</E> The district office located in Bloomington, 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. <P>(11) <E T='03'>Kansas City, Missouri.</E> The district office in Kansas City, Missouri, has jurisdiction over the States of Kansas and Missouri. <P>(12) <E T='03'>Seattle, Washington.</E> 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. <P>(13) <E T='03'>San Francisco, California.</E> 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. <P>(14) <E T='03'>San Antonio, Texas.</E> 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, <PRTPAGE P='18'>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. <P>(15) <E T='03'>El Paso, Texas.</E> 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. <P>(16) <E T='03'>Los Angeles, California.</E> 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. <P>(17) <E T='03'>Honolulu, Hawaii.</E> The district office in Honolulu, Hawaii, has jurisdiction over the State of Hawaii, the Territory of Guam, and the Commonwealth of the Northern Mariana Islands. <P>(18) <E T='03'>Phoenix, Arizona.</E> The district office in Phoenix, Arizona, has jurisdiction over the States of Arizona and Nevada. <P>(19) <E T='03'>Denver, Colorado.</E> The district office in Denver, Colorado, has jurisdiction over the States of Colorado, Utah, and Wyoming. <P>(20) <E T='03'>Dallas, Texas.</E> 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, Haskett, 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, Ranall, 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. <P>(21) <E T='03'>Newark, New Jersey.</E> The district office in Newark, New Jersey, has jurisdiction over the State of New Jersey. <P>(22) <E T='03'>Portland, Maine.</E> The district office in Portland, Maine, has jurisdiction over the States of Maine, Vermont, and the Port-of-Entry at Pittsburg, New Hampshire. <P>(23) [Reserved] <P>(24) <E T='03'>Cleveland, Ohio.</E> The district office in Cleveland, Ohio, has jurisdiction over the State of Ohio. <P>(25) <E T='03'>Washington, DC.</E> The district office located in Arlington, Virginia, has jurisdiction over the District of Columbia, the State of Virginia, and the Port-of-Entry at Andrews Air Force Base, Maryland. <P>(26) <E T='03'>Atlanta, Georgia.</E> The district office of Atlanta, Georgia, has jurisdiction over the States of Georgia, North Carolina, South Carolina, and Alabama. <P>(27) <E T='03'>San Juan, Puerto Rico.</E> The district office in San Juan, Puerto Rico, has jurisdiction over the Commonwealth of Puerto Rico, and the Virgin Islands of the United States and Great Britain. <P>(28) <E T='03'>New Orleans, Louisiana.</E> The district office in New Orleans, Louisiana, has jurisdiction over the States of Louisiana, Arkansas, Mississippi, Tennessee, and Kentucky. <P>(29) <E T='03'>Omaha, Nebraska.</E> The district office in Omaha, Nebraska, has jurisdiction over the States of Iowa and Nebraska. <PRTPAGE P='19'><P>(30) <E T='03'>Helena, Montana.</E> The district office in Helena, Montana, has jurisdiction over the State of Montana and over the following counties in the State of Idaho: Ada, Adams, Bannock, Bear Lake, Bingham, Blaine, Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Custer, Elmore, Franklin, Fremont, Gem, Gooding, Jefferson, Jerome, Lemhi, Lincoln, Madison, Minidoka, Oneida, Owyhee, Payette, Power, Teton, Twin Falls, Valley, and Washington; also, over the United States immigration offices located in Calgary and Edmonton, Alberta, Canada. <P>(31) <E T='03'>Portland, Oregon.</E> The district office in Portland, Oregon, has jurisdiction over the State of Oregon. <P>(32) <E T='03'>Anchorage, Alaska.</E> The district office in Anchorage, Alaska, has jurisdiction over the State of Alaska. <P>(33) <E T='03'>Bangkok, Thailand.</E> The district office in Bangkok has jurisdiction over Hong Kong, B.C.C. and adjacent islands, Taiwan, the Philippines, Australia, New Zealand; all the 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. <P>(34) [Reserved] <P>(35) <E T='03'>Mexico City, Mexico.</E> The district office in Mexico City has jurisdiction over Mexico, Central America, South America, Caribbean Islands, and Santo Domingo, Dominican Republic, except for those specifically delegated to the districts of Miami, Florida, and San Juan, Puerto Rico. <P>(36) [Reserved] <P>(37) <E T='03'>Rome, Italy.</E> 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. <P>(38) <E T='03'>Houston, Texas.</E> 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. <P>(39) <E T='03'>San Diego, California.</E> The district office in San Diego, California, has jurisdiction over the following counties in the State of California: Imperial and San Diego. <P>(40) <E T='03'>Harlingen, Texas.</E> 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. <P>(c) <E T='03'>Suboffices.</E> 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: <P>(1) <E T='03'>Interior locations.</E> <Q P='04'> <EXTRACT><FP-1>Agana, Guam <FP-1>Albany, NY <FP-1>Albuquerque, NM <FP-1>Charlotte, NC <FP-1>Charlotte Amalie, St. Thomas, VI <FP-1>Cincinnati, OH <FP-1>Fresno, CA <FP-1>Hartford, CT <FP-1>Indianapolis, IN <FP-1>Jacksonville, FL <FP-1>Las Vegas, NV <FP-1>Louisville, KY <FP-1>Memphis, TN <FP-1>Milwaukee, WI <FP-1>Norfolk, VA <FP-1>Oklahoma City, OK <FP-1>Orlando, FL <FP-1>Pittsburgh, PA <FP-1>Providence, RI <FP-1>Reno, NV <FP-1>Sacramento, CA <FP-1>Salt Lake City, UT <FP-1>San Jose, CA <FP-1>Spokane, WA <FP-1>St. Albans, VT <FP-1>St. Louis, MO <FP-1>Tampa, FL <FP-1>Tucson, AZ</EXTRACT> <Q P='04'> <P>(2) <E T='03'>Ports-of-Entry for aliens arriving by vessel or by land transportation.</E> 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 <PRTPAGE P='20'>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 Permanent Resident Cards or valid non-resident 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. <EXTRACT><HD1>District No. 1 [Reserved] <HD1>District No. 2—Boston, Massachusetts <HD2>Class A <FP-1>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) <FP-1>Gloucester, MA <FP-1>Hartford, CT (the port at Hartford includes, among others, the port facilities at Bridgeport, Groton, New Haven, and New London, CT) <FP-1>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) <HD2>Class C <FP-1>Newburyport, MA <FP-1>Plymouth, MA <FP-1>Portsmouth, NH <FP-1>Provincetown, MA <FP-1>Sandwich, MA <FP-1>Woods Hole, MA <HD1>District No. 3—New York, New York <HD2>Class A <FP-1>New York, NY (the port of New York includes, among others, the port facilities at Bronx, Brooklyn, Buchanan, Manhattan, Montauk, Northport, Port Jefferson, Queens, Riverhead, Poughkeepsie, the Stapleton Anchorage-Staten Island, Staten Island, Stoney Point, and Yonkers, NY, as well as the East Side Passenger Terminal in Manhattan) <HD1>District No. 4—Philadelphia, Pennsylvania <HD2>Class A <FP-1>Erie Seaport, PA <FP-1>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) <FP-1>Pittsburgh, PA <HD1>District No. 5—Baltimore, Maryland <HD2>Class A <FP-1>Baltimore, MD <FP-1>Patuxent River, MD <HD2>Class C <FP-1>Piney Point, MD <FP-1>Salisbury, MD <HD1>District No. 6—Miami, Florida <HD2>Class A <FP-1>Boca Grande, FL <FP-1>Fernandina, FL <FP-1>Fort Lauderdale/Port Everglades, FL, Seaport <FP-1>Fort Pierce, FL <FP-1>*Jacksonville, FL <FP-1>Key West, FL <FP-1>Miami Marine Unit, FL <FP-1>Panama City, FL <FP-1>Pensacola, FL <FP-1>Port Canaveral, FL <FP-1>St. Augustine, FL <FP-1>St. Petersburg, FL <FP-1>*Tampa, FL (includes Fort Myers) <FP-1>West Palm Beach, FL <HD2>Class C <FP-1>Manatee, FL <FP-1>Port Dania, FL <FP-1>Port St. Joe, FL <HD1>District No. 7—Buffalo, New York <HD2>Class A <FP-1>Albany, NY <FP-1>Alexandria Bay, NY <FP-1>Buffalo, NY <FP-1>Cape Vincent, NY <FP-1>Champlain, NY <FP-1>Chateaugay, NY <FP-1>Ft. Covington, NY <FP-1>Massena, NY <FP-1>Mooers, NY <FP-1>Niagara Falls, NY (the port of Niagara Falls includes, among others, the port facilities at Lewiston Bridge, Rainbow Bridge, and Whirlpool Bridge, NY) <FP-1>Ogdensburg, NY <FP-1>Peace Bridge, NY <FP-1>Rochester, NY <PRTPAGE P='21'><FP-1>Rouses Point, NY <FP-1>Thousand Islands Bridge, NY <FP-1>Trout River, NY <HD2>Class B <FP-1>Cannons Corner, NY <FP-1>Churubusco, NY <FP-1>Jamison's Line, NY <HD2>Class C <FP-1>Oswego, NY <HD1>District No. 8—Detroit, Michigan <HD2>Class A <FP-1>Algonac, MI <FP-1>Detroit, MI, Detroit and Canada Tunnel <FP-1>Detroit, MI, Detroit International Bridge (Ambassador Bridge) <FP-1>Grosse Isle, MI <FP-1>Isle Royale, MI <FP-1>Marine City, MI <FP-1>Port Huron, MI <FP-1>Sault Ste. Marie, MI <HD2>Class B <FP-1>Alpena, MI <FP-1>Detour, MI <FP-1>Grand Rapids, MI <FP-1>Mackinac Island, MI <FP-1>Rogers City, MI <HD2>Class C <FP-1>Alpena, MI <FP-1>Baraga, MI <FP-1>Bay City, MI <FP-1>Cheboygan, MI <FP-1>Detour, MI <FP-1>Escanaba, MI <FP-1>Grand Haven, MI <FP-1>Holland, MI <FP-1>Houghton, MI <FP-1>Ludington, MI <FP-1>Mackinac Island, MI <FP-1>Manistee, MI <FP-1>Marquette, MI <FP-1>Menominee, MI <FP-1>Monroe, MI <FP-1>Munising, MI <FP-1>Muskegon, MI <FP-1>Pontiac, MI <FP-1>Port Dolomite, MI <FP-1>Port Inland, MI <FP-1>Rogers City (Calcite), MI <FP-1>Saginaw, MI <FP-1>South Haven, MI <HD1>District No. 9—Chicago, Illinois <HD2>Class A <FP-1>Algoma, WI <FP-1>Bayfield, WI <FP-1>Chicago, IL <FP-1>Green Bay, WI <FP-1>*Milwaukee, WI <HD2>Class C <FP-1>Ashland, WI <FP-1>East Chicago, IL <FP-1>Gary, IN <FP-1>Kenosha, WI <FP-1>Manitowoc, WI <FP-1>Marinette, WI <FP-1>Michigan City, IN <FP-1>Racine, WI <FP-1>Sheboygan, WI <FP-1>Sturgeon Bay, WI <HD1>District No. 10—St. Paul, Minnesota <HD2>Class A <FP-1>Ambrose, ND <FP-1>Antler, ND <FP-1>Baudette, MN <FP-1>Carbury, ND <FP-1>Duluth, MN (the port of Duluth includes, among others, the port facilities at Superior, WI) <FP-1>Dunseith, ND <FP-1>Ely, MN <FP-1>Fortuna, ND <FP-1>Grand Portage, MN <FP-1>Hannah, ND <FP-1>Hansboro, ND <FP-1>International Falls, MN <FP-1>Lancaster, MN <FP-1>Maida, ND <FP-1>Neche, ND <FP-1>Noonan, ND <FP-1>Northgate, ND <FP-1>Noyes, MN <FP-1>Pembina, ND <FP-1>Pine Creek, MN <FP-1>Portal, ND <FP-1>Ranier, MN <FP-1>Roseau, MN <FP-1>Sarles, ND <FP-1>Sherwood, ND <FP-1>St. John, ND <FP-1>Walhalla, ND <FP-1>Warroad, MN <FP-1>Westhope, ND <HD2>Class B <FP-1>Crane Lake, MN <FP-1>Oak Island, MN <HD2>Class C <FP-1>Grand Marais, MN <FP-1>Silver Bay, MN <FP-1>Taconite Harbor, MN <FP-1>Two Harbors, MN <HD1>District No. 11—Kansas City, Missouri <HD2>Class A <FP-1>Kansas City, MO <HD2>Class B <FP-1>Wichita, KS <PRTPAGE P='22'><HD1>District No. 12—Seattle, Washington <HD2>Class A <FP-1>Aberdeen, WA (the port of Aberdeen includes, among others, the port facilities at Raymond and South Bend, WA) <FP-1>Anacortes, WA <FP-1>Bellingham, WA <FP-1>Blaine-Pacific Highway, WA <FP-1>Blaine-Peach Arch, WA <FP-1>Boundary, WA <FP-1>Colville, WA <FP-1>Danville, WA <FP-1>Eastport, ID <FP-1>Ferry, WA <FP-1>Friday Harbor, WA (the port of Friday Harbor includes, among others, the port facilities at Roche Harbor, WA) <FP-1>Frontier, WA <FP-1>Kalama, WA <FP-1>Laurier, WA <FP-1>Longview, WA <FP-1>Lynden, WA <FP-1>Metaline Falls, WA <FP-1>Neah Bay, WA <FP-1>Olympia, WA <FP-1>Oroville, WA <FP-1>Point Roberts, WA <FP-1>Port Angeles, WA <FP-1>Port Townsend, WA <FP-1>Porthill, WA <FP-1>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) <FP-1>Sumas, WA <FP-1>Tacoma, WA (the port of Tacoma includes, among others, the port facilities at Dupont, WA) <FP-1>Vancouver, WA <FP-1>Yakima, WA <HD2>Class B <FP-1>Nighthawk, WA <HD1>District No. 13—San Francisco, California <HD2>Class A <FP-1>San Francisco, CA (the port of San Francisco includes, among others, the port facilities at Antioch, Benicia, Martinez, Oakland, Pittsburgh, Port Chicago Concord Naval Weapon Station, Redwood City, Richmond, Sacramento, San Pablo Bay, and Stockton, CA) <HD2>Class C <FP-1>Eureka, CA <HD1>District No. 14—San Antonio, Texas <HD2>Class A <FP-1>Amistad Dam, TX <FP-1>Corpus Christi, TX (the port of Corpus Christi includes, among others, the port facilities at Harbor Island, Ingleside, and Port Lavaca-Point Comfort, TX) <FP-1>Del Rio, TX <FP-1>Laredo, TX (the port of Laredo includes, among others, the port facilities at Colombia Bridge, Convent Bridge, and Lincoln-Juarez Bridge, TX) <FP-1>Maverick, TX <HD1>District No. 15—El Paso, Texas <HD2>Class A <FP-1>Columbus, NM <FP-1>El Paso, TX (the port of El Paso includes, among others, the port facilities at Bridge of the Americas, Paso Del Norte Bridge, and Ysleta Bridge, TX) <FP-1>Fabens, TX <FP-1>Fort Hancock, TX <FP-1>Presidio, TX <FP-1>Santa Teresa, NM <HD1>District No. 16—Los Angeles, California <HD2>Class A <FP-1>Los Angeles, CA (the port of Los Angeles includes, among others, the port facilities at Long Beach, Ontario, Port Hueneme, San Pedro, and Ventura, CA) <FP-1>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) <HD1>District No. 17—Honolulu, Hawaii <HD2>Class A <FP-1>*Agana, Guam, M.I. (including the port facilities at Apra Harbor, Guam) <FP-1>Honolulu, HI, Seaport (including all port facilities on the Island of Oahu) <HD2>Class C <FP-1>Hilo, HI <FP-1>Kahului, HI, Kahului Harbor <FP-1>Nawiliwilli, HI, Nawiliwilli Harbor <FP-1>Port Allen, HI, Port Allen Harbor <HD1>District No. 18—Phoenix, Arizona <HD2>Class A <FP-1>Douglas, AZ <FP-1>Lukeville, AZ <FP-1>Mariposa, AZ <FP-1>Morley Gate, AZ <FP-1>Naco, AZ <FP-1>Nogales, AZ <FP-1>Sasabe, AZ <FP-1>San Luis, AZ <PRTPAGE P='23'><HD1>District No. 19—Denver, Colorado <HD2>Class A <FP-1>Denver, CO <FP-1>Grand Junction, CO <FP-1>Pueblo, CO <FP-1>Salt Lake City, UT <HD1>District No. 20 [Reserved] <HD1>District No. 21—Newark, New Jersey <HD2>Class A <FP-1>Camden, NJ (the port of Camden includes, among others, the port facilities at Artificial Island, Billingsport, Burlington, Cape May, Deepwater Point, Fisher's Point, Gibbstown, Gloucester City, Paulsboro, Salem, and Trenton, NJ) <FP-1>Newark, NJ (the port of Newark includes, among others, the port facilities at Bayonne, Carteret, Edgewater, Elizabeth, Jersey City, Leonardo, Linden, Perth Amboy, Port Newark, and Sewaren, NJ) <HD1>District No. 22—Portland, Maine <HD2>Class A <FP-1>Alburg, VT <FP-1>Alburg Springs, VT <FP-1>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) <FP-1>Beebe Plain, VT <FP-1>Beecher Falls, VT <FP-1>Bridgewater, ME <FP-1>Calais, ME (includes Ferry Point and Milltown Bridges) <FP-1>Canaan, VT <FP-1>Coburn Gore, ME <FP-1>Derby Line, VT <FP-1>Eastport, ME <FP-1>East Richford, VT <FP-1>Fort Fairfield, ME <FP-1>Fort Kent, ME <FP-1>Hamlin, ME <FP-1>Highgate Springs, VT <FP-1>Houlton, ME <FP-1>Jackman, ME <FP-1>Limestone, ME <FP-1>Lubec, ME <FP-1>Madawaska, ME <FP-1>Morses Line, VT <FP-1>North Troy, VT <FP-1>Norton, VT <FP-1>Pittsburgh, NH <FP-1>Portland, ME <FP-1>Richford, VT (includes the Pinnacle Port-of-Entry) <FP-1>*&thnsp;St. Albans, VT <FP-1>Van Buren, ME <FP-1>Vanceboro, ME <FP-1>West Berkshire, VT <HD2>Class B <FP-1>Daaquam, ME <FP-1>Easton, ME <FP-1>Eastcourt, ME <FP-1>Forest City, ME <FP-1>Monticello, ME <FP-1>Orient, ME <FP-1>Robinston, ME <FP-1>St. Aurelie, ME <FP-1>St. Pamphile, ME <HD2>Class C <FP-1>Bath, ME <FP-1>Boothbay Harbor, ME <FP-1>Kittery, ME <FP-1>Rockland, ME <FP-1>Wiscasset, ME <HD1>District No. 23 [Reserved] <HD1>District No. 24—Cleveland, Ohio <HD2>Class A <FP-1>Cincinnati, OH <FP-1>Cleveland, OH <FP-1>Columbus, OH <FP-1>Put-In-Bay, OH <FP-1>Sandusky, OH <FP-1>Toledo, OH <HD2>Class C <FP-1>Ashtabula, OH <FP-1>Conneaut, OH <FP-1>Fairport, OH <FP-1>Huron, OH <FP-1>Lorain, OH <FP-1>Marblehead, OH <HD1>District No. 25—Washington, DC <HD2>Class A <FP-1>Hopewell, VA <FP-1>*&thnsp;Norfolk, VA—(the port of Norfolk includes, among others, the port facilities at Fort Monroe and Newport News, VA) <FP-1>Richmond, VA <FP-1>Washington, DC (includes the port facilities at Alexandria, VA) <FP-1>Yorktown, VA <HD1>District No. 26—Atlanta, Georgia <HD2>Class A <FP-1>Charleston, SC (the port of Charleston includes, among others, the port facilities at Georgetown and Port Royal, SC) <FP-1>Mobile, AL <FP-1>Savannah, GA (the port of Savannah includes, among others, the port facilities at Brunswick and St. Mary's Seaport, GA) <FP-1>Wilmington, NC (the port of Wilmington includes the port facilities at Morehead City, NC) <PRTPAGE P='24'><HD1>District No. 27—San Juan, Puerto Rico <HD2>Class A <FP-1>Aguadilla, PR <FP-1>*&thnsp;Charlotte Amalie, St. Thomas, VI <FP-1>Christiansted, St. Croix, VI <FP-1>Cruz Bay, St. John, VI <FP-1>Ensenada, PR <FP-1>Federiksted, St. Croix, VI <FP-1>Fajardo, PR <FP-1>Humacao, PR <FP-1>Jobos, PR <FP-1>Mayaguez, PR <FP-1>Ponce, PR <FP-1>Red Hook, St. Thomas, VI <HD2>Class B <FP-1>Coral Bay, St. John, VI <HD1>District No. 28—New Orleans, Louisiana <HD2>Class A <FP-1>Baton Rouge, LA <FP-1>Gulfport, MS <FP-1>Lake Charles, LA <FP-1>Memphis, TN <FP-1>Nashville, TN <FP-1>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) <HD2>Class C <FP-1>Morgan City, LA <FP-1>Pascagoula, MS <HD1>District No. 29—Omaha, Nebraska <HD2>Class A <FP-1>Omaha, NE <FP-1>Des Moines, IA <HD1>District No. 30—Helena, Montana <HD2>Class A <FP-1>Chief Mountain, MT (May-October) <FP-1>Del Bonita, MT <FP-1>Morgan, MT <FP-1>Opheim, MT <FP-1>Peigan, MT <FP-1>Raymond, MT <FP-1>Roosville, MT <FP-1>Scobey, MT <FP-1>Sweetgrass, MT <FP-1>Turner, MT <FP-1>Whitetail, MT <FP-1>Wildhorse, MT <FP-1>Willow Creek, MT <HD2>Class B <FP-1>Goat Haunt, MT <FP-1>Trail Creek, MT <FP-1>Whitlash, MT <HD1>District No. 31—Portland, Oregon <HD2>Class A <FP-1>Astoria, OR (the port of Astoria includes, among others, the port facilities at Bradwood, Pacific City, Taft, Tilliamook, (including Bay City and Garibaldi), Warrenton, Wauna, and Westport, OR) <FP-1>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) <FP-1>Portland, OR (the port of Portland includes, among others, the port facilities at Beaver, Columbia City, Prescott, Rainier, and St. Helens, OR) <HD1>District No. 32—Anchorage, Alaska <HD2>Class A <FP-1>Alcan, AK <FP-1>Anchorage, AK (the port of Anchorage includes, among others (for out of port inspections only), Afognak, Barrow, Cold Bay, Cordova, Homer, Kodiak, Kotzebue, Nikiski, Seward, Valdez, and Yakutat, AK) <FP-1>Dalton's Cache, AK <FP-1>Dutch Harbor, AK <FP-1>Fairbanks, AK <FP-1>Gambell, AK <FP-1>Juneau, AK <FP-1>Ketchikan, AK <FP-1>Nome, AK <FP-1>Poker Creek, AK <FP-1>Skagway, AK <HD2>Class B <FP-1>Eagle, AK <FP-1>Hyder, AK <HD2>Class C <FP-1>Valdez, AK <HD1>District No. 38—Houston, Texas <HD2>Class A <FP-1>Galveston, TX (the port of Galveston includes, among others, the port facilities at Freeport, Port Bolivar, and Texas City, TX) <FP-1>Houston, TX (the port of Houston includes, among others, the port facilities at Baytown, TX) <FP-1>Port Arthur, TX (the port of Port Arthur includes, among others, the port facilities at Beaumont, Orange, and Sabine, TX) <HD1>District No. 39—San Diego, California <HD2>Class A <FP-1>Andrade, CA <FP-1>Calexico, CA <FP-1>Otay Mesa, CA <FP-1>San Ysidro, CA <PRTPAGE P='25'><FP-1>Tecate, CA <HD1>District No. 40—Harlingen, Texas <HD2>Class A <FP-1>Brownsville, TX (the port of Brownsville includes, among others, the port facilities at Brownsville Seaport, Port Isabel, Padre Island and Harlingen, TX, Ship Channel) <FP-1>Brownsville, TX, Gateway Bridge and Brownsville/Matamoros Bridge <FP-1>Falcon Heights, TX <FP-1>Hidalgo, TX <FP-1>Los Ebanos, TX <FP-1>Los Indios, TX <FP-1>Pharr, TX <FP-1>Progreso, TX <FP-1>Rio Grande City, TX <FP-1>Roma, TX</EXTRACT> <Q P='04'> <P>(3) <E T='03'>Ports-of-Entry for aliens arriving by aircraft.</E> 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: <EXTRACT><HD1>District No. 1 [Reserved] <HD1>District No. 2—Boston, Massachusetts <FP-1>Boston, MA, Logan International Airport <FP-1>Manchester, NH, Grenier Airport <FP-1>Portsmouth, NH, Pease Air Force Base <FP-1>Warwick, RI, T. F. Greene Airport <FP-1>Windsor Locks, CT, Bradley International Airport <HD1>District No. 3—New York City, New York <FP-1>Newburgh, NY, Stewart International Airport <FP-1>Queens, NY, LaGuardia Airport <FP-1>Westchester, NY, Westchester County Airport <HD1>District No. 4—Philadelphia, Pennsylvania <FP-1>Charlestown, WV, Kanahwa Airport <FP-1>Dover, DE, Dover Air Force Base <FP-1>Erie, PA, Erie International Airport (USCS) <FP-1>Harrisburg, PA, Harrisburg International Airport <FP-1>Philadelphia, PA, Philadelphia International Airport <FP-1>Pittsburgh, PA, Pittsburgh International Airport <HD1>District No. 5—Baltimore, Maryland <FP-1>Baltimore, MD, Baltimore-Washington International Airport <HD1>District No. 6—Miami, Florida <FP-1>Daytona, FL, Daytona International Airport, FL <FP-1>Fort Lauderdale, FL, Executive Airport <FP-1>Fort Lauderdale, FL, Fort Lauderdale-Hollywood Airport <FP-1>Fort Myers, FL, Southwest Regional International Airport <FP-1>Freeport, Bahamas, Freeport International Airport <FP-1>Jacksonville, FL, Jacksonville International Airport <FP-1>Key West, FL, Key West International Airport <FP-1>Melbourne, FL, Melbourne International Airport <FP-1>Miami, FL, Chalks Flying Service Seaplane Base <FP-1>Miami, FL, Miami International Airport <FP-1>Nassau, Bahamas, Nassau International Airport <FP-1>Orlando, FL, Orlando International Airport <FP-1>Palm Beach, FL, Palm Beach International Airport <FP-1>Paradise Island, Bahamas, Paradise Island Airport <FP-1>Sanford, FL, Sanford International Airport <FP-1>Sarasota, FL, Sarasota Airport <FP-1>St. Petersburg, FL, St. Petersburg/Clearwater International Airport <FP-1>Tampa, FL, Tampa International Airport <HD1>District No. 7—Buffalo, New York <FP-1>Albany, NY, Albany County Airport <FP-1>Buffalo, NY, Buffalo Airport <FP-1>Massena, NY, Massena Airport <FP-1>Niagara Falls, NY, Niagara Falls International Airport <FP-1>Ogdensburg, NY, Ogdensburg Municipal Airport <FP-1>Rochester, NY, Rochester Airport <FP-1>Syracuse, NY, Hancock International Airport <FP-1>Watertown, NY, Watertown Municipal Airport <HD1>District No. 8—Detroit, Michigan <FP-1>Battle Creek, MI, Battle Creek Airport <FP-1>Chippewa, MI, Chippewa County International Airport <FP-1>Detroit, MI, Detroit City Airport <FP-1>Detroit, MI, Detroit Metropolitan Wayne County Airport <FP-1>Port Huron, MI, St. Clair County International Airport <FP-1>Sault Ste. Marie, MI, Sault Ste. Marie Airport <HD1>District No. 9—Chicago, Illinois <FP-1>Chicago, IL, Chicago Midway Airport <FP-1>Chicago, IL, Chicago O'Hare International Airport <FP-1>Indianapolis, IN, Indianapolis International Airport <FP-1>Mitchell, WI, Mitchell International Airport <PRTPAGE P='26'><HD1>District No. 10—St. Paul, Minnesota <FP-1>Baudette, MN, Baudette International Airport <FP-1>Duluth, MN, Duluth International Airport <FP-1>Duluth, MN, Sky Harbor Airport <FP-1>Grand Forks, ND, Grand Forks International Airport <FP-1>International Falls, MN, Falls International Airport <FP-1>Minneapolis/St. Paul, MN, Minneapolis/St. Paul International Airport <FP-1>Minot, ND, Minot International Airport <FP-1>Pembina, ND, Port Pembina Airport <FP-1>Portal, ND, Portal Airport <FP-1>Ranier, MN, International Seaplane Base <FP-1>Warroad, MN, Warroad International Airport <FP-1>Williston, ND, Sioulin Field (Municipal) <HD1>District No. 11—Kansas City, Missouri <FP-1>Kansas City, MO, Kansas City International Airport <FP-1>Springfield, MO, Springfield Regional Airport <FP-1>St. Louis, MO, St. Louis Lambert International Airport <FP-1>St. Louis, MO, Spirit of St. Louis Airport <HD1>District No. 12—Seattle, Washington <FP-1>Bellingham, WA, Bellingham Airport <FP-1>Friday Harbor, WA, Friday Harbor <FP-1>McChord, WA, McChord Air Force Base <FP-1>Oroville, WA, Dorothy Scott Municipal Airport <FP-1>Oroville, WA, Dorothy Scott Seaplane Base <FP-1>Point Roberts, WA, Point Roberts Airport <FP-1>Port Townsend, WA, Jefferson County International Airport <FP-1>SEA-TAC, WA, SEA-TAC International Airport <FP-1>Seattle, WA, Boeing Municipal Air Field <FP-1>Seattle, WA, Lake Union <FP-1>Spokane, WA, Felts Field <FP-1>Spokane, WA, Spokane International Airport <HD1>District No. 13—San Francisco, California <FP-1>Alameda, CA, Alemeda Naval Air Station <FP-1>Oakland, CA, Oakland International Airport <FP-1>Sacramento, CA, Beale Air Force Base <FP-1>San Francisco, CA, San Francisco International Airport <FP-1>San Jose, CA, San Jose International Airport <FP-1>Travis, CA, Travis Air Force Base <HD1>District No. 14—San Antonio, Texas <FP-1>Austin, TX, Austin International Airport <FP-1>Corpus Christi, TX, Corpus Christi Airport <FP-1>Del Rio, TX, Del Rio International Airport <FP-1>Laredo, TX, Laredo International Airport <FP-1>Maverick, TX, Maverick County Airport <FP-1>San Antonio, TX, San Antonio International Airport <HD1>District No. 15—El Paso, Texas <FP-1>Albuquerque, NM, Albuquerque International Airport <FP-1>El Paso, TX, International Airport <FP-1>Presidio, TX, Presidio Airport <FP-1>Santa Teresa, NM, Santa Teresa Airport <HD1>District No. 16—Los Angeles, California <FP-1>Los Angeles, CA, Los Angeles International Airport <FP-1>Ontario, CA, Ontario International Airport <HD1>District No. 17—Honolulu, Hawaii <FP-1>Agana, Guam, Guam International Airport Terminal <FP-1>Honolulu, HI, Honolulu International Airport <FP-1>Honolulu, HI, Hickam Air Force Base <HD1>District No. 18—Phoenix, Arizona <FP-1>Douglas, AZ, Bisbee-Douglas Airport <FP-1>Las Vegas, NV, McCarren International Airport <FP-1>Nogales, AZ, Nogales International Airport <FP-1>Phoenix, AZ, Phoenix Sky Harbor International Airport <FP-1>Reno, NV, Reno Carron International Airport <FP-1>Tucson, AZ, Tucson International Airport <FP-1>Yuma, AZ, Yuma International Airport <HD1>District No. 19—Denver, Colorado <FP-1>Colorado Springs, CO, Colorado Springs Airport <FP-1>Denver, CO, Denver International Airport <FP-1>Salt Lake City, UT, Salt Lake City Airport <HD1>District No. 20—Dallas, Texas <FP-1>Dallas, TX, Dallas-Fort Worth International Airport <FP-1>Oklahoma City, OK, Oklahoma City Airport (includes Altus and Tinker AFBs) <HD1>District No. 21—Newark, New Jersey <FP-1>Atlantic City, NJ, Atlantic City International Airport <FP-1>Lakehurst, NJ, Lakehurst Naval Air Station <FP-1>Morristown, NJ, Morristown Airport <FP-1>Newark, NJ, Newark International Airport <FP-1>Newark, NJ, Signature Airport <FP-1>Teterboro, NJ, Teterboro Airport <FP-1>Wrightstown, NJ, McGuire Air Force Base <HD1>District No. 22—Portland, Maine <FP-1>Bangor, ME, Bangor International Airport <FP-1>Burlington, VT, Burlington International Airport <FP-1>Caribou, ME, Caribou Municipal Airport <FP-1>Highgate Springs, VT, Franklin County Regional Airport <FP-1>Newport, VT, Newport State Airport <PRTPAGE P='27'><HD1>District No. 23 [Reserved] <HD1>District No. 24—Cleveland, Ohio <FP-1>Akron, OH, Municipal Airport <FP-1>Cincinnati, OH, Cincinnati International Airport <FP-1>Cleveland, OH, Cleveland Hopkins Airport <FP-1>Columbus, OH, Port Columbus International Airport <FP-1>Sandusky, OH, Griffing/Sandusky Airport <HD1>District No. 25—Washington, D.C. <FP-1>Camp Springs, MD, Andrews Air Force Base <FP-1>Chantilly, VA, Washington Dulles International Airport <FP-1>Winchester, VA, Winchester Airport <HD1>District No. 26—Atlanta, Georgia <FP-1>Atlanta, GA, Atlanta Hartsfield International Airport <FP-1>Charleston, SC, Charleston International Airport <FP-1>Charleston, SC, Charleston Air Force Base <FP-1>Charlotte, NC, Charlotte International Airport <FP-1>Raleigh, NC, Raleigh-Durham International Airport <FP-1>Savannah, GA, Savannah International Airport <HD1>District No. 27—San Juan, Puerto Rico <FP-1>San Juan, PR, San Juan International Airport <HD1>District No. 28—New Orleans, Louisiana <FP-1>Louisville, KY, Louisville International Airport <FP-1>New Orleans, LA, New Orleans International Airport <FP-1>Memphis, TN, Memphis International Airport <FP-1>Nashville, TN, Nashville International Airport <HD1>District No. 29—Omaha, Nebraska <FP-1>Des Moines, IA, Des Moines International Airport <FP-1>Omaha, NE, Eppley International Airport <FP-1>Omaha, NE, Offutt Air Force Base <HD1>District No. 30—Helena, Montana <FP-1>Billings, MT, Billings Airport <FP-1>Boise, ID, Boise Airport <FP-1>Cut Bank, MT, Cut Bank Airport <FP-1>Glasgow, MT, Glasgow International Airport <FP-1>Great Falls, MT, Great Falls International Airport <FP-1>Havre, MT, Havre-Hill County Airport <FP-1>Helena, MT, Helena Airport <FP-1>Kalispel, MT, Kalispel Airport <FP-1>Missoula, MT, Missoula Airport <HD1>District No. 31—Portland, Oregon <FP-1>Medford, OR, Jackson County Airport <FP-1>Portland, OR, Portland International Airport <HD1>District No. 32—Anchorage, Alaska <FP-1>Anchorage, AK, Anchorage International Airport <FP-1>Juneau, AK, Juneau Airport (Seaplane Base Only) <FP-1>Juneau, AK, Juneau Municipal Airport <FP-1>Ketchikan, AK, Ketchikan Airport <FP-1>Wrangell, AK, Wrangell Seaplane Base <HD1>District No. 38—Houston, Texas <FP-1>Galveston, TX, Galveston Airport <FP-1>Houston, TX, Ellington Field <FP-1>Houston, TX, Hobby Airport <FP-1>Houston, TX, Houston Intercontinental Airport <HD1>District No. 39—San Diego, California <FP-1>Calexico, CA, Calexico International Airport <FP-1>San Diego, CA, San Diego International Airport <FP-1>San Diego, CA, San Diego Municipal Airport (Lindbergh Field) <HD1>District No. 40—Harlingen, Texas <FP-1>Brownsville, TX, Brownsville/South Padre Island International Airport <FP-1>Harlingen, TX, Valley International Airport <FP-1>McAllen, TX, McAllen Miller International Airport</EXTRACT> <Q P='04'> <P>(4) <E T='03'>Immigration offices in foreign countries:</E> <Q P='04'> <EXTRACT><FP-1>Athens, Greece <FP-1>Bangkok, Thailand <FP-1>Calgary, Alberta, Canada <FP-1>Ciudad Juarez, Mexico <FP-1>Dublin, Ireland <FP-1>Edmonton, Alberta, Canada <FP-1>Frankfurt, Germany <FP-1>Freeport, Bahamas <FP-1>Hamilton, Bermuda <FP-1>Havana, Cuba <FP-1>Hong Kong, B.C.C. <FP-1>Karachi, Pakistan <FP-1>London, United Kingdom <FP-1>Manila, Philippines <FP-1>Mexico City, Mexico <FP-1>Monterrey, Mexico <FP-1>Montreal, Quebec, Canada <FP-1>Moscow, Russia <FP-1>Nairobi, Kenya <FP-1>Nassau, Bahamas <FP-1>New Delhi, India <FP-1>Oranjestad, Aruba <FP-1>Ottawa, Ontario, Canada <FP-1>Rome, Italy <FP-1>Santo Domingo, Dominican Republic <FP-1>Seoul, Korea <FP-1>Shannon, Ireland <FP-1>Singapore, Republic of Singapore <FP-1>Tegucigalpa, Honduras <FP-1>Tijuana, Mexico <PRTPAGE P='28'><FP-1>Toronto, Ontario, Canada <FP-1>Vancouver, British Columbia, Canada <FP-1>Victoria, British Columbia, Canada <FP-1>Vienna, Austria <FP-1>Winnipeg, Manitoba, Canada</EXTRACT> <Q P='04'> <P>(d) <E T='03'>Border patrol sectors.</E> Border Patrol Sector Headquarters and Stations are situated at the following locations: <EXTRACT><HD1>Sector No. 1—Houlton, Maine <FP-1>Calais, ME <FP-1>Fort Fairfield, ME <FP-1>Houlton, ME <FP-1>Jackman, ME <FP-1>Rangeley, ME <FP-1>Van Buren, ME <HD1>Sector No. 2—Swanton, Vermont <FP-1>Beecher Falls, VT <FP-1>Burke, NY <FP-1>Champlain, NY <FP-1>Massena, NY <FP-1>Newport, VT <FP-1>Ogdensburg, NY <FP-1>Richford, VT <FP-1>Swanton, VT <HD1>Sector No. 3—Ramey, Puerto Rico <FP-1>Ramey, Puerto Rico <HD1>Sector No. 4—Buffalo, New York <FP-1>Buffalo, NY <FP-1>Fulton, NY <FP-1>Niagara Falls, NY <FP-1>Watertown, NY <HD1>Sector No. 5—Detroit, Michigan <FP-1>Detroit, MI <FP-1>Grand Rapids, MI <FP-1>Port Huron, MI <FP-1>Sault Ste. Marie, MI <FP-1>Trenton, MI <HD1>Sector No. 6—Grand Forks, North Dakota <FP-1>Bottineau, ND <FP-1>Duluth, MN <FP-1>Grand Forks, ND <FP-1>Grand Marais, MN <FP-1>International Falls, MN <FP-1>Pembina, ND <FP-1>Portal, ND <FP-1>Warroad, MN <HD1>Sector No. 7—Havre, Montana <FP-1>Billings, MT <FP-1>Havre, MT <FP-1>Malta, MT <FP-1>Plentywood, MT <FP-1>Scobey, MT <FP-1>Shelby, MT <FP-1>St. Mary, MT <FP-1>Sweetgrass, MT <FP-1>Twin Falls, ID <HD1>Sector No. 8—Spokane, Washington <FP-1>Bonners Ferry, ID <FP-1>Colville, WA <FP-1>Eureka, MT <FP-1>Oroville, WA <FP-1>Pasco, WA <FP-1>Spokane, WA <FP-1>Wenatchee, WA <FP-1>Whitefish, MT <HD1>Sector No. 9—Blaine, Washington <FP-1>Bellingham, WA <FP-1>Blaine, WA <FP-1>Lynden, WA <FP-1>Port Angeles, WA <FP-1>Roseburg, OR <HD1>Sector No. 10—Livermore, California <FP-1>Bakersfield, CA <FP-1>Fresno, CA <FP-1>Livermore, CA <FP-1>Oxnard, CA <FP-1>Sacramento, CA <FP-1>Salinas, CA <FP-1>San Luis Obispo, CA <FP-1>Stockton, CA <HD1>Sector No. 11—San Diego, California <FP-1>Brown Field, CA <FP-1>Campo, CA (Boulevard, CA) <FP-1>Chula Vista, CA <FP-1>El Cajon, CA (San Marcos and Julian, CA) <FP-1>Imperial Beach, CA <FP-1>San Clemente, CA <FP-1>Temecula, CA <HD1>Sector No. 12—El Centro, California <FP-1>Calexico, CA <FP-1>El Centro, CA <FP-1>Indio, CA <FP-1>Riverside, CA <HD1>Sector No. 13—Yuma, Arizona <FP-1>Blythe, CA <FP-1>Boulder City, NV <FP-1>Wellton, AZ <FP-1>Yuma, AZ <HD1>Sector No. 14—Tucson, Arizona <FP-1>Ajo, AZ <FP-1>Casa Grande, AZ <FP-1>Douglas, AZ <FP-1>Naco, AZ <FP-1>Nogales, AZ <FP-1>Phoenix, AZ <FP-1>Sonita, AZ <FP-1>Tucson, AZ <FP-1>Willcox, AZ <HD1>Sector No. 15—El Paso, Texas <FP-1>Alamogordo, NM <FP-1>Albuquerque, NM <FP-1>Carlsbad, NM <FP-1>Deming, NM <FP-1>El Paso, TX <PRTPAGE P='29'><FP-1>Fabens, TX <FP-1>Fort Hancock, TX <FP-1>Las Cruces, NM, <FP-1>Lordsburg, NM <FP-1>Truth or Consequences, NM <FP-1>Ysleta, TX <HD1>Sector No. 16—Marfa, Texas <FP-1>Alpine, TX <FP-1>Amarillo, TX <FP-1>Fort Stockton, TX <FP-1>Lubbock, TX <FP-1>Marfa, TX <FP-1>Midland, TX <FP-1>Pecos, TX <FP-1>Presidio, TX <FP-1>Sanderson, TX <FP-1>Sierra Blanca, TX <FP-1>Van Horn, TX <HD1>Sector No. 17—Del Rio, Texas <FP-1>Abilene, TX <FP-1>Brackettville, TX <FP-1>Carrizo Springs, TX <FP-1>Comstock, TX <FP-1>Del Rio, TX <FP-1>Eagle Pass, TX <FP-1>Llano, TX <FP-1>Rocksprings, TX <FP-1>San Angelo, TX <FP-1>Uvalde, TX <HD1>Sector No. 18—Laredo, Texas <FP-1>Cotulla, TX <FP-1>Dallas, TX <FP-1>Freer, TX <FP-1>Hebbronville, TX <FP-1>Laredo North, TX <FP-1>Laredo South, TX <FP-1>San Antonio, TX <FP-1>Zapata, TX <HD1>Sector No. 19—McAllen, Texas <FP-1>Brownsville, TX <FP-1>Corpus Christi, TX <FP-1>Falfurrias, TX <FP-1>Harlingen, TX <FP-1>Kingsville, TX <FP-1>McAllen, TX <FP-1>Mercedes, TX <FP-1>Port Isabel, TX <FP-1>Rio Grande City, TX <HD1>Sector No. 20—New Orleans, Louisiana <FP-1>Baton Rouge, LA <FP-1>Gulfport, MS <FP-1>Lake Charles, LA <FP-1>Little Rock, AR <FP-1>Miami, OK <FP-1>Mobile, AL <FP-1>New Orleans, LA <HD1>Sector No. 21—Miami, Florida <FP-1>Jacksonville, FL <FP-1>Orlando, FL <FP-1>Pembroke Pines, FL <FP-1>Tampa, FL <FP-1>West Palm Beach, FL</EXTRACT> <Q P='04'> <P>(e) <E T='03'>Service centers.</E> Service centers are situated at the following locations: <Q P='04'> <EXTRACT><FP-1>Texas Service Center, Dallas, Texas <FP-1>Nebraska Service Center, Lincoln, Nebraska <FP-1>California Service Center, Laguna Niguel, California <FP-1>Vermont Service Center, St. Albans, Vermont <FP-1>Missouri Service Center, Lee's Summit, Missouri</EXTRACT> <Q P='04'> <P>(f) <E T='03'>Asylum offices</E>—(1) <E T='03'>Newark, New Jersey.</E> The Asylum Office in Lyndhurst has jurisdiction over the State of New York within the boroughs of Manhattan and the Bronx in the City of New York; the Albany Suboffice; jurisdiction of the Buffalo District Office; the State of Pennsylvania, excluding the jurisdiction of the Pittsburgh Suboffice; and the States of Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, and Vermont. <P>(2) <E T='03'>New York City, New York.</E> The Asylum Office in New York has jurisdiction over the State of New York excluding the jurisdiction of the Albany Suboffice, the Buffalo District Office and the boroughs of Manhattan and the Bronx. <P>(3) <E T='03'>Arlington, Virginia.</E> 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. <P>(4) <E T='03'>Miami, Florida.</E> The Asylum Office in Miami has jurisdiction over the State of Florida, the Commonwealth of Puerto Rico, and the United States Virgin Islands. <P>(5) <E T='03'>Houston, Texas.</E> The Asylum Office in Houston has jurisdiction over the States of Louisiana, Arkansas, Mississippi, Tennessee, Texas, Oklahoma, New Mexico, Colorado, Utah, and Wyoming. <P>(6) <E T='03'>Chicago, Illinois.</E> The Asylum Office in Chicago has jurisdiction over the States of Illinois, Indiana, Michigan, Wisconsin, Minnesota, North Dakota, South Dakota, Kansas, Missouri, <PRTPAGE P='30'>Ohio, Iowa, Nebraska, Montana, Idaho, and Kentucky. <P>(7) <E T='03'>Los Angeles, California.</E> The Asylum Office in Los Angeles has jurisdiction over the States of Arizona, the southern portion of California as listed in §&thnsp;100.4(b)(16) and §&thnsp;100.4(b)(39), Hawaii, the southern portion of Nevada currently within the jurisdiction of the Las Vegas Suboffice, and the Territory of Guam. <P>(8) <E T='03'>San Francisco, California.</E> The Asylum Office in San Francisco has jurisdiction over the northern part of California as listed in §&thnsp;100.4(b)(13), the portion of Nevada currently under the jurisdiction of the Reno Suboffice, and the States of Alaska, Oregon, and Washington. <CITA>[60 FR 57166, Nov. 14, 1995, as amended at 61 FR 25778, May 23, 1996; 63 FR 70315, Dec. 21, 1998; 65 FR 39072, June 23, 2000; 66 FR 29672, June 1, 2001] <SECTION> <SECTNO>§&thnsp;100.5 <SUBJECT>Regulations. <P>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. <SECTION> <SECTNO>§&thnsp;100.6 <SUBJECT>Rule making. <P>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. <SECTION> <SECTNO>§&thnsp;100.7 <SUBJECT>OMB control numbers assigned to information collections. <P>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. <GPOTABLE COLS='2' OPTS='L2' CDEF='s50,10'> <BOXHD><CHED H='1'>8 CFR part or section where identified and described <CHED H='1'>Current OMB control No. <ROW><ENT I='01'>103.2(b)(1)<ENT>1115–0062 <ROW><ENT I='01'>103.6<ENT>1115–0085 <ROW><ENT I='01'>103.6(c)<ENT>1115–0046 <ROW><ENT I='01'>103.10(a)(2)<ENT>1115–0087 <ROW><ENT I='01'>103.10(f)<ENT>1115–0088 <ROW><ENT I='01'>204.1(a)<ENT>1115–0054 <ROW><ENT I='01'>204.1(b)<ENT>1115–0049 <ROW><ENT I='01'>204.1(c)<ENT>1115–0061 <ROW><ENT I='01'>Part 207<ENT>1115–0057 <ROW><ENT I='01'>207.2<ENT>1115–0066 <ROW><ENT I='01'>207.2(d)<ENT>1115–0056 <ROW><ENT I='01'>207.3(b)<ENT>1115–0098 <ROW><ENT I='01'>Part 208<ENT>1115–0086 <ROW><ENT I='01'>211.1(b)(3)<ENT>1115–0042 <ROW><ENT I='01'>211.2<ENT>1115–0042 <ROW><ENT I='01'>212.1(f)<ENT>1115–0042 <ROW><ENT I='01'>212.2<ENT>1115–0106 <ROW><ENT I='01'>212.3<ENT>1115–0032 <ROW><ENT I='01'>212.4(b)<ENT>1115–0028 <ROW><ENT I='01'>212.4(g)<ENT>1115–0040 <ROW><ENT I='01'>212.6<ENT>1115–0019 <ROW><ENT I='01'>212.6<ENT>1115–0047 <ROW><ENT I='01'>212.7<ENT>1115–0048 <ROW><ENT I='01'>212.7(c)<ENT>1115–0059 <ROW><ENT I='01'>212.8(b)<ENT>1115–0081 <ROW><ENT I='01'>214.1<ENT>1115–0051 <ROW><ENT I='01'>214.1(c)<ENT>1115–0093 <ROW><ENT I='01'>214.2(e)<ENT>1115–0023 <ROW><ENT I='01'>214.2(f)<ENT>1115–0060 <ROW><ENT I='01'>214.2(f)<ENT>1115–0051 <ROW><ENT I='01'>214.2(g)<ENT>1115–0090 <ROW><ENT I='01'>214.2(h)<ENT>1115–0038 <ROW><ENT I='01'>214.2(k)<ENT>1115–0071 <ROW><ENT I='01'>214.2(l)<ENT>1115–0038 <ROW><ENT I='01'>214.2(m)<ENT>1115–0060 <ROW><ENT I='01'>214.2(m)<ENT>1115–0051 <ROW><ENT I='01'>214.3<ENT>1115–0070 <ROW><ENT I='01'>214.3(g)<ENT>1115–0051 <ROW><PRTPAGE P='31'><ENT I='01'>Part 223<ENT>1115–0005 <ROW><ENT I='01'>Part 223a<ENT>1115–0084 <ROW><ENT I='01'>223.1<ENT>1115–0037 <ROW><ENT I='01'>Part 231<ENT>1115–0083 <ROW><ENT I='01'>Part 231<ENT>1115–0078 <ROW><ENT I='01'>Part 231<ENT>1115–0108 <ROW><ENT I='01'>Part 232<ENT>1115–0036 <ROW><ENT I='01'>Part 233<ENT>1115–0036 <ROW><ENT I='01'>234.2(c)<ENT>1115–0048 <ROW><ENT I='01'>Part 235<ENT>1115–0077 <ROW><ENT I='01'>235.1(e)<ENT>1115–0065 <ROW><ENT I='01'>243.4<ENT>1115–0055 <ROW><ENT I='01'>243.7<ENT>1115–0043 <ROW><ENT I='01'>Part 244<ENT>1115–0025 <ROW><ENT I='01'>Part 245<ENT>1115–0053 <ROW><ENT I='01'>Part 245<ENT>1115–0066 <ROW><ENT I='01'>245.2<ENT>1115–0089 <ROW><ENT I='01'>245.2(a)(2)<ENT>1115–0067 <ROW><ENT I='01'>247.11<ENT>1115–0037 <ROW><ENT I='01'>247.12<ENT>1115–0037 <ROW><ENT I='01'>247.13<ENT>1115–0037 <ROW><ENT I='01'>248.3<ENT>1115–0032 <ROW><ENT I='01'>248.3(b)<ENT>1115–0038 <ROW><ENT I='01'>248.4<ENT>1115–0038 <ROW><ENT I='01'>Part 249<ENT>1115–0053 <ROW><ENT I='01'>Part 249<ENT>1115–0066 <ROW><ENT I='01'>Part 250<ENT>1115–0020 <ROW><ENT I='01'>Part 251<ENT>1115–0083 <ROW><ENT I='01'>Part 251<ENT>1115–0040 <ROW><ENT I='01'>Part 252<ENT>1115–0040 <ROW><ENT I='01'>252.1(f)<ENT>1115–0073 <ROW><ENT I='01'>253.1<ENT>1115–0029 <ROW><ENT I='01'>264.1<ENT>1115–0004 <ROW><ENT I='01'>264.1(c)<ENT>1115–0079 <ROW><ENT I='01'>264.1(f)<ENT>1115–0002 <ROW><ENT I='01'>265.1<ENT>1115–0003 <ROW><ENT I='01'>292.2<ENT>1115–0026 <ROW><ENT I='01'>316a.21<ENT>1115–0014 <ROW><ENT I='01'>319.11<ENT>1115–0009 <ROW><ENT I='01'>Part 322<ENT>1115–0010 <ROW><ENT I='01'>324.11<ENT>1115–0009 <ROW><ENT I='01'>327.1<ENT>1115–0009 <ROW><ENT I='01'>Part 328<ENT>1115–0009 <ROW><ENT I='01'>328.3<ENT>1115–0022 <ROW><ENT I='01'>Part 329<ENT>1115–0009 <ROW><ENT I='01'>329.2<ENT>1115–0022 <ROW><ENT I='01'>Part 330<ENT>1115–0009 <ROW><ENT I='01'>Part 330<ENT>1115–0031 <ROW><ENT I='01'>Part 334a<ENT>1115–0008 <ROW><ENT I='01'>334.11<ENT>1115–0009 <ROW><ENT I='01'>334.17<ENT>1115–0035 <ROW><ENT I='01'>335.11<ENT>1115–0009 <ROW><ENT I='01'>336.16a<ENT>1115–0076 <ROW><ENT I='01'>336.16a<ENT>1115–0052 <ROW><ENT I='01'>338.16<ENT>1115–0030 <ROW><ENT I='01'>Part 341<ENT>1115–0018 <ROW><ENT I='01'>341.1(b)<ENT>1115–0009 <ROW><ENT I='01'>343a.1<ENT>1115–0015 <ROW><ENT I='01'>343b<ENT>1115–0016</GPOTABLE> <CITA>[48 FR 37201, Aug. 17, 1983] <PART><EAR>Pt. 101<HED>PART 101—PRESUMPTION OF LAWFUL ADMISSION <CONTENTS> <SECHD>Sec. <SECTNO>101.1<SUBJECT>Presumption of lawful admission. <SECTNO>101.2<SUBJECT>Presumption of lawful admission; entry under erroneous name or other errors. <SECTNO>101.3<SUBJECT>Creation of record of lawful permanent resident status for person born under diplomatic status in the United States. <SECTNO>101.4<SUBJECT>Registration procedure. <SECTNO>101.5<SUBJECT>Special immigrant status for certain G–4 nonimmigrants.</CONTENTS> <AUTH><HED>Authority:<P>8 U.S.C. 1103, 8 CFR part 2. <SECTION> <SECTNO>§&thnsp;101.1 <SUBJECT>Presumption of lawful admission. <P>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: <P>(a) <E T='03'>Prior to June 30, 1906.</E> An alien who establishes that he entered the United States prior to June 30, 1906. <P>(b) <E T='03'>United States land borders.</E> 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. <P>(c) <E T='03'>Virgin Islands.</E> 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. <P>(d) <E T='03'>Asiatic barred zone.</E> 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. <PRTPAGE P='32'><P>(e) <E T='03'>Chinese and Japanese aliens</E>—(1) <E T='03'>Prior to July 1, 1924.</E> 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. <P>(2) <E T='03'>On or after July 1, 1924.</E> 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. <P>(f) <E T='03'>Citizens of the Philippine Islands—(</E>1) <E T='03'>Entry prior to May 1, 1934.</E> 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. <P>(2) <E T='03'>Entry between May 1, 1934, and July 3, 1946.</E> 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. <P>(g) <E T='03'>Temporarily admitted aliens.</E> 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. <PRTPAGE P='33'><P>(h) <E T='03'>Citizens of the Trust Territory of the Pacific Islands who entered Guam prior to December 24, 1952.</E> 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. <P>(i) <E T='03'>Aliens admitted to Guam.</E> 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. <P>(j) <E T='03'>Erroneous admission as United States citizens or as children of citizens.</E> (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 <E T='03'>child</E> and <E T='03'>parent</E> shall be defined as in section 101(b) of the Immigration and Nationality Act, as amended. <P>(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. <CITA>[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] <SECTION> <SECTNO>§&thnsp;101.2 <SUBJECT>Presumption of lawful admission; entry under erroneous name or other errors. <P>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 <PRTPAGE P='34'>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. <CITA>[32 FR 9622, July 4, 1967] <SECTION> <SECTNO>§&thnsp;101.3 <SUBJECT>Creation of record of lawful permanent resident status for person born under diplomatic status in the United States. <P>(a) <E T='03'>Person born to foreign diplomat</E>—(1) <E T='03'>Status of person.</E> 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. <P>(2) <E T='03'>Definition of foreign diplomatic officer. Foreign diplomatic officer</E> means a person listed in the State Department Diplomatic List, also known as the Blue List. It includes ambassadors, ministers, chargés d'affaires, counselors, secretaries and attachés 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. <P>(b) <E T='03'>Child born subject to the jurisdiction of the United States.</E> 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: <P>(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. <P>(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. <P>(c) <E T='03'>Voluntary registration as lawful permanent resident of person born to foreign diplomat.</E> 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. <P>(d) <E T='03'>Retention of lawful permanent residence.</E> 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 <PRTPAGE P='35'>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. <SECAUTH>(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) <CITA>[47 FR 940, Jan. 8, 1982] <SECTION> <SECTNO>§&thnsp;101.4 <SUBJECT>Registration procedure. <P>The procedure for an application for creation of a record of lawful permanent residence and a Permanent Resident Card, Form I–551, for a person eligible for presumption of lawful admission for permanent residence under §&thnsp;101.1 or §&thnsp;101.2 or for lawful permanent residence as a person born in the United States to a foreign diplomatic officer under §&thnsp;101.3 is described in §&thnsp;264.2 of this chapter. <SECAUTH>(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) <CITA>[47 FR 941, Jan. 8, 1982, as amended at 63 FR 70315, Dec. 21, 1998] <SECTION> <SECTNO>§&thnsp;101.5 <SUBJECT>Special immigrant status for certain G–4 nonimmigrants. <P>(a) <E T='03'>Application.</E> 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. <P>(b) <E T='03'>Documentation.</E> All documents must be submitted in accordance with §&thnsp;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. <P>(c) <E T='03'>Residence and physical presence requirements.</E> 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. <P>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 &chyph;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. <P>(d) <E T='03'>Maintenance of nonimmigrant status.</E> 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. <PRTPAGE P='36'><P>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. <CITA>[54 FR 5927, Feb. 7, 1989] <PART><EAR>Pt. 103<HED>PART 103—POWERS AND DUTIES; AVAILABILITY OF RECORDS <CONTENTS> <SECHD>Sec. <SECTNO>103.1<SUBJECT>Delegations of authority; designation of immigration officers. <SECTNO>103.2<SUBJECT>Applications, petitions, and other documents. <SECTNO>103.3<SUBJECT>Denials, appeals, and precedent decisions. <SECTNO>103.4<SUBJECT>Certifications. <SECTNO>103.5<SUBJECT>Reopening or reconsideration. <SECTNO>103.5a<SUBJECT>Service of notification, decisions, and other papers by the Service. <SECTNO>103.5b<SUBJECT>Application for further action on an approved application or petition. <SECTNO>103.6<SUBJECT>Surety bonds. <SECTNO>103.7<SUBJECT>Fees. <SECTNO>103.8<SUBJECT>Definitions pertaining to availability of information under the Freedom of Information Act. <SECTNO>103.9<SUBJECT>Availability of decisions and interpretive material under the Freedom of Information Act. <SECTNO>103.10<SUBJECT>Requests for records under the Freedom of Information Act. <SECTNO>103.11<SUBJECT>Business information. <SECTNO>103.12<SUBJECT>Definition of the term “lawfully present” aliens for purposes of applying for Title II Social Security benefits under Public Law 104–193. <SECTNO>103.20<SUBJECT>Purpose and scope. <SECTNO>103.21<SUBJECT>Access by individuals to records maintained about them. <SECTNO>103.22<SUBJECT>Records exempt in whole or in part. <SECTNO>103.23<SUBJECT>Special access procedures. <SECTNO>103.24<SUBJECT>Requests for accounting of record disclosure. <SECTNO>103.25<SUBJECT>Notice of access decisions; time limits. <SECTNO>103.26<SUBJECT>Fees for copies of records. <SECTNO>103.27<SUBJECT>Appeals from denials of access. <SECTNO>103.28<SUBJECT>Requests for correction of records. <SECTNO>103.29<SUBJECT>Records not subject to correction. <SECTNO>103.30<SUBJECT>Accounting for disclosures. <SECTNO>103.31<SUBJECT>Notices of subpoenas and emergency disclosures. <SECTNO>103.32<SUBJECT>Information forms. <SECTNO>103.33<SUBJECT>Contracting record systems. <SECTNO>103.34<SUBJECT>Security of records systems. <SECTNO>103.35<SUBJECT>Use and collection of Social Security numbers. <SECTNO>103.36<SUBJECT>Employee standards of conduct with regard to privacy. <SECTNO>103.37<SUBJECT>Precedent decisions.</CONTENTS> <AUTH><HED>Authority:<P>5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; Public Law 107–296, 116 Stat. 2135 (6 U.S.C. 1 <E T='03'>et seq.</E>); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2. <SOURCE><HED>Source:<P>40 FR 44481, Sept. 26, 1975, unless otherwise noted. <SECTION> <SECTNO>§&thnsp;103.1 <SUBJECT>Delegations of authority; designation of immigration officers. <P>(a) <E T='03'>Delegations of authority.</E> Delegations of authority to perform functions and exercise authorities under the immigration laws may be made by the Secretary of Homeland Security as provided by §&thnsp;2.1 of this chapter. <P>(b) <E T='03'>Immigration Officer.</E> The following employees of the Department of Homeland Security, including senior or supervisory officers of such employees, are designated as immigration officers authorized to exercise the powers and duties of such officer as specified by the Act and this chapter I: Immigration officer, immigration inspector, immigration examiner, adjudications officer, Border Patrol agent, aircraft pilot, airplane pilot, helicopter pilot, deportation officer, detention enforcement officer, detention officer, investigator, special agent, investigative assistant, immigration enforcement agent, intelligence officer, intelligence agent, general attorney (except with respect to CBP, only to the extent that the attorney is performing any immigration function), applications adjudicator, contact representative, legalization adjudicator, legalization officer, legalization assistant, forensic document analyst, fingerprint specialist, immigration information officer, immigration agent (investigations), asylum officer, other officer or employee of the Department of Homeland Security or of the United States as designated by the Secretary of Homeland Security as provided in §&thnsp;2.1 of this chapter. Any customs officer, as defined in 19 CFR 24.16, is hereby authorized to exercise the powers and duties <PRTPAGE P='37'>of an immigration officer as specified by the Act and this chapter. <CITA>[68 FR 10923, Mar. 6, 2003, as amended at 68 FR 35275, June 13, 2003; 69 FR 35234, June 24, 2004] <SECTION> <SECTNO>§&thnsp;103.2 <SUBJECT>Applications, petitions, and other documents. <P>(a) <E T='03'>Filing</E>—(1) <E T='03'>General.</E> Every application, petition, appeal, motion, request, or other document submitted on the form prescribed by this chapter shall be executed and filed in accordance with the instructions on the form, such instructions (including where an application or petition should be filed) being hereby incorporated into the particular section of the regulations in this chapter requiring its submission. The form must be filed with the appropriate filing fee required by §&thnsp;103.7. Except as exempted by paragraph (e) of this section, forms which require an applicant, petitioner, sponsor, beneficiary, or other individual to complete Form FD–258, Applicant Card, must also be filed with the service fee for fingerprinting, as required by §&thnsp;103.7(b)(1), for each individual who requires fingerprinting. Filing fees and fingerprinting service fees are non-refundable and, except as otherwise provided in this chapter, must be paid when the application is filed. <P>(2) <E T='03'>Signature.</E> An applicant or petitioner must sign his or her application or petition. However, a parent or legal guardian may sign for a person who is less than 14 years old. A legal guardian may sign for a mentally incompetent person. By signing the application or petition, the applicant or petitioner, or parent or guardian certifies under penalty of perjury that the application or petition, and all evidence submitted with it, either at the time of filing or thereafter, is true and correct. Unless otherwise specified in this chapter, an acceptable signature on an application or petition that is being filed with the BCIS is one that is either handwritten or, for applications or petitions filed electronically as permitted by the instructions to the form, in electronic format. <P>(3) <E T='03'>Representation.</E> An applicant or petitioner may be represented by an attorney in the United States, as defined in §&thnsp;1.1(f) of this chapter, by an attorney outside the United States as defined in §&thnsp;292.1(a)(6) of this chapter, or by an accredited representative as defined in §&thnsp;292.1(a)(4) of this chapter. A beneficiary of a petition is not a recognized party in such a proceeding. An application or petition presented in person by someone who is not the applicant or petitioner, or his or her representative as defined in this paragraph, shall be treated as if received through the mail, and the person advised that the applicant or petitioner, and his or her representative, will be notified of the decision. Where a notice of representation is submitted that is not properly signed, the application or petition will be processed as if the notice had not been submitted. <P>(4) <E T='03'>Oath.</E> 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. <P>(5) <E T='03'>Translation of name.</E> If a document has been executed in an anglicized version of a name, the native form of the name may also be required. <P>(6) <E T='03'>Where to file.</E> Except as otherwise provided in this chapter, an application or petition should be filed with the USCIS office with jurisdiction over the application or petition and the place of residence of the applicant or petitioner as indicated in the instructions with the respective form. <P>(7) <E T='03'>Receipt date</E>—(i) <E T='03'>General.</E> An application or petition received in a USCIS office shall be stamped to show the time and date of actual receipt and, unless otherwise specified in part 204 or part 245 or part 245a of this chapter, shall be regarded as properly filed when so stamped, if it is signed and executed and the required filing fee is attached or a waiver of the filing fee is granted. An application or petition which is not properly signed or is submitted with the wrong filing fee shall be rejected as improperly filed. Rejected applications and petitions, and ones in which the check or other financial instrument used to pay the filing fee is subsequently returned as non-payable will not retain a filing date. An application or petition taken to a local USCIS office for the completion of biometric information prior to filing at a service <PRTPAGE P='38'>center shall be considered received when physically received at a service center. <P>(ii) <E T='03'>Non-payment.</E> If a check or other financial instrument used to pay a filing fee is subsequently returned as not payable, the remitter shall be notified and requested to pay the filing fee and associated service charge within 14 calendar days, without extension. If the application or petition is pending and these charges are not paid within 14 days, the application or petition shall be rejected as improperly filed. If the application or petition was already approved, and these charges are not paid, the approval shall be automatically revoked because it was improperly field. If the application or petition was already denied, revoked, or abandoned, that decision will not be affected by the non-payment of the filing or fingerprinting fee. New fees will be required with any new application or petition. Any fee and service charges collected as the result of collection activities or legal action on the prior application or petition shall be used to cover the cost of the previous rejection, revocation, or other action. <P>(b) <E T='03'>Evidence and processing</E>—(1) <E T='03'>Demonstrating eligibility at time of filing.</E> An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. All required application or petition forms must be properly completed and filed with any initial evidence required by applicable regulations and/or the form's instructions. Any evidence submitted in connection with the application or petition is incorporated into and considered part of the relating application or petition. <P>(2) <E T='03'>Submitting secondary evidence and affidavits</E>—(i) <E T='03'>General.</E> The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence. <P>(ii) <E T='03'>Demonstrating that a record is not available.</E> Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available. However, a certification from an appropriate foreign government that a document does not exist is not required where the Department of State's Foreign Affairs Manual indicates this type of document generally does not exist. An applicant or petitioner who has not been able to acquire the necessary document or statement from the relevant foreign authority may submit evidence that repeated good faith attempts were made to obtain the required document or statement. However, where USCIS finds that such documents or statements are generally available, it may require that the applicant or petitioner submit the required document or statement. <P>(iii) <E T='03'>Evidence provided with a self-petition filed by a spouse or child of abusive citizen or resident.</E> The USCIS will consider any credible evidence relevant to a self-petition filed by a qualified spouse or child of an abusive citizen or lawful permanent resident under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not required to, demonstrate that preferred primary or secondary evidence is unavailable. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of USCIS. <P>(3) <E T='03'>Translations.</E> Any document containing foreign language submitted to USCIS shall be accompanied by a full <PRTPAGE P='39'>English language translation which the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to translate from the foreign language into English. <P>(4) <E T='03'>Submitting copies of documents.</E> Application and petition forms, and documents issued to support an application or petition (such as labor certifications, Form DS 2019, medical examinations, affidavits, formal consultations, letters of current employment and other statements) must be submitted in the original unless previously filed with USCIS. Official documents issued by the Department or by the former Immigration and Naturalization Service need not be submitted in the original unless required by USCIS. Unless otherwise required by the applicable regulation or form's instructions, a legible photocopy of any other supporting document may be submitted. Applicants and petitioners need only submit those original documents necessary to support the benefit sought. However, original documents submitted when not required will remain a part of the record. <P>(5) <E T='03'>Request for an original document.</E> USCIS may, at any time, request submission of an original document for review. The request will set a deadline for submission of the original document. Failure to submit the requested original document by the deadline may result in denial or revocation of the underlying application or benefit. An original document submitted in response to such a request, when no longer required by USCIS, will be returned to the petitioner or applicant upon completion of the adjudication. If USCIS does not return an original document within a reasonable time after completion of the adjudication, the petitioner or applicant may request return of the original document by submitting a properly completed and signed Form G–884 to the adjudicating USCIS office. <P>(6) <E T='03'>Withdrawal.</E> An applicant or petitioner may withdraw an application or petition at any time until a decision is issued by USCIS or, in the case of an approved petition, until the person is admitted or granted adjustment or change of status, based on the petition. However, a withdrawal may not be retracted. <P>(7) <E T='03'>Testimony.</E> The USCIS may require the taking of testimony, and may direct any necessary investigation. When a statement is taken from and signed by a person, he or she shall, upon request, be given a copy without fee. Any allegations made subsequent to filing an application or petition which are in addition to, or in substitution for, those originally made, shall be filed in the same manner as the original application, petition, or document, and acknowledged under oath thereon. <P>(8) <E T='03'>Request for Evidence; Notice of Intent to Deny</E>—(i) <E T='03'>Evidence of eligibility or ineligibility.</E> If the evidence submitted with the application or petition establishes eligibility, USCIS will approve the application or petition, except that in any case in which the applicable statute or regulation makes the approval of a petition or application a matter entrusted to USCIS discretion, USCIS will approve the petition or application only if the evidence of record establishes both eligibility and that the petitioner or applicant warrants a favorable exercise of discretion. If the record evidence establishes ineligibility, the application or petition will be denied on that basis. <P>(ii) <E T='03'>Initial evidence.</E> If all required initial evidence is not submitted with the application or petition or does not demonstrate eligibility, USCIS in its discretion may deny the application or petition for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS. <P>(iii) <E T='03'>Other evidence.</E> If all required initial evidence has been submitted but the evidence submitted does not establish eligibility, USCIS may: deny the application or petition for ineligibility; request more information or evidence from the applicant or petitioner, to be submitted within a specified period of time as determined by USCIS; or notify the applicant or petitioner of its intent to deny the application or petition and the basis for the proposed denial, and require that the applicant or petitioner submit a response within a specified period of time as determined by USCIS. <PRTPAGE P='40'><P>(iv) <E T='03'>Process.</E> A request for evidence or notice of intent to deny will be in writing and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twelve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted. <P>(9) <E T='03'>Request for appearance.</E> An applicant, a petitioner, a sponsor, a beneficiary, or other individual residing in the United States at the time of filing an application or petition may be required to appear for fingerprinting or for an interview. A petitioner shall also be notified when a fingerprinting notice or an interview notice is mailed or issued to a beneficiary, sponsor, or other individual. The applicant, petitioner, sponsor, beneficiary, or other individual may appear as requested by USCIS, or prior to the dates and times for fingerprinting or of the date and time of interview: <P>(i) The individual to be fingerprinted or interviewed may, for good cause, request that the fingerprinting or interview be rescheduled; or <P>(ii) The applicant or petitioner may withdraw the application or petition. <P>(10) <E T='03'>Effect of a request for initial or additional evidence for fingerprinting or interview rescheduling</E>—(i) <E T='03'>Effect on processing.</E> The priority date of a properly filed petition shall not be affected by a request for missing initial evidence or request for other evidence. If an application or petition is missing required initial evidence, or an applicant, petitioner, sponsor, beneficiary, or other individual who requires fingerprinting requests that the fingerprinting appointment or interview be rescheduled, any time period imposed on USCIS processing will start over from the date of receipt of the required initial evidence or request for fingerprint or interview rescheduling. If USCIS requests that the applicant or petitioner submit additional evidence or respond to other than a request for initial evidence, any time limitation imposed on USCIS for processing will be suspended as of the date of request. It will resume at the same point where it stopped when USCIS receives the requested evidence or response, or a request for a decision based on the evidence. <P>(ii) <E T='03'>Effect on interim benefits.</E> Interim benefits will not be granted based on an application or petition held in suspense for the submission of requested initial evidence, except that the applicant or beneficiary will normally be allowed to remain while an application or petition to extend or obtain status while in the United States is pending. The USCIS may choose to pursue other actions to seek removal of a person notwithstanding the pending application. Employment authorization previously accorded based on the same status and employment as that requested in the current application or petition may continue uninterrupted as provided in 8 CFR 274a.12(b)(20) during the suspense period. <P>(11) <E T='03'>Responding to a request for evidence or notice of intent to deny.</E> In response to a request for evidence or a notice of intent to deny, and within the period afforded for a response, the applicant or petitioner may: submit a complete response containing all requested information at any time within the period afforded; submit a partial response and ask for a decision based on the record; or withdraw the application or petition. All requested materials must be submitted together at one time, along with the original USCIS request for evidence or notice of intent to deny. Submission of only some of the requested evidence will be considered a request for a decision on the record. <P>(12) <E T='03'>Effect where evidence submitted in response to a request does not establish eligibility at the time of filing.</E> An application or petition shall be denied where evidence submitted in response to a request for evidence does not establish filing eligibility at the time the application or petition was filed. An application or petition shall be denied where <PRTPAGE P='41'>any application or petition upon which it was based was filed subsequently. <P>(13) <E T='03'>Effect of failure to respond to a request for evidence or a notice of intent to deny or to appear for interview or biometrics capture</E>—(i) <E T='03'>Failure to submit evidence or respond to a notice of intent to deny.</E> If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the application or petition may be summarily denied as abandoned, denied based on the record, or denied for both reasons. If other requested material necessary to the processing and approval of a case, such as photographs, are not submitted by the required date, the application may be summarily denied as abandoned. <P>(ii) <E T='03'>Failure to appear for biometrics capture, interview or other required in-person process.</E> Except as provided in 8 CFR 335.6, if USCIS requires an individual to appear for biometrics capture, an interview, or other required in-person process but the person does not appear, the application or petition shall be considered abandoned and denied unless by the appointment time USCIS has received a change of address or rescheduling request that the agency concludes warrants excusing the failure to appear. <P>(14) <E T='03'>Effect of request for decision.</E> Where an applicant or petitioner does not submit all requested additional evidence and requests a decision based on the evidence already submitted, a decision shall be issued based on the record. Failure to submit requested evidence which precludes a material line of inquiry shall be grounds for denying the application or petition. Failure to appear for required fingerprinting or for a required interview, or to give required testimony, shall result in the denial of the related application or petition. <P>(15) <E T='03'>Effect of withdrawal or denial due to abandonment.</E> The USCIS acknowledgement of a withdrawal may not be appealed. A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen under §&thnsp;103.5. Withdrawal or denial due to abandonment does not preclude the filing of a new application or petition with a new fee. However, the priority or processing date of a withdrawn or abandoned application or petition may not be applied to a later application petition. Withdrawal or denial due to abandonment shall not itself affect the new proceeding; but the facts and circumstances surrounding the prior application or petition shall otherwise be material to the new application or petition. <P>(16) <E T='03'>Inspection of evidence.</E> 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. <P>(i) <E T='03'>Derogatory information unknown to petitioner or applicant.</E> If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered, except as provided in paragraphs (b)(16)(ii), (iii), and (iv) of this section. Any explanation, rebuttal, or information presented by or in behalf of the applicant or petitioner shall be included in the record of proceeding. <P>(ii) <E T='03'>Determination of statutory eligibility.</E> A determination of statutory eligibility shall be based only on information contained in the record of proceeding which is disclosed to the applicant or petitioner, except as provided in paragraph (b)(16)(iv) of this section. <P>(iii) <E T='03'>Discretionary determination.</E> Where an application may be granted or denied in the exercise of discretion, the decision to exercise discretion favorably or unfavorably may be based in whole or in part on classified information not contained in the record and not made available to the applicant, provided the USCIS Director or his or her designee has determined that such information is relevant and is classified under Executive Order No. 12356 (47 FR 14874; April 6, 1982) as requiring protection from unauthorized disclosure in the interest of national security. <P>(iv) <E T='03'>Classified information.</E> 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. <PRTPAGE P='42'>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 USCIS Director or his or her designee should direct that the applicant or petitioner be given notice of the general nature of the information and an opportunity to offer opposing evidence. The USCIS Director's or his or her designee's authorization to use such classified information shall be made a part of the record. A decision based in whole or in part on such classified information shall state that the information is material to the decision. <P>(17) <E T='03'>Verifying claimed permanent resident status</E>—(i) <E T='03'>Department records</E>. The status of an applicant or petitioner who claims that he or she is a permanent resident of the United States or was formerly a permanent resident of the United States will be verified from official Department records. These records include alien and other files, arrival manifests, arrival records, Department index cards, Immigrant Identification Cards, Certificates of Registry, Declarations of Intention issued after July 1, 1929, Permanent Resident Cards (Form I–551), Alien Registration Receipt Cards (Form I–151), other registration receipt forms (Forms AR–3, AR–3a, and AR–103, provided that such forms were issued or endorsed to show admission for permanent residence), passports, and reentry permits. An official record of a Department index card must bear a designated immigrant visa symbol and must have been prepared by an authorized official of the Department in the course of processing immigrant admissions or adjustments to permanent resident status. Other cards, certificates, declarations, permits, and passports must have been issued or endorsed to show admission for permanent residence. Except as otherwise provided in 8 CFR part 101, and in the absence of countervailing evidence, such official records will be regarded as establishing lawful admission for permanent residence. <P>(ii) <E T='03'>Assisting self-petitioners who are spousal-abuse victims.</E> If a self-petitioner filing a petition under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present primary or secondary evidence of the abuser's status, USCIS will attempt to electronically verify the abuser's citizenship or immigration status from information contained in the Department's automated or computerized records. Other Department records may also be reviewed at the discretion of the adjudicating officer. If USCIS is unable to identify a record as relating to the abuser, or the record does not establish the abuser's immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner. <P>(18) <E T='03'>Withholding adjudication.</E> 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 <PRTPAGE P='43'>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. <P>(19) <E T='03'>Notification.</E> An applicant or petitioner shall be sent a written decision on his or her application, petition, motion, or appeal. Where the applicant or petitioner has authorized representation pursuant to §&thnsp;103.2(a), that representative shall also be notified. Documents produced after an approval notice is sent, such as an alien registration card, shall be mailed directly to the applicant or petitioner. <P>(c)–(d)[Reserved] <P>(e) <E T='03'>Fingerprinting</E>—(1) <E T='03'>General.</E> USCIS regulations in this chapter, including the instructions to benefit applications and petitions, require certain applicants, petitioners, beneficiaries, sponsors, and other individuals to be fingerprinted on Form FD–258, Applicant Card, for the purpose of conducting criminal background checks. On and after December 3, 1997, USCIS will accept Form FD–258, Applicant Card, only if prepared by a USCIS office, a registered State or local law enforcement agency designated by a cooperative agreement with USCIS to provide fingerprinting services (DLEA), a United States consular office at United States embassies and consulates, or a United States military installation abroad. <P>(2) <E T='03'>Fingerprinting individuals residing in the United States.</E> Beginning on December 3, 1997, for naturalization applications, and on March 29, 1998, for all other applications and petitions, applications and petitions for immigration benefits shall be filed as prescribed in this chapter, without completed Form FD–258, Applicant Card. After the filing of an application or petion, USCIS will issue a notice to all individuals who require fingerprinting and who are residing in the United States, as defined in section 101(a)(38) of the Act, and request their appearance for fingerprinting at a USCIS office or other location designated by USCIS, to complete Form FD–258, Applicant Card, as prescribed in paragraph (b)(9) of this section. <P>(3) <E T='03'>Fingerprinting individuals residing abroad.</E> Individuals who require fingerprinting and whose place of residence is outside of the United States, must submit a properly completed Form FD–258, Applicant Card, at the time of filing the application or petition for immigration benefits. In the case of individuals who reside abroad, a properly completed Form FD–258, Applicant Card, is one prepared by USCIS, a United States consular office at a United States embassy or consulate or a United States military installation abroad. If an individual who requires fingerprinting and is residing abroad fails to submit a properly completed Form FD–258, Applicant Card, at the time of filing an application or petition, USCIS will issue a notice to the individual requesting submission of a properly completed Form FD–258, Applicant Card. The applicant or petitioner will also be notified of the request for submission of a properly completed Form FD–258, Applicant Card. Failure to submit a properly completed Form FD–258, Applicant Card, in response to such a request within the time allotted in the notice will result in denial of the application or petition for failure to submit a properly completed Form FD–258, Applicant Card. There is no appeal from denial of an application or petition for failure to submit a properly completed Form FD–258, Applicant Card. A motion to re-open an application or petition denied for failure to submit a properly completed Form FD–258, Applicant Card, will be granted only on proof that: <P>(i) A properly completed Form FD–258, Applicant Card, was submitted at the time of filing the application or petition; <P>(ii) A properly completed Form FD–258, Applicant Card, was submitted in response to the notice within the time allotted in the notice; or <P>(iii) The notice was sent to an address other than the address on the application or petition, or the notice of representation, or that the applicant or petitioner notified USCIS, in writing, of a change of address or change of representation subsequent to filing and <PRTPAGE P='44'>before the notice was sent and USCIS notice was not sent to the new address. <P>(4) <E T='03'>Submission of service fee for fingerprinting</E>—(i) <E T='03'>General.</E> The USCIS will charge a fee, as prescribed in §&thnsp;103.7(b)(1), for fingerprinting at a USCIS office or a registered State or local law enforcement agency designated by a cooperative agreement with the USCIS to provide fingerprinting services. Applications and petitions for immigration benefits shall be submitted with the service fee for fingerprinting for all individuals who require fingerprinting and who reside in the United States at the time of filing the application or petition. <P>(ii) <E T='03'>Exemptions</E>—(A) <E T='03'>Individual residing abroad.</E> Individuals who require fingerprinting and who reside outside of the United States at the time of filing an application or petition for immigration benefits are exempt from the requirement to submit the service fee for fingerprinting with the application or petition for immigration benefits. <P>(B) <E T='03'>Asylum applicants.</E> Asylum applicants are exempt from the requirement to submit the service fee for fingerprinting with the application for asylum. <P>(iii) <E T='03'>Insufficient service fee for fingerprinting; incorrect fees.</E> Applications and petitions for immigration benefits received by USCIS without the correct service fee for fingerprinting will not be rejected as improperly filed, pursuant to paragraph (a)(7)(i) of this section. However, the application or petition will not continue processing and USCIS will not issue a notice requesting appearance for fingerprinting to the individuals who require fingerprinting until the correct service fee for fingerprinting has been submitted. The USCIS will notify the remitter of the filing fee for the application or petition of the additional amount required for the fingerprinting service fee and request submission of the correct fee. The USCIS will also notify the applicant or petitioner, and, when appropriate, the applicant or petitioner's representative, as defined in paragraph (a)(3) of this section, of the deficiency. Failure to submit the correct fee for fingerprinting in response to a notice of deficiency within the time allotted in the notice will result in denial of the application or petition for failure to submit the correct service fee for fingerprinting. There is no appeal from the denial of an application or petition for failure to submit the correct service fee for fingerprinting. A motion to re-open an application or petition denied for failure to submit the correct service fee for fingerprinting will be granted only on proof that: <P>(A) The correct service fee for fingerprinting was submitted at the time of filing the application or petition; <P>(B) The correct service fee for fingerprinting was submitted in response to the notice of deficiency within the time allotted in the notice; or <P>(C) The notice of deficiency was sent to an address other than the address on the application or petition, or the notice of representation, or that the applicant or petitioner notified USCIS, in writing, of a change of address or change of representation subsequent to filing and before the notice of deficiency was sent and USCIS notice of deficiency was not sent to the new address. <P>(iv) <E T='03'>Non-payment of service fee for fingerprinting.</E> If a check or other financial instrument used to pay a service fee for fingerprinting is subsequently returned as not payable, the remitter shall be notified and requested to pay the correct service fee for fingerprinting and any associated service charges within 14 calendar days. The USCIS will also notify the applicant or petitioner and, when appropriate, the applicant or petitioner's representative as defined in paragraph (a)(3) of this section, of the non-payment and request to pay. If the correct service fee for fingerprinting and associated service charges are not paid within 14 calendar days, the application or petition will be denied for failure to submit the correct service fee for fingerprinting. <P>(f) <E T='03'>Requests for Premium Processing Service</E>—(1) <E T='03'>Filing information.</E> A petitioner or applicant requesting Premium Processing Service shall submit Form I–907 with the appropriate fee to the Director of the service center having jurisdiction over the application or petition. Premium Processing Service <PRTPAGE P='45'>guarantees 15 calendar day processing of certain employment-based petitions and applications. The 15 calendar day processing period begins when USCIS receives Form I–907, with the fee, at the designated address contained in the instructions to the form. USCIS will refund the fee for Premium Processing Service, but continue to process the case, unless within 15 calendar days of receiving the application or petition and Form I–907, USCIS issues and serves on the petitioner or applicant an approval notice, a denial notice, a notice of intent to deny, a request for evidence, or opens an investigation relating to the application or petition for fraud or misrepresentation. <P>(2) <E T='03'>Applications and petitions eligible for Premium Processing Service.</E> USCIS will designate and terminate petitions and applications and classifications within such petitions and applications as eligible for Premium Processing Service by publication of notices in the <E T='04'>Federal Register.</E> USCIS will announce by its Web site at <E T='03'>http://www.uscis.gov</E> the dates upon which the availability of Premium Processing Service begins and ends for a designated petition or application and any designated classifications within a designated petition or application, and applicable conditions of availability. <P>(3) <E T='03'>Fees for Premium Processing Services.</E> The fee for Premium Processing Service may not be waived. The fee for Premium Processing Service is in addition to all other filing fees for the application or petition as provided for in §&thnsp;103.7. A separate remittance must be submitted for the filing fee for Form I–907. If USCIS fails to process a petition or application with the 15 calendar day period, the fee for Premium Processing Services will be automatically refunded to the petitioner or applicant, and USCIS will continue to process the application/petition on the premium processing track. <P>(4) <E T='03'>Temporary termination of Premium Processing Service.</E> The USCIS may designate as eligible for Premium Processing Service certain petitions or applications filed on behalf of nonimmigrant aliens that are subject to annual numerical limitations. In order to ensure equitable access to these limited visa programs, USCIS may temporarily terminate the availability of Premium Processing Service for certain petitions or applications. The USCIS will announce a temporary termination by publication of a notice in the <E T='04'>Federal Register.</E> Upon temporary termination of a classification the petition or application will not be rejected. Instead, the petition or application will be moved into the pool of normal processing cases and only the Form I–907 will be rejected and the Fee for Form I–907 will be returned to the applicant or petitioner. <CITA>[29 FR 11956, Aug. 21, 1964] <EDNOTE><HED>Editorial Note:<P>For <E T='04'>Federal Register</E> citations affecting §&thnsp;103.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.</EDNOTE> <EDNOTE><HED>Editorial Note:<P>At 72 FR 19106, Apr. 17, 2007, §&thnsp;103.2 (d)(2) was amended by revising the terms “the Service” or “Service” to read “USCIS”; however, the amendment could not be incorporated because paragraph (d)(2) was removed and reserved.</EDNOTE> <SECTION> <SECTNO>§&thnsp;103.3 <SUBJECT>Denials, appeals, and precedent decisions. <P>(a) <E T='03'>Denials and appeals</E>—(1) <E T='03'>General</E>—(i) <E T='03'>Denial of application or petition.</E> When a Service officer denies an application or petition filed under §&thnsp;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. <P>(ii) <E T='03'>Appealable decisions.</E> 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 §&thnsp;3.1(b) of this chapter. Decisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in §&thnsp;103.1(f)(2) of this part. <P>(iii) <E T='03'>Appeal</E>—(A) <E T='03'>Jurisdiction.</E> When an unfavorable decision may be appealed, the official making the decision shall state the appellate jurisdiction and shall furnish the appropriate appeal form. <P>(B) <E T='03'>Meaning of affected party.</E> For purposes of this section and §§&thnsp;103.4 and <PRTPAGE P='46'>103.5 of this part, <E T='03'>affected party</E> (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. <P>(C) <E T='03'>Record of proceeding.</E> An appeal and any cross-appeal or briefs become part of the record of proceeding. <P>(D) <E T='03'>Appeal filed by Service officer in case within jurisdiction of Board.</E> If an appeal is filed by a Service officer, a copy must be served on the affected party. <P>(iv) <E T='03'>Function of Administrative Appeals Unit (AAU).</E> The AAU is the appellate body which considers cases under the appellate jurisdiction of the Associate Commissioner, Examinations. <P>(v) <E T='03'>Summary dismissal.</E> 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 §&thnsp;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. <P>(2) <E T='03'>AAU appeals in other than special agricultural worker and legalization cases</E>—(i) <E T='03'>Filing appeal.</E> 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 §&thnsp;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. <P>(ii) <E T='03'>Reviewing official.</E> 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. <P>(iii) <E T='03'>Favorable action instead of forwarding appeal to AAU.</E> 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 §&thnsp;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. <P>(iv) <E T='03'>Forwarding appeal to AAU.</E> 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. <P>(v) <E T='03'>Improperly filed appeal</E>—(A) <E T='03'>Appeal filed by person or entity not entitled to file it</E>—(<E T='03'>1</E>) <E T='03'>Rejection without refund of filing fee.</E> 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. <P>(<E T='03'>2</E>) <E T='03'>Appeal by attorney or representative without proper Form G–28</E>—(<E T='03'>i</E>) <E T='03'>General.</E> 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. <P>(<E T='03'>ii</E>) <E T='03'>When favorable action warranted.</E> 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 §&thnsp;103.5(a)(5)(i) of this part, make a new decision favorable to the affected party without notifying the attorney or representative. <P>(<E T='03'>iii</E>) <E T='03'>When favorable action not warranted.</E> If the reviewing official decides favorable action is not warranted with respect to an otherwise properly filed <PRTPAGE P='47'>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. <P>(B) <E T='03'>Untimely appeal</E>—(<E T='03'>1</E>) <E T='03'>Rejection without refund of filing fee.</E> 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. <P>(<E T='03'>2</E>) <E T='03'>Untimely appeal treated as motion.</E> If an untimely appeal meets the requirements of a motion to reopen as described in §&thnsp;103.5(a)(2) of this part or a motion to reconsider as described in §&thnsp;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. <P>(vi) <E T='03'>Brief.</E> The affected party may submit a brief with Form I–290B. <P>(vii) <E T='03'>Additional time to submit a brief.</E> 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. <P>(viii) <E T='03'>Where to submit supporting brief if additional time is granted.</E> If the AAU grants additional time, the affected party shall submit the brief directly to the AAU. <P>(ix) <E T='03'>Withdrawal of appeal.</E> The affected party may withdraw the appeal, in writing, before a decision is made. <P>(x) <E T='03'>Decision on appeal.</E> 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. <P>(3) <E T='03'>Denials and appeals of special agricultural worker and legalization applications and termination of lawful temporary resident status under sections 210 and 245A.</E> (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. <P>(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. <P>(iii) Upon receipt of an appeal, the administrative record will be forwarded to the Administrative Appeals Unit as provided by §&thnsp;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. <P>(iv) Any appeal which is filed that: <P>(A) Fails to state the reason for appeal; <P>(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 <P>(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. <P>(4) <E T='03'>Denials and appeal of Replenishment Agricultural Worker petitions and waivers and termination of lawful temporary resident status under section 210A.</E> (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. <PRTPAGE P='48'>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. <P>(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. <P>(iii) Upon receipt of an appeal, the administrative record will be forwarded to the Administrative Appeals Unit as provided by §&thnsp;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. <P>(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. <P>(b) <E T='03'>Oral argument regarding appeal before AAU</E>—(1) <E T='03'>Request.</E> 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. <P>(2) <E T='03'>Decision about oral argument.</E> 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. <P>(c) <E T='03'>Service precedent decisions.</E> The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, may file with the Attorney General decisions relating to the administration of the immigration laws of the United States for publication as precedent in future proceedings, and upon approval of the Attorney General as to the lawfulness of such decision, the Director of the Executive Office for Immigration Review shall cause such decisions to be published in the same manner as decisions of the Board and the Attorney General. In addition to Attorney General and Board decisions referred to in §&thnsp;1003.1(g) of chapter V, designated Service decisions are to serve as precedents in all proceedings involving the same issue(s). Except as these decisions may be modified or overruled by later precedent decisions, they are binding on all Service employees in the administration of the Act. Precedent decisions must be published and made available to the public as described in §&thnsp;103.9(a) of this part. <CITA>[31 FR 3062, Feb. 24, 1966, as amended at 37 FR 927, Jan. 21, 1972; 48 FR 36441, Aug. 11, 1983; 49 FR 7355, Feb. 29, 1984; 52 FR 16192, May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR 20769, 20775, May 21, 1990; 55 FR 23345, June 7, 1990; 57 FR 11573, Apr. 6, 1992; 68 FR 9832, Feb. 28, 2003] <SECTION> <SECTNO>§&thnsp;103.4 <SUBJECT>Certifications. <P>(a) <E T='03'>Certification of other than special agricultural worker and legalization cases</E>—(1) <E T='03'>General.</E> 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. <PRTPAGE P='49'><P>(2) <E T='03'>Notice to affected party.</E> 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. <P>(3) <E T='03'>Favorable action.</E> 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. <P>(4) <E T='03'>Initial decision.</E> 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. <P>(5) <E T='03'>Certification to AAU.</E> A case described in paragraph (a)(4) of this section may be certified to the AAU. <P>(6) <E T='03'>Appeal to Board.</E> 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 §&thnsp;3.1(b) of this chapter. <P>(7) <E T='03'>Other applicable provisions.</E> The provisions of §&thnsp;103.3(a)(2)(x) of this part also apply to decisions on certified cases. The provisions of §&thnsp;103.3(b) of this part also apply to requests for oral argument regarding certified cases considered by the AAU. <P>(b) <E T='03'>Certification of denials of special agricultural worker and legalization applications.</E> 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 §&thnsp;103.1(f)(2)) of this part, when the case involves an unusually complex or novel question of law or fact. <CITA>[52 FR 661, Jan. 8, 1987, as amended at 53 FR 43985, Oct. 31, 1988; 55 FR 20770, May 21, 1990] <SECTION> <SECTNO>§&thnsp;103.5 <SUBJECT>Reopening or reconsideration. <P>(a) <E T='03'>Motions to reopen or reconsider in other than special agricultural worker and legalization cases</E>—(1) <E T='03'>When filed by affected party</E>—(i) <E T='03'>General.</E> Except where the Board has jurisdiction and as otherwise provided in 8 CFR parts 3, 210, 242 and 245a, when the affected party files a motion, the official having jurisdiction may, for proper cause shown, reopen the proceeding or reconsider the prior decision. Motions to reopen or reconsider are not applicable to proceedings described in §&thnsp;274a.9 of this chapter. Any motion to reconsider an action by the Service filed by an applicant or petitioner must be filed within 30 days of the decision that the motion seeks to reconsider. Any motion to reopen a proceeding before the Service filed by an applicant or petitioner, must be filed within 30 days of the decision that the motion seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of the Service where it is demonstrated that the delay was reasonable and was beyond the control of the applicant or petitioner. <P>(ii) <E T='03'>Jurisdiction.</E> 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. <P>(iii) <E T='03'>Filing Requirements</E>—A motion shall be submitted on Form I–290B and may be accompanied by a brief. It must be: <P>(A) In writing and signed by the affected party or the attorney or representative of record, if any; <P>(B) Accompanied by a nonrefundable fee as set forth in §&thnsp;103.7; <P>(C) Accompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or result of the proceeding; <P>(D) Addressed to the official having jurisdiction; and <P>(E) Submitted to the office maintaining the record upon which the unfavorable decision was made for forwarding to the official having jurisdiction. <P>(iv) <E T='03'>Effect of motion or subsequent application or petition.</E> Unless the Service directs otherwise, the filing of a motion to reopen or reconsider or of a subsequent application or petition does <PRTPAGE P='50'>not stay the execution of any decision in a case or extend a previously set departure date. <P>(2) <E T='03'>Requirements for motion to reopen.</E> A motion to reopen must state the new facts to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence. A motion to reopen an application or petition denied due to abandonment must be filed with evidence that the decision was in error because: <P>(i) The requested evidence was not material to the issue of eligibility; <P>(ii) The required initial evidence was submitted with the application or petition, or the request for initial evidence or additional information or appearance was complied with during the allotted period; or <P>(iii) The request for additional information or appearance was sent to an address other than that on the application, petition, or notice of representation, or that the applicant or petitioner advised the Service, in writing, of a change of address or change of representation subsequent to filing and before the Service's request was sent, and the request did not go to the new address. <P>(3) <E T='03'>Requirements for motion to reconsider.</E> A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. <P>(4) <E T='03'>Processing motions in proceedings before the Service.</E> A motion that does not meet applicable requirements shall be dismissed. Where a motion to reopen is granted, the proceeding shall be reopened. The notice and any favorable decision may be combined. <P>(5) <E T='03'>Motion by Service officer</E>—(i) <E T='03'>Service motion with decision favorable to affected party.</E> 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. <P>(ii) <E T='03'>Service motion with decision that may be unfavorable to affected party.</E> 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. <P>(6) <E T='03'>Appeal to AAU from Service decision made as a result of a motion.</E> 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. <P>(7) <E T='03'>Other applicable provisions.</E> The provisions of §&thnsp;103.3(a)(2)(x) of this part also apply to decisions on motions. The provisions of §&thnsp;103.3(b) of this part also apply to requests for oral argument regarding motions considered by the AAU. <P>(8) <E T='03'>Treating an appeal as a motion.</E> The official who denied an application or petition may treat the appeal from that decision as a motion for the purpose of granting the motion. <P>(b) <E T='03'>Motions to reopen or reconsider denials of special agricultural worker and legalization applications.</E> 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 <E T='03'>sua sponte</E> 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 <E T='03'>sua sponte</E> reopen any proceeding conducted by that Unit under part 210 or 245a of this chapter and reconsider <PRTPAGE P='51'>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. <P>(c) <E T='03'>Motions to reopen or reconsider decisions on replenishment agricultural worker petitions.</E> (1) The director of a regional processing facility may <E T='03'>sua sponte</E> 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. <P>(2) The Associate Commissioner, Examinations or the Chief of the Administrative Appeals Unit may <E T='03'>sua sponte</E> reopen any proceeding conducted by that unit under part 210a of this title and reconsider any decision rendered in such proceeding. <P>(3) Motions to reopen a proceeding or reconsider a decision under part 210a of this title shall not be considered. <CITA>[27 FR 7562, Aug. 1, 1962, as amended at 30 FR 12772, Oct. 7, 1965; 32 FR 271, Jan. 11, 1967; 52 FR 16193, May 1, 1987; 54 FR 29881, July 17, 1989; 55 FR 20770, 20775, May 21, 1990; 55 FR 25931, June 25, 1990; 56 FR 41782, Aug. 23, 1991; 59 FR 1463, Jan. 11, 1994; 61 FR 18909, Apr. 29, 1996; 62 FR 10336, Mar. 6, 1997; 70 FR 50957, Aug. 29, 2005] <SECTION> <SECTNO>§&thnsp;103.5a <SUBJECT>Service of notification, decisions, and other papers by the Service. <P>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. <P>(a) <E T='03'>Definitions</E>—(1) <E T='03'>Routine service.</E> Routine service consists of mailing a copy by ordinary mail addressed to a person at his last known address. <P>(2) <E T='03'>Personal service.</E> Personal service, which shall be performed by a Government employee, consists of any of the following, without priority or preference: <P>(i) Delivery of a copy personally; <P>(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; <P>(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; <P>(iv) Mailing a copy by certified or registered mail, return receipt requested, addressed to a person at his last known address. <P>(3) <E T='03'>Personal service involving notices of intention to fine.</E> In addition to any of the methods of personal service listed in paragraph (a)(2) of this section, personal service of Form I–79, Notice of Intention to Fine, may also consist of delivery of the Form I–79 by a commercial delivery service at the carrier's address on file with the National Fines Office, the address listed on the Form I–849, Record for Notice of Intent to Fine, or to the office of the attorney or agent representing the carrier, provided that such a commercial delivery service requires the addressee or other responsible party accepting the package to sign for the package upon receipt. <P>(b) <E T='03'>Effect of service by mail.</E> 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. <P>(c) <E T='03'>When personal service required</E>—(1) <E T='03'>Generally.</E> In any proceeding which is initiated by the Service, with proposed adverse effect, service of the initiating notice and of notice of any decision by a Service officer shall be accomplished by personal service, except as provided in section 239 of the Act. <P>(2) <E T='03'>Persons confined, minors, and incompetents</E>—(i) <E T='03'>Persons confined.</E> 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 <PRTPAGE P='52'>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. <P>(ii) <E T='03'>Incompetents and minors.</E> 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. <P>(d) <E T='03'>When personal service not required.</E> 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. <CITA>[37 FR 11470, June 8, 1972, as amended at 39 FR 23247, June 27, 1974; 62 FR 10336, Mar. 6, 1997; 64 FR 17944, Apr. 13, 1999] <SECTION> <SECTNO>§&thnsp;103.5b <SUBJECT>Application for further action on an approved application or petition. <P>(a) <E T='03'>General.</E> An application for further action on an approved application or petition must be filed on Form I–824 by the applicant or petitioner who filed the original application or petition. It must be filed with the fee required in §&thnsp;103.7 and the initial evidence required on the application form. Form I–824 may accompany the original application or petition, or may be filed after the approval of the original application or petition. <P>(b) <E T='03'>Requested actions.</E> A person whose application was approved may, during its validity period, apply for a duplicate approval notice or any other action specifically provided for on the form. A petitioner whose petition was approved may, during the validity of the petition, request that the Service: <P>(1) Issue a duplicate approval notice; <P>(2) Notify another consulate of the approved petition; <P>(3) Notify a consulate of the person's adjustment of status for the purpose of visa issuance to dependents; or <P>(4) Take any other action specifically provided for on the form. <P>(c) <E T='03'>Processing.</E> The application shall be approved if the Service determines the applicant has fully demonstrated eligibility for the requested action. There is no appeal from the denial of an application filed on Form I–824. <CITA>[59 FR 1463, Jan. 11, 1994] <SECTION> <SECTNO>§&thnsp;103.6 <SUBJECT>Surety bonds. <P>(a) <E T='03'>Posting of surety bonds</E>—(1) <E T='03'>Extension agreements; consent of surety; collateral security.</E> All surety bonds posted in immigration cases shall be executed on Form I–352, Immigration Bond, a copy of which, and any rider attached thereto, shall be furnished the obligor. A district director is authorized to approve a bond, a formal agreement to extension of liability of surety, a request for delivery of collateral security to a duly appointed and undischarged administrator or executor of the estate of a deceased depositor, and a power of attorney executed on Form I–312, Designation of Attorney in Fact. All other matters relating to bonds, including a power of attorney not executed on Form I–312 and a request for delivery of collateral security to other than the depositor or his or her approved attorney in fact, shall be forwarded to the regional director for approval. <P>(2) <E T='03'>Bond riders</E>—(i) <E T='03'>General.</E> Bond riders shall be prepared on Form I–351, Bond Riders, and attached to Form I–352. If a condition to be included in a bond is not on Form I–351, a rider containing the condition shall be executed. <P>(ii) [Reserved] <P>(b) <E T='03'>Acceptable sureties.</E> 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. <P>(c) <E T='03'>Cancellation</E>—(1) <E T='03'>Public charge bonds.</E> 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, <PRTPAGE P='53'>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. <P>(2) <E T='03'>Maintenance of status and departure bonds.</E> 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 <E T='03'>lawful temporary status</E> 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. <P>(3) <E T='03'>Substantial performance.</E> Substantial performance of all conditions imposed by the terms of a bond shall release the obligor from liability. <P>(d) <E T='03'>Bond schedules</E>—(1) <E T='03'>Blanketbonds for departure of visitors and transits.</E> 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: <EXTRACT><HD2>Aliens <FP-1>1 to 4—$500 each. <FP-1>5 to 9—$2,500 total bond. <FP-1>10 to 24—$3,500 total bond. <FP-1>25 to 49—$5,000 total bond. <FP-1>50 to 74—$6,000 total bond. <FP-1>75 to 99—$7,000 total bond. <FP-1>100 to 124—$8,000 total bond. <FP-1>125 to 149—$9,000 total bond. <FP-1>150 to 199—$10,000 total bond. <FP-1>200 or more—$10,000 plus $50 for each alien over 200.</EXTRACT> <Q P='04'> <P>(2) <E T='03'>Blanket bonds for importation of workers classified as nonimmigrants under section 101(a)(15)(H).</E> 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: <Q P='04'> <EXTRACT><FP-1>Less than 500 workers—$15 <E T='03'>each</E> <FP-1>500 to 1,000 workers—$10 <E T='03'>each</E> <FP-1>1,000 or more workers—$5 <E T='03'>each</E></EXTRACT> <Q P='04'> <FP>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. <PRTPAGE P='54'><P>(e) <E T='03'>Breach of bond.</E> 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. <CITA>[31 FR 11713, Sept. 7, 1966, as amended at 32 FR 9622, July 4, 1967; 33 FR 5255, Apr. 2, 1968; 33 FR 10504, July 24, 1968; 34 FR 1008, Jan. 23, 1969; 34 FR 14760, Sept. 25, 1969; 39 FR 12334, Apr. 5, 1974; 40 FR 42852, Sept. 17, 1975; 48 FR 51144, Nov. 7, 1983; 49 FR 24011, June 11, 1984; 60 FR 21974, May 4, 1995; 62 FR 10336, Mar. 6, 1997] <SECTION> <SECTNO>§&thnsp;103.7 <SUBJECT>Fees. <P>(a) <E T='03'>Remittances.</E> (1) Fees shall be submitted with any formal application or petition prescribed in this chapter in the amount prescribed by law or regulation. Except for fees remitted directly to the Board of Immigration Appeals pursuant to the provisions of 8 CFR 1003.8, or as the Attorney General otherwise may provide by regulation, any fee relating to any Department of Justice Executive Office for Immigration Review proceeding shall be paid to, and accepted by, any BCIS office authorized to accept fees. The immigration court does not collect fees. Payment of any fee under this section does not constitute filing of the document with the Board of Immigration Appeals or with the Immigration Court. The Department of Homeland Security shall return to the payer, at the time of payment, a receipt for any fee paid. The BCIS shall also return to the payer any documents, submitted with the fee, relating to any Immigration Court proceeding. <P>(2) 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 to the Department of Homeland Security shall be made payable to the “Department of Homeland Security” 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 an application to the Department of Homeland Security 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 Department of Homeland Security. Remittances to the Board of Immigration Appeals shall be made payable to the “United States Department of Justice,” in accordance with 8 CFR 1003.8. A charge of $30.00 will be imposed if a check in payment of a fee or any other matter is not honored by the bank or financial institution on which it is drawn. A receipt issued by a Department of Homeland Security officer for any remittance shall not be binding upon the Department of Homeland Security if the remittance is found uncollectible. Furthermore, legal and statutory deadlines will not be deemed to have been met if payment is not made within 10 business days after notification by the Department of Homeland Security of the dishonored check. <P>(b) <E T='03'>Amounts of fees.</E> (1) The following fees and charges are prescribed: <Q P='04'> <EXTRACT><FP-1>For certification of true copies, each—$2.00 <FP-1>For attestation under seal—$2.00 <FP-1>For capturing biometric information (Biometric Fee). A service fee of $80 will be charged for any individual who is required to have biometric information captured in connection with an application or petition for certain immigration and naturalization benefits (other than asylum), and whose residence is in the United States; provided that: <E T='03'>Extension for intercountry adoptions:</E> If applicable, no biometric service fee is charged when a written request for an extension of the approval period is received by USCIS prior to the expiration date of approval indicated on the Form I–171H if a Form I–600 has not yet been submitted in connection with an approved Form I–600A. This extension without fee is limited to <PRTPAGE P='55'>one occasion. If the approval extension expires prior to submission of an associated Form I–600, then a complete application and fee must be submitted for a subsequent application. <FP-1>DCL System Costs Fee. For use of a Dedicated Commuter Lane (DCL) located at specific Ports of Entry of the United States by an approved participant in a designated vehicle—$80.00, with the maximum amount of $160.00 payable by a family (husband, wife, and minor children under 18 years-of-age). Payable following approval of the application but before use of the DCL by each participant. This fee is non-refundable, but may be waived by the district director. If a participant wishes to enroll more than one vehicle for use in the PORTPASS system, he or she will be assessed with an additional fee of—$42 for each additional vehicle enrolled. <FP-1>Form I–17. For filing a petition for school approval or recertification—$580 plus $350 per additional campus listed on Form I–17B. <FP-1>Form I–68. For application for issuance of the Canadian Border Boat Landing Permit under section 235 of the Act—$16.00. The maximum amount payable by a family (husband, wife, unmarried children under 21 years of age, parents of either husband or wife) shall be $32.00. <FP-1>Form I–90. For filing an application for a Permanent Resident Card (Form I–551) in lieu of an obsolete card or in lieu of one lost, mutilated, or destroyed, or for a change in name—$290. <FP-1>Form I–94. For issuance of Arrival/Departure Record at a land border Port-of-Entry—$6.00. <FP-1>Form I–94W. For issuance of Nonimmigrant Visa Waiver Arrival/Departure Form at a land border Port-of-Entry under section 217 of the Act—$6.00. <FP-1>Form I–102. For filing a petition for an 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—$320. <FP-1>Form I–129. For filing a petition for a nonimmigrant worker—$320. <FP-1>Form I–129F. For filing a petition to classify a nonimmigrant as a fiancée or fiancé under section 214(d) of the Act—$455; no fee for a K–3 spouse as designated in 8 CFR 214.1(a)(2) who is the beneficiary of an immigrant petition filed by a United States citizen on Form I–130. <FP-1>Form I–130. For filing a petition to classify status of an alien relative for issuance of an immigrant visa under section 204(a) of the Act—$355. <FP-1>Form I–131. For filing an application for travel document—$305. <FP-1>Form I–140. For filing a petition to classify preference status of an alien on the basis of profession or occupation under section 204(a) of the Act—$475. <FP-1>Form I–191. For filing an application for discretionary relief under section 212(c) of the Act—$545. <FP-1>Form I–192. For filing an application for discretionary relief under section 212(d)(3) of the Act, except in an emergency case, or where the approval of the application is in the interest of the United States Government—$545. <FP-1>Form I–193. For filing an application for waiver of passport and/or visa—$545. <FP-1>Form I–212. For filing an application for permission to reapply for an excluded, deported or removed alien, an alien who has fallen into distress, an alien who has been removed as an alien enemy, or an alien who has been removed at government expense in lieu of deportation—$545. <FP-1>Form I–246. For filing application for stay of deportation under part 243 of this chapter—$155.00 <FP-1>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—$585 (the fee will be the same when an appeal is taken from the denial of a petition with one or multiple beneficiaries, provided that they are all covered by the same petition, and therefore, the same decision). <E T='03'>Motions.</E> For filing a motion to reopen or reconsider any DHS decision in any type of proceeding over which the Executive Office for Immigration Review does not have jurisdiction. This fee shall be charged whenever a motion is filed to reopen or reconsider a single decision, whether it applies to one or multiple beneficiaries—$585. <FP-1>Form I–360. For filing a petition for an Amerasian, Widow(er), or Special Immigrant—$375, except there is no fee for a petition seeking classification as: An Amerasian; a self-petitioning battered or abused spouse, parent, or child of a United States citizen or lawful permanent resident; or a Special Immigrant—Juvenile. <FP-1>Form I–485. For filing an application for permanent resident status or creation of a record of lawful permanent residence—$930 for an applicant fourteen years of age or older; $600 for an applicant under the age of fourteen years when submitted concurrently for adjudication with the Form I–485 of a parent and the applicant is seeking to adjust status as a derivative of the parent, based on a relationship to the same individual who provides the basis for the parent's adjustment of status, or under the same legal authority as the parent; no fee for an applicant filing as a refugee under section 209(a) of the Act; provided that no additional fee will be charged for a request for travel document (advance parole) or employment authorization filed by an applicant who has paid the Form I–485 application fee, regardless of whether the Form <PRTPAGE P='56'>I–131 or Form I–765 is required to be filed by such applicant to receive these benefits. <FP-1>Supplment A to Form I–485. Supplement to Form I–485 for persons seeking to adjust status under the provisions of section 245(i) of the Act—$1000, except that payment of this additional sum is not required when the applicant is an unmarried child who is less than 17 years of age, or when the applicant is the spouse or the unmarried child less than 21 years of age of a legalized alien and is qualified for and has applied for voluntary departure under the family unity program. <FP-1>Form I–526. For filing a petition for an alien entrepreneur—$1,435. <FP-1>Form I–539. For filing an application to extend or change nonimmigrant status—$300. <FP-1>Form I–570. For filing application for issuance or extension of refugee travel document—$45.00 <FP-1>Form I–600. For filing a petition to classify an orphan as an immediate relative for issuance of an immigrant visa under section 204(a) of the Act. (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.)—$670. <FP-1>Form I–600A. For filing an application for advance processing of orphan petition. (When more than one petition is submitted by the same petitioner on behalf of orphans who are brothers or sisters, only one fee will be required.)—$670. No fee is charged if Form I–600 has not yet been submitted in connection with an approved Form I–600A if a written request from the applicant for an extension of the approval has been received by USCIS prior to the expiration date of approval indicated on the Form I–171H. This extension will require an update of the applicant's home study and a determination from USCIS that proper care will be provided to an adopted orphan. A no fee extension is limited to one occasion. If the Form I–600A approval extension expires prior to submission of an associated Form I–600, then a complete application and fee must be submitted for any subsequent application. <FP-1>Form I–601. For filing an application for waiver of ground of inadmissibility 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 sections 212(h) and (i).)—$545. <FP-1>Form I–612. For filing an application for waiver of the foreign-residence requirement under section 212(e) of the Act—$545. <FP-1>Form I–687. For filing an application for status as a temporary resident under section 245A(a) of the Act. A fee of $710 for each application is required at the time of filing with the Department of Homeland Security. <FP-1>Form I–690. For filing an application for waiver of a ground of inadmissibility under section 212(a) of the Act as amended, in conjunction with the application under sections 210 or 245A of the Act, or a petition under section 210A of the Act—$185. <FP-1>Form I–694. For appealing the denial of an applications under sections 210 or 245A of the Act, or a petition under section 210A of the Act—$545. <FP-1>Form I–695. For filing an application for replacement of temporary resident card (Form I–688)—$130. <FP-1>Form I–698. For filing an application for adjustment from temporary resident status to that of lawful permanent resident under section 245A(b)(1) of the Act. For applicants filing within thirty-one months from the date of adjustment to temporary resident status, a fee of $1,370 for each application is required at the time of filing with the Department of Homeland Security. 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 $1,410 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. <FP-1>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). <FP-1>Form I–751. For filing a petition to remove the conditions on residence, based on marriage—$465. <FP-1>Form I–765. For filing an application for employment authorization pursuant to 8 CFR 274a.13—$340. <FP-1>Form I–800. For filing a petition to classify a Convention adoptee as an immediate relative. <Q P='02'> <FP-1>—No fee for the first Form I–800 filed for a child on the basis of an approved Form I–800A, filed during the approval period. <FP-1>—If more than one Form I–800 is filed during the approval period for different children, the fee is $670 for the second and each subsequent Form I–800 submitted. <FP-1>—If the children are already siblings before the proposed adoption, however, only one filing fee of $670 is required, regardless of the sequence of submission of the Form I–800. <Q P='02'> <PRTPAGE P='57'><FP-1>Form I–800A. For filing an application for determination of suitability to adopt a child from a Convention country—$670. <P>For filing a Form I–800A, Supplement 3, Request for Action on Approved Form I–800A—$340, except that this filing fee is not charged if no Form I–800 has been filed based on the approval of the Form I–800A, and Form I–800A Supplement 3 is filed in order to obtain a first extension of the approval of the Form I–800A. * * * <FP-1>Form I–805. For filing a petition for status as a temporary resident under §&thnsp;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. <FP-1>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. <FP-1>Form I–817. For filing an application for voluntary departure under the Family Unity Program—$440. <FP-1>Form I–821. For filing an initial application for Temporary Protected Status under section 244 of the Act as amended by section 308(a)(7) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended by the Immigration Act of 1990, to be remitted in the form of a cashier's check, certified bank check, or money order. The exact amount of the fee, not to exceed fifty dollars ($50.00), will be determined at the time a foreign state is designated for Temporary Protected Status. <FP-1>Form I–823. For application to a PORTPASS program under section 286 of the Act—$25.00, with the maximum amount of $50.00 payable by a family (husband, wife, and minor children under 18 years of age). The application fee may be waived by the district director. If fingerprints are required, the inspector will inform the applicant of the current Federal Bureau of Investigation fee for conducting fingerprint checks prior to accepting the application fee. Both the application fee (if not waived) and the fingerprint fee must be paid to the Immigration and Naturalization Service before the application will be processed. The fingerprint fee may not be waived. For replacement of PORTPASS documentation during the participation period—$25.00. <FP-1>Form I–824. For filing for action on an approved application or petition—$340. <FP-1>Form I–829. For filing a petition by entrepreneur to remove conditions—$2,850. <FP-1>Form I–881. For filing an application for suspension of deportation or special rule cancellation of removal (pursuant to section 203 of Public Law 105–100): <Q P='02'> <FP-1>—$275 for adjudication by the Department of Homeland Security, except that the maximum amount payable by family members (related as husband, wife, unmarried child under 21, unmarried son, or unmarried daughter) who submit applications at the same time shall be $550. <FP-1>—$155 for adjudication by the Immigration Court (a single fee of $155 will be charged whenever applications are filed by two or more aliens in the same proceedings). The $155 fee is not required if the Form I–881 is referred to the Immigration Court by the Department of Homeland Security. <Q P='02'> <FP-1>Form I–901. For remittance of the SEVIS fee levied on certain F, J, and M nonimmigrant aliens—$100. For remittance of the SEVIS fee levied for J–1 au pairs, camp counselors, and participants in a summer work/travel program—$35. <FP-1>Form I–905. Application for authorization to issue certification for health care workers—$230. <FP-1>Form I–907. For filing a request for Premium Processing Service for certain employment based applications and petitions-$1,000. The fee for Premium Processing Service may not be waived. <FP-1>Form N–300. For filing an application for declaration of intention—$235. <FP-1>Form N–336. For filing a request for hearing on a decision in naturalization proceedings under section 336 of the Act—$605. <FP-1>Form N–400. For filing an application for naturalization (other than such application filed on or after October 1, 2004, by an applicant who meets the requirements of sections 328 or 329 of the Act with respect to military service, for which no fee is charged)—$595. <FP-1>Form N–410. For filing motion for amendment of petition for naturalization when motion is for the convenience of the petitioner—$50.00 <FP-1>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. <FP-1>Form N–470. For filing an application for benefits under section 316(b) or 317 of the Act—$305. <FP-1>Form N–565. For filing an 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(c) of the Act; or for a special certificate of naturalization to obtain recognition as a citizen of the United States by a foreign state under section 343(b) of the Act—$380. <PRTPAGE P='58'><FP-1>Form N–600. For filing an application for a certificate of citizenship under section 309(c) or section 341 of the Act—$460, for applications filed on behalf of a biological child and $420 for applications filed on behalf of an adopted child. <FP-1>Form N–600K. For filing an application for citizenship and issuance of certificate under section 322 of the Act—$460, for an application filed on behalf of a biological child and $420 for an application filed on behalf of an adopted child. <FP-1>Form N–644. For filing an application for posthumous citizenship—$80. <FP-1>Request. For special statistical tabulations a charge will be made to cover the cost of the work involved—Cost <FP-1>Request. For set of monthly, semiannual, or annual tables entitled “Passenger Travel Reports via Sea and Air”&thnsp;<SU>1</SU><FTREF>—$7.00 <FTNT><P><SU>1</SU>&thnsp;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 Square, Cambridge, MA 02142.</FTNT> <FP-1>Request. For classification of a citizen of Canada to be engaged in business activities at a professional level pursuant to section 214(e) of the Act (Chapter 16 of the North American Free Trade Agreement)—$50.00 <FP-1>Request. For requesting authorization for parole of an alien into the United States—$65.00.</EXTRACT> <Q P='04'> <P>(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 Homeland Security at 6 CFR 5.11. <P>(3) The fees prescribed in paragraph (b)(1) of this section shall be adjusted annually on or after October 1, 2005, by publication of an inflation adjustment. The inflation adjustment will be announced by notice in the <E T='04'>Federal Register,</E> and the adjustment shall be a composite of the Federal civilian pay raise assumption and non-pay inflation factor for that fiscal year issued by the Office of Management and Budget for agency use in implementing OMB Circular A–76, weighted by pay and non-pay proportions of total funding for that fiscal year. If Congress enacts a different Federal civilian pay raise percentage than the percentage issued by OMB for Circular A–76, the Department of Homeland Security may adjust the fees, during the current year or a following year to reflect the enacted level. The prescribed fee or charge shall be the amount prescribed in paragraph (b)(1) of this section, plus the latest inflation adjustment, rounded to the nearest $5 increment. <P>(4) For the schedule of fees relating to proceedings before the immigration judges and the Board of Immigration Appeals, <E T='03'>see</E> 8 CFR 1103.7. <P>(c) <E T='03'>Waiver of fees.</E> (1) Except as otherwise provided in this paragraph (c), any of the fees prescribed in paragraph (b) of this section relating to applications, petitions, appeals, motions, or requests may be waived by the Department of Homeland Security in any case under its 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 application, 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 Department of Homeland Security having jurisdiction to render a decision on the application, petition, appeal, motion, or request may, in his or her discretion, grant the waiver of fee. Fees for “Passenger Travel Reports via Sea and Air” and for special statistical tabulations may not be waived. The payment of the additional sum prescribed by section 245(i) of the Act when applying for adjustment of status under section 245 of the Act may not be waived. The fee for Form I–907, Request for Premium Processing Services, may not be waived. For provisions relating to the authority of the immigration judges or the Board to waive fees prescribed in paragraph (b) of this section in cases under their jurisdiction, <E T='03'>see</E> 8 CFR 1003.24 and 1003.8. <P>(2) Fees under the Freedom of Information Act, as amended, may be waived or reduced where the Department of Homeland Security determines such action would be in the public interest because furnishing the information can be considered as primarily benefiting the general public. <P>(3) When the prescribed fee is for services to be performed by the clerk of <PRTPAGE P='59'>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 BCIS 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 BCIS representative on or before the date the fee is required to be paid, a notice prepared on BCIS letterhead and signed by the officer granting the waiver, that the fee has been waived pursuant to this paragraph. <P>(4) Fees for applications for Temporary Protected Status may be waived pursuant to 8 CFR 244.20. <P>(5) No fee relating to any application, petition, appeal, motion, or request made to United States Citizenship and Immigration Services may be waived under paragraph (c)(1) of this section except for the following: Biometrics; Form I–90; Form I–485 (only in the case of an alien in lawful nonimmigrant status under sections 101(a)(15)(T) or (U) of the Act; an applicant under section 209(b) of the Act; an approved self-petitioning battered or abused spouse, parent, or child of a United States citizen or lawful permanent resident; or an alien to whom section 212(a)(4) of the Act does not apply with respect to adjustment of status); Form I–751; Form I–765; Form I–817; Form N–300; Form N–336; Form N–400; Form N–470; Form N–565; Form N–600; Form N–600K; and Form I–290B and motions filed with United States Citizenship and Immigration Services relating to the specified forms in this paragraph (c). <P>(d) <E T='03'>Authority to certify records.</E> 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: <P>(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. <P>(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. <P>(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. <P>(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. <CITA>[38 FR 35296, Dec. 27, 1973] <EDNOTE><HED>Editorial Note:<P>For <E T='04'>Federal Register</E> citations affecting §&thnsp;103.7, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.</EDNOTE> <SECTION> <SECTNO>§&thnsp;103.8 <SUBJECT>Definitions pertaining to availability of information under the Freedom of Information Act. <P>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: <P>(a) The term <E T='03'>access</E> means providing a copy of the record requested or affording the opportunity for an in-person review of the original record or a copy thereof. The determination to permit an in-person review is discretionary and will only be made when specifically requested. Whenever providing in-person access will unreasonably disrupt the normal operations of an office, the requester may be sent a copy of the requested records that are nonexempt in lieu of the in-person review. <P>(b) The term <E T='03'>decision</E> means a final written determination in a proceeding <PRTPAGE P='60'>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 <E T='03'>decisions.</E> <P>(c) The term <E T='03'>records</E> includes records of proceedings, documents, reports, and other papers maintained by the Service. <P>(d) The term <E T='03'>record of proceeding</E> 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. <CITA>[32 FR 9623, July 4, 1967, as amended at 40 FR 7236, Feb. 19, 1975; 52 FR 2942, Jan. 29, 1987; 58 FR 31148, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.9 <SUBJECT>Availability of decisions and interpretive material under the Freedom of Information Act. <P>(a) <E T='03'>Precedent decisions.</E> 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. <P>(b) <E T='03'>Unpublished decisions.</E> 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. <P>(c) <E T='03'>Deletion of identifying details.</E> 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. <P>(d) <E T='03'>Statements of policy, interpretations, manuals, instructions to staff.</E> 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. <P>(e) <E T='03'>Public reading rooms.</E> 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 §&thnsp;103.7(b) will be charged for furnishing copies. <CITA>[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] <SECTION> <SECTNO>§&thnsp;103.10 <SUBJECT>Requests for records under the Freedom of Information Act. <P>(a) <E T='03'>Place and manner of requesting records</E>—(1) <E T='03'>Place.</E> Records should be requested from the office that maintains the records sought, if known, or from the Headquarters of the Immigration and Naturalization Service, 425 I Street, NW., Washington, DC 20536. Records are maintained in the Headquarters, regional offices, service centers, district offices and the following suboffices: Agana, Guam; Albany, NY; <PRTPAGE P='61'>Charlotte, NC; Cincinnati, OH; Hartford, CT; Indianapolis, IN; Las Vegas, NV; Louisville, KY; Memphis, TN; Milwaukee, WI; Norfolk, VA; Pittsburgh, PA; Providence, RI; Reno, NV; St. Louis, MO; Salt Lake City, UT; Spokane, WA; and St. Albans, VT. In certain cases, a district director may designate another Service office as a file control office. For locations of the Service's regional offices, service centers, district offices, and sub-offices see 8 CFR 100.4. <P>(2) <E T='03'>Manner of requesting records.</E> 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. Individuals seeking access to records about themselves by mail shall establish their identity by submitting a notarized signature along with their address, date of birth, place of birth, and alien or employee identification number if applicable. <P>(b) <E T='03'>Authority to grant and deny requests</E>—(1) <E T='03'>Grant or deny.</E> The Associate Commissioner for Information Resources Management, regional administrators, district directors, service center directors, and heads of suboffices specified in paragraph (a)(1) of this section, or their designees, may grant or deny requests under exemptions in 5 U.S.C. 552 (b) and (c). <P>(2) [Reserved] <P>(3) <E T='03'>Authority to state that a record cannot be located or does not exist.</E> 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. <P>(c) <E T='03'>Prompt response</E>—(1) <E T='03'>Response within 10 days.</E> 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 16.1(d). 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. <P>(2) <E T='03'>Treatment of delay as a denial.</E> If no substantive reply is made at the end of the 10 working day period, and any properly invoked extension period, requesters may deem their request to be denied and exercise their right to appeal in accordance with 28 CFR 16.8 and paragraph (d)(3) of this section. <P>(d) <E T='03'>Disposition of requests</E>—(1) <E T='03'>Form of grant.</E> When a requested record is available, the responsible office shall notify the requester when and where the <PRTPAGE P='62'>record will be available. The notification shall also advise the requester of any applicable fees under 28 CFR 16.10. The Service shall have fulfilled its duty to grant access whenever it provides a copy of the record, or, at its discretion, makes the original record or a copy available for in-person review in response to an express request for such review. In-person review is discretionary and shall not be granted when doing so would unreasonably disrupt the normal operations of a Service office. <P>(2) <E T='03'>Form of denial.</E> A reply denying a written request for a record in whole or in part shall be in writing, signed by one of the officials specified in paragraph (b)(1) of this section. 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 16.8, 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. <P>(3) <E T='03'>Right of appeal.</E> 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.” <P>(e) <E T='03'>Agreement to pay fees.</E> In accordance with 28 CFR 16.3(c) a requester automatically agrees to pay fees up to $25.00 by filing a Freedom of Information Act request unless a waiver or reduction of fees is sought. Accordingly, all letters of acknowledgment must confirm the requester's obligation to pay. <CITA>[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; 58 FR 31148, 31149, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.11 <SUBJECT>Business information. <P>Business information provided to the Service by a business submitter shall not be disclosed pursuant to a Freedom of Information Act request except in accordance with 28 CFR 16.7. <CITA>[58 FR 31149, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.12 <SUBJECT>Definition of the term “lawfully present” aliens for purposes of applying for Title II Social Security benefits under Public Law 104–193. <P>(a) <E T='03'>Definition of the term an “alien who is lawfully present in the United States.”</E> For the purposes of section 401(b)(2) of Pub. L. 104–193 only, an “alien who is lawfully present in the United States” means: <P>(1) A qualified alien as defined in section 431(b) of Pub. L. 104–193; <P>(2) An alien who has been inspected and admitted to the United States and who has not violated the terms of the status under which he or she was admitted or to which he or she has changed after admission; <P>(3) An alien who has been paroled into the United States pursuant to section 212(d)(5) of the Act for less than 1 year, except: <P>(i) Aliens paroled for deferred inspection or pending exclusion proceedings under 236(a) of the Act; and <P>(ii) Aliens paroled into the United States for prosecution pursuant to 8 CFR 212.5(b)(3); <P>(4) An alien who belongs to one of the following classes of aliens permitted to remain in the United States because the Attorney General has decided for humanitarian or other public policy reasons not to initiate deportation or exclusion proceedings or enforce departure: <P>(i) Aliens currently in temporary resident status pursuant to section 210 or 245A of the Act; <P>(ii) Aliens currently under Temporary Protected Status (TPS) pursuant to section 244 of the Act; <PRTPAGE P='63'><P>(iii) Cuban-Haitian entrants, as defined in section 202(b) Pub. L. 99–603, as amended; <P>(iv) Family Unity beneficiaries pursuant to section 301 of Pub. L. 101–649, as amended; <P>(v) Aliens currently under Deferred Enforced Departure (DED) pursuant to a decision made by the President; <P>(vi) Aliens currently in deferred action status pursuant to Service Operations Instructions at OI 242.1(a)(22); <P>(vii) Aliens who are the spouse or child of a United States citizen whose visa petition has been approved and who have a pending application for adjustment of status; <P>(5) Applicants for asylum under section 208(a) of the Act and applicants for withholding of removal under section 241(b)(3) of the Act or under the Convention Against Torture who have been granted employment authorization, and such applicants under the age of 14 who have had an application pending for at least 180 days. <P>(b) <E T='03'>Non-issuance of an Order to Show Cause and non-enforcement of deportation and exclusion orders.</E> An alien may not be deemed to be lawfully present solely on the basis of the Service's decision not to, or failure to, issue an Order to Show Cause or solely on the basis of the Service's decision not to, or failure to, enforce an outstanding order of deportation or exclusion. <CITA>[61 FR 47041, Sept. 6, 1996, as amended at 63 FR 63595, Nov. 16, 1998; 64 FR 8487, Feb. 19, 1999; 65 FR 82255, Dec. 28, 2000] <SECTION> <SECTNO>§&thnsp;103.20 <SUBJECT>Purpose and scope. <P>(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 regulations of the Office of Personnel Management. 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. <P>(b) The Associate Commissioner, Information Systems, shall ensure that the provisions of §§&thnsp;103.20 through 103.36 of this title and 28 CFR 16.40 through 16.58, and any revisions, are brought to the attention of and made available to: <P>(1) Each employee at the time of issuance of the regulations and at the time of any amendments; and <P>(2) Each new employee at the time of employment. <P>(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. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49652, Oct. 27, 1983; 58 FR 31149, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.21 <SUBJECT>Access by individuals to records maintained about them. <P>(a) <E T='03'>Access to available records.</E> An individual who seeks access to records about himself or herself in a system of records must submit a written request in person or by mail to the Freedom of Information/Privacy Act Officer at the location where the records are maintained. If the location is unknown, the request may be submitted to the nearest Service office or to the Headquarters FOIA/PA Officer, 425 I Street, NW., Washington, DC 20536. The outside of the envelope should be marked “Privacy Act Request.” A Form G–639, Freedom of Information/Privacy Act Request may be used for convenience and to facilitate identification of the record requested. However, a request may be made in any written form and should clearly identity the record sought by the name and any other personal identifiers for the individual (such as the alien file number or Social Security Account Number), date and place of birth, and type of file in which the record is believed to be located. <P>(b) <E T='03'>Verification of identity.</E> 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. <PRTPAGE P='64'><P>(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, Permanent Resident 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). <P>(2) Individuals seeking access to records about themselves by mail shall establish their identify by submitting a notarized signature along with their address, date of birth, place of birth, and alien or employee identification number if applicable. Form DOJ 361, Certification of Identity, may be obtained from any Service office and used to obtain the notarized signature needed to verify identity. <P>(c) <E T='03'>Verification of guardianship.</E> 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. <P>(d) <E T='03'>Accompanying persons.</E> 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. <P>(e) <E T='03'>Specification of records sought.</E> 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 <E T='04'>Federal Register,</E> 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. <P>(f) <E T='03'>Agreement to pay fees.</E> In accordance with 28 CFR 16.3(c) a requester automatically agrees to pay fees up to $25.00 by filing a Privacy Act request unless a waiver or reduction of fees is sought. Accordingly, all letters of acknowledgement must confirm the requester's obligation to pay. <CITA>[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; 58 FR 31149, June 1, 1993; 63 FR 70315, Dec. 21, 1998] <SECTION> <SECTNO>§&thnsp;103.22 <SUBJECT>Records exempt in whole or in part. <P>(a) When individuals request records about themselves which are exempt from access pursuant to the Privacy Act exemptions in 5 U.S.C. 552a(d)(5), (j) or (k), their requests shall also be considered under the Freedom of Information Act, 5 U.S.C. 552, and, unless the records are exempt under both Acts, the request shall be granted. If exemptions under both Acts permit the denial of the records sought and there is good reason to invoke the exemptions, the individual shall be provided a denial of his/her request in writing with the governing exemptions cited. If the disclosure of the existence of a criminal law enforcement proceeding record could itself interfere with a pending law enforcement proceeding of which there is reason to believe the subject is unaware, the Service may, during only such time as the circumstance continues, treat the records as not subject to the requirements of 5 U.S.C. 552. <P>(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: <P>(1) A request for information classified by the Service under <E T='03'>Executive Order 12356 on National Security Information</E> 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 <PRTPAGE P='65'>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. <P>(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. <P>(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. <P>(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. <P>(5) The Service records which are exempted and the reasons for the exemptions are enumerated in 28 CFR 16.99. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 58 FR 31149, June, 1, 1993] <SECTION> <SECTNO>§&thnsp;103.23 <SUBJECT>Special access procedures. <P>(a) <E T='03'>Records of other agencies.</E> When information sought from a system of records of the Service includes information from other agencies or components of the Department of Justice that has been classified under Executive Order 12356, the request and the requested documents shall be referred to the appropriate agency or other component for classification review and processing. Only with the consent of the responsible agency or component, may the requester be informed of the referral as specified in section 3.4(f) of E.O. 12356. <P>(b) <E T='03'>Medical records.</E> When an individual requests medical records concerning himself, which are not otherwise exempt from disclosure, the responsible official as specified in §&thnsp;103.10(a) of this part 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 responsible official as specified in §&thnsp;103.10(a) of this part 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. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 58 FR 31149, 31150, June, 1, 1993] <SECTION> <SECTNO>§&thnsp;103.24 <SUBJECT>Requests for accounting of record disclosure. <P>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 <PRTPAGE P='66'>to the appropriate responsible official as specified in §&thnsp;103.10(a) of this part 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 §&thnsp;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). <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.25 <SUBJECT>Notice of access decisions; time limits. <P>(a) <E T='03'>Responsibility for notice.</E> The responsible official as specified in §&thnsp;103.10(a) of this part 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. <P>(b) <E T='03'>Time limits for access determinations.</E> The time limits provided by 28 CFR 16.1(d) shall be applicable to requests for access to information pursuant to the Privacy Act of 1974. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.26 <SUBJECT>Fees for copies of records. <P>The fees charged by the Service under the Privacy Act shall be those specified in 28 CFR 16.47. Remittances shall be made in accordance with §&thnsp;103.7(a) of this part. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.27 <SUBJECT>Appeals from denials of access. <P>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 16.48. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.28 <SUBJECT>Requests for correction of records. <P>(a) <E T='03'>How made.</E> A request for amendment or correction is made by the individual concerned, either in person or by mail, by addressing the written request to the FOIA/PA Officer at the location where the record is maintained. The requester's identity must be established as provided in §&thnsp;103.21 of this part. 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 FOIA/PA Officer at the location where the system of records is maintained and the request and envelope must be clearly marked “Privacy Correction Request.” Where the requester cannot determine the precise location of the system of records or believes that the same record appears in more than one system, the request may be addressed to the Headquarters FOIA/PA Officer, Immigration and Naturalization Service, 425 I Street, NW., Washington, DC 20536. That officer will assist the requester in identifying the location of the records. <P>(b) <E T='03'>Initial determination.</E> 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 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 16.47. 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 16.50. <P>(c) <E T='03'>Appeals.</E> A refusal, in whole or in part, to amend or correct a record may be appealed as provided in 28 CFR 16.50. <P>(d) <E T='03'>Appeal determinations.</E> 28 CFR 16.50 provides for appeal determinations. <PRTPAGE P='67'><P>(e) <E T='03'>Statements of disagreement.</E> Statements of disagreement may be furnished by the individual in the manner prescribed in 28 CFR 16.50. <P>(f) <E T='03'>Notices of correction or disagreement.</E> When a record has been corrected, the responsible official as specified in §&thnsp;103.10(a) of this part 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. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 48 FR 51431, Nov. 9, 1983; 58 FR 31150, June, 1, 1993] <SECTION> <SECTNO>§&thnsp;103.29 <SUBJECT>Records not subject to correction. <P>The following records are not subject to correction or amendment by individuals: <P>(a) Transcripts or written statements made under oath; <P>(b) Transcripts of Grand Jury Proceedings, judicial or quasi-judicial proceedings which form the official record of those proceedings; <P>(c) Pre-sentence reports comprising the property of the courts but maintained in Service files; and <P>(d) Records duly exempted from correction by notice published in the <E T='04'>Federal Register.</E> <SECTION> <SECTNO>§&thnsp;103.30 <SUBJECT>Accounting for disclosures. <P>(a) An accounting of each disclosure of information for which accounting is required (see §&thnsp;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 responsible official as specified in §&thnsp;103.10(a) of this part shall advise the requester, promptly upon request as described in §&thnsp;103.24, of the persons or agencies outside the Department of Justice to which records concerning the requester have been disclosed. <P>(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. <P>(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. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 48 FR 49653, Oct. 27, 1983; 58 FR 31150, June, 1, 1993] <SECTION> <SECTNO>§&thnsp;103.31 <SUBJECT>Notices of subpoenas and emergency disclosures. <P>(a) <E T='03'>Subpoenas.</E> 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 <E T='04'>Federal Register.</E> <P>(b) <E T='03'>Emergency disclosures.</E> 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. <PRTPAGE P='68'>Notification shall be given by the officer who made or authorized the disclosure. <SECTION> <SECTNO>§&thnsp;103.32 <SUBJECT>Information forms. <P>(a) <E T='03'>Review of forms.</E> The Service shall be responsible for the review of forms it uses to collect information from and about individuals. <P>(b) <E T='03'>Scope of review.</E> The Service Forms Control Unit shall review each form to assure that it complies with the requirements of 28 CFR 16.52. <SECTION> <SECTNO>§&thnsp;103.33 <SUBJECT>Contracting record systems. <P>Any contract by the Service for the operation of a record system shall be in compliance with 28 CFR 16.55. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.34 <SUBJECT>Security of records systems. <P>The security of records systems shall be in accordance with 28 CFR 16.54. <SECTION> <SECTNO>§&thnsp;103.35 <SUBJECT>Use and collection of Social Security numbers. <P>The use and collection of Social Security numbers shall be in accordance with 28 CFR 16.56. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.36 <SUBJECT>Employee standards of conduct with regard to privacy. <P>Service employee standards of conduct with regard to privacy shall be in compliance with 28 CFR 16.57. <CITA>[40 FR 44481, Sept. 26, 1975, as amended at 58 FR 31150, June 1, 1993] <SECTION> <SECTNO>§&thnsp;103.37 <SUBJECT>Precedent decisions. <P>(a) Proceedings before the immigration judges, the Board of Immigration Appeals and the Attorney General are governed by part 1003 of 8 CFR chapter V. <P>(b)–(f) [Reserved] <P>(g) <E T='03'>Decisions as precedents.</E> Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board, and decisions of the Attorney General, shall be binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States. By majority vote of the permanent Board members, selected decisions of the Board rendered by a three-member panel or by the Board en banc may be designated to serve as precedents in all proceedings involving the same issue or issues. Selected decisions designated by the Board, decisions of the Attorney General, and decisions of the Secretary of Homeland Security to the extent authorized in paragraph (i) of this section, shall serve as precedents in all proceedings involving the same issue or issues. <P>(h) <E T='03'>Referral of cases to the Attorney General.</E> (1) The Board shall refer to the Attorney General for review of its decision all cases which: <P>(i) The Attorney General directs the Board to refer to him. <P>(ii) The Chairman or a majority of the Board believes should be referred to the Attorney General for review. <P>(iii) The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, refers to the Attorney General for review. <P>(2) In any case the Attorney General decides, the Attorney General's decision shall be stated in writing and shall be transmitted to the Board or Secretary, as appropriate, for transmittal and service as provided in paragraph (f) of this section. <P>(i) <E T='03'>Publication of Secretary's precedent decisions.</E> The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, may file with the Attorney General Service precedent decisions as set forth in §&thnsp;103.3(c). <CITA>[68 FR 9832, Feb. 28, 2003] <PART><RESERVED>PART 109 [RESERVED] <PART><EAR>Pt. 204<HED>PART 204—IMMIGRANT PETITIONS <CONTENTS> <SUBPART><HED>Subpart A—Immigrant Visa Petitions <SECHD>Sec. <SECTNO>204.1<SUBJECT>General information about immediate relative and family-sponsored petitions. <PRTPAGE P='69'><SECTNO>204.2<SUBJECT>Petitions for relatives, widows and widowers, and abused spouses and children. <SECTNO>204.3<SUBJECT>Orphan cases under section 101(b)(1)(F) of the Act (non-Convention cases). <SECTNO>204.4<SUBJECT>Amerasian child of a United States citizen. <SECTNO>204.5<SUBJECT>Petitions for employment-based immigrants. <SECTNO>204.6<SUBJECT>Petitions for employment creation aliens. <SECTNO>204.7<SUBJECT>Preservation of benefits contained in savings clause of Immigration and Nationality Act Amendments of 1976. <SECTNO>204.8<SUBJECT>Petitions for employees of certain United States businesses operating in Hong Kong. <SECTNO>204.9<SUBJECT>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. <SECTNO>204.10<SUBJECT>Petitions by, or for, certain scientists of the Commonwealth of Independent States or the Baltic states. <SECTNO>204.11<SUBJECT>Special immigrant status for certain aliens declared dependent on a juvenile court (special immigrant juvenile). <SECTNO>204.12<SUBJECT>How can second-preference immigrant physicians be granted a national interest waiver based on service in a medically underserved area or VA facility? <SECTNO>204.13<SUBJECT>How can the International Broadcasting Bureau of the United States Broadcasting Board of Governors petition for a fourth preference special immigrant broadcaster? <SUBPART><RESERVED>Subpart B [Reserved] <SUBPART><HED>Subpart C—Intercountry Adoption of a Convention Adoptee <SECTNO>204.300<SUBJECT>Scope of this subpart. <SECTNO>204.301<SUBJECT>Definitions. <SECTNO>204.302<SUBJECT>Role of service providers. <SECTNO>204.303<SUBJECT>Determination of habitual residence. <SECTNO>204.304<SUBJECT>Improper inducement prohibited. <SECTNO>204.305<SUBJECT>State preadoption requirements. <SECTNO>204.306<SUBJECT>Classification as an immediate relative based on Convention adoption. <SECTNO>204.307<SUBJECT>Who may file a Form I–800A or Form I–800. <SECTNO>204.308<SUBJECT>Where to file Form I–800A or Form I–800. <SECTNO>204.309<SUBJECT>Factors requiring denial of a Form I–800A or Form I–800. <SECTNO>204.310<SUBJECT>Filing requirements for Form I–800A. <SECTNO>204.311<SUBJECT>Convention adoption home study requirements. <SECTNO>204.312<SUBJECT>Adjudication of the Form I–800A. <SECTNO>204.313<SUBJECT>Filing and adjudication of the Form I–800. <SECTNO>204.314<SUBJECT>Appeal.</CONTENTS> <AUTH><HED>Authority:<P>8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 1255, 1641; 8 CFR part 2. <SUBPART><HED>Subpart A—Immigrant Visa Petitions <SECTION> <SECTNO>§&thnsp;204.1 <SUBJECT>General information about immediate relative and family-sponsored petitions. <P>(a) <E T='03'>Types of petitions.</E> Petitions may be filed for an alien's classification as an immediate relative under section 201(b) of the Act or as a preference immigrant under section 203(a) of the Act based on a qualifying relationship to a citizen or lawful permanent resident of the United States, as follows: <P>(1) A citizen or lawful permanent resident of the United States petitioning under section 204(a)(1)(A)(i) or 204(a)(1)(B)(i) of the Act for a qualifying relative's classification as an immediate relative under section 201(b) of the Act or as a preference immigrant under section 203(a) of the Act must file a Form I–130, Petition for Alien Relative. These petitions are described in §&thnsp;204.2; <P>(2) A widow or widower of a United States citizen self-petitioning under section 204(a)(1)(A)(ii) of the Act as an immediate relative under section 201(b) of the Act must file a Form I–360, Petition for Amerasian, Widow, or Special Immigrant. These petitions are described in §&thnsp;204.2; <P>(3) A spouse or child of an abusive citizen or lawful permanent resident of the United States self-petitioning under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act for classification as an immediate relative under section 201(b) of the Act or as a preference immigrant under section 203(a) of the Act must file a Form I–360, Petition for Amerasian, Widow, or Special Immigrant. These petitions are described in §&thnsp;204.2; <P>(4) A U.S. citizen seeking to have USCIS accord immediate relative status to a child based on the citizen's adoption of the child as an orphan, as defined in section 101(b)(1)(F) of the Act, must follow the procedures in §&thnsp;204.3. <P>(5) A U.S. citizen seeking to have USCIS accord immediate relative status to a child under section 101(b)(1)(G) of the Act on the basis of a Convention adoption must: <PRTPAGE P='70'><P>(i) File a Form I–800A, Application to Determine Suitability as Adoptive Parents for a Convention adoptee; and <P>(ii) After USCIS approves the Form I–800A, file a Form I–800, Petition to Classify Convention adoptee as Immediate Relative, as provided in 8 CFR part 204, subpart C. <P>(6) Any person filing a petition under section 204(f) of the Act as, or on behalf of, an Amerasian for classification as an immediate relative under section 201(b) of the Act or as a preference immigrant under section 203(a)(1) or 203(a)(3) of the Act must file a Form I–360, Petition for Amerasian, Widow, or Special Immigrant. These petitions are described in §&thnsp;204.4. <P>(b) <E T='03'>Filing fee.</E> Forms I–130 and I–360 must be accompanied by the appropriate fee under 8 CFR 103.7(b)(1). <P>(c) <E T='03'>Filing date.</E> 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. <P>(d) <E T='03'>Proper filing.</E> A petition shall be considered properly filed if: <P>(1) It is signed by the petitioner, and <P>(2) A fee has been received by the Service office or United States Consular office having jurisdiction. <P>(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. <P>(e) <E T='03'>Jurisdiction</E>—(1) <E T='03'>Petitioner or self-petitioner residing in the United States.</E> The petition or self-petition must be filed with the Service office having jurisdiction over the place where the petitioner or self-petitioner is residing. When the petition or self-petition is accompanied by an application for adjustment of status, the petition or self-petition may be filed with the Service office having jurisdiction over the beneficiary's or self-petitioner's place of residence. <P>(2) <E T='03'>Petitioner residing in certain countries abroad.</E> 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. An overseas Service officer may not accept or approve a self-petition filed by the spouse or child of an abusive citizen or lawful permanent resident of the United States under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with the Service office in the United States having jurisdiction over the self-petitioner's place of residence in the United States. <P>(3) <E T='03'>Jurisdiction assumed by United States consular officer.</E> 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 <PRTPAGE P='71'>stateside referral, if they deem it necessary. A consular official may not accept or approve a self-petition filed by the spouse or child of an abusive citizen or lawful permanent resident of the United States under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with the Service office in the United States having jurisdiction over the self-petitioner's place of residence in the United States. <P>(f) <E T='03'>Supporting documentation.</E> (1) Documentary evidence consists of those documents which establish the United States citizenship or lawful permanent resident status of the petitioner and the claimed relationship of the petitioner to the beneficiary. They must be in the form of primary evidence, if available. When it is established that primary evidence is not available, secondary evidence may be accepted. To determine the availability of primary documents, the Service will refer to the Department of State's Foreign Affairs Manual (FAM). When the FAM shows that primary documents are generally available in the country of issue but the petitioner claims that his or her document is unavailable, a letter from the appropriate registrar stating that the document is not available will not be required before the Service will accept secondary evidence. The Service will consider any credible evidence relevant to a self-petition filed by a qualified spouse or child of an abusive citizen or lawful permanent resident under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not required to, demonstrate that preferred primary or secondary evidence is unavailable. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Service. <P>(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. <P>(3) Foreign language documents must be accompanied by an English translation which has been certified by a competent translator. <P>(g) <E T='03'>Evidence of petitioner's United States citizenship or lawful permanent residence</E>—(1) <E T='03'>Primary evidence.</E> A petition must be accompanied by one of the following: <P>(i) A birth certificate that was issued by a civil authority and that establishes the petitioner's birth in the United States; <P>(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); <P>(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); <P>(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; <P>(v) The petitioner's Certificate of Naturalization or Certificate of Citizenship; <P>(vi) Department of State Form FS–240, Report of Birth Abroad of a Citizen of the United States, relating to the petitioner; <P>(vii) The petitioner's Form I–551, Permanent Resident Card, or other proof given by the Service as evidence of lawful permanent residence. Photocopies of Form I–551 or of a Certificate of Naturalization or Certificate of Citizenship may be submitted as evidence of status as a lawfully permanent resident or United States citizen, respectively. <P>(2) <E T='03'>Secondary evidence.</E> If primary evidence is unavailable, the petitioner must present secondary evidence. Any <PRTPAGE P='72'>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: <P>(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; <P>(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; <P>(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); <P>(iv) Census records showing the name, place of birth, and date of birth or age of the petitioner; or <P>(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. <P>(3) <E T='03'>Evidence submitted with a self-petition.</E> If a self-petitioner filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present primary or secondary evidence of the abuser's status, the Service will attempt to electronically verify the abuser's citizenship or immigration status from information contained in Service computerized records. Other Service records may also be reviewed at the discretion of the adjudicating officer. If the Service is unable to identify a record as relating to the abuser or the record does not establish the abuser's immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner. <CITA>[57 FR 41056, Sept. 9, 1992, as amended at 58 FR 48778, Sept. 20, 1993; 61 FR 13072, 13073, Mar. 26, 1996; 63 FR 70315, Dec. 21, 1998; 72 FR 19106, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007] <SECTION> <SECTNO>§&thnsp;204.2 <SUBJECT>Petitions for relatives, widows and widowers, and abused spouses and children. <P>(a) <E T='03'>Petition for a spouse</E>—(1) <E T='03'>Eligibility.</E> A United States citizen or alien admitted for lawful permanent residence may file a petition on behalf of a spouse. <P>(i) <E T='03'>Marriage within five years of petitioner's obtaining lawful permanent resident status.</E> (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: <P>(<E T='03'>1</E>) 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 <P>(<E T='03'>2</E>) The marriage through which the petitioner obtained permanent residence was terminated through death. <P>(B) <E T='03'>Documentation.</E> 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: <P>(<E T='03'>1</E>) Documentation showing joint ownership of property; <P>(<E T='03'>2</E>) A lease showing joint tenancy of a common residence; <P>(<E T='03'>3</E>) Documentation showing commingling of financial resources; <P>(<E T='03'>4</E>) Birth certificate(s) of child(ren) born to the petitioner and prior spouse; <P>(<E T='03'>5</E>) 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 <PRTPAGE P='73'>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 <P>(<E T='03'>6</E>) 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. <P>(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. <P>(ii) <E T='03'>Fraudulent marriage prohibition.</E> 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. <P>(iii) <E T='03'>Marriage during proceedings—general prohibition against approval of visa petition.</E> A visa petition filed on behalf of an alien by a United States citizen or a lawful permanent resident spouse shall not be approved if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto. Determination of commencement and termination of proceedings and exemptions shall be in accordance with §&thnsp;245.1(c)(9) of this chapter, except that the burden in visa petition proceedings to establish eligibility for the exemption in §&thnsp;245.1(c)(9)(iii)(F) of this chapter shall rest with the petitioner. <P>(A) <E T='03'>Request for exemption.</E> 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. <P>(B) <E T='03'>Evidence to establish eligibility for the bona fide marriage exemption.</E> 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: <P>(<E T='03'>1</E>) Documentation showing joint ownership of property; <P>(<E T='03'>2</E>) Lease showing joint tenancy of a common residence; <P>(<E T='03'>3</E>) Documentation showing commingling of financial resources; <P>(<E T='03'>4</E>) Birth certificate(s) of child(ren) born to the petitioner and beneficiary; <P>(<E T='03'>5</E>) 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 <PRTPAGE P='74'>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 <P>(<E T='03'>6</E>) 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. <P>(C) <E T='03'>Decision.</E> 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. <P>(D) <E T='03'>Denials.</E> 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: <E T='03'>Provided,</E> 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. <P>(E) <E T='03'>Appeals.</E> 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. <P>(F) <E T='03'>Priority date.</E> 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. <P>(2) <E T='03'>Evidence for petition for a spouse.</E> 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. <P>(3) <E T='03'>Decision on and disposition of petition.</E> 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. <P>(4) <E T='03'>Derivative beneficiaries.</E> 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 <PRTPAGE P='75'>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. <P>(b) <E T='03'>Petition by widow or widower of a United States citizen</E>—(1) <E T='03'>Eligibility.</E> 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: <P>(i) He or she had been married for at least two years to a United States citizen. <Q P='04'> <NOTE><HED>(Note:<P>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.)</NOTE> <Q P='04'> <P>(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; <P>(iii) The alien petitioner and the citizen spouse were not legally separated at the time of the citizen's death; and <P>(iv) The alien spouse has not remarried. <P>(2) <E T='03'>Evidence for petition of widow or widower.</E> 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: <P>(i) Such evidence of the marriage and termination of prior marriages as religious documents, tribal records, census records, or affidavits; and <P>(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. <P>(3) <E T='03'>Decision on and disposition of petition.</E> 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. <P>(4) <E T='03'>Derivative beneficiaries.</E> A child of an alien widow or widower classified as an immediate relative is eligible for derivative classification as an immediate relative. Such a child may be included in the principal alien's immediate relative visa petition, and may accompany or follow to join the principal alien to the United States. Derivative benefits do not extend to an unmarried or married son or daughter of an alien widow or widower. <P>(c) <E T='03'>Self-petition by spouse of abusive citizen or lawful permanent resident</E>—(1) <E T='03'>Eligibility</E>—(i) <E T='03'>Basic eligibility requirements.</E> A spouse may file a self-petition under section 204(a)(1)(A)(iii) or <PRTPAGE P='76'>204(a)(1)(B)(ii) of the Act for his or her classification as an immediate relative or as a preference immigrant if he or she: <P>(A) Is the spouse of a citizen or lawful permanent resident of the United States; <P>(B) Is eligible for immigrant classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship; <P>(C) Is residing in the United States; <P>(D) Has resided in the United States with the citizen or lawful permanent resident spouse; <P>(E) Has been battered by, or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident during the marriage; or is that parent of a child who has been battered by, or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident during the marriage; <P>(F) Is a person of good moral character; <P>(G) Is a person whose deportation would result in extreme hardship to himself, herself, or his or her child; and <P>(H) Entered into the marriage to the citizen or lawful permanent resident in good faith. <P>(ii) <E T='03'>Legal status of the marriage.</E> The self-petitioning spouse must be legally married to the abuser when the petition is properly filed with the Service. A spousal self-petition must be denied if the marriage to the abuser legally ended through annulment, death, or divorce before that time. After the self-petition has been properly filed, the legal termination of the marriage will have no effect on the decision made on the self-petition. The self-petitioner's remarriage, however, will be a basis for the denial of a pending self-petition. <P>(iii) <E T='03'>Citizenship or immigration status of the abuser.</E> The abusive spouse must be a citizen of the United States or a lawful permanent resident of the United States when the petition is filed and when it is approved. Changes in the abuser's citizenship or lawful permanent resident status after the approval will have no effect on the self-petition. A self-petition approved on the basis of a relationship to an abusive lawful permanent resident spouse will not be automatically upgraded to immediate relative status. The self-petitioner would not be precluded, however, from filing a new self-petition for immediate relative classification after the abuser's naturalization, provided the self-petitioner continues to meet the self-petitioning requirements. <P>(iv) <E T='03'>Eligibility for immigrant classification.</E> A self-petitioner is required to comply with the provisions of section 204(c) of the Act, section 204(g) of the Act, and section 204(a)(2) of the Act. <P>(v) <E T='03'>Residence.</E> A self-petition will not be approved if the self-petitioner is not residing in the United States when the self-petition is filed. The self-petitioner is not required to be living with the abuser when the petition is filed, but he or she must have resided with the abuser in the United States in the past. <P>(vi) <E T='03'>Battery or extreme cruelty.</E> For the purpose of this chapter, the phrase “was battered by or was the subject of extreme cruelty” includes, but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence. The qualifying abuse must have been committed by the citizen or lawful permanent resident spouse, must have been perpetrated against the self-petitioner or the self-petitioner's child, and must have taken place during the self-petitioner's marriage to the abuser. <P>(vii) <E T='03'>Good moral character.</E> A self-petitioner will be found to lack good moral character if he or she is a person described in section 101(f) of the Act. Extenuating circumstances may be taken into account if the person has not been convicted of an offense or offenses but admits to the commission of an act or acts that could show a lack of good moral character under section 101(f) of the Act. A person who was subjected to abuse in the form of forced prostitution or who can establish that he or she was <PRTPAGE P='77'>forced to engage in other behavior that could render the person excludable under section 212(a) of the Act would not be precluded from being found to be a person of good moral character, provided the person has not been convicted for the commission of the offense or offenses in a court of law. A self-petitioner will also be found to lack good moral character, unless he or she establishes extenuating circumstances, if he or she willfully failed or refused to support dependents; or committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, although the acts do not require an automatic finding of lack of good moral character. A self-petitioner's claim of good moral character will be evaluated on a case-by-case basis, taking into account the provisions of section 101(f) of the Act and the standards of the average citizen in the community. If the results of record checks conducted prior to the issuance of an immigrant visa or approval of an application for adjustment of status disclose that the self-petitioner is no longer a person of good moral character or that he or she has not been a person of good moral character in the past, a pending self-petition will be denied or the approval of a self-petition will be revoked. <P>(viii) <E T='03'>Extreme hardship.</E> The Service will consider all credible evidence of extreme hardship submitted with a self-petition, including evidence of hardship arising from circumstances surrounding the abuse. The extreme hardship claim will be evaluated on a case-by-case basis after a review of the evidence in the case. Self-petitioners are encouraged to cite and document all applicable factors, since there is no guarantee that a particular reason or reasons will result in a finding that deportation would cause extreme hardship. Hardship to persons other than the self-petitioner or the self-petitioner's child cannot be considered in determining whether a self-petitioning spouse's deportation would cause extreme hardship. <P>(ix) <E T='03'>Good faith marriage.</E> A spousal self-petition cannot be approved if the self-petitioner entered into the marriage to the abuser for the primary purpose of circumventing the immigration laws. A self-petition will not be denied, however, solely because the spouses are not living together and the marriage is no longer viable. <P>(2) <E T='03'>Evidence for a spousal self-petition</E>—(i) <E T='03'>General.</E> Self-petitioners are encouraged to submit primary evidence whenever possible. The Service will consider, however, any credible evidence relevant to the petition. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Service. <P>(ii) <E T='03'>Relationship.</E> A self-petition filed by a spouse must be accompanied by evidence of citizenship of the United States citizen or proof of the immigration status of the lawful permanent resident abuser. It must also be accompanied by evidence of the relationship. Primary evidence of a marital relationship is a marriage certificate issued by civil authorities, and proof of the termination of all prior marriages, if any, of both the self-petitioner and the abuser. If the self-petition is based on a claim that the self-petitioner's child was battered or subjected to extreme cruelty committed by the citizen or lawful permanent resident spouse, the self-petition should also be accompanied by the child's birth certificate or other evidence showing the relationship between the self-petitioner and the abused child. <P>(iii) <E T='03'>Residence.</E> One or more documents may be submitted showing that the self-petitioner and the abuser have resided together in the United States. One or more documents may also be submitted showing that the self-petitioner is residing in the United States when the self-petition is filed. Employment records, utility receipts, school records, hospital or medical records, birth certificates of children born in the United States, deeds, mortgages, rental records, insurance policies, affidavits or any other type of relevant credible evidence of residency may be submitted. <P>(iv) <E T='03'>Abuse.</E> Evidence of abuse may include, but is not limited to, reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, <PRTPAGE P='78'>and other social service agency personnel. Persons who have obtained an order of protection against the abuser or have taken other legal steps to end the abuse are strongly encouraged to submit copies of the relating legal documents. Evidence that the abuse victim sought safe-haven in a battered women's shelter or similar refuge may be relevant, as may a combination of documents such as a photograph of the visibly injured self-petitioner supported by affidavits. Other forms of credible relevant evidence will also be considered. Documentary proof of non-qualifying abuses may only be used to establish a pattern of abuse and violence and to support a claim that qualifying abuse also occurred. <P>(v) <E T='03'>Good moral character.</E> Primary evidence of the self-petitioner's good moral character is the self-petitioner's affidavit. The affidavit should be accompanied by a local police clearance or a state-issued criminal background check from each locality or state in the United States in which the self-petitioner has resided for six or more months during the 3-year period immediately preceding the filing of the self-petition. Self-petitioners who lived outside the United States during this time should submit a police clearance, criminal background check, or similar report issued by the appropriate authority in each foreign country in which he or she resided for six or more months during the 3-year period immediately preceding the filing of the self-petition. If police clearances, criminal background checks, or similar reports are not available for some or all locations, the self-petitioner may include an explanation and submit other evidence with his or her affidavit. The Service will consider other credible evidence of good moral character, such as affidavits from responsible persons who can knowledgeably attest to the self-petitioner's good moral character. <P>(vi) <E T='03'>Extreme hardship.</E> Evidence of extreme hardship may include affidavits, birth certificates of children, medical reports, protection orders and other court documents, police reports, and other relevant credible evidence. <P>(vii) <E T='03'>Good faith marriage.</E> Evidence of good faith at the time of marriage may include, but is not limited to, proof that one spouse has been listed as the other's spouse on insurance policies, property leases, income tax forms, or bank accounts; and testimony or other evidence regarding courtship, wedding ceremony, shared residence and experiences. Other types of readily available evidence might include the birth certificates of children born to the abuser and the spouse; police, medical, or court documents providing information about the relationship; and affidavits of persons with personal knowledge of the relationship. All credible relevant evidence will be considered. <P>(3) <E T='03'>Decision on and disposition of the petition</E>—(i) <E T='03'>Petition approved.</E> If the self-petitioning spouse will apply for adjustment of status under section 245 of the Act, the approved petition will be retained by the Service. If the self-petitioner will apply for an immigrant visa abroad, the approved self-petition will be forwarded to the Department of State's National Visa Center. <P>(ii) <E T='03'>Petition denied.</E> If the self-petition is denied, the self-petitioner will be notified in writing of the reasons for the denial and of the right to appeal the decision. <P>(4) <E T='03'>Derivative beneficiaries.</E> A child accompanying or following-to-join the self-petitioning spouse may be accorded the same preference and priority date as the self-petitioner without the necessity of a separate petition, if the child has not been classified as an immigrant based on his or her own self-petition. A derivative child who had been included in a parent's self-petition may later file a self-petition, provided the child meets the self-petitioning requirements. A child who has been classified as an immigrant based on a petition filed by the abuser or another relative may also be derivatively included in a parent's self-petition. The derivative child must be unmarried, less than 21 years old, and otherwise qualify as the self-petitioner's child under section 101(b)(1)(F) of the Act until he or she becomes a lawful permanent resident based on the derivative classification. <P>(5) <E T='03'>Name change.</E> If the self-petitioner's current name is different than the name shown on the documents, evidence of the name change (such as the petitioner's marriage certificate, legal <PRTPAGE P='79'>document showing name change, or other similar evidence) must accompany the self-petition. <P>(6) <E T='03'>Prima facie determination.</E> (i) Upon receipt of a self-petition under paragraph (c)(1) of this section, the Service shall make a determination as to whether the petition and the supporting documentation establish a “prima facie case” for purposes of 8 U.S.C. 1641, as amended by section 501 of Public Law 104–208. <P>(ii) For purposes of paragraph (c)(6)(i) of this section, a prima facie case is established only if the petitioner submits a completed Form I–360 and other evidence supporting all of the elements required of a self-petitioner in paragraph (c)(1) of this section. A finding of prima facie eligibility does not relieve the petitioner of the burden of providing additional evidence in support of the petition and does not establish eligibility for the underlying petition. <P>(iii) If the Service determines that a petitioner has made a “prima facie case,” the Service shall issue a Notice of Prima Facie Case to the petitioner. Such Notice shall be valid until the Service either grants or denies the petition. <P>(iv) For purposes of adjudicating the petition submitted under paragraph (c)(1) of this section, a prima facie determination— <P>(A) Shall not be considered evidence in support of the petition; <P>(B) Shall not be construed to make a determination of the credibility or probative value of any evidence submitted along with that petition; and, <P>(C) Shall not relieve the self-petitioner of his or her burden of complying with all of the evidentiary requirements of paragraph (c)(2) of this section. <P>(d) <E T='03'>Petition for a child or son or daughter</E>—(1) <E T='03'>Eligibility.</E> 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. <P>(2) <E T='03'>Evidence to support petition for child or son or daughter.</E> In addition to evidence of United States citizenship or lawful permanent resident, the petitioner must also provide evidence of the claimed relationship. <P>(i) <E T='03'>Primary evidence for a legitimate child or son or daughter.</E> 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. <P>(ii) <E T='03'>Primary evidence for a legitimated child or son or daughter.</E> 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. <PRTPAGE P='80'><P>(iii) <E T='03'>Primary evidence for an illegitimate child or son or daughter.</E> 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. <P>(iv) <E T='03'>Primary evidence for a stepchild.</E> 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. <P>(v) <E T='03'>Secondary evidence.</E> 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. <PRTPAGE P='81'><P>(vi) <E T='03'>Blood tests.</E> 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. <P>(vii) <E T='03'>Primary evidence for an adopted child or son or daughter.</E> 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. <P>(A) <E T='03'>Legal custody</E> 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. <P>(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. <P>(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. <P>(D) On or after the Convention effective date, as defined in 8 CFR part 204.301, a United States citizen who is habitually resident in the United States, as determined under 8 CFR 204.303, may not file a Form I–130 under this section on behalf of child who was habitually resident in a Convention country, as determined under 8 CFR 204.303, unless the adoption was completed before the Convention effective <PRTPAGE P='82'>date. In the case of any adoption occurring on or after the Convention effective date, a Form I–130 may be filed and approved only if the United States citizen petitioner was not habitually resident in the United States at the time of the adoption. <P>(E) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will deem a United States citizen, 8 CFR 204.303 notwithstanding, to have been habitually resident outside the United States, if the citizen satisfies the 2-year joint residence and custody requirements by residing with the child outside the United States. <P>(F) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will not approve a Form I–130 under section 101(b)(1)(E) of the Act on behalf of an alien child who is present in the United States based on an adoption that is entered on or after the Convention effective date, but whose habitual residence immediately before the child's arrival in the United States was in a Convention country. However, the U.S. citizen seeking the child's adoption may file a Form I–800A and Form I–800 under 8 CFR part 204, subpart C. <P>(3) <E T='03'>Decision on and disposition of petition.</E> 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. <P>(4) <E T='03'>Derivative beneficiaries.</E> 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. <P>(5) <E T='03'>Name change.</E> 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. <P>(e) <E T='03'>Self-petition by child of abusive citizen or lawful permanent resident</E>—(1) <E T='03'>Eligibility.</E> (i) A child may file a self-petition under section 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii) of the Act if he or she: <P>(A) Is the child of a citizen or lawful permanent resident of the United States; <P>(B) Is eligible for immigrant classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship; <P>(C) Is residing in the United States; <P>(D) Has resided in the United States with the citizen or lawful permanent resident parent; <P>(E) Has been battered by, or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident parent while residing with that parent; <P>(F) Is a person of good moral character; and <P>(G) Is a person whose deportation would result in extreme hardship to himself or herself. <P>(ii) <E T='03'>Parent-child relationship to the abuser.</E> The self-petitioning child must be unmarried, less than 21 years of age, and otherwise qualify as the abuser's child under the definition of child contained in section 101(b)(1) of the Act when the petition is filed and when it is approved. Termination of the abuser's parental rights or a change in legal custody does not alter the self-petitioning relationship provided the child meets the requirements of section 101(b)(1) of the Act. <P>(iii) <E T='03'>Citizenship or immigration status of the abuser.</E> The abusive parent must be a citizen of the United States or a lawful permanent resident of the United States when the petition is filed and when it is approved. Changes in the abuser's citizenship or lawful permanent resident status after the approval will have no effect on the self-petition. A self-petition approved on the basis of a relationship to an abusive lawful permanent resident will not be automatically upgraded to immediate relative status. The self-petitioning child would <PRTPAGE P='83'>not be precluded, however, from filing a new self-petition for immediate relative classification after the abuser's naturalization, provided the self-petitioning child continues to meet the self-petitioning requirements. <P>(iv) <E T='03'>Eligibility for immigrant classification.</E> A self-petitioner is required to comply with the provisions of section 204(c) of the Act, section 204(g) of the Act, and section 204(a)(2) of the Act. <P>(v) <E T='03'>Residence.</E> A self-petition will not be approved if the self-petitioner is not residing in the United States when the self-petition is filed. The self-petitioner is not required to be living with the abuser when the petition is filed, but he or she must have resided with the abuser in the United States in the past. <P>(vi) <E T='03'>Battery or extreme cruelty.</E> For the purpose of this chapter, the phrase “was battered by or was the subject of extreme cruelty” includes, but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but are a part of an overall pattern of violence. The qualifying abuse must have been committed by the citizen or lawful permanent resident parent, must have been perpetrated against the self-petitioner, and must have taken place while the self-petitioner was residing with the abuser. <P>(vii) <E T='03'>Good moral character.</E> A self-petitioner will be found to lack good moral character if he or she is a person described in section 101(f) of the Act. Extenuating circumstances may be taken into account if the person has not been convicted of an offense or offenses but admits to the commission of an act or acts that could show a lack of good moral character under section 101(f) of the Act. A person who was subjected to abuse in the form of forced prostitution or who can establish that he or she was forced to engage in other behavior that could render the person excludable under section 212(a) of the Act would not be precluded from being found to be a person of good moral character, provided the person has not been convicted for the commission of the offense or offenses in a court of law. A self-petitioner will also be found to lack good moral character, unless he or she establishes extenuating circumstances, if he or she willfully failed or refused to support dependents; or committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, although the acts do not require an automatic finding of lack of good moral character. A self-petitioner's claim of good moral character will be evaluated on a case-by-case basis, taking into account the provisions of section 101(f) of the Act and the standards of the average citizen in the community. If the results of record checks conducted prior to the issuance of an immigrant visa or approval of an application for adjustment of status disclose that the self-petitioner is no longer a person of good moral character or that he or she has not been a person of good moral character in the past, a pending self-petition will be denied or the approval of a self-petition will be revoked. <P>(viii) <E T='03'>Extreme hardship.</E> The Service will consider all credible evidence of extreme hardship submitted with a self-petition, including evidence of hardship arising from circumstances surrounding the abuse. The extreme hardship claim will be evaluated on a case-by-case basis after a review of the evidence in the case. Self-petitioners are encouraged to cite and document all applicable factors, since there is no guarantee that a particular reason or reasons will result in a finding that deportation would cause extreme hardship. Hardship to persons other than the self-petitioner cannot be considered in determining whether a self-petitioning child's deportation would cause extreme hardship. <P>(2) <E T='03'>Evidence for a child's self-petition</E>—(i) <E T='03'>General.</E> Self-petitioners are encouraged to submit primary evidence whenever possible. The Service will consider, however, any credible evidence relevant to the petition. The determination of what evidence is credible <PRTPAGE P='84'>and the weight to be given that evidence shall be within the sole discretion of the Service. <P>(ii) <E T='03'>Relationship.</E> A self-petition filed by a child must be accompanied by evidence of citizenship of the United States citizen or proof of the immigration status of the lawful permanent resident abuser. It must also be accompanied by evidence of the relationship. Primary evidence of the relationship between: <P>(A) The self-petitioning child and an abusive biological mother is the self-petitioner's birth certificate issued by civil authorities; <P>(B) A self-petitioning child who was born in wedlock and an abusive biological father is the child's birth certificate issued by civil authorities, the marriage certificate of the child's parents, and evidence of legal termination of all prior marriages, if any; <P>(C) A legitimated self-petitioning child and an abusive biological father is the child's birth certificate issued by civil authorities, and evidence of the child's legitimation; <P>(D) A self-petitioning child who was born out of wedlock and an abusive biological father is the child's birth certificate issued by civil authorities showing the father's name, and evidence that a bona fide parent-child relationship has been established between the child and the parent; <P>(E) A self-petitioning stepchild and an abusive stepparent is the child's birth certificate issued by civil authorities, the marriage certificate of the child's parent and the stepparent showing marriage before the stepchild reached 18 years of age, and evidence of legal termination of all prior marriages of either parent, if any; and <P>(F) An adopted self-petitioning child and an abusive adoptive parent is an adoption decree showing that the adoption took place before the child reached 16 years of age, and evidence that the child has been residing with and in the legal custody of the abusive adoptive parent for at least 2 years. <P>(iii) <E T='03'>Residence.</E> One or more documents may be submitted showing that the self-petitioner and the abuser have resided together in the United States. One or more documents may also be submitted showing that the self-petitioner is residing in the United States when the self-petition is filed. Employment records, school records, hospital or medical records, rental records, insurance policies, affidavits or any other type of relevant credible evidence of residency may be submitted. <P>(iv) <E T='03'>Abuse.</E> Evidence of abuse may include, but is not limited to, reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel. Persons who have obtained an order of protection against the abuser or taken other legal steps to end the abuse are strongly encouraged to submit copies of the relating legal documents. Evidence that the abuse victim sought safe-haven in a battered women's shelter or similar refuge may be relevant, as may a combination of documents such as a photograph of the visibly injured self-petitioner supported by affidavits. Other types of credible relevant evidence will also be considered. Documentary proof of non-qualifying abuse may only be used to establish a pattern of abuse and violence and to support a claim that qualifying abuse also occurred. <P>(v) <E T='03'>Good moral character.</E> Primary evidence of the self-petitioner's good moral character is the self-petitioner's affidavit. The affidavit should be accompanied by a local police clearance or a state-issued criminal background check from each locality or state in the United States in which the self-petitioner has resided for six or more months during the 3-year period immediately preceding the filing of the self-petition. Self-petitioners who lived outside the United States during this time should submit a police clearance, criminal background check, or similar report issued by the appropriate authority in the foreign country in which he or she resided for six or more months during the 3-year period immediately preceding the filing of the self-petition. If police clearances, criminal background checks, or similar reports are not available for some or all locations, the self-petitioner may include an explanation and submit other evidence with his or her affidavit. The Service will consider other credible evidence of good moral character, such <PRTPAGE P='85'>as affidavits from responsible persons who can knowledgeably attest to the self-petitioner's good moral character. A child who is less than 14 years of age is presumed to be a person of good moral character and is not required to submit affidavits of good moral character, police clearances, criminal background checks, or other evidence of good moral character. <P>(vi) <E T='03'>Extreme hardship.</E> Evidence of extreme hardship may include affidavits, medical reports, protection orders and other court documents, police reports, and other relevant credible evidence. <P>(3) <E T='03'>Decision on and disposition of the petition</E>—(i) <E T='03'>Petition approved.</E> If the self-petitioning child will apply for adjustment of status under section 245 of the Act, the approved petition will be retained by the Service. If the self-petitioner will apply for an immigrant visa abroad, the approved self-petition will be forwarded to the Department of State's National Visa Center. <P>(ii) <E T='03'>Petition denied.</E> If the self-petition is denied, the self-petitioner will be notified in writing of the reasons for the denial and of the right to appeal the decision. <P>(4) <E T='03'>Derivative beneficiaries.</E> A child of a self-petitioning child is not eligible for derivative classification and must have a petition filed on his or her behalf if seeking immigrant classification. <P>(5) <E T='03'>Name change.</E> If the self-petitioner's current name is different than the name shown on the documents, evidence of the name change (such as the petitioner's marriage certificate, legal document showing the name change, or other similar evidence) must accompany the self-petition. <P>(6) <E T='03'>Prima facie determination.</E> (i) Upon receipt of a self-petition under paragraph (e)(1) of this section, the Service shall make a determination as to whether the petition and the supporting documentation establish a “prima facie case” for purposes of 8 U.S.C. 1641, as amended by section 501 of Public Law 104–208. <P>(ii) For purposes of paragraph (e)(6)(i) of this section, a prima facie case is established only if the petitioner submits a completed Form I–360 and other evidence supporting all of the elements required of a self-petitioner in paragraph (e)(1) of this section. A finding of prima facie eligibility does not relieve the petitioner of the burden of providing additional evidence in support of the petition and does not establish eligibility for the underlying petition. <P>(iii) If the Service determines that a petitioner has made a “prima facie case” the Service shall issue a Notice of Prima Facie Case to the petitioner. Such Notice shall be valid until the Service either grants or denies the petition. <P>(iv) For purposes of adjudicating the petition submitted under paragraph (e)(1) of this section, a prima facie determination: <P>(A) Shall not be considered evidence in support of the petition; <P>(B) Shall not be construed to make a determination of the credibility or probative value of any evidence submitted along with that petition; and, <P>(C) Shall not relieve the self-petitioner of his or her burden of complying with all of the evidentiary requirements of paragraph (e)(2) of this section. <P>(f) <E T='03'>Petition for a parent</E>—(1) <E T='03'>Eligibility.</E> 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. <P>(2) <E T='03'>Evidence to support a petition for a parent.</E> In addition to evidence of United States citizenship as listed in §&thnsp;204.1(g) of this part, the petitioner must also provide evidence of the claimed relationship. <P>(i) <E T='03'>Primary evidence if petitioner is a legitimate son or daughter.</E> 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. <PRTPAGE P='86'><P>(ii) <E T='03'>Primary evidence if petitioner is a legitimated son or daughter.</E> 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. <P>(iii) <E T='03'>Primary evidence if the petitioner is an illegitimate son or daughter.</E> 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. <P>(iv) <E T='03'>Primary evidence if petitioner is an adopted son or daughter.</E> 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. <P>(A) <E T='03'>Legal custody</E> 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 <PRTPAGE P='87'>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. <P>(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. <P>(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. <P>(v) <E T='03'>Name change.</E> 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. <P>(3) <E T='03'>Decision on and disposition of petition.</E> 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. <P>(4) <E T='03'>Derivative beneficiaries.</E> 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. <P>(g) <E T='03'>Petition for a brother or sister</E>—(1) <E T='03'>Eligibility.</E> 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. <P>(2) <E T='03'>Evidence to support a petition for brother or sister.</E> In addition to evidence of United States citizenship, the petitioner must also provide evidence of the claimed relationship. <P>(i) <E T='03'>Primary evidence if the siblings share a common mother or are both legitimate children of a common father.</E> 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. <P>(ii) <E T='03'>Primary evidence if either or both siblings are legitimated.</E> 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 <PRTPAGE P='88'>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. <P>(iii) <E T='03'>Primary evidence if either sibling is illegitimate.</E> 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. <P>(iv) <E T='03'>Primary evidence for stepsiblings.</E> If the petition is submitted on behalf of a brother or sister having a common father, the relationship of both the petitioner and the beneficiary to the father must be established as required in paragraphs (g)(2)(ii) and (g)(2)(iii) of this section. If the petitioner and beneficiary are stepsiblings through the marriages of their common father to different mothers, the marriage certificates of the parents and evidence of the termination of any prior marriages of the parents must be submitted. <P>(3) <E T='03'>Decision on and disposition of petition.</E> 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. <P>(4) <E T='03'>Derivative beneficiaries.</E> 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. <P>(5) <E T='03'>Name change.</E> 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. <P>(h) <E T='03'>Validity of approved petitions</E>—(1) <E T='03'>General.</E> 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. <P>(2) <E T='03'>Subsequent petition by same petitioner for same beneficiary.</E> When a visa <PRTPAGE P='89'>petition has been approved, and subsequently a new petition by the same petitioner is approved for the same preference classification on behalf of the same beneficiary, the latter approval shall be regarded as a reaffirmation or reinstatement of the validity of the original petition, except when the original petition has been terminated pursuant to section 203(g) of the Act or revoked pursuant to part 205 of this chapter, or when an immigrant visa has been issued to the beneficiary as a result of the petition approval. A self-petition filed under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the Act based on the relationship to an abusive citizen or lawful permanent resident of the United States will not be regarded as a reaffirmation or reinstatement of a petition previously filed by the abuser. A self-petitioner who has been the beneficiary of a visa petition filed by the abuser to accord the self-petitioner immigrant classification as his or her spouse or child, however, will be allowed to transfer the visa petition's priority date to the self-petition. The visa petition's priority date may be assigned to the self-petition without regard to the current validity of the visa petition. The burden of proof to establish the existence of and the filing date of the visa petition lies with the self-petitioner, although the Service will attempt to verify a claimed filing through a search of the Service's computerized records or other records deemed appropriate by the adjudicating officer. A new self-petition filed under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act will not be regarded as a reaffirmation or reinstatement of the original self-petition unless the prior and the subsequent self-petitions are based on the relationship to the same abusive citizen or lawful permanent resident of the United States. <P>(i) <E T='03'>Automatic conversion of preference classification</E>—(1) <E T='03'>By change in beneficiary's marital status.</E> (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. <P>(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. <P>(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. <P>(iv) A currently valid visa petition previously approved to classify the beneficiary as an immediate relative as the spouse of a United States citizen must be regarded, upon the death of the petitioner, as having been approved as a Form I–360, Petition for Amerasian, Widow(er) or Special Immigrant for classification under paragraph (b) of this section, if, on the date of the petitioner's death, the beneficiary satisfies the requirements of paragraph (b)(1) of this section. If the petitioner dies before the petition is approved, but, on the date of the petitioner's death, the beneficiary satisfies the requirements of paragraph (b)(1) of this section, then the petition shall be adjudicated as if it had been filed as a Form I–360, Petition for Amerasian, <PRTPAGE P='90'>Widow(er) or Special Immigrant under paragraph (b) of this section. <P>(2) <E T='03'>By the beneficiary's attainment of the age of twenty-one years.</E> 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. <P>(3) <E T='03'>By the petitioner's naturalization.</E> Effective upon the date of naturalization of a petitioner who had been lawfully admitted for permanent residence, a currently valid petition according preference status under section 203(a)(2) of the Act to the petitioner's spouse and unmarried children under twenty-one years of age shall be regarded as having been approved for immediate relative status under section 201(b) of the Act. Similarly, a currently valid petition according preference status under section 203(a)(2) of the Act for the unmarried son or daughter over twenty-one years of age shall be regarded as having been approved under section 203(a)(1) of the Act. In any case of conversion to classification under section 203(a)(1) of the Act, the beneficiary's priority date is the same as the date the petition for classification under section 203(a)(2) of the Act was properly filed. A self-petition filed under section 204(a)(1)(B)(ii) or 204(a)(1)(B)(iii) of the Act based on the relationship to an abusive lawful permanent resident of the United States for classification under section 203(a)(2) of the Act will not be affected by the abuser's naturalization and will not be automatically converted to a petition for immediate relative classification. <CITA>[57 FR 41057, Sept. 9, 1992, as amended at 60 FR 34090, June 30, 1995; 60 FR 38948, July 31, 1995; 61 FR 13073, 13075, 13077, Mar. 26, 1996; 62 FR 10336, Mar. 6, 1997; 62 FR 60771, Nov. 13, 1997; 71 FR 35749, June 21, 2006; 72 FR 19107, Apr. 17, 2007; 72 FR 56853, Oct. 4, 2007] <SECTION> <SECTNO>§&thnsp;204.3 <SUBJECT>Orphan cases under section 101(b)(1)(F) of the Act (non-Convention cases). <P>(a) This section addresses the immigration classification of alien orphans as provided for in section 101(b)(1)(F) of the Act. <P>(1) Except as provided in paragraph (a)(2) of this section, a child who meets the definition of orphan contained in section 101(b)(1)(F) of the Act is eligible for classification as the immediate relative of a U.S. citizen if: <P>(i) The U.S. citizen seeking the child's immigration can document that the citizen (and his or her spouse, if any) are capable of providing, and will provide, proper care for an alien orphan; and <P>(ii) The child is an orphan under section 101(b)(1)(F) of the Act. <Q P='02'> <FP>A U.S. citizen may submit the documentation necessary for each of these determinations separately or at one time, depending on when the orphan is identified. <P>(2) Form I–600A or Form I–600 may not be filed under this section on or after the Convention effective date, as defined in 8 CFR 204.301, on behalf of a child who is habitually resident in a Convention country, as defined in 8 CFR 204.301. On or after the Convention effective date, USCIS may approve a Form I–600 on behalf of a child who is habitually resident in a Convention country only if the Form I–600A or Form I–600 was filed before the Convention effective date. <P>(b) <E T='03'>Definitions.</E> As used in this section, the term: <P><E T='03'>Abandonment by both parents</E> means that the parents have willfully forsaken all parental rights, obligations, and claims to the child, as well as all control over and possession of the child, without intending to transfer, or without transferring, these rights to any specific person(s). Abandonment must include not only the intention to surrender all parental rights, obligations, and claims to the child, and control over and possession of the child, but also the actual act of surrending such rights, obligations, claims, control, and possession. A relinquishment or release by the parents to the prospective adoptive parents or for a specific adoption does not constitute abandonment. Similarly, the relinquishment or release of the child by the parents to a third party for custodial care in anticipation of, or preparation for, adoption does not constitute <PRTPAGE P='91'>abandonment unless the third party (such as a governmental agency, a court of competent jurisdiction, an adoption agency, or an orphanage) is authorized under the child welfare laws of the foreign-sending country to act in such a capacity. A child who is placed temporarily in an orphanage shall not be considered to be abandoned if the parents express an intention to retrieve the child, are contributing or attempting to contribute to the support of the child, or otherwise exhibit ongoing parental interest in the child. A child who has been given unconditionally to an orphanage shall be considered to be abandoned. <P><E T='03'>Adult member of the prospective adoptive parents' household</E> means an individual, other than a prospective adoptive parent, over the age of 18 whose principal or only residence is the home of the prospective adoptive parents. This definition excludes any child of the prospective adoptive parents, whose principal or only residence is the home of the prospective adoptive parents, who reaches his or her eighteenth birthday after the prospective adoptive parents have filed the advanced processing application (or the advanced processing application concurrently with the orphan petition) unless the director has an articulable and substantive reason for requiring an evaluation by a home study preparer and/or fingerprint check. <P><E T='03'>Advanced processing application</E> means Form I–600A (Application for Advanced Processing of Orphan Petition) completed in accordance with the form's instructions and submitted with the required supporting documentation and the fee as required in 8 CFR 103.7(b)(1). The application must be signed in accordance with the form's instructions by the married petitioner and spouse, or by the unmarried petitioner. <P><E T='03'>Application</E> is synonymous with <E T='03'>advanced processing application.</E> <P><E T='03'>Competent authority</E> means a court or governmental agency of a foreign-sending country having jurisdiction and authority to make decisions in matters of child welfare, including adoption. <P><E T='03'>Desertion by both parents</E> means that the parents have willfully forsaken their child and have refused to carry out their parental rights and obligations and that, as a result, the child has become a ward of a competent authority in accordance with the laws of the foreign-sending country. <P><E T='03'>Disappearance of both parents</E> means that both parents have unaccountably or inexplicably passed out of the child's life, their whereabouts are unknown, there is no reasonable hope of their reappearance, and there has been a reasonable effort to locate them as determined by a competent authority in accordance with the laws of the foreign-sending country. <P><E T='03'>Foreign-sending country</E> means the country of the orphan's citizenship, or if he or she is not permanently residing in the country of citizenship, the country of the orphan's habitual residence. This excludes a country to which the orphan travels temporarily, or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States. <P><E T='03'>Home study preparer</E> means any party licensed or otherwise authorized under the law of the State of the orphan's proposed residence to conduct the research and preparation for a home study, including the required personal interview(s). This term includes a public agency with authority under that State's law in adoption matters, public or private adoption agencies licensed or otherwise authorized by the laws of that State to place children for adoption, and organizations or individuals licensed or otherwise authorized to conduct the research and preparation for a home study, including the required personal interview(s), under the laws of the State of the orphan's proposed residence. In the case of an orphan whose adoption has been finalized abroad and whose adoptive parents reside abroad, the home study preparer includes any party licensed or otherwise authorized to conduct home studies under the law of any State of the United States, or any party licensed or otherwise authorized by the foreign country's adoption authorities to conduct home studies under the laws of the foreign country. <P><E T='03'>Incapable of providing proper care</E> means that a sole or surviving parent is unable to provide for the child's <PRTPAGE P='92'>basic needs, consistent with the local standards of the <E T='03'>foreign sending country.</E> <P><E T='03'>Loss from both parents</E> means the involuntary severance or detachment of the child from the parents in a permanent manner such as that caused by a natural disaster, civil unrest, or other calamitous event beyond the control of the parents, as verified by a competent authority in accordance with the laws of the foreign sending country. <P><E T='03'>Orphan petition</E> means Form I–600 (Petition to Classify Orphan as an Immediate Relative). The petition must be completed in accordance with the form's instructions and submitted with the required supporting documentation and, if there is not an advanced processing application approved within the previous 18 months or pending, the fee as required in 8 CFR 103.7(b)(1). The petition must be signed in accordance with the form's instructions by the married petitioner and spouse, or the unmarried petitioner. <P><E T='03'>Overseas site</E> means the Department of State immigrant visa-issuing post having jurisdiction over the orphan's residence, or in foreign countries in which the Services has an office or offices, the Service office having jurisdiction over the orphan's residence. <P><E T='03'>Petition</E> is synonymous with <E T='03'>orphan petition.</E> <P><E T='03'>Petitioner</E> means a married United States citizen of any age, or an unmarried United States citizen who is at least 24 years old at the time he or she files the advanced processing application and at least 25 years old at the time he or she files the orphan petition. In the case of a married couple, both of whom are United States citizens, either party may be the petitioner. <P><E T='03'>Prospective adoptive parents</E> means a married United States citizen of any age and his or her spouse of any age, or an unmarried United States citizen who is at least 24 years old at the time he or she files the advanced processing application and at least 25 years old at the time he or she files the orphan petition. The spouse of the United States citizen may be a citizen or an alien. An alien spouse must be in lawful immigration status if residing in the United States. <P><E T='03'>Separation from both parents</E> means the involuntary severance of the child from his or her parents by action of a competent authority for good cause and in accordance with the laws of the foreign-sending country. The parents must have been properly notified and granted the opportunity to contest such action. The termination of all parental rights and obligations must be permanent and unconditional. <P><E T='03'>Sole parent</E> means the mother when it is established that the child is illegitimate and has not acquired a parent within the meaning of section 101(b)(2) of the Act. An illegitimate child shall be considered to have a sole parent if his or her father has severed all parental ties, rights, duties, and obligations to the child, or if his or her father has, in writing, irrevocably released the child for emigration and adoption. This definition is not applicable to children born in countries which make no distinction between a child born in or out of wedlock, since all such children are considered to be legitimate. In all cases, a sole parent must be <E T='03'>incapable of providing proper care</E> as that term is defined in this section. <P><E T='03'>Surviving parent</E> means the child's living parent when the child's other parent is dead, and the child has not acquired another parent within the meaning of section 101(b)(2) of the Act. In all cases, a surviving parent must be <E T='03'>incapable of providing proper care</E> as that term is defined in this section. <P>(c) <E T='03'>Supporting documentation for an advanced processing application.</E> The prospective adoptive parents may file an advanced processing application before an orphan is identified in order to secure the necessary clearance to file the orphan petition. Any document not in the English language must be accompanied by a certified English translation. <P>(1) <E T='03'>Required supporting documentation that must accompany the advanced processing application.</E> The following supporting documentation must accompany an advanced processing application at the time of filing: <P>(i) Evidence of the petitioner's United States citizenship as set forth in §&thnsp;204.1(g) and, if the petitioner is married and the married couple is residing in the United States, evidence of <PRTPAGE P='93'>the spouse's United States citizenship or lawful immigration status; <P>(ii) A copy of the petitioner's marriage certificate to his or her spouse, if the petitioner is currently married; <P>(iii) Evidence of legal termination of all previous marriages for the petitioner and/or spouse, if previously married; and <P>(iv) Evidence of compliance with preadoption requirements, if any, of the State of the orphan's proposed residence in cases where it is known that there will be no adoption abroad, or that both members of the married prospective adoptive couple or the unmarried prospective adoptive parent will not personally see the child prior to, or during, the adoption abroad, and/or that the adoption abroad will not be full and final. Any preadoption requirements which cannot be met at the time the advanced processing application is filed because of operation of State law must be noted and explained when the application is filed. Preadoption requirements must be met at the time the petition is filed, except for those which cannot be met until the orphan arrives in the United States. <P>(2) <E T='03'>Home study.</E> The home study must comply with the requirements contained in paragraph (e) of this section. If the home study is not submitted when the advanced processing application is filed, it must be submitted within one year of the filing date of the advanced processing application, or the application will be denied pursuant to paragraph (h)(5) of this section. <P>(3) After receipt of a properly filed advanced processing application, the Service will fingerprint each member of the married prospective adoptive couple or the unmarried prospective adoptive parent, as prescribed in §&thnsp;103.2(e) of this chapter. The Service will also fingerprint each additional adult member of the prospective adoptive parents' household, as prescribed in §&thnsp;103.2(e) of this chapter. The Service may waive the requirement that each additional adult member of the prospective adoptive parents' household be fingerprinted when it determines that such adult is physically unable to be fingerprinted because of age or medical condition. <P>(d) <E T='03'>Supporting documentation for a petition for an identified orphan.</E> Any document not in the English language must be accompanied by a certified English translation. If an orphan has been identified for adoption and the advanced processing application is pending, the prospective adoptive parents may file the orphan petition at the Service office where the application is pending. The prospective adoptive parents who have an approved advanced processing application must file an orphan petition and all supporting documents within eighteen months of the date of the approval of the advanced processing application. If the prospective adoptive parents fail to file the orphan petition within the eighteen-month period, the advanced processing application shall be deemed abandoned pursuant to paragraph (h)(7) of this section. If the prospective adoptive parents file the orphan petition after the eighteen-month period, the petition shall be denied pursuant to paragraph (h)(13) of this section. Prospective adoptive parents who do not have an advanced processing application approved or pending may file the application and petition concurrently on one Form I–600 if they have identified an orphan for adoption. An orphan petition must be accompanied by full documentation as follows: <P>(1) <E T='03'>Filing an orphan petition after the advanced processing application has been approved.</E> The following supporting documentation must accompany an orphan petition filed after approval of the advanced processing application: <P>(i) Evidence of approval of the advanced processing application; <P>(ii) The orphan's birth certificate, or if such a certificate is not available, an explanation together with other proof of identity and age; <P>(iii) Evidence that the child is an orphan as appropriate to the case: <P>(A) Evidence that the orphan has been abandoned or deserted by, separated or lost from both parents, or that both parents have disappeared as those terms are defined in paragraph (b) of this section; or <P>(B) The death certificate(s) of the orphan's parent(s), if applicable; <PRTPAGE P='94'><P>(C) If the orphan has only a sole or surviving parent, as defined in paragraph (b) of this section, evidence of this fact and evidence that the sole or surviving parent is incapable of providing for the orphan's care and has irrevocably released the orphan for emigration and adoption; and <P>(iv) Evidence of adoption abroad or that the prospective adoptive parents have, or a person or entity working on their behalf has, custody of the orphan for emigration and adoption in accordance with the laws of the foreign-sending country: <P>(A) A legible, certified copy of the adoption decree, if the orphan has been the subject of a full and final adoption abroad, and evidence that the unmarried petitioner, or married petitioner and spouse, saw the orphan prior to or during the adoption proceeding abroad; or <P>(B) If the orphan is to be adopted in the United States because there was no adoption abroad, or the unmarried petitioner, or married petitioner and spouse, did not personally see the orphan prior to or during the adoption proceeding abroad, and/or the adoption abroad was not full and final: <P>(<E T='03'>1</E>) Evidence that the prospective adoptive parents have, or a person or entity working on their behalf has, secured custody of the orphan in accordance with the laws of the foreign-sending country; <P>(<E T='03'>2</E>) An irrevocable release of the orphan for emigration and adoption from the person, organization, or competent authority which had the immediately previous legal custody or control over the orphan if the adoption was not full and final under the laws of the foreign-sending country; <P>(<E T='03'>3</E>) Evidence of compliance with all preadoption requirements, if any, of the State of the orphan's proposed residence. (Any such requirements that cannot be complied with prior to the orphan's arrival in the United States because of State law must be noted and explained); and <P>(<E T='03'>4</E>) Evidence that the State of the orphan's proposed residence allows readoption or provides for judicial recognition of the adoption abroad if there was an adoption abroad which does not meet statutory requirements pursuant to section 101(b)(1)(F) of the Act, because the unmarried petitioner, or married petitioner <E T='03'>and</E> spouse, did not personally see the orphan prior to or during the adoption proceeding abroad, and/or the adoption abroad was not full and final. <P>(2) <E T='03'>Filing an orphan petition while the advanced processing application is pending.</E> An orphan petition filed while an advanced processing application is pending must be filed at the Service office where the application is pending. The following supporting documentation must accompany an orphan petition filed while the advanced processing application is pending: <P>(i) A photocopy of the fee receipt relating to the advanced processing application, or if not available, other evidence that the advanced processing application has been filed, such as a statement including the date when the application was filed; <P>(ii) The home study, if not already submitted; and <P>(iii) The supporting documentation for an orphan petition required in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of this section. <P>(3) <E T='03'>Filing an orphan petition concurrently with the advanced processing application.</E> A petition filed concurrently with the advanced processing application must be submitted on Form I–600, completed and signed in accordance with the form's instructions. (Under this concurrent procedure, Form I–600 serves as both the Forms I–600A and I–600, and the prospective adoptive parents should not file a separate Form I–600A). The following supporting documentation must accompany a petition filed concurrently with the application under this provision: <P>(i) The supporting documentation for an advanced processing application required in paragraph (c) of this section; and <P>(ii) The supporting documentation for an orphan petition required in paragraph (d)(1) of this section, except for paragraph (d)(1)(i) of this section. <P>(e) <E T='03'>Home study requirements.</E> For immigration purposes, a home study is a process for screening and preparing prospective adoptive parents who are interested in adopting an orphan from another country. The home study <PRTPAGE P='95'>should be tailored to the particular situation of the prospective adoptive parents: for example, a family which previously has adopted children will require different preparation than a family that has no adopted children. If there are any additional adult members of the prospective adoptive parents' household, the home study must address this fact. The home study preparer must interview any additional adult member of the prospective adoptive parents' household and assess him or her in light of the requirements of paragraphs (e)(1), (e)(2)(i), (iii), (iv), and (v) of this section. A home study must be conducted by a home study preparer, as defined in paragraph (b) of this section. The home study, or the most recent update to the home study, must not be more than six months old at the time the home study is submitted to the Service. Only one copy of the home study must be submitted to the Service. Ordinarily, a home study (or a home study and update as discussed above) will not have to be updated after it has been submitted to the Service unless there is a significant change in the household of the prospective adoptive parents such as a change in residence, marital status, criminal history, financial resources, and/or the addition of one or more children or other dependents to the family prior to the orphan's immigration into the United States. In addition to meeting any State, professional, or agency requirements, a home study must include the following: <P>(1) <E T='03'>Personal interview(s) and home visit(s).</E> The home study preparer must conduct at least one interview in person, and at least one home visit, with the prospective adoptive couple or the unmarried prospective adoptive parent. Each additional adult member of the prospective adoptive parents' household must also be interviewed in person at least once. The home study report must state the number of such interviews and visits, and must specify any other contacts with the prospective adoptive parents and any adult member of the prospective adoptive parents' household. <P>(2) <E T='03'>Assessment of the capabilities of the prospective adoptive parents to properly parent the orphan.</E> The home study must include a discussion of the following areas: <P>(i) <E T='03'>Assessment of the physical, mental, and emotional capabilities of the prospective adoptive parents to properly parent the orphan.</E> The home study preparer must make an initial assessment of how the physical, mental, and emotional health of the prospective adoptive parents would affect their ability to properly care for the prospective orphan. If the home study preparer determines that there are areas beyond his or her expertise which need to be addressed, he or she shall refer the prospective adoptive parents to an appropriate licensed professional, such as a physician, psychiatrist, clinical psychologist, or clinical social worker for an evaluation. Some problems may not necessarily disqualify applicants. For example, certain physical limitations may indicate which categories of children may be most appropriately placed with certain prospective adoptive parents. Certain mental and emotional health problems may be successfully treated. The home study must include the home study preparer's assessment of any such potential problem areas, a copy of any outside evaluation(s), and the home study preparer's recommended restrictions, if any, on the characteristics of the child to be placed in the home. Additionally, the home study preparer must apply the requirements of this paragraph to each adult member of the prospective adoptive parents' household. <P>(ii) <E T='03'>Assessment of the finances of the prospective adoptive parents.</E> The financial assessment must include a description of the income, financial resources, debts, and expenses of the prospective adoptive parents. A statement concerning the evidence that was considered to verify the source and amount of income and financial resources must be included. Any income designated for the support of one or more children in the care and custody of the prospective adoptive parents, such as funds for foster care, or any income designated for the support of another member of the household must not be counted towards the financial resources available for the support of a prospective orphan. The Service will not routinely require <PRTPAGE P='96'>a detailed financial statement or supporting financial documents. However, should the need arise, the Service reserves the right to ask for such detailed documentation. <P>(iii) <E T='03'>History of abuse and/or violence</E>—(A) <E T='03'>Screening for abuse and violence</E>—<E T='03'>1</E>) <E T='03'>Checking available child abuse registries.</E> The home study preparer must ensure that a check of each prospective adoptive parent and each adult member of the prospective adoptive parents' household has been made with available child abuse registries and must include in the home study the results of the checks including, if applicable, a report that no record was found to exist. Depending on the access allowed by the state of proposed residence of the orphan, the home study preparer must take one of the following courses of action: <P>(<E T='03'>i</E>) If the home study preparer is allowed access to information from the child abuse registries, he or she shall make the appropriate checks for each of the prospective adoptive parents and for each adult member of the prospective adoptive parents' household; <P>(<E T='03'>ii</E>) If the State requires the home study preparer to secure permission from each of the prospective adoptive parents and for each adult member of the prospective adoptive parents' household before gaining access to information in such registries, the home study preparer must secure such permission from those individuals, and make the appropriate checks; <P>(<E T='03'>iii</E>) If the State will only release information directly to each of the prospective adoptive parents and directly to the adult member of the prospective adoptive parents' household, those individuals must secure such information and provide it to the home study preparer. The home study preparer must include the results of these checks in the home study; <P>(<E T='03'>iv</E>) If the State will not release information to either the home study preparer or the prospective adoptive parents and the adult members of the prospective adoptive parents' household, this must be noted in the home study; or <P>(<E T='03'>v</E>) If the State does not have a child abuse registry, this must be noted in the home study. <P>(<E T='03'>2</E>) <E T='03'>Inquiring about abuse and violence.</E> The home study preparer must ask each prospective adoptive parent whether he or she has a history of substance abuse, sexual or child abuse, or domestic violence, even if it did not result in an arrest or conviction. The home study preparer must include each prospective adoptive parent's response to the questions regarding abuse and violence. Additionally, the home study preparer must apply the requirements of this paragraph to each adult member of the prospective adoptive parents' household. <P>(B) <E T='03'>Information concerning history of abuse and/or violence.</E> If the petitioner and/or spouse, if married, disclose(s) any history of abuse and/or violence as set forth in paragraph (e)(2)(iii)(A) of this section, or if, in the absence of such disclosure, the home study preparer becomes aware of any of the foregoing, the home study report must contain an evaluation of the suitability of the home for adoptive placement of an orphan in light of this history. This evaluation must include information concerning all arrests or convictions or history of substance abuse, sexual or child abuse, and/or domestic violence and the date of each occurrence. A certified copy of the documentation showing the final disposition of each incident, which resulted in arrest, indictment, conviction, and/or any other judicial or administrative action, must accompany the home study. Additionally, the prospective adoptive parent must submit a signed statement giving details including mitigating circumstances, if any, about each incident. The home study preparer must apply the requirements of this paragraph to each adult member of the prospective adoptive parents' household. <P>(C) <E T='03'>Evidence of rehabilitation.</E> If a prospective adoptive parent has a history of substance abuse, sexual or child abuse, and/or domestic violence, the home study preparer may, nevertheless, make a favorable finding if the prospective adoptive parent has demonstrated appropriate rehabilitation. In such a case, a discussion of such rehabilitation which demonstrates that the prospective adoptive parent is and will be able to provide proper care for the orphan must be included in the <PRTPAGE P='97'>home study. Evidence of rehabilitation may include an evaluation of the seriousness of the arrest(s), conviction(s), or history of abuse, the number of such incidents, the length of time since the last incident, and any type of counseling or rehabilitation programs which have been successfully completed. Evidence of rehabilitation may also be provided by an appropriate licensed professional, such as a psychiatrist, clinical psychologist, or clinical social worker. The home study report must include all facts and circumstances which the home study preparer has considered, as well as the preparer's reasons for a favorable decision regarding the prospective adoptive parent. Additionally, if any adult member of the prospective adoptive parents' household has a history of substance abuse, sexual or child abuse, and/or domestic violence, the home study preparer must apply the requirements of this paragraph to that adult member of the prospective adoptive parents' household. <P>(D) <E T='03'>Failure to disclose or cooperate.</E> Failure to disclose an arrest, conviction, or history of substance abuse, sexual or child abuse, and/or domestic violence by the prospective adoptive parents or an adult member of the prospective adoptive parents' household to the home study preparer and to the Service, may result in the denial of the advanced processing application or, if applicable, the application and orphan petition, pursuant to paragraph (h)(4) of this section. Failure by the prospective adoptive parents or an adult member of the prospective adoptive parents' household to cooperate in having available child abuse registries in accordance with paragraphs (e)(2)(iii)(A)(<E T='03'>1</E>) and (e)(2)(iii)(A)(<E T='03'>1</E>)(<E T='03'>i</E>) through (e)(2)(iii)(A)(<E T='03'>1</E>)(<E T='03'>iii</E>) of this section will result in the denial of the advanced processing application or, if applicable, the application and orphan petition, pursuant to paragraph (h)(4) of this section. <P>(iv) <E T='03'>Previous rejection for adoption or prior unfavorable home study.</E> The home study preparer must ask each prospective adoptive parent whether he or she previously has been rejected as a prospective adoptive parent or has been the subject of an unfavorable home study, and must include each prospective adoptive parent's response to this question in the home study report. If a prospective adoptive parent previously has been rejected or found to be unsuitable, the reasons for such a finding must be set forth as well as the reason(s) why he or she is not being favorably considered as a prospective adoptive parent. A copy of each previous rejection and/or unfavorable home study must be attached to the favorable home study. Additionally, the home study preparer must apply the requirements of this paragraph to each adult member of the prospective adoptive parents' household. <P>(v) <E T='03'>Criminal history.</E> The prospective adoptive parents and the adult members of the prospective adoptive parents' household are expected to disclose to the home study preparer and the Service any history of arrest and/or conviction early in the advanced processing procedure. Failure to do so may result in denial pursuant to paragraph (h)(4) of this section or in delays. Early disclosure provides the prospective adoptive parents with the best opportunity to gather and present evidence, and it gives the home study preparer and the Service the opportunity to properly evaluate the criminal record in light of such evidence. When such information is not presented early in the process, it comes to light when the fingerprint checks are received by the Service. By that time, the prospective adoptive parents are usually well into preadoption proceedings of identifying a child and may even have firm travel plans. At times, the travel plans have to be rescheduled while the issues raised by the criminal record are addressed. It is in the best interests of all parties to have any criminal records disclosed and resolved early in the process. <P>(3) <E T='03'>Living accommodations.</E> The home study must include a detailed description of the living accommodations where the prospective adoptive parents currently reside. If the prospective adoptive parents are planning to move, the home study must include a description of the living accommodations where the child will reside with the prospective adoptive parents, if known. If the prospective adoptive parents are <PRTPAGE P='98'>residing abroad at the time of the home study, the home study must include a description of the living accommodations where the child will reside in the United States with the prospective adoptive parents, if known. Each description must include an assessment of the suitability of accommodations for a child and a determination whether such space meets applicable State requirements, if any. <P>(4) <E T='03'>Handicapped or special needs orphan.</E> A home study conducted in conjunction with the proposed adoption of a special needs or handicapped orphan must contain a discussion of the prospective adoptive parents' preparation, willingness, and ability to provide proper care for such an orphan. <P>(5) <E T='03'>Summary of the counseling given and plans for post-placement counseling.</E> The home study must include a summary of the counseling given to prepare the prospective adoptive parents for an international adoption and any plans for post-placement counseling. Such preadoption counseling must include a discussion of the processing, expenses, difficulties, and delays associated with international adoptions. <P>(6) <E T='03'>Specific approval of the prospective adoptive parents for adoption.</E> If the home study preparer's findings are favorable, the home study must contain his or her specific approval of the prospective adoptive parents for adoption and a discussion of the reasons for such approval. The home study must include the number of orphans which the prospective adoptive parents may adopt. The home study must state whether there are any specific restrictions to the adoption such as nationality, age, or gender of the orphan. If the home study preparer has approved the prospective parents for a handicapped or special needs adoption, this fact must be clearly stated. <P>(7) <E T='03'>Home study preparer's certification and statement of authority to conduct home studies.</E> The home study must include a statement in which the home study preparer certifies that he or she is licensed or otherwise authorized by the State of the orphan's proposed residence to research and prepare home studies. In the case of an orphan whose adoption was finalized abroad and whose adoptive parents reside abroad, the home study preparer must certify that he or she is licensed or otherwise authorized to conduct home studies under the law of any State of the United States, or authorized by the adoption authorities of the foreign country to conduct home studies under the laws of the foreign country. In every case, this statement must cite the State or country under whose authority the home study preparer is licensed or authorized, the specific law or regulation authorizing the preparer to conduct home studies, the license number, if any, and the expiration date, if any, of this authorization or license. <P>(8) <E T='03'>Review of home study.</E> If the prospective adoptive parents reside in a State which requires the State to review the home study, such a review must occur and be documented before the home study is submitted to the Service. If the prospective adoptive parents reside abroad, an appropriate public or private adoption agency licensed, or otherwise authorized, by any State of the United States to place children for adoption, must review and favorably recommend the home study before it is submitted to the Service. <P>(9) <E T='03'>Home study updates and amendments</E>—(i) <E T='03'>Updates.</E> If the home study is more than six months old at the time it would be submitted to the Service, the prospective adoptive parents must ensure that it is updated by a home study preparer before it is submitted to the Service. Each update must include screening in accordance with paragraphs (e)(2)(iii) (A) and (B) of this section. <P>(ii) <E T='03'>Amendments.</E> If there have been any significant changes, such as a change in the residence of the prospective adoptive parents, marital status, criminal history, financial resources, and/or the addition of one or more children or other dependents to the family, the prospective adoptive parents must ensure that the home study is amended by a home study preparer to reflect any such changes. If the orphan's proposed State of residence has changed, the home study amendment must contain a recommendation in accordance with paragraph (e)(8) of this section, if required by State law. Any preadoption requirements of the new State must be <PRTPAGE P='99'>complied with in the case of an orphan coming to the United States to be adopted. <P>(10) <E T='03'>“Grandfather” provision for home study.</E> A home study properly completed in conformance with the regulations in force prior to September 30, 1994, shall be considered acceptable if submitted to the Service within 90 days of September 30, 1994. Any such home study accepted under this “grandfather” provision must include screening in accordance with paragraphs (e)(2)(iii) (A) and (B) of this section. Additionally, any such home study submitted under this “grandfather” provision which is more than six months old at the time of its submission must be amended or updated pursuant to the requirements of paragraph (e)(9) of this section. <P>(f) <E T='03'>State preadoption requirements</E>—(1) <E T='03'>General.</E> Many States have preadoption requirements which, under the Act, must be complied with in every case in which a child is coming to such a State as an orphan to be adopted in the United States. <P>(2) <E T='03'>Child coming to be adopted in the United States.</E> An orphan is coming to be adopted in the United States if he or she will not be or has not been adopted abroad, or if the unmarried petitioner or both the married petitioner and spouse did not or will not personally see the orphan prior to or during the adoption proceeding abroad, and/or if the adoption abroad will not be, or was not, full and final. If the prospective adoptive parents reside in a State with preadoption requirements and they plan to have the child come to the United States for adoption, they must submit evidence of compliance with the State's preadoption requirements to the Service. Any preadoption requirements which by operation of State law cannot be met before filing the advanced processing application must be noted. Such requirements must be met prior to filing the petition, except for those which cannot be met by operation of State law until the orphan is physically in the United States. Those requirements which cannot be met until the orphan is physically present in the United States must be noted. <P>(3) <E T='03'>Special circumstances.</E> If both members of the prospective adoptive couple or the unmarried prospective adoptive parent intend to travel abroad to see the child prior to or during the adoption, the Act permits the application and/or petition, if otherwise approvable, to be approved without preadoption requirements having been met. However, if plans change and both members of the prospective adoptive couple or the unmarried prospective adoptive parent fail to see the child prior to or during the adoption, then preadoption requirements must be met before the immigrant visa can be issued, except for those preadoption requirements that cannot be met until the child is physically in the United States because of operation of State law. <P>(4) <E T='03'>Evidence of compliance.</E> In every case where compliance with preadoption requirements is required, the evidence of compliance must be in accordance with applicable State law, regulation, and procedure. <P>(g) <E T='03'>Where to file</E>—(1) <E T='03'>Where to file an advanced processing application.</E> An advanced processing application must be filed with the Service as follows: <P>(i) <E T='03'>Prospective adoptive parents residing in the United States.</E> If the prospective adoptive parents reside in the United States, the application must be filed with the Service office having jurisdiction over their place of residence. <P>(ii) <E T='03'>Prospective adoptive parents residing in Canada.</E> If the prospective adoptive parents reside in Canada, the application must be filed with the stateside Service office having jurisdiction over the proposed place of residence of the prospective adoptive parents in the United States. <P>(iii) <E T='03'>Prospective adoptive parents residing in a foreign country other than Canada.</E> If the prospective adoptive parents reside outside of the United States or Canada, the application may be filed with the overseas Service office having jurisdiction over the current place of residence pursuant to §&thnsp;100.4(b) of this chapter, or with the stateside Service office having jurisdiction over the proposed place of residence of the prospective adoptive parents in the United States. <PRTPAGE P='100'><P>(2) <E T='03'>Where to file an orphan petition when the advanced processing application has been approved.</E> An orphan petition must be filed with the appropriate Service office or immigrant visa-issuing post of the Department of State as follows: <P>(i) <E T='03'>Prospective adoptive parents residing in the United States who do not travel abroad to locate and/or adopt an orphan.</E> If the prospective adoptive parents reside in the United States and do not travel abroad to locate and/or adopt an orphan, the petition must be filed with the Service office having jurisdiction over the place of residence of the prospective adoptive parents. <P>(ii) <E T='03'>Prospective adoptive parents residing in the United States, with one or both members of the prospective adoptive couple, or the unmarried prospective adoptive parent, traveling abroad to locate and/or adopt an orphan.</E> If the prospective adoptive parents reside in the United States, and one or both members of the prospective adoptive couple, or the unmarried prospective adoptive parent, travel abroad to locate and/or adopt an orphan, the petition may be filed with the stateside Service office having jurisdiction over the place of residence of the prospective adoptive parents in the United States or at the overseas site. The petitioner may file the orphan petition at the overseas site only while he or she is physically present within the jurisdiction of the overseas site. If only one member of a married couple, which includes an alien, travels abroad to file the petition, it must be the United States citizen who travels abroad so that the overseas site will have jurisdiction over the petition. <P>(iii) <E T='03'>Prospective adoptive parents residing outside the United States.</E> Prospective adoptive parents residing outside of the United States may file the petition with the overseas site, or with the stateside Service office having jurisdiction over the proposed place of residence of the prospective adoptive parents in the United States. <P>(3) <E T='03'>Where to file an orphan petition when the advanced processing application is pending.</E> When the advanced processing application is pending, the petition must be filed at the Service office at which the application is pending. <P>(4) <E T='03'>Where to file an orphan petition concurrently with the advanced processing application.</E> When the petition is filed concurrently with the advanced processing application, it must be filed in accordance with the instruction for filing an advanced processing application in paragraphs (g)(1)(i) through (g)(1)(iii) of this section. <P>(h) <E T='03'>Adjudication and decision</E>—(1) <E T='03'>“Grandfather” provision for advanced processing application and/or orphan petition.</E> All applications and petitions filed under prior regulations which are filed before and are still pending on September 30, 1994, shall be processed and adjudicated under the prior regulations. <P>(2) <E T='03'>Director's responsibility to make an independent decision in an advanced processing application.</E> No advanced processing application shall be approved unless the director is satisfied that proper care will be provided for the orphan. If the director has reason to believe that a favorable home study, or update, or both are based on an inadequate or erroneous evaluation of all the facts, he or she shall attempt to resolve the issue with the home study preparer, the agency making the recommendation pursuant to paragraph (e)(8) of this section, if any, and the prospective adoptive parents. If such consultations are unsatisfactory, the director may request a review and opinion from the appropriate State Government authorities. <P>(3) <E T='03'>Advanced processing application approved.</E> (i) If the advanced processing application is approved, the prospective adoptive parents shall be advised in writing. The application and supporting documents shall be forwarded to the overseas site where the orphan resides. Additionally, if the petitioner advises the director that he or she intends to travel abroad to file the petition, telegraphic notification shall be sent overseas as detailed in paragraph (j)(1) of this section. The approved application shall be valid for 18 months from its approval date, unless the approval period is extended as provided in paragraph (h)(3)(ii) of this section. During this time, the prospective adoptive parents may file an orphan petition for one orphan without fee. If approved in <PRTPAGE P='101'>the home study for more than one orphan, the prospective adoptive parents may file a petition for each of the additional children, to the maximum number approved. If the orphans are siblings, no additional fee is required. If the orphans are not siblings, an additional fee is required for each orphan beyond the first orphan. Approval of an advanced processing application does not guarantee that the orphan petition will be approved. <P>(ii) If the BCIS Director, or an officer designated by the BCIS Director, determines that the ability of a prospective adoptive parent to timely file a Form I–600 has been adversely affected by the outbreak of Severe Acute Respiratory Syndrome (SARS) in a foreign country, such Director or designated officer may extend the validity period of the approval of the Form I–600A, either in an individual case or for a class of cases. An extension of the validity of the Form I–600A may be subject to such conditions as the BCIS Director, or officer designated by the BCIS Director may establish. <P>(4) <E T='03'>Advanced processing application denied for failure to disclose history of abuse and/or violence, or for failure to disclose a criminal history, or for failure to cooperate in checking child abuse registries.</E> Failure to disclose an arrest, conviction, or history of substance abuse, sexual or child abuse, and/or domestic violence, or a criminal history to the home study preparer and to the Service in accordance with paragraphs (e)(2)(iii) (A) and (B) and (e)(2)(v) of this section may result in the denial of the advanced processing application, or if applicable, the application and orphan petition filed concurrently. Failure by the prospective adoptive parents or an adult member of the prospective adoptive parents' household to cooperate in having available child abuse registries checked in accordance with paragraphs (e)(2)(iii)(A)(<E T='03'>1</E>) and (e)(2)(iii)(A)(<E T='03'>1</E>)(<E T='03'>i</E>) through (e)(2)(iii)(A)(<E T='03'>1</E>)(<E T='03'>iii</E>) of this section will result in the denial of the advanced processing application or, if applicable, the application and orphan petition filed concurrently. Any new application and/or petition filed within a year of such denial will also be denied. <P>(5) <E T='03'>Advanced processing denied for failure to submit home study.</E> If the home study is not submitted within one year of the filing date of the advanced processing application, the application shall be denied. This action shall be without prejudice to a new filing at any time with fee. <P>(6) <E T='03'>Advanced processing application otherwise denied.</E> If the director finds that the prospective adoptive parents have otherwise failed to establish eligibility, the applicable provisions of 8 CFR part 103 regarding a letter of intent to deny, if appropriate, and denial and notification of appeal rights shall govern. <P>(7) <E T='03'>Advanced processing application deemed abandoned for failure to file orphan petition within eighteen months of application's approval date.</E> If an orphan petition is not properly filed within eighteen months of the approval date of the advanced processing application, the application shall be deemed abandoned. Supporting documentation shall be returned to the prospective adoptive parents, except for documentation submitted by a third party which shall be returned to the third party, and documentation relating to the fingerprint checks. The director shall dispose of documentation relating to fingerprint checks in accordance with current policy. Such abandonment shall be without prejudice to a new filing at any time with fee. <P>(8) <E T='03'>Orphan petition approved by a stateside Service office.</E> If the orphan petition is approved by a stateside Service office, the prospective adoptive parents shall be advised in writing, telegraphic notification shall be sent to the immigrant visa-issuing post pursuant to paragraph (j)(3) of this section, and the petition and supporting documents shall be forwarded to the Department of State. <P>(9) <E T='03'>Orphan petition approved by an overseas Service office.</E> If the orphan petition is approved by an overseas Service office located in the country of the orphan's residence, the prospective adoptive parents shall be advised in writing, and the petition and supporting documents shall be forwarded to the immigrant visa-issuing post having jurisdiction for immigrant visa processing. <PRTPAGE P='102'><P>(10) <E T='03'>Orphan petition approved at an immigrant visa-issuing post.</E> If the orphan petition is approved at an immigrant visa-issuing post, the post shall initiate immigrant visa processing. <P>(11) <E T='03'>Orphan petition found to be “not readily approvable” by a consular officer.</E> If the consular officer adjudicating the orphan petition finds that it is “not readily approvable,” he or she shall notify the prospective adoptive parents in his or her consular district and forward the petition, the supporting documents, the findings of the I–604 investigation conducted pursuant to paragraph (k)(1) of this section, and any other relating documentation to the overseas Service office having jurisdiction pursuant to §&thnsp;100.4(b) of this chapter. <P>(12) <E T='03'>Orphan petition denied: petitioner fails to establish that the child is an orphan.</E> If the director finds that the petitioner has failed to establish that the child is an orphan who is eligible for the benefits sought, the applicable provisions of 8 CFR part 103 regarding a letter of intent to deny and notification of appeal rights shall govern. <P>(13) <E T='03'>Orphan petition denied: petitioner files orphan petition more than eighteen months after the approval of the advanced processing application.</E> If the petitioner files the orphan petition more than eighteen months after the approval date of the advanced processing application, the petition shall be denied. This action shall be without prejudice to a new filing at any time with fee. <P>(14) <E T='03'>Revocation.</E> The approval of an advanced processing application or an orphan petition shall be automatically revoked in accordance with §&thnsp;205.1 of this chapter, if an applicable reason exists. The approval of an advanced processing application or an orphan petition shall be revoked if the director becomes aware of information that would have resulted in denial had it been known at the time of adjudication. Such a revocation or any other revocation on notice shall be made in accordance with §&thnsp;205.2 of this chapter. <P>(i) <E T='03'>Child-buying as a ground for denial.</E> An orphan petition must be denied under this section if the prospective adoptive parents or adoptive parent(s), or a person or entity working on their behalf, have given or will given money or other consideration either directly or indirectly to the child's parent(s), agent(s), other individual(s), or entity as payment for the child or as an inducement to release the child. Nothing in this paragraph shall be regarded as precluding reasonable payment for necessary activities such as administrative, court, legal, translation, and/or medical services related to the adoption proceedings. <P>(j) <E T='03'>Telegraphic notifications</E>—(1) <E T='03'>Telegraphic notification of approval of advanced processing application.</E> Unless conditions preclude normal telegraphic transmissions, whenever an advanced processing application is approved in the United States, the director shall send telegraphic notification of the approval to the overseas site if a prospective adoptive parent advises the director that the petitioner intends to travel abroad and file the orphan petition abroad. <P>(2) <E T='03'>Requesting a change in visa-issuing posts.</E> If a prospective adoptive parent is in the United States, he or she may request the director to transfer notification of the approved advanced processing application to another visa-issuing post. Such a request shall be made on Form I–824 (Application for Action on an Approved Application or Petition) with the appropriate fee. The director shall send a Visas 37 telegram to both the previously and the newly designated posts. The following shall be inserted after the last numbered standard entry. “To: [insert name of previously designated visa-issuing post or overseas Service office]. Pursuant to the petitioner's request, the Visas 37 cable previously sent to your post/office in this matter is hereby invalidated. The approval is being transferred to the other post/office addressed in this telegram. Please forward the approved advanced processing application to that destination.” Prior to sending such a telegram, the director must ensure that the change in posts does not alter any conditions of the approval. <P>(3) <E T='03'>Telegraphic notification of approval of an orphan petition.</E> Unless conditions preclude normal telegraphic transmissions, whenever a petition is approved by a stateside Service office, <PRTPAGE P='103'>the director shall send telegraphic notification of the approval to the immigrant visa-issuing post. <P>(k) <E T='03'>Other considerations</E>—(1) <E T='03'>I–604 investigations.</E> An I–604 investigation must be completed in every orphan case. The investigation must be completed by a consular officer except when the petition is properly filed at a Service office overseas, in which case it must be completed by a Service officer. An I–604 investigation shall be completed before a petition is adjudicated abroad. When a petition is adjudicated by a stateside Service office, the I–604 investigation is normally completed after the case has been forwarded to visa-issuing post abroad. However, in a case where the director of a stateside Service office adjudicating the petition has articulable concerns that can only be resolved through the I–604 investigation, he or she shall request the investigation prior to adjudication. In any case in which there are significant differences between the facts presented in the approved advanced processing application and/or orphan petition and the facts uncovered by the I–604 investigation, the overseas site may consult directly with the appropriate Service office. In any instance where an I–604 investigation reveals negative information sufficient to sustain a denial or revocation, the investigation report, supporting documentation, and petition shall be forwarded to the appropriate Service office for action. Depending on the circumstances surrounding the case, the I–604 investigation shall include, but shall not necessarily be limited to, document checks, telephonic checks, interview(s) with the natural parent(s), and/or a field investigation. <P>(2) <E T='03'>Authority of consular officers.</E> An American consular officer is authorized to approve an orphan petition if the Service has made a favorable determination on the related advanced processing application, and the petitioner, who has traveled abroad to a country with no Service office in order to locate or adopt an orphan, has properly filed the petition, and the petition is approvable. A consular officer, however, shall refer any petition which is “not clearly approvable” for a decision by the Service office having jurisdiction pursuant to §&thnsp;100.4(b) of this chapter. The consular officer's adjudication includes all aspects of eligibility for classification as an orphan under section 101(b)(1)(F) of the Act other than the issue of the ability of the prospective adoptive parents to furnish proper care to the orphan. However, if the consular officer has a well-founded and substantive reason to believe that the advanced processing approval was obtained on the basis of fraud or misrepresentation, or has knowledge of a change in material fact subsequent to the approval of the advanced processing application, he or she shall consult with the Service office having jurisdiction pursuant to §&thnsp;100.4(b) of this chapter. <P>(3) <E T='03'>Child in the United States.</E> A child who is in parole status and who has not been adopted in the United States is eligible for the benefits of an orphan petition when all the requirements of sections 101(b)(1)(F) and 204 (d) and (e) of the Act have been met. A child in the United States either illegally or as a nonimmigrant, however, is ineligible for the benefits of an orphan petition. <P>(4) <E T='03'>Liaison.</E> Each director shall develop and maintain liaison with State Government adoption authorities having jurisdiction within his or her jurisdiction, including the administrator(s) of the Interstate Compact on the Placement of Children, and with other parties with interest in international adoptions. Such parties include, but are not necessarily limited to, adoption agencies, organizations representing adoption agencies, organizations representing adoptive parents, and adoption attorneys. <CITA>[59 FR 38881, Aug. 1, 1994; 59 FR 42878, Aug. 19, 1994, as amended at 63 FR 12986, Mar. 17, 1998; 68 FR 46926, Aug. 7, 2003; 72 FR 56853, Oct. 4, 2007] <SECTION> <SECTNO>§&thnsp;204.4 <SUBJECT>Amerasian child of a United States citizen. <P>(a) <E T='03'>Eligibility.</E> 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 <PRTPAGE P='104'>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. <P>(b) <E T='03'>Filing petition.</E> 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. <P>(c) <E T='03'>Jurisdiction.</E> 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. <P>(d) <E T='03'>Two-stage processing</E>—(1) <E T='03'>Preliminary processing.</E> 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 shall fingerprint the sponsor in accordance with §&thnsp;103.2(e) of this chapter. 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. <P>(2) <E T='03'>Final processing.</E> Upon submission of the documentary evidence required in paragraph (f)(1) of this section, the director shall complete the adjudication of the petition. <P>(e) <E T='03'>One-stage processing.</E> 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. <P>(f) <E T='03'>Evidence to support a petition for an Amerasian child of a United States citizen</E>—(1) <E T='03'>Two-stage processing of petition</E>—(i) <E T='03'>Preliminary processing.</E> (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: <P>(<E T='03'>1</E>) The beneficiary's birth and baptismal certificates or other religious documents; <P>(<E T='03'>2</E>) Local civil records; <P>(<E T='03'>3</E>) Affidavits from knowledgeable witnesses; <P>(<E T='03'>4</E>) Letters or evidence of financial support from the beneficiary's putative father; <P>(<E T='03'>5</E>) Photographs of the beneficiary's putative father, especially with the beneficiary; and <P>(<E T='03'>6</E>) Evidence of the putative father's United States citizenship. <P>(B) The beneficiary's photograph must be submitted. <P>(C) The beneficiary's marriage certificate, if married, and evidence of the termination of any previous marriages, if applicable, is required. <P>(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 <PRTPAGE P='105'>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. <P>(ii) <E T='03'>Final processing.</E> (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. <P>(B) Other documents necessary to support the petition are: <P>(<E T='03'>1</E>) Evidence of the age of the beneficiary's sponsor; <P>(<E T='03'>2</E>) Evidence of United States citizenship or lawful permanent residence of the sponsor as provided in §&thnsp;204.1(f); and <P>(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. <P>(iii) <E T='03'>Arrangements for placement of beneficiary under eighteen years of age.</E> (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. <P>(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: <P>(<E T='03'>1</E>) Indicating that, before signing the sponsorship agreement, the sponsor has been provided a report covering pre-placement screening and evaluation, <PRTPAGE P='106'>including a health evaluation, of the beneficiary; <P>(<E T='03'>2</E>) Describing the agency's orientation of both the sponsor and the beneficiary on the legal and cultural aspects of the placement; <P>(<E T='03'>3</E>) Describing the initial facilitation of the placement through introduction, translation, and similar services; and <P>(<E T='03'>4</E>) 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. <P>(2) <E T='03'>One-stage processing of petition.</E> 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. <P>(g) <E T='03'>Decision</E>—(1) <E T='03'>General.</E> 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. <P>(2) <E T='03'>Denial upon completion of preliminary processing.</E> The director may deny the petition upon completion of the preliminary processing under paragraph (d) of this section for: <P>(i) Failure to establish that there is reason to believe the alien was fathered by a United States citizen; or <P>(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. <P>(3) <E T='03'>Denial upon completion of final processing.</E> 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. <P>(4) <E T='03'>Denial upon completion of one-stage processing.</E> 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. <P>(h) <E T='03'>Classification of Public Law 97–359 Amerasian.</E> If the petition is approved the beneficiary is classified as follows: <P>(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; <P>(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 <P>(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. <P>(i) <E T='03'>Enforcement of affidavit of financial support and intent to petition for legal custody.</E> 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) <PRTPAGE P='107'>having legal custody of the beneficiary, or a legal guardian acting on the alien's behalf, may file Form I–363. <CITA>[57 FR 41066, Sept. 9, 1992, as amended at 63 FR 12986, Mar. 17, 1998] <SECTION> <SECTNO>§&thnsp;204.5 <SUBJECT>Petitions for employment-based immigrants. <P>(a) <E T='03'>General.</E> 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: <P>(1) Accepted for processing under the provisions of part 103; <P>(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 <P>(3) Accompanied by any other required supporting documentation. <P>(b) <E T='03'>Jurisdiction.</E> 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. <P>(c) <E T='03'>Filing petition.</E> 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). <P>(d) <E T='03'>Priority date.</E> 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. <P>(e) <E T='03'>Retention of section 203(b) (1), (2), or (3) priority date.</E> 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. <P>(f) <E T='03'>Maintaining the priority date of a third or sixth preference petition filed prior to October 1, 1991.</E> 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 <PRTPAGE P='108'>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. <P>(g) <E T='03'>Initial evidence</E>—(1) <E T='03'>General.</E> 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. <P>(2) <E T='03'>Ability of prospective employer to pay wage.</E> 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. <P>(h) <E T='03'>Aliens with extraordinary ability.</E> (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. <P>(2) <E T='03'>Definition.</E> As used in this section: <P><E T='03'>Extraordinary ability</E> 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. <P>(3) <E T='03'>Initial evidence.</E> 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: <P>(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; <P>(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; <P>(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; <P>(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; <P>(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; <P>(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media; <P>(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; <PRTPAGE P='109'><P>(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; <P>(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 <P>(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales. <P>(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. <P>(5) <E T='03'>No offer of employment required.</E> 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. <P>(i) <E T='03'>Outstanding professors and researchers.</E> (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. <P>(2) <E T='03'>Definitions.</E> As used in this section: <P><E T='03'>Academic field</E> means a body of specialized knowledge offered for study at an accredited United States university or institution of higher education. <P><E T='03'>Permanent,</E> 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. <P>(3) <E T='03'>Initial evidence.</E> A petition for an outstanding professor or researcher must be accompanied by: <P>(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: <P>(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field; <P>(B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members; <P>(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; <P>(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; <P>(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or <P>(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field; <P>(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 <P>(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: <P>(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; <P>(B) A United States university or institution of higher learning offering <PRTPAGE P='110'>the alien a permanent research position in the alien's academic field; or <P>(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. <P>(j) <E T='03'>Certain multinational executives and managers.</E> (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. <P>(2) <E T='03'>Definitions.</E> As used in this section: <P><E T='03'>Affiliate</E> means: <P>(A) One of two subsidiaries both of which are owned and controlled by the same parent or individual; <P>(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 <P>(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. <P><E T='03'>Doing business</E> 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. <P><E T='03'>Executive capacity</E> means an assignment within an organization in which the employee primarily: <P>(A) Directs the management of the organization or a major component or function of the organization; <P>(B) Establishes the goals and policies of the organization, component, or function; <P>(C) Exercises wide latitude in discretionary decisionmaking; and <P>(D) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. <P><E T='03'>Managerial capacity</E> means an assignment within an organization in which the employee primarily: <P>(A) Manages the organization, or a department, subdivision, function, or component of the organization; <P>(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; <P>(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 <P>(D) Exercises direction over the day-to-day operations of the activity or function for which the employee has authority. <P><E T='03'>Multinational</E> means that the qualifying entity, or its affiliate, or subsidiary, conducts business in two or more countries, one of which is the United States. <P><E T='03'>Subsidiary</E> 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. <P>(3) <E T='03'>Initial evidence</E>—(i) <E T='03'>Required evidence.</E> A petition for a multinational <PRTPAGE P='111'>executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that: <P>(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 <P>(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; <P>(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 <P>(D) The prospective United States employer has been doing business for at least one year. <P>(ii) <E T='03'>Appropriate additional evidence.</E> In appropriate cases, the director may request additional evidence. <P>(4) <E T='03'>Determining managerial or exectuve capacities</E>—(i) <E T='03'>Supervisors as managers.</E> 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. <P>(ii) <E T='03'>Staffing levels.</E> 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. <P>(5) <E T='03'>Offer of employment.</E> 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. <P>(k) <E T='03'>Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability.</E> (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. <P>(2) <E T='03'>Definitions.</E> As used in this section: <E T='03'>Advanced degree</E> 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. <P><E T='03'>Exceptional ability in the sciences, arts, or business</E> means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. <P><E T='03'>Profession</E> 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. <P>(3) <E T='03'>Initial evidence.</E> 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. <PRTPAGE P='112'><P>(i) To show that the alien is a professional holding an advanced degree, the petition must be accompanied by: <P>(A) An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or <P>(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. <P>(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: <P>(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; <P>(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; <P>(C) A license to practice the profession or certification for a particular profession or occupation; <P>(D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability; <P>(E) Evidence of membership in professional associations; or <P>(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. <P>(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. <P>(4) <E T='03'>Labor certification or evidence that alien qualifies for Labor Market Information Pilot Program</E>—(i) <E T='03'>General.</E> 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. <P>(ii) <E T='03'>Exemption from job offer.</E> 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. <P>(l) <E T='03'>Skilled workers, professionals, and other workers.</E> (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. <P>(2) <E T='03'>Definitions.</E> As used in this part: <P><E T='03'>Other worker</E> 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. <P><E T='03'>Professional</E> 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. <P><E T='03'>Skilled worker</E> 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 <PRTPAGE P='113'>post-secondary education may be considered as training for the purposes of this provision. <P>(3) <E T='03'>Initial evidence</E>—(i) <E T='03'>Labor certification or evidence that alien qualifies for Labor Market Information Pilot Program.</E> 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. <P>(ii) <E T='03'>Other documentation</E>—(A) <E T='03'>General.</E> 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. <P>(B) <E T='03'>Skilled workers.</E> 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. <P>(C) <E T='03'>Professionals.</E> 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. <P>(D) <E T='03'>Other workers.</E> 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. <P>(4) <E T='03'>Differentiating between skilled and other workers.</E> 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. <P>(m) <E T='03'>Religious workers.</E> (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, <PRTPAGE P='114'>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. Professional workers and other workers must obtain permanent resident status through immigration or adjustment of status on or before September 30, 1997, in order to immigrate under section 203(b)(4) of the Act as section 101(a)(27)(C) special immigrant religious workers. <P>(2) <E T='03'>Definitions.</E> As used in this section: <P><E T='03'>Bona fide nonprofit religious organization in the United States</E> 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. <P><E T='03'>Bona fide organization which is affiliated with the religious denomination</E> 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. <P><E T='03'>Minister</E> 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. <P><E T='03'>Professional capacity</E> 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. <P><E T='03'>Religious denomination</E> 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. <P><E T='03'>Religious occupation</E> 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. <P><E T='03'>Religious vocation</E> 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. <P>(3) <E T='03'>Initial evidence.</E> Unless otherwise specified, each petition for a religious worker must be accompanied by: <P>(i) Evidence that the organization qualifies as a nonprofit organization in the form of either: <P>(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 <P>(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 <P>(ii) A letter from an authorized official of the religious organization in the United States which (as applicable to the particular alien) establishes: <P>(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 <PRTPAGE P='115'>years of experience in the religious vocation, professional religious work, or other religious work; and <P>(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 <P>(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 <P>(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. <P>(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. <P>(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. <P>(4) <E T='03'>Job offer.</E> 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. <P>(n) <E T='03'>Closing action</E>—(1) <E T='03'>Approval.</E> An approved employment-based petition will be forwarded to the National Visa Center of the Department of State if the beneficiary resides outside of the United States. If the Form I–140 petition indicates that the alien has filed or will file an application for adjustment to permanent residence in the United States (Form I–485) the approved visa petition (Form I–140), will be retained by the Service for consideration with the application for permanent residence (Form I–485). If a visa is available, and Form I–485 has not been filed, the alien will be instructed on the Form I–797, Notice of Action, (mailed out upon approval of the Form I–140 petition) to file the Form I–485. <P>(2) <E T='03'>Denial.</E> 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. <P>(3) <E T='03'>Validity of approved petitions.</E> Unless revoked under section 203(e) or 205 of the Act, an employment-based petition is valid indefinitely. <CITA>[56 FR 60905, Nov. 29, 1991, as amended at 59 FR 502, Jan. 5, 1994; 59 FR 27229, May 26, 1994; 60 FR 29753, June 6, 1995; 61 FR 33305, June 27, 1996; 67 FR 49563, July 31, 2002] <SECTION> <SECTNO>§&thnsp;204.6 <SUBJECT>Petitions for employment creation aliens. <P>(a) <E T='03'>General.</E> 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 <PRTPAGE P='116'>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. <P>(b) <E T='03'>Jurisdiction.</E> 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. <P>(c) <E T='03'>Eligibility to file.</E> A petition for classification as an alien entrepreneur may only be filed by any alien on his or her own behalf. <P>(d) <E T='03'>Priority date.</E> 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. <P>(e) <E T='03'>Definitions.</E> As used in this section: <P><E T='03'>Capital</E> 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. <P><E T='03'>Commercial enterprise</E> 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. <P><E T='03'>Employee</E> means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. In the case of the Immigrant Investor Pilot Program, “employee” also means an individual who provides services or labor in a job which has been created indirectly through investment in the new commercial enterprise. This definition shall not include independent contractors. <P><E T='03'>Full-time employment</E> means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly through revenues generated from increased exports resulting from the Pilot Program that requires a minimum of 35 working hours per week. A job-sharing arrangement whereby two or more qualifying employees share a full-time position shall count as full-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. <P><E T='03'>High employment area</E> means a part of a metropolitan statistical area that at the time of investment: <P>(i) Is not a targeted employment area; and <P>(ii) Is an area with an unemployment rate significantly below the national average unemployment rates. <P><E T='03'>Invest</E> 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. <P><E T='03'>New</E> means established after November 29, 1990. <P><E T='03'>Qualifying employee</E> means a United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in <PRTPAGE P='117'>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. <P><E T='03'>Regional center</E> means any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. <P><E T='03'>Rural area</E> 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. <P><E T='03'>Targeted employment area</E> 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. <P><E T='03'>Troubled business</E> 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. <P>(f) <E T='03'>Required amounts of capital</E>—(1) <E T='03'>General.</E> 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). <P>(2) <E T='03'>Targeted employment area.</E> 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). <P>(3) <E T='03'>High employment area.</E> 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). <P>(g) <E T='03'>Multiple investors</E>—(1) <E T='03'>General.</E> 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. <P>(2) <E T='03'>Employment creation allocation.</E> 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. <P>(h) <E T='03'>Establishment of a new commercial enterprise.</E> The establishment of a new commercial enterprise may consist of: <P>(1) The creation of an original business; <P>(2) The purchase of an existing business and simultaneous or subsequent restructuring or reorganization such that a new commercial enterprise results; or <PRTPAGE P='118'><P>(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). <P>(i) <E T='03'>State designation of a high unemployment area.</E> 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. <P>(j) <E T='03'>Initial evidence to accompany petition.</E> A petition submitted for classification as an alien entrepreneur must be accompanied by evidence that the alien has invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees. In the case of petitions submitted under the Immigrant Investor Pilot Program, a petition must be accompanied by evidence that the alien has invested, or is actively in the process of investing, capital obtained through lawful means within a regional center designated by the Service in accordance with paragraph (m)(4) of this section. The petitioner may be required to submit information or documentation that the Service deems appropriate in addition to that listed below. <P>(1) To show that a new commercial enterprise has been established by the petitioner in the United States, the petition must be accompanied by: <P>(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; <P>(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 <P>(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. <P>(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. <PRTPAGE P='119'>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: <P>(i) Bank statement(s) showing amount(s) deposited in United States business account(s) for the enterprise; <P>(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; <P>(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; <P>(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 <P>(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. <P>(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: <P>(i) Foreign business registration records; <P>(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; <P>(iii) Evidence identifying any other source(s) of capital; or <P>(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. <P>(4) <E T='03'>Job creation</E>—(i) <E T='03'>General.</E> 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: <P>(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 <P>(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. <P>(ii) <E T='03'>Troubled business.</E> 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. <P>(iii) <E T='03'>Immigrant Investor Pilot Program.</E> To show that the new commercial enterprise located within a regional center approved for participation in the Immigrant Investor Pilot Program <PRTPAGE P='120'>meets the statutory employment creation requirement, the petition must be accompanied by evidence that the investment will create full-time positions for not fewer than 10 persons either directly or indirectly through revenues generated from increased exports resulting from the Pilot Program. Such evidence may be demonstrated by reasonable methodologies including those set forth in paragraph (m)(3) of this section. <P>(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: <P>(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; <P>(ii) Evidence that the petitioner is a corporate officer or a member of the corporate board of directors; or <P>(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. <P>(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: <P>(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 <P>(ii) In the case of a high unemployment area: <P>(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 <P>(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). <P>(k) <E T='03'>Decision.</E> 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. <P>(l) <E T='03'>Disposition of approved petition.</E> 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. <P>(m) <E T='03'>Immigrant Investor Pilot Program</E>—(1) <E T='03'>Scope.</E> The Immigrant Investor Pilot Program is established solely pursuant to the provisions of section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related <PRTPAGE P='121'>Agencies Appropriation Act, and subject to all conditions and restrictions stipulated in that section. Except as provided herein, aliens seeking to obtain immigration benefits under this paragraph continue to be subject to all conditions and restrictions set forth in section 203(b)(5) of the Act and this section. <P>(2) <E T='03'>Number of immigrant visas allocated.</E> The annual allocation of the visas available under the Immigrant Investor Pilot Program is set at 300 for each of the five fiscal years commencing on October 1, 1993. <P>(3) <E T='03'>Requirements for regional centers.</E> Each regional center wishing to participate in the Immigrant Investor Pilot Program shall submit a proposal to the Assistant Commissioner for Adjudications, which: <P>(i) Clearly describes how the regional center focuses on a geographical region of the United States, and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment; <P>(ii) Provides in verifiable detail how jobs will be created indirectly through increased exports; <P>(iii) Provides a detailed statement regarding the amount and source of capital which has been committed to the regional center, as well as a description of the promotional efforts taken and planned by the sponsors of the regional center; <P>(iv) Contains a detailed prediction regarding the manner in which the regional center will have a positive impact on the regional or national economy in general as reflected by such factors as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and <P>(v) Is supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and/or multiplier tables. <P>(4) <E T='03'>Submission of proposals to participate in the Immigrant Investor Pilot Program.</E> On August 24, 1993, the Service will accept proposals from regional centers seeking approval to participate in the Immigrant Investor Pilot Program. Regional centers that have been approved by the Assistant Commissioner for Adjudications will be eligible to participate in the Immigrant Investor Pilot Program. <P>(5) <E T='03'>Decision to participate in the Immigrant Investor Pilot Program.</E> The Assistant Commissioner for Adjudications shall notify the regional center of his or her decision on the request for approval to participate in the Immigrant Investor Pilot Program, and, if the petition is denied, of the reasons for the denial and of the regional center's right of appeal to the Associate Commissioner for Examinations. Notification of denial and appeal rights, and the procedure for appeal shall be the same as those contained in 8 CFR 103.3. <P>(6) <E T='03'>Termination of participation of regional centers.</E> To ensure that regional centers continue to meet the requirements of section 610(a) of the Appropriations Act, the Assistant Commissioner for Adjudications shall issue a notice of intent to terminate the participation of a regional center in the pilot program upon a determination that the regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. The notice of intent to terminate shall be made upon notice to the regional center and shall set forth the reasons for termination. The regional center must be provided thirty days from receipt of the notice of intent to terminate to offer evidence in opposition to the ground or grounds alleged in the notice of intent to terminate. If the Assistant Commissioner for Adjudications determines that the regional center's participation in the Pilot Program should be terminated, the Assistant Commissioner for Adjudications shall notify the regional center of the decision and of the reasons for termination. The regional center may appeal the decision within thirty days after the service of notice to the Associate Commissioner for Examinations as provided in 8 CFR 103.3. <P>(7) <E T='03'>Requirements for alien entrepreneurs.</E> An alien seeking an immigrant visa as an alien entrepreneur <PRTPAGE P='122'>under the Immigrant Investor Pilot Program must demonstrate that his or her qualifying investment is within a regional center approved pursuant to paragraph (m)(4) of this section and that such investment will create jobs indirectly through revenues generated from increased exports resulting from the new commercial enterprise. <P>(i) <E T='03'>Exports.</E> For purposes of paragraph (m) of this section, the term “exports” means services or goods which are produced directly or indirectly through revenues generated from a new commercial enterprise and which are transported out of the United States; <P>(ii) <E T='03'>Indirect job creation.</E> To show that 10 or more jobs are actually created indirectly by the business, reasonable methodologies may be used. Such methodologies may include multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting devices which indicate the likelihood that the business will result in increased employment. <P>(8) <E T='03'>Time for submission of petitions for classification as an alien entrepreneur under the Immigrant Investor Pilot Program.</E> Commencing on October 1, 1993, petitions will be accepted for filing and adjudicated in accordance with the provisions of this section if the alien entrepreneur has invested or is actively in the process of investing within a regional center which has been approved by the Service for participation in the Pilot Program. <P>(9) <E T='03'>Effect of termination of approval of regional center to participate in the Immigrant Investor Pilot Program.</E> Upon termination of approval of a regional center to participate in the Immigrant Investor Pilot Program, the director shall send a formal written notice to any alien within the regional center who has been granted lawful permanent residence on a conditional basis under the Pilot Program, and who has not yet removed the conditional basis of such lawful permanent residence, of the termination of the alien's permanent resident status, unless the alien can establish continued eligibility for alien entrepreneur classification under section 203(b)(5) of the Act. <CITA>[56 FR 60910, Nov. 29, 1991, as amended at 57 FR 1860, Jan. 16, 1992; 58 FR 44608, 44609, Aug. 24, 1993] <SECTION> <SECTNO>§&thnsp;204.7 <SUBJECT>Preservation of benefits contained in savings clause of Immigration and Nationality Act Amendments of 1976. <P>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. <CITA>[41 FR 55849, Dec. 23, 1976] <SECTION> <SECTNO>§&thnsp;204.8 <SUBJECT>Petitions for employees of certain United States businesses operating in Hong Kong. <P>(a) <E T='03'>General.</E> 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. <P>(b) <E T='03'>Definitions.</E> As used in this section: <P><E T='03'>Affiliate</E> 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 <PRTPAGE P='123'>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. <P><E T='03'>Executive capacity</E> means an assignment within an organization in which the employee primarily: <P>(i) Directs the management of the organization or a major component or function of the organization; <P>(ii) Establishes the goals and policies of the organization, component, or function; <P>(iii) Exercises wide latitude in discretionary decision-making; and <P>(iv) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. <P><E T='03'>Managerial capacity</E> means an assignment within an organization in which the employee primarily: <P>(i) Manages the organization, or a department, subdivision, function, or component of the organization; <P>(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; <P>(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 <P>(iv) Exercises direction over the day-to-day operations of the activity or function for which the employee has authority. <P><E T='03'>Officer</E> means, with respect to a business entity, the chairman or vice-chairman of t