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OI 245.8 Procedures in other types of special cases.
Section 13, Act of September 11, 1957. The initial and terminal processing of performed by the district office having jurisdiction over the applicant's residence. A case which can be adjusted under any other provision of law will not be processed under section 13. The District Director, Washington D.C. shall be responsible for the adjudication of each application, controlling the annual numerical limitation on adjustments, G-23 statistics (CADJ-5), and the preparation and distribution of public copies of
the decision pursuant to O.I. 103.8(a).
Upon receipt of an application, the processing office shall promptly submit Form I-88 to the Department of State. During the interview of the applicant, the adjudicator shall ascertain the nature and duration of any official position held by the applicant, or immediate family member as an employee of a foreign government.
The applicant shall be required to state the reason for termination of the position and whether termination is permanent. Compelling reasons why the applicant is unable to return to the country which accredited him/her or a member of the alien's immediate family must be shown. It must also be established that the alien's adjustment of status would be in the national interest of the United States (i.e. special skills knowledge, position held).
The District Director, Washington, D.C. will adjudicate the case and prepare an order. In a grant case, the District Director will prepare the required report for Congress, placing a copy in the alien's file. The file will be held by the Washington District Office pending Congressional approval or adverse action. If a case is denied, the alien will be notified of the decision and of the right to appeal under 8CFR, Part 103. If no appeal is received, the case will be returned to the originating office fo
r appropriate action. If the decision is appealed, the Washington District Office will hold the file until the appear process has been completed and then will return the file to the originating office for appropriate action.
When Congress takes adverse action on a section 13 adjustment case, the Washington District Office will be promptly notified by the Central Office following which the application shall be denied and appropriate action initiated.
There is no appeal to decision where Congress has taken adverse action. If notice of adverse action is not received within 30 days following the adjournment of the session of Congress following that session in which the case was referred to Congress, final processing shall be completed. Form I-181 shall be prepared by the originating office showing approval of the application as of the date of the order entered by the District Director, Washington, D.C. The Adit Card Data Collection Form I-89 must be com
pleted and the required fingerprint placed thereon. form I-357 should be sent to the alien with a copy granted pending the alien's receipt of the I-551. A copy of form I-181 will also be forwarded to the Visa Control Office of the Department of State.
7th preference proviso alien.
General. An applicant for adjustment under section
who claims entitlement to preference pursuant to the proviso to section 203(a)(7) must establish that the meets all the requirements for adjustment under section 245 as set forth in that section and in 8
, in addition to establishing that he meets the requirements set forth in the proviso. Thus, for example, an alien who claims to be within the proviso, but who entered the United States as a crewman, is not eligible for adjustment under section 245.
An application for classification under the proviso to section 203(a)(7) must be executed by the applicant on Form I-590A and attached to the application for adjustment of status.
Interview. Each applicant shall be interviewed, except that the interview may be waived for a child under 14, however, each applicant regardless of age, must appear in person at the appropriate Service office. Form I-89, ADIT Card Data Collection Form - 89 must be completed for each such applicant and the required fingerprint placed thereon. If the application for seventh preference classification is made in conjunction with an application for adjustment of status made to the district director, the requ
ired interview may be accomplished at the same time as the applicant is interviewed in connection with his application for adjustment of status. When the application for seventh-preference classification is made in conjunction with an application for adjustment of status before the special inquiry officer in deportation proceedings, the applicant shall be interviewed by an Examinations officer only with respect to his eligibility for the claimed preference status. In either case the interviewing office sh
all endorse the reverse of Form I-590A to show the date and place of interview. The interview should cover endorse the reverse of Form I-590A to that agency. When a decision is made, the reverse of the Form I-590A shall also be endorsed by the district director to reflect whether the application for seventh preference has been approved and that a number has been allocated pursuant to the proviso to section 203(a)(7) or whether the application has been disapproved. If the application has been disapproved,
the ground for disapproval shall be endorsed on the reverse of the Form I-590A,
Visa numbers. For aliens chargeable to the Eastern Hemisphere, an annual total of 10,200 visa number and for aliens chargeable to the Western Hemisphere, an annual total of 7,200 visa numbers are unauthorized for Service use in connection with conditional entry or adjustment of status of aliens found qualified under section
of the Act; however, because of foreign state and dependent area limitations of 20,000 and 600 per annum, respectively, and the heavy demand for conditional entry availability of immigrant visa numbers under section 203(a)(7), will be controlled by the Central Office. Whenever nonpreference numbers are available, they will be used for spouses and children of principal applicants using conditional entry numbers.
Each office shall complete and submit Form I-595 to the regional office on the last working day of each month. The regional offices shall submit a consolidated report on Form I-595 to reach the Associate Commissioner, Examinations, not later than the 5th working day of the next month(CINSP-133).
Statistics. When the status of an alien who has been found eligible for classification under the proviso to section 203(a)(7) is adjusted under the proviso to section 203(a)(7) is adjusted under section 245 of the Act or under section 1 of the Act of November 2, 1966, Form G-188. The Forms G-188 relating to all such cases approved during the month shall be accumulated and mailed together with Form G-193 in a separate envelope addressed to the Central Office Annex, U.S> Immigration and Naturalization Servi
ce, 425 "I" Street, N.W., Washington, D.C. 20536 marked Attention: EAM Unit. While the envelope will contain Forms G-188 relating to adjustments under section 245, only the latter should be reported on Form G-193 (line 9), The "Due Date" specified in the instructions on the reverse of Form G-193 shall be observed.
Denied cases. The district director shall notify the applicant on Form I-290C and shall certify the case to the regional commissioner when the district director finds that a section 245 application should be denied on the ground that the alien has been found ineligible for preference under the proviso to section 203(a)(7) of the Act, and an immigrant visa is not otherwise available. Similarly, if the application for adjustment of status is before a special inquiry or the board of immigration appeals in de
portation proceedings, but the district director finds that the Form I-590A submitted by the applicant for a preference under the proviso to section 203(a)(7) is not approvable, the district director shall notify the applicant on Form I-290C and shall certify the case to regional commissioner. The reasons for the denial of the section 245 application filed with the district director, or the reasons for the district director's denial of Form I-590A submitted in conjunction with a section 235 application fil
ed in the course of deportation proceedings, shall be stated briefly on the Form I-290C.
Section 214(d) cases. Except as modified hereinafter and to the extent applicable, the instructions in OI 245 shall be followed in the processing and adjudication of applications for permanent residence under section 214(d)
Section 214(d) applicants are not chargeable to the numerical limitations upon the issuance of immigrant visas; no immediate relative or preference petitions need be filed on their behalf; and they are not subject to the certification requirements of section 212(a)(14).
While Form G-325A and the applicant fingerprint card are required to be submitted with a section 214(d) adjustment application from every applicant 14 years of age or older, agency checks shall not normally be made if the applicant has not been in the United States prior to admission under section
. However, the applicant fingerprint chart shall be forwarded to the FBI on every applicant 14 years of age or older. Consular checks shall not be made unless there is specific reason to believe a consular check would be productive. A medical examination shall not be required if the file reflects that the applicant was medically examined in connection with his nonimmigrant visa application (see
Processing and adjudication of the application shall be completed as expeditiously as possible. In an appropriate case, if the application is presented in person and an Examinations officer is available to review the relating file material and interview the applicant , the adjudication may be made upon submission of the application.
An alien admitted as a K-1 nonimmigrant, who is precluded from adjusting under section 214(d) because of failure to effect a timely marriage with the United States citizen petitioner is not statutorily barred by reason thereof from seeking adjustment pursuant to section 245, if eligible thereunder. However, whether an application by a K-1 nonimmigrant for adjustment under section 245 should be granted as a matter of discretion depends on an evaluation of all pertinent factors including the reason the a
lien failed to marry the petitioner within 3 months after entry.
Indochinese refugees; Act of October 28, 1977. Except as modified in this paragraph, and to the extent applicable, the instructions in OI 245 shall be followed in the processing and adjudication of applications for permanent residence under the provisions of section 101, 103, or 104 of the Act of October 28, 1977.
A separate application shall be filled on Form I-485C by each applicant. A parent or guardian may file an application for a child under 14 years of age. No fee shall be required for filing an application, or an appeal from a decision thereon, or for filing application for waiver of a ground of inadmissibility in connection therewith.
An application for adjustment under the act of October 28, 1977 by the spouse or child of a native pr citizen of vietnam laos, or cambodia shall not be processed under the provisions of section 104 of the Act unless the applicant is ineligible for adjustment under the provisions of section 101 of that Act.
Form G-325A, and the applicant fingerprint card (Form FD-258), and a clearance statement from the local police department for any area in the United States where the applicant has lived for six months or more shall be submitted with an application for adjustment under the Act of October 28, 1977, from every applicant 14 years of age or older.
While FBI checks shall be made in every case except that of an applicant for a roll-back date of admission for permanent residence under section 103 immediately-preceding 15 month period, CIA and consular checks shall be made for every applicant under section 101 and 104 of the Act of October 28, 1977, who was not processed through a refugee center and paroled into the United States under section
of the immigration and Nationality Act. However, consular checks shall be limited to those applicants who obtained a nonimmigrant visa in a country other than Vietnam, laos, or Cambodia. The processing of G-325 checks may be done on a postaudit basis.
An applicant for adjustment of status under the provisions of the Act of October 28, 1977, is not chargeable to the annual numerical limitations imposed on the issuances of immigrant visas; is not subject to the labor certification requirement of section 212(a)(14) of the Act; is not subject to the public charge, documentation and literacy exclusion provisions of section 212(a)(15), (20), (21), (25), and (32) of the Act; and is not subject to the limiting provisions of section
of the Act and
8 CFR 245.1(a)
Each application shall be carefully checked to determine whether the applicant has answered Item 24 thereon,
Medical examinations shall be required only in accordance with the last paragraph of OI 245.3(a)
At the time of the interview, the applicant (under section 101 or 104) shall present his Form I-94, if only a copy thereof was submitted with his application. If not submitted with his application, an applicant under section 103 for a roll back date of admission for permanent residence shall present his previously issued form I-151. If the applicant alleges loss or theft of his Form I-151, or Form I-102, as appropriate, for replacement of the lost or stolen document.
The Social Security Administration has advised that Form SS-5, Application for Social Security Account Number, is not necessary for applicants for adjustment status under the provisions of the Act of October 28, 1977,
In connection with Indochinese exchange visitors who are otherwise eligible under the Act of October 28, 1977, the State Department, acting as the interested United States Government agency, has recommended to the Service that waiver of the two-year foreign residence requirement of section 212(e) be granted on a blanket basis. Upon the grant of such a waiver, Form I-485C shall be conspicuously noted to so indicate.
Upon completion of each approved application, page 5 of Form I-485C (Demographic Data Sheet) shall be forwarded to Central Office. Attention: COADP.
Virgin Islands Nonimmigrant Alien Adjustment Act.
General. Except as modified in this paragraph, and to the extent applicable, the instructions in OI 245.2 should be followed in the processing and adjudication of applications for permanent residence under the Virgin Islands Nonimmigrant Alien Adjustment Act (pub.L. 97-271).
Form G-325 A is not required of any applicant under this section. Local police checks will be required from applicants ages fourteen to seventy-nine. Applicants under Pub. L. 97-271 are not subject to the limiting provisions of section
of the Act.
The adjudicator will record approval, of an applications under this section on Form I-181. Upon approval of the application, the file jacket tab will be noted by the adjudicator by placing the letters "VI" directly under the A number.
The applicant must be advised of the denial of an application under Pub.L. 97-271 on Form I-291. The applicant may not appeal the decision of the district director.
Cuban Adjustment Act.
For purposes of the effective date of creation of the record of the applicant's permanent residence, an application submitted by an applicant who is designated as a Mariel Cuban (paroled between April 1, 1980 and October 10, 1980, inclusive) and filed prior to February 1, 1987 will be deemed properly filed on the date of submission to the Service or October 11, 1981, whichever date is earlier. (TM 1/87)