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OI 204.8 Waiver of section 243(g) sanctions.
A decision to enforce or waive the sanction imposed by section 243(g) against an individual must be made prior to forwarding an approved petition to a consular post in the USSR, Cuba, Czechoslovakia, or Hungary. Any existing Service files on the petitioner or beneficiary must be reviewed prior to the decision. If warranted, an investigation may be requested. The memorandum requesting the investigation shall request that the investigation cover any subversive affiliation(s) and local agency records. G-32
5A checks may be made in any case, and must be if an investigation is requested. If a visa petition is not required, the Department of State will furnish the name of any interested party. An interested party will be treated like a petitioner of G-325A and investigative purposes. (Revised)
Sanctions may be waived if review of any Service file(s), results of agency checks, and results of any investigations do not disclose derogatory information. When sanctions are waived, the approved petition and Form I-171, Notice of Approval, shall be noted, "Waiver of section 243(g) sanctions granted". The petition may then be forwarded to the American consul and a copy of the I-171 placed in all relating files. (Revised)
Blue Page OI 204.8
Sanctions may not be waived if adverse information is developed regarding the petitioner or beneficiary which would indicate involvement in activities associated with section 212(a) (28) or similar activities. Prior to decision, the petitioner shall be interviewed regarding the adverse information to afford an opportunity for rebuttal. If the district director decides to recommend denial of the waiver, a formal order shall be prepared for the waiver, a formal order shall be prepared for the Commissioner's
signature and forwarded, with the approved petition and Form I-171, to the Administrative Appeals Unit. The Commissioner denies the waiver, the petition will be noted, "Waiver of section 243(g) sanctions denied". The petition will be forwarded to the American consul with a copy of the order attached. The Form II-171 will be noted "Section 243(g) of the Immigration and Nationality Act precludes issuance of an immigrant visa because sanctions have been imposed against (country), 8 U.S.C. 1253(g). There i
s no appeal of a denial." (TM 7/84)
If the Commissioner decides to approve the petition of formal order explaining why the waiver is being granted in spite of the adverse information will be attached to the petition before it is forwarded. The petition and Form I-171 will be noted, "Waiver of section 243(g) sanctions approved". (TM 7/84)
If an American consul in the USSR, Hungary, or Czechoslovakia receives a visa petition for adjudication which requires a waiver of sanctions and it iw within the provisions of
8 CFR 204.1(a)
for the consul to approve the petition, or if the consul receives a visa petition from the Service which is not noted as required above, the consul may request that a decision on the waiver be made by the Officer-in-Charge, Vienna. The Officer-in-Charge shall process the waiver request under the procedures listed above. Review of relating Service files should be requested by telegram. (TM 9/84)
OI 204.9 Pub. L. 97-359 Amerasian.
Adjudicating officers are to expedite the processing of petitions for Pub. L. 97-359 Amerasians (Form I-360) to the extent possible, for humanitarian reasons.
Upon submission of a Form I-360 for preliminary processing as provided in 8
, the adjudicating officer shall 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 and the fingerprint check of the sponsor is not yet completed or has not disclosed any adverse information which may result in denial of the petition, the officer shall not disclosed and adverse information which may result in denial of the petition, the officer shall send the petitioner Form I-365, Notice
of Completion of Preliminary Processing of Petition for Public Law 97-359 Amerasian, accompanied by a blank Form I-361, Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97-359 Amerasian. If the sponsor's fingerprints on Form FD-258 have not already been submitted, a blank Form FD-258 must also be sent the petitioner.
Upon submission of all further documents required for final processing, the officer shall determine whether the benificiary qualifies for benefits under section
of the Act. In the event that the petitioner does not file all required documents within one year of the date of Form I-365, the petitioner must be advised in writing that the petition is considered abandoned.
One-stage processing of petition.
If the petitioner submits Form I-360 with all documentary evidence required by
8 CFR 204.2(g)(1)
, the adjudicating officer shall consider all evidence in the vase without using the two-stage processing described in 8 CUR 204.2 (c)(3).
The purpose of the fingerprint check is to determine whether the sponsor is of good moral character as required by the statute. In order to do a fingerprint check in an Amerasian case, the fingerprint of the sponsor must be forwarded to the FBI Identification Division without any other form attached. The notation "AMERASIAN-ORPHAN" must be written with a green felt-tipped pen or stamped with a bright green stamp in the place for reason fingerprinted of Form FD-258. Although an Amerasian case is not a
n orphan case, the FBI has advised that their manual does not permit special handling of Forms FD-258 unless they bear the notation Orphan".
Some file control officers which are not district offices do not have Forms FD-258 with ORI numbers relating to them. In such an office, the threeletter office code must be written with a bright green felt-tipped pen or stamp in the space for miscellaneous number of Form FD-258.If the petition is filed at an overseas office, the Form FD-258 with the sponsor's fingerprints must reflect the ORI number or three-letter office code of that office.
Form FD-258 will be returned to the office of origin. The FBI will indicate directly on that form if there is no arrest record. If there is an arrest record, the FBI will attach a copy of the record directly to the form.
The sponsor's fingerprints may be submitted at any time during the processing of the petition. The adjudicating officer must process them immediately upon their receipt.
The reply from the FBI must be awaited before making a decision in an Amerasian case. If the first set of fingerprints is illegible, a second set of fingerprints must be processed. In order to avoid unnecessary delays, however, the second set of fingerprints should be processed on a post-audit basis provided that the name check is negative.
When the same sponsor two or more Public Law 97-359 Amerasians, only one set of fingerprints on Form FD-258 needs to be filed, provided the petitions in behalf of the beneficiaries are processed concurrently at the same Service office. The adjudicating officer should be aware that, under
, if the response to a previous check of the FBI Identification Division of any than 15 months old at the time adjudication of any petition is made, an up-to-date check should not be made unless there is reason to believe that additional pertinent information is available. (TM 9/84)
Advisory opinion of Outreach Program.
In the case of beneficiary under eighteen years of age, if the adjudicating officer has a question concerning the placement arrangement as described in 8 CFR 204.2(g)910(ii)(d) and 8 CFR 204.2(g)(1)(iii), the officer may request the advisory opinion of the Director, Outreach Program, Central Office, by memorandum. The officer must attach to the memorandum. The officer must reach to the memorandum copies of Form I-360, Form I-361, and all supporting documentation. If an immediate decision is necessa
ry or the officer wishes to discuss the placement arrangements, the officer may call the Director on 8-633-4123.
If the petition is approved, Form I-171, Notice of Approval of Relative Immigrant Visa petition, must be sent to the petitioner. Regardless of whether the petition is approved or denied, when a decision is reached, the adjudicating officer must forwarded to the Director, Outreach Program, Central Office, a copy of the report of the placement from the agency, if applicable. (TM 3/84)
Disposition of approved petition and documents when the petition is approved at a stateside office in the case of beneficiary overseas.
If the petition is approved at a stateside Service office in the case of a beneficiary residing overseas, the adjudicating officer shall forward the original petition to the designated American consulated or embassy unless overseas Service Office. In that case, the officer shall forward the petition of the Service office. A copy of Form I-360 and a copy Form I-361 are to be retained in the beneficiary's file. The petition must be accompanied By:
The original Form I-361;
Form I-362, Report on Public Law 97-359 Amerasian Interview/Investigation; and
all documentary evidence submitted in support of the petition.
Interview and overseas investigation.
General. The purpose of the interview, and, when necessary, the overseas investigation, is to confirm that there is reason to believe that the beneficiary was fathered by a United States citizen and that the beneficiary was born in Korea, Vietnam, Loas, Kampuchea, or Thailand after December 31, 1950 and before October 22, 1982. One of the factors to be considered at the interview is the beneficiary's physical appearance. If the beneficiary's mother or legal guardian is available, the interviewing offic
er should also interview the mother or guardian.
Another factor to consider when making a determination as to whether there is reason to believe that the beneficiary was fathered by a United States citizen is whether the father has contributed to the beneficiary's support. It is not a requirement, however, that the father have contributed support since many fathers may not have done so.
There may be applicants who have a legitimate claim to eligibility but those physical appearance or documentation are less convincing than in other cases. In these cases, an overseas investigation may be conducted in addition to the interview. Form I-362 is used to report the results of the interview, and, if necessary, the overseas investigation.
If the overseas investigation is being conducted at a Service office, the immigration officer may wish to consult with the American consular officer located in the same city, a United States military officer from, for example, the defense attache's office, or United States citizen civilians, possibly missionaries, who have resided has access to local records. A military officer would and personnel which could be of value. United States citizen civilians would have long experience and contacts in the area.
If the overseas investigation is being conducted at an American consulate or embassy, the consular officer may likewise wish to consult with a United States military officer or United States citizen civilians.
As part of the investigation, the immigration or consular officer should consult with government officials and officials of private voluntary agencies in the country of the child's birth, if possible.
Where it is impossible to conduct an overseas investigation, the immigration or consular officer must, in every case, determine whether or not the beneficiary is eligible for the benefit sought based upon the interview with the beneficiary. Depending on the circumstances in the country where the beneficiary is residing, the officer shall interview the beneficiary to the extent possible using the best method available.
Beneficiary in the United States. If the beneficiary is residing in the United States, the adjudicating officer shall question the beneficiary at the time of the adjustment of status interview concerning the beneficiary's eligibility for the benefit sought. The officer shall complete as many items of Form I-362 as possible.
If an overseas investigation is necessary, the adjudicating officer shall send Form I-362 to the overseas Service office having jurisdiction over the beneficiary's place of birth with copies of the petition and all supporting documents.
Petition filed at overseas Service office.
Interview and investigation at Service office. If the petition if filed at an overseas Service office and if the beneficiary is available for an interview, the Service office shall question the beneficiary concerning the beneficiary's eligibility for the benefit sought prior to approval of the petition. If an overseas investigation is necessary, the Service office shall conduct the investigation prior to approval of the petition whether or not the interview is conducted prior to approval of the petition.
If the petition is approved, the adjudicating officer shall forward the original petition to the designated American consulate or embassy. A copy of Form I-360 and a copy of Form I-361 are to be retained in the beneficiary's file. The petition must be accompanied by:
the original Form I-361;
all documentary evidence submitted in support of the petition.
Interview at consulate or embassy. If an interview has not yet been conducted with the beneficiary, the consular officer shall question the beneficiary during the processing of the visa application concerning the beneficiary's eligibility for the benefit sought.
Petition filed at stateside office in the case of beneficiary overseas. When a petition is filed at a stateside office in the case of beneficiary overseas, if the adjudicating officer is unable to determine whether there is reason to believe the beneficiary was fathered by a United States citizen without an interview of the beneficiary and an overseas investigation, that officer may request an interview and investigation prior to approval of the petition. The request for interview and investigation should
be made to the overseas Service office having jurisdiction over the beneficiary's place of residence. Form I-362 and copies of the petition and all supporting documents must accompany the request.
After receipt of a petition approved at a stateside Service office, the immigration or consular officer shall interview the beneficiary concerning that individual's eligibility for the benefit sought unless the interview has already been conducted as provided above. The consular officer shall do this during the processing of the visa application. If necessary, an overseas investigation may be conducted at the Service office or consulate or embassy.
If no adverse information is developed in a case at a Service office, the immigration officer shall forward the approved petition and all attachments to the consulate or embassy where the beneficiary will apply for an immigrant visa. If no adverse information is developed in a case at a consulate the embassy, the consular officer will proceed with the processing of the visa application.
If adverse information is developed. If adverse information is developed at another Service office or at a consulate or embassy, the immigration or consular officer will return the petition with the completed Form I-362 to the Service office of origin. When the Service office of origin receives the petition with the adverse report, the petitioner must be notified of the contents of the report. The petitioners is to be given the choice of withdrawing the petition or having a determination of eligibility m
ade in formal revocation proceedings. The Service office must notify the immigration or consular officer who developed the adverse information or consular officer who developed the adverse information by memorandum of the final action.
If the petition is not withdrawn and the approval is not revoked, the petition and all attachments must be forwarded to the consulate or embassy where the beneficiary has applied or will apply for an immigrant has adverse or will apply for an immigrant visa. If the adverse information was developed at an overseas Service office, a copy of the memorandum to that office must be attached to the approved petition.
For the official poverty guidelines referred to the Form I-361, Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97-359 Amerasian, see 22 CFR 42.91(a)(15)(ii). (TM 10/86)
Enforcement of affidavit of financial support and intent to petition of legal custody.
When a Form I-33, Request to Enforce Affidavit of Financial Support and Intent to Petition for Legal Custody for Public Law 97-359 Amerasian, is filed at a Service officer, the Examinations Section may request an investigation, if necessary, to verify the facts. That section will then forward the request to the regional counsel. The regional counsel will review the request is valid, forwarded it to be appropriate U.S. Attorney for institution of an enforcement action.
The Director, Outreach Program, Central Office, shall report for the precious fiscal year to the House Committee on the Judiciary every January 1st beginning in 1984. The report must include, be sex, the number of aliens who have gained immigration benefits under Pub. L. 97-359, their states of intended residence, their ages, their states of intended residence, their classes of admission. It must also include any family separation or dislocation abroad that resulted from this legislation, any failur
es of placements of aliens under this, legislation and subsequent placements in new homes.
Derivative beneficiaries of petitions approved for first and fourth preference classification.
In considering an application for adjustment of status or an application for an immigrant visa for the derivative beneficiary off a petition to accord a Pub. L. 97-359 Amerasian first or fourth preference classification, the immigration or consular officer must determine whether or not he applicant is likely to become a public charge. It making this determination, the officer must consider whether the principal beneficiary's sponsor or another individual will support the derivative beneficiary. The sp
onsor is not required by the statute to support the derivative beneficiary.
Certifications from agencies and foundations.
Certification from agencies and foundations are to be considered on a case by case basis. A district director may, in his or her discretion, accept these certifications as all or part of the evidence if these certifications are convincing, without requesting overseas investigations, or on the other hand, a district director may request an investigation if he or she deems it to be warranted. (Added)
There is no hard and fast rule as to what evidence, or how much evidence, must be submitted in support of a Public Law 97-359 Amerasian petition. The petition quite simply must be supported by enough evidence to prove to the satisfaction of the district director that "there is reason to believe" that the beneficiary was fathered by a United States citizen as required by the statute. (Added)
The Director, Outreach Program, Central Office, is to maintain copies of reports of overseas investigations in Public Law 97-359 Amerasian cases for informational purposes. Therefore, all overseas offices which conduct overseas investigations in these cases must send copies of any reports of these investigations to the Director, Outreach Program. the Director will then be able to furnish any information which is on record regarding prior cases involving various agencies and foundations for use as guid
ance in adjudicating petitions supported by certifications from those agencies and foundations. Requests for information of his type may be made by telephone (8-633-4123), by cable, or by memorandum. (Added)
OI APPENDIX to OI 204.4(d)
CREDENTIALS EVALUATING SERVICES
Credentials Evaluation Service
International Education Research Foundation
P. O. Box 24679
Los Angeles, California 90024
Advisory Evaluation of Foreign Education and Training
50 Morningside Drive
New York, New York 10025 (Revised)
International Consultants, Inc. (ICI) of Delaware
Credential Evaluation Service
214 Pickett lane
Newark, Delaware 19711
World Education Services
Education Equivalency Evaluations
P. O. Box 745
Old Chelsea Station
New York, New York 10011