A. Purpose

USCIS is the government agency that administers lawful immigration to the United States. USCIS has nearly 20,000 government employees and contractors working at more than 200 offices around the world. USCIS ensures its employees have the knowledge and tools needed to administer the lawful immigration system with professionalism. USCIS provides accessible, reliable, and accurate guidance and information about its public services.

This part provides guidance on USCIS public services, privacy, online tools, and other general administration topics.

B. Background

On March 1, 2003, USCIS assumed responsibility for the immigration service functions of the federal government. The Homeland Security Act of 2002 dismantled the Immigration and Naturalization Service (INS) and separated the agency into three components within the Department of Homeland Security (DHS). ^[1]

The Homeland Security Act created USCIS to enhance the security and efficiency of national immigration services by focusing exclusively on the administration of benefit applications. The law also formed Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to oversee immigration enforcement and border security.

USCIS benefits from a legacy of more than 100 years of federal immigration and naturalization administration. ^[2] The Agency History page on USCIS’ website provides information about the agency’s history, presents research from the History Office’s historians, and makes selected historical documents available electronically.

C. Mission Statement

USCIS administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values. ^[3]

D. Legal Authorities

• Homeland Security Act of 2002, Pub. L. 107–296 (PDF) ^[4] – Dismantled the INS and created USCIS to enhance the security and efficiency of national immigration services by focusing exclusively on the administration of benefit applications

• Privacy Act of 1974, 5 U.S.C. 552a (PDF), as amended ^[5] – Establishes a code of fair information practices that governs the collection, maintenance, use, and dissemination of information about persons that is maintained in systems of records by federal agencies

• Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112 (PDF) ^[6] – Ensuring persons with a disability are not excluded from participation in or subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any federal agency

Footnotes

[^ 1] See Homeland Security Act of 2002, Pub. L. 107–296 (PDF), 116 Stat. 2135 (November 25, 2002).

[^ 2] See the Organizational Timeline page on USCIS’ website.

[^ 3] See the About Us page on USCIS’ website.

[^ 4] See Pub. L. 107–296 (PDF), 116 Stat. 2135 (November 25, 2002).

[^ 5] See Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974).

[^ 6] See Section 504 of Pub. L. 93-112 (PDF), 87 Stat. 355, 394 (September 26, 1973).

A. Website

The USCIS website (uscis.gov) provides the public with access to current information about USCIS’ work, as well as current news releases, alerts, and other updates.

The USCIS website provides the following:

• Timely and accurate information on immigration and citizenship services and benefits offered by USCIS;

• Easy access to forms, form instructions, agency guidance, and other information required to successfully submit applications and petitions;

• The latest news and policy updates, including progress in support of Executive Orders;

• Information on outreach events and efforts; and

• Information on ways to contact USCIS. ^[1]

USCIS designed the website to accommodate easy navigation to highly trafficked pages directly from the home page, as well as a logical structure and search capability for easy access to all other pages.

In addition to uscis.gov, USCIS also hosts the following sub-sites:

• myUSCIS – Allows stakeholders to explore immigration options, create an online USCIS account, locate a physician to complete medical exams, practice the civics test, and complete other tasks online

• Citizenship Resource Center – Hosts information and resources designed to assist prospective citizens

• USCIS Policy Manual – The agency’s centralized online repository for USCIS’ immigration policies ^[2]

• InfoPass – System used by USCIS Contact Center for scheduling in-person services at domestic field offices on behalf of benefit requestors and other interested parties.

USCIS makes every effort to provide complete and accurate information on its website. USCIS does its best to update information and correct errors brought to its attention as soon as possible. Both the English language and Spanish language pages are updated at the same time, as appropriate.

B. Social Media

Social media is an informal means of communication that also connects benefit requestors and other interested parties with core information and services on the USCIS website. In this way, social media complements the USCIS website and increases USCIS’ ability to communicate with the public.

USCIS’ social media presence includes:

• Twitter (Main and for E-Verify) – for concise information and news, usually accompanied by links back to uscis.gov

• Facebook – for information and news, usually accompanied by links back to uscis.gov

• YouTube – for videos

• Instagram – for photos and informational graphics

The USCIS Office of Public Affairs (OPA) manages all USCIS social media accounts, working with various USCIS leadership and other offices to develop content. USCIS’ posts are visible to anyone with internet access.

USCIS generally uses social media to make information and services widely available to the general public, to promote transparency and accountability, and to help those seeking information or services from USCIS. USCIS posts information only after it has been appropriately approved and vetted by OPA. Only USCIS employees acting in their official capacity are authorized to post to USCIS social media sites.

Comments on USCIS’ social media channels are visible to the public. To protect their privacy, commenters should not include full names, phone numbers, email addresses, Social Security numbers, case numbers, or any other private information in comments.

USCIS does not moderate user comments on its channels before posting, but reserves the right to remove any materials that pose a security risk or otherwise violate the USCIS social media policy. Any opinions expressed in comments, except as specifically noted, are those of the individual commenters and do not reflect any agency policy, endorsement, or action. USCIS does not collect or retain comments in its records.

Use of each social media site is governed by that site’s privacy policy. ^[3]

Footnotes

[^ 1] See the Contact Us page on USCIS’ website.

[^ 2] The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other policy repositories.

[^ 3] See the USCIS website for information on Social Media Policy.

A. In-Person

1. Local Field Office

Persons with case-specific inquiries who have tried using the online tools and have not been able to attain the information they are looking for may call the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833). In-person appointments at Field Offices are reserved for critical services that require a person’s physical presence in the office to resolve the issue.

2. Community Outreach

USCIS engages in community outreach programs to educate and increase public awareness, increase dialogue and visibility, and solicit feedback on USCIS operations. During outreach events in local communities, USCIS employees do not respond to case-specific inquiries. Anyone asking case-specific questions at outreach events should be directed to submit their inquiry through appropriate channels.

The topics of community outreach programs are varied. Information on past and future outreach events can be found on the USCIS website. The website provides a list of future engagements and instructions on how to register to attend. Many events also have call-in numbers for those unable to attend in person. The website also contains notes and supporting documents from previous engagements.

B. Online

1. USCIS Online Account

USCIS online accounts allow applicants, petitioners, and representatives to access personalized, real-time information related to their individual case 24 hours a day through any internet-connected device. Persons can also communicate directly with the USCIS Contact Center through the secure messaging function to receive email responses to their case-specific inquiries. This is the easiest and most comprehensive way to communicate with USCIS regarding case-specific issues.

2. Online Messages

Benefit requestors can send messages and inquiries directly to the USCIS Contact Center, without an online account, and receive an email or phone response within 24 to 48 hours. Since these messages are outside of USCIS’ secure online account experience, Contact Center staff are limited from sharing case-specific information to ensure the privacy of benefit requestors. The USCIS online account is the preferred method of contacting the agency for easy, timely, and effective responses to case-specific inquiries.

3. Emma and Live Web Chat

Emma is the USCIS Virtual Assistant. Emma can provide immediate responses to non-case-specific questions about immigration services and benefits, guide users through our comprehensive website, and connect benefit requestors and other interested parties to a live agent through web chat for more in-depth topics and questions.

4. Email

USCIS offices may provide designated email boxes for case-specific inquiries about a pending or adjudicated petition or application. Before submitting an inquiry, the person inquiring should review all available information listed on the USCIS Contact US web page to ensure that the inquiry is properly routed. 

USCIS officers should use caution when responding to email inquiries requesting case-specific information, as issues of privacy and identity may arise. ^[1]

C. Telephone

1. USCIS Contact Center

For the convenience of benefit requestors and other interested parties located within the United States, USCIS provides a toll-free phone number answered by the USCIS Contact Center available 24 hours a day, 7 days a week. Automated information accessed through a menu of interactive options is always available. For information on when live help through a USCIS representative is available, see the USCIS Contact Center web page.

The toll-free phone number for the USCIS Contact Center is 1-800-375-5283 (TTY for the deaf, hard of hearing, or person with a speech disability: 1-800-767-1833).

Multi-Tiered Structure

The USCIS Contact Center provides escalating levels of service to handle inquiries of increasing complexity, primarily through an Interactive Voice Response (IVR) system and a multi-tiered level of live assistance.

IVR – Callers initially have the opportunity to have their questions answered directly by the IVR system. If additional assistance is needed, callers may request live assistance by selecting that option from within the IVR.

Tier 1 – Tier 1 is the first level of live assistance. Tier 1 staff members, who are contract employees, provide basic case-specific and general non-case-specific information. These responses follow a formatted script.

Tier 2 – If Tier 1 is unable to completely resolve an inquiry, the call may be transferred to the Tier 2 level of live assistance to be answered by a USCIS officer.

Callers may, at any time, request to have a call directed to a supervisor.

If an inquiry involves a case physically located at a domestic USCIS field office or service center, the USCIS Contact Center may create a service request. The service request is automatically routed to the USCIS office that can best resolve the inquiry. If an inquiry involves a case physically located at an international USCIS field office, the USCIS Contact Center may provide the caller with that office’s contact information and refer the inquiry, as appropriate.

2. International Service

Persons located outside of the United States should contact the international office with jurisdiction over their place of residence. USCIS provides a complete listing of international jurisdictions and field offices and their phone numbers on the International Immigration Offices page of the USCIS website.

3. Military Help Line

USCIS provides a toll-free military help line exclusively for members of the military and their families. For information on when USCIS military help line staff are available to answer calls, see the Military Help Line web page. After-hours callers will receive an email address they can use to contact USCIS for assistance.

The toll-free phone number for the military help line is 1-877-CIS-4MIL (1-877-247-4645) (TTY: for the deaf, hard of hearing, or person with a speech disability: 1-800-767-1833).

4. Premium Processing Line

USCIS provides a toll-free phone number exclusively for inquiries about petitions filed under the Premium Processing program. ^[2] The toll-free phone number for the Premium Processing Line is 1-866-315-5718.

5. Intercountry Adoptions Line

USCIS provides a toll-free phone number exclusively for inquiries about domestically filed applications and petitions under the Orphan and Hague intercountry adoption programs. ^[3] The toll-free phone number for the Intercountry Adoptions Line is 1-877-424-8374.

D. Traditional Mail or Facsimile

1. Traditional Mail

General mailing addresses are publicly available to allow the submission of applications and petitions, responses to requests for evidence, or service requests in a hard copy format. ^[4] Dedicated mailing addresses are available, as appropriate, to aid specific USCIS processes.

Mailing addresses are available at the Find a USCIS Office page on the USCIS website.

2. Facsimile (Fax)

USCIS does not provide general delivery facsimile (fax) numbers. While USCIS does not publish dedicated fax numbers, USCIS offices have the discretion to provide a fax number when appropriate. For example, an officer may provide a fax number for the purpose of submitting documentation electronically to aid in the efficient resolution of a case or as a method to expedite delivery of requested documents or information. Documents should not be submitted by fax unless specifically requested by a USCIS employee.

Footnotes

1. [^] See Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].

2. [^] See the USCIS website for more information on Premium Processing Service. See Request for Premium Processing Service (Form I-907).

3. [^] See the USCIS website for additional adoption-related contact information and more details about Orphan or Hague Process.

4. [^] A service request is a tool that allows stakeholders to place an inquiry with USCIS for certain applications, petitions, and services. Service requests may also be submitted through the USCIS Contact Center or online. See Chapter 4, Service Request Management Tool [1 USCIS-PM A.4].

A. Generating Service Requests

1. USCIS-Generated

The Service Request Management Tool (SRMT) provides USCIS staff the ability to record and transfer unresolved service requests by benefit requestors and other interested parties to the appropriate USCIS service center, domestic USCIS field office, or USCIS asylum office where the application or petition is pending a decision or was adjudicated.

If an inquiry received through a call to the USCIS Contact Center cannot be resolved during the call, and the inquiry warrants creation of a service request, USCIS Contact Center staff will create a service request. Although the majority of service requests are created by staff at the USCIS Contact Center, officers in other locations may also create service requests. Using the SRMT to create a service request allows the person inquiring to receive a response without having to call the USCIS Contact Center again or return to a USCIS office in most instances.

2. Self-Generated

By using an online portal, a person may create a service request in the following categories:

• Change of address (COA) request (unless filing as a Violence Against Women Act (VAWA), T nonimmigrant, or U nonimmigrant applicant or petitioner); ^[1]

• Request regarding a notice, card, or other document that was not received;

• Request regarding a case outside normal processing time;

• Request for accommodations; ^[2] or

• Request for correction of a typographic error.

Benefit requestors may also submit a service request by mailing in a hard copy to a domestic USCIS field office. ^[3]

B. Responding to Service Requests

1. Timely Response

The USCIS office receiving a service request should take the necessary steps to communicate directly with the benefit requestor about the inquiry or timely relocate the inquiry to another office or organization when appropriate.

USCIS categorizes a service request based upon the urgency and request type, and assigns a target completion date based on the category. USCIS completes requests within each category on a first-in, first-out basis. In general, the goal for resolution of service requests is 15 calendar days from the date of creation.

2. Prioritized Requests

The following requests receive processing priority and should be responded to within 7 calendar days from the date of creation:

Change of Address

USCIS must process change of address (COA) requests at the earliest opportunity to reduce the potential for undeliverable mail and associated concerns. The address recorded on all open associated application or petition receipts must be updated unless instructed otherwise by the person. Address changes are only limited to select identified receipts when the person explicitly requests the COA request be restricted.

When the address listed for the applicant in any request is different from the address listed in USCIS information systems, it is considered to be an address change request, regardless of whether the request was specifically for a COA or for another reason. The address in the request is then used to change address records on all directly related receipts.

However, no COA request is inferred if the service request was initiated by a representative and the address listed in the request is the representative’s address. Also, in these situations, a copy of the response should be mailed to the petitioner or applicant at his or her address of record.

USCIS does not accept COA requests on a VAWA, T nonimmigrant, or U nonimmigrant-related application or petition that are received through an SRMT. A hard-copy, signed COA request submitted through traditional mail is required. Offices should respond to VAWA, T nonimmigrant, and U nonimmigrant COA requests using the standard language. ^[4]

Expedite Requests ^[5]

Expedite service requests are self-identified as urgent. The person requesting expedited service may be required to submit evidence to the office processing their case to support the expedite request.

Reasonable Accommodation ^[6]

Reasonable accommodation service requests must be responded to in accordance with the disability accommodations policy.

Military Referral

Military referrals have implied urgency based upon the uncertainty of reassignments and deployments.

Footnotes

1. [^] For information on COA in VAWA, T, U, see Chapter 7, Privacy and Confidentiality, Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)].

2. [^] See Chapter 6, Disability Accommodation Requests [1 USCIS-PM A.6].

3. [^] See Chapter 3, Forms of Assistance, Section D, Traditional Mail or Facsimile [1 USCIS-PM A.3(D)].

4. [^] See Section E, VAWA, T, and U Cases, Subsection 3, USCIS Assistance [1 USCIS-PM A.7(E)(3)].

5. [^] Expedite requests are distinct from premium processing. For information on expedite requests and premium processing, see Chapter 5, Requests to Expedite Applications or Petitions [1 USCIS-PM A.5].

6. [^] See Chapter 6, Disability Accommodation Requests [1 USCIS-PM A.6].

Benefit requestors may request USCIS to expedite the adjudication of their applications or petitions. USCIS considers all expedite requests on a case-by-case basis and generally requires documentation to support such requests. The decision to grant or deny an expedite request is within the sole discretion of USCIS.

Expedite Criteria

USCIS does not consider expedite requests for petitions and applications that have Premium Processing Service available.

USCIS may consider expediting a benefit request if it meets one or more of the following criteria:

• Severe financial loss to a company ^[1] or person, ^[2] provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure: (1) to file the benefit request or the request to expedite in a reasonable time frame; or (2) to respond to any requests for additional evidence in a reasonably timely manner;

• Urgent humanitarian reasons;

• Compelling U.S. Government interests (such as urgent cases for the Department of Defense or DHS, or other public safety or national security interests); or

• Clear USCIS error.

Not every circumstance that fits under one of these categories will result in expedited treatment.

To increase efficiency in the review and processing of expedite requests, USCIS is not required to provide justification and is not required to respond regarding decisions on expedite requests.

This policy applies to all expedite requests filed on or after May 10, 2019, the effective date of this policy. USCIS reviews expedite requests filed before May 10, 2019 under the prior policy in effect.

For more information on how to make an expedite request, see the How to Make an Expedite Request web page.

Footnotes

[^ 1] Severe financial loss to a company means the company would be at risk of failing.

[^ 2] The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment. 

A. Background

USCIS accepts requests for accommodations from benefit requestors, other interested parties, and other persons with disabilities who use USCIS services and access USCIS facilities. Accommodation requests may be made in advance for instances that include, but are not limited to:

• An interview with an officer;

• an oath ceremony; or

• A USCIS-sponsored public event.

Accommodations ensure compliance with Section 504 of the Rehabilitation Act of 1973, ^[1] which states that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency.” ^[2]

B. Reasonable Accommodation

The essential feature of an accommodation is that it allows the person with a disability to participate in the process or activity. While USCIS is not required to make major modifications that would result in a fundamental change to the processes or cause an undue burden for the agency, USCIS makes every effort to provide accommodations to persons with disabilities. Reasonable accommodations vary, depending on the situation and the person’s disability.

Benefit requestors must satisfy all of the legal requirements to receive an immigration benefit; however, USCIS must provide reasonable accommodations to persons with disabilities to afford them the opportunity to meet those requirements.

Examples of accommodations include, but are not limited to:

• Those unable to use their hands may be permitted to take a test orally rather than in writing;

• Those who are deaf or hard of hearing may be provided with a sign language interpreter for a USCIS-sponsored event; ^[3]

• Those unable to speak may be allowed to respond to questions in an agreed-upon nonverbal manner; ^[4]

• Those unable to travel to a designated USCIS location for an interview due to a disabling condition may be interviewed at their home or a medical facility.

C. Requesting Accommodation

1. How to Make a Disability Accommodation Request

To request disability accommodation for any phase of the application process, benefit requestors, other interested parties, and other persons with disabilities who use USCIS services and access USCIS facilities, should generally submit the request online using the Disability Accommodations for Appointments tool. ^[5] Requestors should submit accommodation requests to USCIS as soon as they are aware of the need for an accommodation for a particular event. The more advance notice USCIS has, the more likely it will be able to make arrangements for the accommodation request. ^[6]

2. USCIS Points-of-Contact

To ensure accountability, each field office, application support center (ASC), or asylum office must designate at least one employee to be responsible for handling accommodation requests. All employees should be aware of the procedures for handling such requests.

If a requestor contacts the field office, ASC, or asylum office directly to request a disability accommodation for an interview, the office may enter a service request into the Service Request Management Tool (SRMT) to work with the requestor to respond to the request, and mark the request as fulfilled when it is complete so that the request and the response are recorded.

Offices are encouraged to provide reasonable accommodation requests made by walk-ins whenever practical. If the accommodation is not available, the office should inform the requestor that the office is not able to provide the accommodation at that time, but that arrangements can be made to provide the accommodation for a future appointment or event.

3. USCIS Review

USCIS evaluates each request for a reasonable accommodation on a case-by-case basis.  The Public Disability Access Coordinator must generally concur on any alternative accommodation offered or any accommodation denial before the office communicates either action to the requestor.

While a requestor is not required to include documentation of a medical condition in support of a reasonable accommodation request, an office may need documentation to evaluate the request in rare cases. In these situations, the office must consult the Public Disability Access Coordinator for guidance before the USCIS office requests medical documentation to support an accommodation request.

4. Review Timeframe

In general, the affected USCIS office determines whether it may reasonably comply with the accommodation request within 7 calendar days of receiving the request, unless unusual circumstances exist.

If an accommodation is warranted, it should be provided on the date and time of the scheduled event; rescheduling should be avoided, if possible. If an accommodation cannot be provided for the originally scheduled event, the requestor should be notified as soon as possible. Any rescheduling should occur within a reasonable period of time.

5. Reconsideration of Denied Request

To request a reconsideration of a denial of a disability accommodation request, the requestor should call the USCIS Contact Center and provide any new information they have in support of their request. Upon receiving the request, the relevant office must review the prior request and any additional information provided. The office should contact the requestor if additional information is needed.

Generally, all affirmed denials must be approved by the Public Disability Access Coordinator, the field office director, ASC manager, or asylum office director, whichever applies.

Footnotes

1. [^] See Pub. L. 93-112 (PDF) (September 26, 1973).

2. [^] See Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112 (PDF), 87 Stat. 355, 394 (September 26, 1973), codified at 29 U.S.C. 794(a). See 6 CFR 15.3 for applicable definitions relating to enforcement of nondiscrimination on the basis of disability in Department of Homeland Security (DHS) federal programs or activities, which includes those conducted by USCIS.

3. [^] This applies to any member of the public who wants to attend the event, such as a naturalization ceremony or an outreach engagement.

4. [^] Offices should understand that, while the inability to speak is considered a disability under the Rehabilitation Act, the inability to speak the English language (while being able to speak a foreign language) is not considered a disability under the Act. Therefore, no accommodation is required and one should not be provided if a requestor is unable to speak English. No request for an interpreter should be approved unless the requestor is otherwise eligible. See, for example, 8 CFR 312.4.

5. [^] Certain categories of applicants, such as asylum and NACARA 203 applicants, cannot submit their request online. These applicants should call the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833). For additional instructions on how to submit a disability accommodation request, see the Requesting Accommodations for Disabilities web page.

6. [^] For more information on service requests, see Chapter 4, Service Request Management Tool [1 USCIS-PM A.4]. For information on handling disability accommodations related to asylum cases, see Chapter 7, Privacy and Confidentiality, Section F, Asylees and Refugees, Subsection 3, USCIS Assistance [1 USCIS-PM A.7(F)].

A. Privacy Act of 1974

The Privacy Act provides that federal agencies must protect against the unauthorized disclosure of personally identifiable information (PII) that it collects, disseminates, uses, or maintains. ^[1] The Privacy Act requires that personal information belonging to U.S. citizens and lawful permanent residents (LPRs) be protected from unauthorized disclosure. Violations of these requirements may result in civil and criminal penalties.

B. Fair Information Practice Principles

DHS treats all persons, regardless of immigration status, consistent with the Fair Information Practice Principles (FIPPs). ^[2] The FIPPs are a set of eight principles that are rooted in the tenets of the Privacy Act of 1974. The principles are:

• Transparency;

• Individual participation;

• Purpose specification;

• Data minimization;

• Use limitation;

• Data quality and integrity;

• Security; and

• Accountability and auditing.

The table below provides a description of each principle.

C. Personally Identifiable Information

DHS defines PII as any information that permits the identity of a person to be directly or indirectly inferred, including any information which is linked or linkable to that person regardless of whether the person is a U.S. citizen, lawful permanent resident (LPR), visitor to the United States, or a DHS employee or contractor. ^[3]

Sensitive PII is defined as information which, if lost, compromised, or disclosed without authorization, could result in substantial harm, embarrassment, inconvenience, or unfairness to a person. ^[4] Some examples of PII that USCIS personnel may encounter include:

• Name;

• Address;

• Date of birth; and

• Certificate of Naturalization or Citizenship number.

• Alien number (A-number);

• Social Security number;

• Driver’s license or state ID number;

• Passport number; and

• Biometric identifiers.

USCIS employees have a professional and legal responsibility to protect the PII the agency collects, disseminates, uses, or maintains. All USCIS employees must follow proper procedures when handling all PII and all information encountered in the course of their work. All USCIS employees processing PII must know and follow the policies and procedures for collecting, storing, handling, and sharing PII. Specifically, USCIS employees must:

• Collect PII only when authorized;

• Limit the access and use of PII;

• Secure PII when not in use;

• Share PII, only as authorized, with persons who have a need to know; and

• Complete and remain current with all privacy, computer security, and special protected class training mandates.

D. Case-Specific Inquiries

USCIS receives a variety of case-specific inquiries, including requests for case status updates, accommodations at interviews, appointment rescheduling, and the resolution of other administrative issues. USCIS personnel are permitted to respond to these inquiries if:

• The requestor is entitled to receive the requested case-specific information; and

• Disclosure of the requested case-specific information would not violate Privacy Act requirements or other special protected class confidentiality protections.

1. Verifying Identity of Requestor

USCIS employees must verify the identity of a person inquiring about a specific application or petition. For in-person inquiries, those present must provide a government-issued identity document so that USCIS can verify their identity.

For inquiries not received in person (for example, those received through telephone call or email), it may be difficult to verify the identity of the person making the request through a government-issued document. In these cases, USCIS employees should ask for specific identifying information about the case to ensure that it is appropriate to communicate case-specific information. Examples of identifying information include, but are not limited to: receipt numbers, A-numbers, full names, dates of birth, email addresses, and physical addresses.

If a person is unable to provide identifying information that an applicant, petitioner, or representative should reasonably know, USCIS employees may refuse to respond to the request, or direct the requestor to make an appointment at a local field office or create a myUSCIS account.

2. Disclosure of Information

Except for case types with heightened privacy concerns, ^[5] USCIS employees may communicate about administrative case matters if the requestor is able to demonstrate his or her identity (for example, by showing government-issued identification during an in-person encounter), or provide verifying information sufficient to demonstrate that communication would be proper. Administrative case matters are generally any issues that do not involve the legal substance or merit of an application or petition.

USCIS employees should not disclose PII when responding to case-specific requests; inquiries can generally be resolved without any discussion of PII. ^[6] To ensure that a USCIS employee is not disclosing PII, the USCIS employee can always require that the requestor first provide and confirm any PII at issue. In addition, a USCIS employee may take action that results in the resending of cards, notices, or documents containing PII to addresses on file instead of directly disclosing PII to a requestor.

Interested parties may be present at in-person appointments or during telephone calls, with the consent of the applicant or petitioner. Consent is usually implied if both the applicant or petitioner and the third party are present together. However, a USCIS employee may always ask the applicant or petitioner if he or she consents to the third-party’s presence if there is any doubt.

3. Communication with Address on File

USCIS sends written responses and duplicate notices to the addresses on file. Before USCIS is able to send any correspondence to a different address, the person must initiate a service request to update his or her address in USCIS systems. ^[7] Change of address requests associated with cases subject to confidentiality provisions must follow separate procedures. ^[8]

4. Third-Party Information

Information from other agencies, such as Immigration and Customs Enforcement (ICE), the Federal Bureau of Investigation (FBI), or the Department of State (DOS) may be located in USCIS files and systems. This information must not be released in response to an inquiry, although it may be appropriate to refer the inquiry to another agency.

5. Third-Party Government Inquiries

USCIS may share records covered under the Privacy Act with written consent from the person or pursuant to a routine use listed in the applicable System of Records Notices. Before sharing information with a government entity, USCIS must determine if the disclosure and use of information is compatible with an existing routine use. Planned uses must also be compatible with the purpose for which DHS originally collected the information. There are, however, enumerated exceptions of the Act that may apply.

Congress

One exception is for disclosures to either house of Congress, or any Congressional committee, subcommittee, joint committee, or subcommittee of a joint committee, if the matter is within its jurisdiction. For all other requests from members of Congress, such as constituent requests, the person whose information is to be released must have provided the member of Congress with a privacy release for USCIS to disclose any information related to that person.

The USCIS Office of Legislative and Intergovernmental Affairs (OLIA)) and designated liaisons handle all inquiries and certain correspondence from Congress to USCIS. Members of Congress, congressional offices, and congressional committees should always go through OLIA when initiating an inquiry. The USCIS and Congress web page on USCIS’ website provides instructions on how members of Congress should interact with and contact USCIS. Non-liaison USCIS employees who are contacted directly with a congressional inquiry should refer it to OLIA so that it may proceed through the proper channels.

Law Enforcement Agencies

Information may be shared with other DHS components under the existing DHS information sharing policy, ^[9] which considers all DHS components one agency, as long as there is a mission need in line with the requestor’s official duties.

Requests from law enforcement agencies outside of DHS must go through DHS Single Point of Service (SPS) Request for Information (RFI) Management Tool, which requires an account. Account requests can be submitted to DHS-SPS-RFI@hq.dhs.gov.

Before referring any relevant RFI to USCIS, SPS ensures any RFI is consistent with the USCIS mission, has been reviewed and cleared by DHS Counsel and Privacy (as required), and is provided a tracking number. SPS then submits the RFI to Fraud Detection and National Security (FDNS) Intelligence Division (ID). FDNS ID logs official RFIs and takes the necessary steps to process and answer them, including review by USCIS Office of Chief Counsel and Office of Privacy.  

Federal Investigators

If an Office of Personnel Management or DHS Office of Inspector General (OIG) investigator requests information, the USCIS employee should provide the information upon verifying the requestor’s identity. Disclosure of any information needs to meet a routine use or be covered by a data share agreement. USCIS employees and contractors must provide prompt access for auditors, inspectors, investigators, and other personnel authorized by the OIG to any files, records, reports, or other information that may be requested either orally or in writing, and supervisors may not impede this cooperation.

Other Third-Party Inquiries

Prior to responding to a non-congressional third-party case inquiry, a written, signed, and notarized privacy release must be obtained from the applicant or petitioner. Third parties should submit a written authorization and identify the information the person desires to be disclosed. USCIS staff can accept the authorization via facsimile or email as long as the signature on the original is handwritten, and not typed or stamped. ^[10] The USCIS Office of Privacy will conduct an analysis for disclosure requests for PII on persons not covered by the Privacy Act or the Judicial Redress Act, absent another mechanism that confers a right or process by which a member of the public may access agency records.

E. VAWA, T, and U Cases

1. Confidentiality Provisions

Applicants and recipients of immigration relief under the Violence Against Women Act of 1994 (VAWA) ^[11] and the Victims of Trafficking and Violence Prevention Act of 2000 ^[12] (T and U nonimmigrant status for victims of trafficking and other serious crimes) are entitled to special protections with regard to privacy and confidentiality. The governing statute prohibits the unauthorized disclosure of information about petitioners and applicants for, and beneficiaries of VAWA, T, and U-related benefit requests to anyone other than an officer or employee of DHS, the Department of Justice (DOJ), or the Department of State (DOS) who has a need to know. ^[13]

This confidentiality provision is commonly referred to as “Section 384” because it originally became law under Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, ^[14] which protects the confidentiality of victims of domestic violence, trafficking, and other crimes who have filed for or have been granted immigration relief.

An unauthorized disclosure of information which relates to a protected person can have significant consequences. USCIS employees must maintain confidentiality in these cases. Victims of domestic violence, victims of trafficking, and victims of crimes can be put at risk, as can their family members, if information is provided to a person who is not authorized.

Anyone who willfully uses, publishes, or permits any information pertaining to such victims to be disclosed in violation of the above-referenced confidentiality provisions may face disciplinary action and be subject to a civil penalty of up to $5,000 for each violation.

2. Scope of Confidentiality

Duration of Confidentiality Requirement

By law, the confidentiality provisions apply while a VAWA, T, or U case is pending and after it is approved, and ends when the application for immigration relief is denied and all opportunities for appeal of the denial have been exhausted.

Disclosure of Information

USCIS cannot release any information relating to a protected person until the identity of the requestor of information is verified and that person’s authorization to know or receive the protected information is verified. Such identity and eligibility verification must be done before responding to any inquiry, expedite request, referral, or other correspondence. Upon identity verification, USCIS can provide protected information directly to the protected person or his or her representative authorized to receive 1367-protected information.

Exceptions for Disclosure of Information

USCIS is permitted to disclose information relating to a protected person in certain, limited circumstances. These circumstances include:

• Statistical Information – Disclosure of data and statistical information may be made in the manner and circumstances permitted by law. ^[15]

• Legitimate Law Enforcement Purposes – Disclosure of information may be made to law enforcement officials to be used solely for a legitimate law enforcement purpose.

• Judicial Review – Information can be disclosed in connection with judicial review of a determination provided it is in a manner that protects the confidentiality of the information.

• Applicant Waives Confidentiality – Adults can voluntarily waive the confidentiality provision; if there are multiple victims in one case, they must all waive the restrictions.

• Public Benefits – Information may be disclosed to federal, state, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits. ^[16]

• Congressional Oversight Authority (for example, Government Accountability Office audits) – The Attorney General and the Secretary of Homeland Security can disclose information on closed cases to the chairmen and ranking members of Congressional Committees on the Judiciary, for the exercise of Congressional oversight authority. The disclosure must be in a manner that protects the confidentiality of the information and omits PII (including location-related information about a specific person).

• Communication with Non-Governmental Organizations (NGO) – Government entities adjudicating applications for relief ^[17] and government personnel carrying out mandated duties under the Immigration and Nationality Act (INA) ^[18] may, with the prior written consent of the alien involved, communicate with nonprofit NGO victims’ service providers for the sole purpose of assisting victims in obtaining victim services. Agencies receiving referrals are bound by the confidentiality provisions.

• National Security Purposes – The Secretary of Homeland Security, the Secretary of State, or the Attorney General may provide in their discretion the disclosure of information to national security officials to be used solely for a national security purpose in a manner that protects the confidentiality of such information.

• To sworn officers or employees of the Department of State or Department of Justice, for legitimate Department, bureau, or agency purposes.

3. USCIS Assistance

USCIS employees must ensure confidentiality is maintained when an applicant, petitioner, or beneficiary of certain victim-based benefits requests assistance.

Change of Address

Applicants with VAWA, T, or U-related cases can request a change of address by submitting an Alien’s Change of Address Card (Form AR-11) with an original signature to the Vermont Service Center (VSC) by mail.

If the requestor previously filed for a waiver of the I-751 joint filing requirement because of abuse, the requestor should file a Form AR-11​ with an original signature with the USCIS office assigned to work the Form I-751. The requestor can find the appropriate USCIS office by referring to the receipt number issued in response to the Form I-751 filing. ^[19]

An applicant may also appear in person at a USCIS field office to request a change of address, by calling the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833) to request an in-person appointment. The applicant’s identity must be verified before making the requested change. If the case is at the VSC or the Nebraska Service Center (NSC), the field office must also notify the VSC or NSC of the change of address for VAWA, T, and U cases. 

Telephonic Inquiries

The identity of the person inquiring about a confidential case must be verified and that person’s eligibility to receive information must also be verified. Such verification cannot be made telephonically.

F. Asylees and Refugees

1. Confidentiality Provisions

Federal regulations generally prohibit the disclosure to third parties of information contained in or pertaining to asylum applications, credible fear determinations, and reasonable fear determinations. ^[20] This includes information contained in the legacy Refugee Asylum and Parole System (RAPS) or the legacy Asylum Pre-Screening System (APSS), and Global System (the 2018 replacement for RAPS/APSS) or related information as displayed in CIS2 and PCQS, except under certain limited circumstances. As a matter of policy, the confidentiality protections in these regulations are extended to Registration for Classification as Refugee (Form I-590), Refugee/Asylee Relative Petitions (Form I-730), and Applications for Suspension of Deportation or Special Rule Cancellation pursuant to NACARA (Form I-881).

These regulations safeguard information that, if disclosed publicly, could subject the claimant to retaliatory measures by government authorities or non-state actors in the event the claimant is repatriated. Such disclosure could also endanger the security of the claimant’s family members who may still be residing in the country of origin.

Moreover, public disclosure might give rise to a plausible protection claim by the claimant where one would not otherwise exist. This is because such disclosure may bring an otherwise ineligible claimant to the attention of the government authority or non-state actor against which the claimant has made allegations of mistreatment.

2. Breach of Confidentiality

Confidentiality is breached when the unauthorized disclosure of information contained in or pertaining to, these protected classes allows the third party to link the identity of the applicant to:

• The fact that the applicant or petitioner has applied for asylum or refugee status;

• Specific facts or allegations pertaining to the individual asylum or refugee claim contained in an asylum or refugee application; or

• Facts or allegations that are sufficient to give rise to a reasonable inference that the applicant has applied for asylum or refugee status.

The same principles generally govern the disclosure of information related to credible fear and reasonable fear determinations, and applications for withholding or deferral of removal under Article 3 of the Convention Against Torture, which are encompassed within the Application for Asylum and for Withholding of Removal (Form I-589). As a matter of policy, USCIS extends the regulatory safeguards to include claims under the Safe Third Country Agreement, applications for suspension of deportation, special rule cancellation of removal under NACARA 203, refugee case information, as well as refugee and asylee relative information.

Disclosures may only be made to U.S. government officials or employees and U.S. federal or state courts where there is a demonstrated need-to-know related to certain administrative, law enforcement, and civil actions. Any other disclosure requires the written consent of the claimant or the express permission of the Secretary of DHS.

3. USCIS Assistance

USCIS employees must not disclose information contained in, or pertaining to, any asylum or refugee application or claim to any third party without the written consent of the applicant, except as permitted by regulation or at the discretion of the Secretary of DHS. ^[21] 

This includes neither confirming nor denying that a particular person filed a protection claim by submitting any of the following:

• An Application for Asylum and for Withholding of Removal (Form I-589);

• A Registration for Classification as Refugee (Form I-590);

• A Refugee/Asylee Relative Petition (From I-730);

• A Request for a Safe Third Country Agreement Determination;

• A Request for a Credible Fear Determination;

• A Request for a Reasonable Fear Determination; and

• An Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100 (NACARA) (Form I-881)).

USCIS employees should respond to inquiries related to Form I-589, Form I-881, requests for information pertaining to the Safe Third Country Agreement, credible fear and reasonable fear processes, Form I-590, and Form I-730 in different ways, depending on the inquiry:

Request for Disability Accommodation at an Upcoming Form I-589 Interview

Tier 2 staff members may use the Service Request Management Tool (SRMT) to record and transfer requests to the asylum office with jurisdiction over the pending application. The asylum office then contacts the applicant to arrange for disability accommodation at the interview. While officers must not confirm or deny the existence of a pending protection claim or NACARA 203 application, those making disability accommodation requests for upcoming asylum interviews should be told that the request is being recorded and will be forwarded to the appropriate office for follow-up.

Change of Address Request

Tier 2 staff members may create a service request and submit it to the asylum office or service center with jurisdiction over the pending Form I-589, Form I-881, or Form I-730 petition. The office then fulfills the service request. While staff members must not confirm or deny the existence of a pending protection claim, those making address change requests should be told that the request is being recorded and will be forwarded to the appropriate office.

USCIS Contact Center Status Inquiries for Form I-589, Form I-881, and Form I-730

USCIS Contact Center personnel may not respond to any status inquiries, and may not confirm or deny the existence of an application or petition. Instead, USCIS Contact Center personnel should direct the caller to the Case Status Online tool. If the caller needs further assistance than the Case Status Online tool can provide, USCIS Contact Center personnel should direct the caller to the local office with jurisdiction over the application. For information on office-specific in-person appointment requirement, see the Asylum Office Locator tool. The office with jurisdiction over the application must respond to the inquiry.

USCIS Contact Center Status Inquiries for Form I-590 Applications

USCIS Contact Center personnel may not respond to any status inquiries and may not confirm or deny the existence of an application or petition. Instead, USCIS Contact Center personnel should obtain all relevant information from the inquirer and refer the inquiry to the USCIS Headquarters Refugee Affairs Division (RAD) for response.

Inquiries Regarding Subsequent Applications or Petitions Based on Underlying Form I-589, Form I-590, or Form I-730

Staff members may respond to inquiries regarding subsequent applications or petitions that are based on an underlying Form I-589, Form I-590, or Form I-730 (including Application for Travel Document (Form I-131), Application for Employment Authorization (Form I-765), or Application to Register Permanent Residence or Adjust Status (Form I-485)). Staff members may not confirm or deny the existence of the underlying application.

General Inquiries

USCIS employees may respond to general questions about the asylum program, the U.S. Refugee Admission Program (USRAP), and credible and reasonable fear screenings. ^[22] However, for all specific case status questions relating to I-589 applications or I-730 petitions, the inquirers must be directed to contact the local asylum office or service center with jurisdiction over the application. For specific case status questions relating to I-590 refugee applications, the inquiry must be referred to RAD for response.

Asylum offices may accept case inquiries from the applicant or the applicant’s attorney or representative with a properly completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file.

Asylum offices may receive case inquiries in a variety of ways, such as by mail, email, phone, fax, or in person. When it is possible to verify the identity of the applicant or attorney or representative inquiring, offices may respond using any of those communication channels. If it is not possible to verify the identity of the inquirer, asylum offices should respond to inquiries by providing a written response to the last address the applicant provided.

RAD does not respond to inquiries over the phone, but instead asks the inquirer to put his or her request in writing so that the signature and return address can be compared to information on file. RAD responds to an inquiry received by email only if the email address matches the information the applicant submitted to the Resettlement Support Center or if the principal applicant provides written consent that includes the principal applicant’s signature.  

G. Temporary Protected Status

1. Confidentiality Provisions

Like refugee and asylum cases, information pertaining to Temporary Protected Status (TPS) cases may not be disclosed to certain third parties because unauthorized disclosure of information may place the applicant or the applicant’s family at risk. ^[23]

The law prohibits the release of information contained in the TPS application or in supporting documentation to third parties without the written consent of the applicant. A third party is defined as anyone other than:

• The TPS applicant;

• The TPS applicant’s attorney or authorized representative (with a properly completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file);

• A DOJ officer, which has also been extended to include a DHS officer following the transfer of certain immigration functions from DOJ to DHS; or

• Any federal or state law enforcement agency.

2. USCIS Assistance

USCIS may not release any information contained in any TPS application and supporting documents in any form to any third party, without a court order or the written consent of the applicant. ^[24] Status inquiries may not confirm or deny the existence of a TPS application, or whether a person has TPS, until the identity of the inquirer has been confirmed and it has been determined the inquirer is not a third party to whom information may not be released.

USCIS employees must adhere to these same TPS confidentiality provisions regarding the disclosure of information to third parties, even if the information is contained in a TPS-related form such as:

• The Application for Employment Authorization (Form I-765), which every TPS applicant must file;

• A TPS-related waiver requested on Application for Waiver of Grounds of Inadmissibility (Form I-601); or

• A TPS-related Application for Travel Document (Form I-131).

With respect to confidentiality, USCIS employees must treat these records as they do other TPS supporting documentation in the TPS application package.

USCIS employees may respond to general questions about the TPS program. ^[25] However, for all case-specific questions relating to Form I-821 applications, USCIS employees must first confirm the identity of the person and his or her eligibility to receive such information.

Offices must not take or respond to inquiries about the status of a TPS application made by telephone, fax, or email because it is not possible to sufficiently verify the identity of the inquirer. Offices may accept written status requests signed by the applicant (or the applicant’s attorney or representative with a properly completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file).

3. Exceptions for Disclosure

Information about TPS applications and information contained in supporting documentation can be disclosed to third parties in two instances:

• When it is mandated by a court order; or

• With the written consent of the applicant.

Information about TPS cases can be disclosed to officers of DOJ, DHS, or any federal or state law enforcement agency since they are not considered third parties. ^[26] Information disclosed under the requirements of the TPS confidentiality regulation may be used for immigration enforcement or in any criminal proceeding.

H. Legalization

1. Confidentiality Provisions

Statutory and regulatory provisions require confidentiality in legalization cases and Legal Immigration Family Equity (LIFE) Act legalization cases, prohibiting the publishing of any information that may be identified with a legalization applicant. ^[27] The laws also do not permit anyone other than sworn officers and employees of DHS and DOJ to examine individual applications.

Information contained in the legalization application can only be used in the following circumstances:

• To make a determination on the legalization application;

• For criminal prosecution of false statements violations; ^[28] or

• In preparation of certain reports to Congress.

A breach in confidentiality of legalization cases can result in a $10,000 fine. ^[29]

2. USCIS Assistance

Case-specific information may be provided to the applicant and the applicant’s attorney or authorized representative (with a properly completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file) after the inquirer’s identity has been verified. No others are authorized to receive legalization information unless one of the enumerated exceptions to disclosure noted below applies.

3. Exceptions for Disclosure

USCIS is permitted to disclose information pertaining to legalization cases in certain, limited circumstances. These circumstances include:

Law Enforcement Purposes

USCIS is required to disclose information to a law enforcement entity in connection with a criminal investigation or prosecution, when that information is requested in writing.

Requested by an Official Coroner

USCIS is also required to disclose information to an official coroner for purposes of affirmatively identifying a deceased person (whether or not the person died as a result of a crime).

Statistical Information

Disclosure of data and statistical information may be made in the manner and circumstances permitted by law. ^[30]

Available from Another Source

USCIS may disclose information furnished by an applicant in the legalization application, or any other information derived from the application, provided that it is available from another source (for example, another application or if the information is publicly available).

I. Special Agricultural Workers

1. Confidentiality Provisions

Material in A-files filed pursuant to the Special Agricultural Workers (SAW) program is protected by strict confidentiality provisions. ^[31] The statute provides that the employee who knowingly uses, publishes, or permits information to be examined in violation of the confidentiality provisions may be fined not more than $10,000. ^[32]

In general, USCIS may not use information furnished by the SAW applicant for any purpose other than to make a determination on the application, for termination of temporary residence, or for enforcement actions relating to false statements in applications. ^[33] The applicant may not waive the confidentiality provisions, which even survive the death of the applicant.

2. USCIS Assistance

In general, it is permissible for USCIS employees to disclose only that an applicant has applied for SAW and the outcome of the adjudication. Case information may be provided to the applicant and the applicant’s attorney or authorized representative (with a properly completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file) after the inquirer’s identity has been verified. No other parties are authorized to receive SAW information, unless one of the enumerated exceptions to disclosure noted below applies.

3. Exceptions for Disclosure

It is appropriate for DHS and DOJ employees to have access to SAW material. The materials are subject to the above-mentioned penalties for unlawful use, publication, or release. USCIS is permitted to disclose information pertaining to SAW cases in certain, limited circumstances. These circumstances include:

Law Enforcement Purposes

USCIS is required to disclose information to a law enforcement entity in connection with a criminal investigation or prosecution, when that information is requested in writing.

Requested by an Official Coroner

USCIS is also required to disclose information to an official coroner for purposes of affirmatively identifying a deceased person (whether or not the person died as a result of a crime).

Criminal Convictions

Information concerning whether the SAW applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes.

J. S Nonimmigrant Visa Category

Nonimmigrants under the S visa category are alien witnesses or informants. An S nonimmigrant is not readily identified in USCIS systems. However, if a USCIS employee discovers that an inquiry is from an S nonimmigrant or from someone who has applied for such status, the case must be handled carefully.

Inquiries regarding the following should come from a law enforcement entity: ^[34]

• An Interagency Alien Witness and Informant Record (Form I-854A);

• An Interagency Alien Witness and Informant Adjustment of Status (Form I-854B); and

• An Application for Employment Authorization (Form I-765) filed on the basis of being a principal nonimmigrant witness or informant in S classification.

If USCIS receives an inquiry regarding the status of a Form I-854 or a Form I-765 filed as an S nonimmigrant, the USCIS employee must neither confirm nor deny the existence of such applications and should inform the person that inquiries on these applications must be submitted through appropriate law enforcement channels. 

Under no circumstances may USCIS employees ask questions about the S nonimmigrant’s role in cooperating with law enforcement, the type of criminal activity for which the nonimmigrant is an informant or witness, or any specific information about the case in which the S nonimmigrant may be involved.

K. Witness Security Program

1. Program Participants

Participation in the Witness Security Program (commonly known as the Witness Protection Program) is not reflected in USCIS systems. Applicants in the Witness Security Program should not tell anyone, including USCIS employees, that they are participants in the program. A separate immigration file is created for a new identity of an alien in the program, and information from before and after the change in identity must be in separate files. However, one file will have documentation of a legal name change.

2. USCIS Assistance

If an applicant indicates that he or she is in the Witness Security Program, the applicant should be referred to the U.S. Marshals Service. ^[35] Also, under no circumstances should USCIS employees ask questions about why or how the applicant was placed in the Witness Security Program or any specific information about the case which resulted in the applicant being placed in the Witness Security Program.

Footnotes

1. [^] See Privacy Act of 1974, Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974) (codified at 5 U.S.C. 552a (PDF)).

2. [^] See DHS Privacy Policy Guidance Memorandum (PDF), issued April 25, 2017.

3. [^] See Privacy Incident Handling Guidance (PDF), DHS Instruction Guide 047-01-008, issued December 4, 2017.

4. [^] See Privacy Incident Handling Guidance (PDF), DHS Instruction Guide 047-01-008, issued December 4, 2017.

5. [^]The enhanced privacy protections and other confidentiality protections associated with certain applications and petitions mean that merely acknowledging the existence of a pending petition or application could violate statutory and regulatory requirements. As a result, when responding to inquiries about these types of cases, including Violence Against Women Act (VAWA), T, U, and asylum cases, USCIS employees should follow the policies in place for those specific benefits. For more information, see Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)] through Section K, Witness Security Program [1 USCIS-PM A.7(K)].

6. [^] A case’s status generally refers to its current posture in the adjudication process, which is dictated by the last action taken. For example, a case could be pending background checks, with an officer, awaiting response to a request for evidence (RFE), or with a decision issued on a given date.

7. [^] See USCIS Change of Address web portal. See Chapter 4, Service Request Management Tool, Section B, Responding to Service Requests [1 USCIS-PM A.4(B)].

8. [^] See Section E, VAWA, T, and U Cases, Subsection 3, USCIS Assistance [1 USCIS-PM A.7(E)(3)].

9. [^] See The DHS Policy for Internal Information Exchange and Sharing.

10. [^] For requests from federal, state, or local government agency representatives who want to review or want copies of documents from an A-file, USCIS employees should refer to USCIS records procedures regarding outside agency requests for USCIS files.

11. [^] See Pub. L. 103-322 (PDF) (September 13, 1994).

12. [^] See Pub. L. 106-386 (PDF) (October 28, 2000).

13. [^] See 8 U.S.C. 1367.

14. [^] See Pub. L. 104-208, 110 Stat. 3009-546, 3009-652 (September 30, 1996).

15. [^] See 13 U.S.C. 8.

16. [^] See 8 U.S.C. 1641(c).

17. [^] This applies to application for relief under 8 U.S.C. 1367(a)(2).

18. [^] See INA 101(i)(1).

19. [^] For more information regarding change of address procedures, see the Change of Address Information web page.

20. [^] See 8 CFR 208.6.

21. [^] See 8 CFR 208.6.

22. [^] Examples of general inquiries include: who can apply for asylum or refugee status, how to apply for asylum or access the USRAP, bars to protection, whether applicants are eligible for work authorization, and number of days it normally takes before an interview is scheduled. 

23. [^] See INA 244(c)(6) . See 8 CFR 244.16. 

24. [^] See 8 CFR 244.16 for exceptions.

25. [^] Examples of general inquiries include: Who can apply for TPS, how to apply for TPS, bars to TPS, whether applicants are eligible for work authorization, and the number of days it normally takes to adjudicate an application for TPS. 

26. [^] See 8 CFR 244.16.

27. [^] See INA 245A(c)(4)-(5) . See 8 CFR 245a.2(t) , 8 CFR 245a.3(n) , and 8 CFR 245a.21.

28. [^] See INA 245A(c)(6).

29. [^] See INA 245A(c)(5)(E).

30. [^] See 13 U.S.C. 8.

31. [^] See INA 210 . This pertains to the 1987-1988 SAW program.

32. [^] See INA 210(b)(6)(D).

33. [^] See INA 210(b)(7).

34. [^] See 8 CFR 274a.12(c)(21).

35. [^] Officers can find information on how to contact their local U.S. Marshals Service office (if they are in the United States) on the U.S. Marshals Service website. Officers should advise applicants to consult with the U.S. Marshals Service on how to handle the disclosure of their participation in the Witness Protection Program.

A. Privacy in USCIS Offices

When communicating about personal or case specific information, both USCIS employees and the public should note the importance of protecting privacy. ^[1] Whenever possible, both USCIS employees and the public should take common sense steps to make communications as private as possible. For example, USCIS employees should:

• Avoid projecting so that others in the room can clearly hear conversations that involve personal information; and

• For in-person encounters about case-specific inquiries, ensure that inquirers are given sufficient space so that documents presented are not on display for others to see.

USCIS must strike a balance between quickly and accurately assisting large groups of benefit requestors on the one hand, and protecting the privacy of all persons on the other. USCIS employees and benefit requestors must work together to strike this balance as best as possible. Persons contacting USCIS regarding a matter with heightened privacy considerations should work with USCIS employees to ensure that their privacy is protected.

B. Electronic Devices

Visitors must abide by applicable policies established by the facility in which they are seeking services. Depending on the facility’s policies, visitors may be permitted to possess cell phones, personal digital assistants, tablets, laptops, and other electronic devices.

No one may photograph or record at a USCIS office except when observing naturalization or citizenship ceremonies. In addition, phones should be silenced while in the waiting area and any conversations should be kept to a low level so as not to disrupt others. Phones should be turned off during interviews or while being served by USCIS staff at the information counter.

To ensure successful implementation of this guidance, USCIS field offices are encouraged to:

• Ensure all USCIS federal and contract employees are aware of the cell phone usage policies;

• Ensure all visitors are informed of the cell phone usage policies; and

• Display posters and signage regarding this guidance in common areas.

Footnote

1. [^] See Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].

A. Feedback

1. USCIS Contact Center

USCIS conducts telephone interviews every month with callers who have used the USCIS Contact Center within the past 90 days. USCIS may contract with a private company to execute this task. The interviews that are conducted represent a statistically valid sample.

2. In-Person Appointments

Field offices may provide feedback forms in their waiting rooms. If such forms are provided, field offices should also provide a place within the office to deposit the feedback forms.

3. USCIS Website

In February 2010, USCIS implemented the American Customer Satisfaction Index (ACSI) Survey on the USCIS website. This recognized instrument is a voluntary, randomized, pop-up, online survey offered to USCIS website users. By participating in this survey, USCIS became part of the E-Government Satisfaction Index and joined more than one hundred other government organizations and agencies that have already implemented this survey and are receiving feedback.

USCIS reviews the results of the survey on a quarterly basis and identifies opportunities to improve the USCIS website. Survey data also informs USCIS where resources might best be used to affect overall satisfaction.

USCIS also reviews a wide assortment of research papers and other products available from the survey administrator to help USCIS in data gathering, analysis, and site improvement activities.

B. Complaints ^[1]

1. Ways of Submitting Complaints

Complaint in USCIS Office

Persons can make a complaint in a USCIS office by asking to speak to a supervisor. In these situations, a supervisor must be made available within a reasonable amount of time. The supervisor should take the complainant’s name and information about the nature of the complaint. The supervisor should attempt to resolve the issue before the complainant leaves the office.

Submit Written Complaint

Written complaints may include handwritten letters, emails, or faxes. ^[2]

Contact Office of Inspector General Directly ^[3]

Contact information for DHS Office of Inspector General (OIG) can be found on both the USCIS website and on the DHS website. OIG contact information must also be displayed in a public area and visible in every USCIS field office.

File Complaint with USCIS Headquarters

USCIS Headquarters (HQ) contact information is provided on USCIS’ website. If the complaint is directed to the wrong directorate or program office, the complaint must be forwarded to the appropriate HQ entity.

Ask to Speak to Contact Center Supervisor

If a caller is dissatisfied with the service he or she received during a call to the USCIS Contact Center, the caller may ask to speak to a supervisor. ^[4] Both Tier 1 and Tier 2 staff members must transfer the call to a supervisor.

2. Complaints Received

A person should not be expected to know where to first submit a complaint or how to elevate a complaint if they think that their issue has not been adequately addressed. Under no circumstances should a person’s complaint be dismissed or disregarded because the proper process for filing a complaint was not followed. All complaints received must be handled appropriately.

All complaints should be responded to by providing a written response, telephone call, or if applicable, addressing the complaint in person upon submission. The response should explain steps taken to resolve the issue. In cases where the complaint cannot be resolved in a reasonable time, the response should acknowledge the receipt of the complaint, when a resolution is expected, and any additional action the person may take.

Applicants with complaints about being victimized by a person engaged in the unauthorized practice of immigration law (UPIL) should be directed to USCIS’ website where they can find state-by-state reporting information, as well as information on how to report UPIL to the Federal Trade Commission.

C. Reporting Allegations of Misconduct

Benefit requestors and other interested parties should report allegations of misconduct by USCIS employees. ^[5]

1. Employee Misconduct

Allegations of misconduct by USCIS employee and contractors should be reported immediately to the USCIS Office of Investigations (OI) or the DHS Office of the Inspector General (OIG). Allegations can include, but are not limited to:

• Fraud, corruption, bribery, and embezzlement;

• Sexual advances or sexual misconduct;

• Theft or misuse of funds and theft of government property;

• Perjury;

• Physical assault; ^[6]

• Unauthorized release of classified or special protected class ^[7] information;

• Drug use or possession;

• Unauthorized use or misuse of sensitive official government databases;

• Misuse of official position for private gain;

• Misuse of a government vehicle or property;

• Failure to properly account for government fund;

• Unauthorized use or misuse of a government purchase or travel card;

• Falsification of travel documents; and

• Falsification of employment application documents.

2. Reporting Employee Misconduct

USCIS OI makes every effort to maintain the confidentiality of informational sources. However, for investigations in which an allegation is substantiated and disciplinary action is proposed, the subject of such investigation is entitled to review documentation and evidence relied upon as the basis for the proposed action.

OI refers matters to DHS OIG for review and investigative determination as required, depending on the nature of the allegations included in the report. If the allegation either does not meet the criteria for referral to DHS OIG or is not accepted by DHS OIG for investigation, OI may resolve the matter by conducting an investigation; referring the matter for an official management inquiry, if appropriate; or referring the matter to the appropriate USCIS manager for information and action as necessary.

As a matter of procedure, OI does not provide a complainant, victim, witness, or subject of a complaint with the initial investigative determination of a complaint, since a disclosure of this nature could adversely impact the investigative process or agency resolution of the alleged behavior.

Any allegation may also be reported by contacting DHS OIG directly either through a local OIG field office, ^[9] or by one of the methods above.

3. Allegations of Discrimination

Allegations of discrimination based on race, color, religion, sex, sexual orientation, parental status, protected genetic information, national origin, age, or disability should be promptly reported to a USCIS supervisor or to the DHS Office for Civil Rights and Civil Liberties (CRCL). ^[10] In addition, allegations involving physical assault (such as grabbing, fondling, hitting, or shoving) should be reported to OI or DHS OIG. CRCL’s website also contains detailed information about avenues for filing complaints with different offices and components of DHS. ^[11]

D. Reporting Fraud, Abuse, and Scams

Benefit requestors and other interested parties should report fraud, abuse, and scams as indicated on the USCIS Contact Us page. 

In addition, immigration fraud can be reported to:

• Immigration and Customs Enforcement;

• Department of Labor’s Wage and Hour Division;

• The Federal Trade Commission; and

• State authorities.

The USCIS website also contains information on common scams and how to avoid scams.

Footnotes

1. [^] This section specifically addresses complaints that do not involve egregious or criminal misconduct. For information on the Office of Security and Integrity’s policy on reporting criminal and egregious misconduct, see Section C, Reporting Allegations of Misconduct [1 USCIS-PM A.9(C)].

2. [^] See Appendix: Dissatisfaction with USCIS: Terms and Definitions for information on where to send complaints.

3. [^] See Appendix: Dissatisfaction with USCIS: Terms and Definitions for information on how to contact the OIG.

4. [^] See Chapter 3, Forms of Assistance, Section C, Telephone [1 USCIS-PM A.3(C)].

5. [^] USCIS employees are also subject to mandatory reporting requirements for known or suspected misconduct by federal employees and contractors.

6. [^] Physical assault may include grabbing, fondling, hitting, or shoving.

7. [^] See Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].

8. [^] Allegations reported directly to the DHS OIG may also be reported through a local DHS OIG field office.

9. [^] A list of OIG Office of Investigations field offices is available on the DHS OIG’s website.

10. [^] See the File a Civil Rights Complaint page on the DHS website. 

11. [^] See How to File a Complaint with the Department of Homeland Security (PDF), issued October 3, 2012.

A. Purpose

Aliens seeking immigration benefits in the United States must generally request benefits by filing the appropriate USCIS form(s) with USCIS.^[1] Proper submission of benefit requests provides USCIS the opportunity to determine whether a person is initially eligible for the benefit requested and facilitates an efficient management of requests.^[2]

B. Background

With the Immigration Act of 1891, the federal government assumed direct control of inspecting, admitting, rejecting, and processing all immigrants seeking admission to the United States.^[3] On January 2, 1892, the Immigration Service opened Ellis Island in New York Harbor. The Immigration Service began collecting arrival manifests from each incoming ship. Inspectors then questioned arrivals about their admissibility and noted their admission or rejection on the manifest records.^[4]

Over the years, different federal government departments and offices have adjudicated immigration benefit requests. The process of submitting benefit requests has also changed over time. Today, requestors generally seek benefits from USCIS by submitting specific forms; the forms also help guide requestors in collecting and submitting necessary evidence. USCIS uses forms to establish the record, verify identity, and adjudicate the benefit request.

USCIS is primarily funded by immigration and naturalization benefit request fees charged to applicants and petitioners.^[5] Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA). These fee collections fund the cost of fairly and efficiently adjudicating immigration benefit requests, including those provided without charge to refugee, asylum, and certain other applicants.

Form Types

USCIS adjudicates immigration benefit requests in and outside the United States. The table below provides a list of the major benefits USCIS provides, the corresponding form(s), and corresponding Policy Manual guidance for more information.^[6]

Each USCIS form has accompanying instructions that explain how to complete the form, as well as the necessary supporting evidence and fees that must be submitted with the completed form.^[7] In addition, some forms may require the submission of biometric information and an additional fee for biometric processing.^[8]

C. Legal Authorities

• INA 103 - Powers and duties of the Secretary, Under Secretary, and Attorney General

• 8 CFR 103.2 - Submission and adjudication of benefit requests 

• 8 CFR 103.7 - Fees

Footnotes

1. [^] See 8 CFR 103.2(a)(1).

2. [^] The terms “benefit request” and “immigration benefit request,” as used in this Part, include, but are not limited to, all requests funded by the Immigration Examinations Fee Account (IEFA). These terms may also refer to forms or requests not directly resulting in an immigration benefit, such as those resulting in an exercise of prosecutorial discretion by DHS.

3. [^] See Pub. L. 55-551 (March 3, 1891).

4. [^] See the USCIS History and Genealogy website for additional information. See Overview of Legacy Immigration and Naturalization Service (INS) History (PDF, 284.73 KB).

5. [^] See INA 286(m). See 8 CFR 103.7(c). 

6. [^] See the USCIS website for a complete list of all USCIS forms and form instructions.

7. [^] See 8 CFR 103.2. For a list of all forms and form instructions, see the USCIS Forms page.

8. [^] See 8 CFR 103.2(a)(1).

A. Signature Requirement

USCIS requires a valid signature on applications, petitions, requests, and certain other documents filed with USCIS.^[1] Except as otherwise specifically authorized, a benefit requestor must personally sign his or her own request before filing it with USCIS.^[2]

In order to maintain the integrity of the immigration benefit system and validate the identity of benefit requestors, USCIS rejects any benefit request with an improper signature and returns it to the requestor.^[3] USCIS does not provide an opportunity to correct (or cure) a deficient signature. The benefit requestor, however, may resubmit the benefit request with a valid signature. As long as all other filing requirements are met, including payment of the required fee, USCIS may accept the resubmitted benefit request.

If USCIS accepts a request for adjudication and later determines that it has a deficient signature, USCIS denies the request. If USCIS needs additional information to confirm that a person^[4] is authorized to sign on behalf of another person, corporation, or other legal entity, USCIS may issue either a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) to confirm that such signature authority existed at the time the document was submitted.

If USCIS issues a denial based on a deficient signature or unauthorized power of attorney (POA), the benefit requestor retains any motion and appeal rights associated with the applicable form.^[5]

B. Valid Signature

A valid signature consists of any handwritten mark or sign made by a person to signify the following:

• The person knows of the content of the request and any supporting documents;

• The person has reviewed and approves of any information contained in such request and any supporting documents; and

• The person certifies under penalty of perjury that the request and any other supporting documents are true and correct.

A valid signature does not need to be legible or in English, and may be abbreviated as long as this is consistent with how the person signing normally signs his or her name. A valid signature does not have to be in cursive handwriting. A person may use an “X” or similar mark as his or her signature. A signature is valid even if the original signature on the document is photocopied, scanned, faxed, or similarly reproduced. Regardless of how it is transmitted to USCIS, the copy must be of an original document containing an original handwritten signature, unless otherwise specified. The regulations do not require that the person signing submit an “original” or “wet ink” signature on a petition, application, or other request to USCIS.

When determining whether a signature is acceptable, officers should review any applicable regulations, form instructions, and policy to ensure that the signature on a particular benefit request is proper. USCIS does not accept signatures created by a typewriter, word processor, stamp, auto-pen, or similar device.

For benefit requests filed electronically as permitted by form instructions, USCIS accepts signatures in an electronic format. Benefit requestors must follow the instructions provided to properly sign electronically. ^[6]

C. Who May Sign

The signer of a benefit request or any document submitted to USCIS affirms that the signer has authority to sign the document, has knowledge of the facts being represented in the document, and attests to the veracity of the facts and claims made in the document. Signers may be held accountable for any fraud or material misrepresentation associated with the benefit request.

For any particular benefit request, USCIS may specify the signature requirements, as well as related evidentiary requirements, to establish signatory authority. Benefit requestors should refer to the benefit request and any accompanying instructions for benefit-specific information on signature requirements.

1. Benefit Requestors Themselves

In general, any person requesting an immigration benefit must sign their own immigration benefit request, and any other associated documents, before filing it with USCIS.^[10] Therefore, corporations or other legal entities, attorneys, accredited representatives, agents,^[11] preparers, and interpreters generally may not sign a benefit request, or associated documents, for a requestor.

By signing the benefit request, the requestor certifies under penalty of perjury that the benefit request, and all evidence submitted with it, either at or after the time of filing, is true and correct.

2. Parents and Legal Guardians of Requestors

A parent may sign a benefit request on behalf of a child who is under 14 years of age.^[12] Children 14 years of age or older must sign on their own behalf. If a parent signs on behalf of a child, the parent must submit a birth certificate or adoption decree to establish the parent-child relationship.

A legal guardian^[13] may also sign a benefit request on behalf of a child who is under 14 years of age, as well as for a mentally incompetent person of any age.^[14]

By signing the benefit request, the parent or guardian certifies under penalty of perjury that the benefit request, and all evidence submitted with it, either at or after the time of filing, is true and correct.

Legal Guardian

A legal guardian is a person who a proper court or public authority has designated as the benefit requestor’s legal guardian or surrogate and who is authorized to exercise legal authority over the requestor’s affairs. Legal guardian does not include persons who were not appointed by the proper court or public authority, even if they have a legitimate interest in the legal affairs of the child or incapacitated adult, are acting in loco parentis, or are a family member.^[15]

USCIS requires documentation to establish the legal guardian’s authority to sign a benefit request on behalf of the child or mentally incompetent requestor. Acceptable documentation includes, but is not limited to, official letters of guardianship or other orders issued by a court or government agency legally authorized to make such appointment under the law governing the place where the child or incapacitated requestor resides.

Designated Representative

For purposes of naturalization, a designated representative may also sign for the applicant who is unable to understand or communicate an understanding of the Oath of Allegiance because of a physical or developmental disability or mental impairment.^[16]

Durable Power of Attorney Requirements

​USCIS accepts a durable POA or similar legally binding document only in the case of an incapacitated adult. A formal court appointment is not necessary if a person signs on behalf of an incapacitated adult under the authority of a POA.

A POA is a written authorization to act on another’s behalf in private or business affairs or other legal matters. A durable POA is a contract signed while a person is still competent that assigns power of attorney in the event that the person becomes incapacitated at some point in the future.^[17]

In most cases, the language of the durable POA specifies steps that need to be taken in order for the durable POA to take effect. To assess whether a durable POA is valid and in effect, USCIS generally requires, at minimum, a copy of the durable POA, as well as evidence showing that the steps required for the durable POA to take effect have occurred. Often this evidence includes a physician’s statement indicating that the durable POA is in effect as the result of the incapacitated adult’s disability. USCIS accepts a durable POA only if it complies with the state laws where it was executed. It is the burden of the person making the request to demonstrate that a durable POA is valid and in effect under the applicable state law.

If the person providing signatory authority under the POA is also acting as the incapacitated benefit requestor’s attorney or authorized representative for purposes of appearing before DHS, the person must submit a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28), and meet other regulatory requirements.^[18]

3. Authorized Signers for Corporations or Other Legal Entities ^[19]

Under the Immigration and Nationality Act (INA), corporations and other legal entities, such as limited partnerships (LP), professional corporations (PC or P.C.), limited liability companies (LLC), or limited liability partnerships (LLP), may file certain requests with USCIS. Such a filing may include a request to classify an alien as an immigrant or nonimmigrant under a specific employment-based category, for example.

Benefit requests filed with USCIS by such legal entities may only be signed by a person with the authority to sign on behalf of the petitioning entity. Authorized persons may include, but are not limited to:

• An executive officer of a corporation or P.C. with authority to act on behalf of the corporate entity and legally bind and commit the corporate entity in all matters (for example, chief executive officer, president, or vice president);

• A managing partner or managing member of an LLC or LLP;

• A duly authorized partner of a partnership;

• An attorney employed in an employer-employee relationship by a corporation or other legal entity as its legal representative, or as a legal representative by the corporation or other legal entity’s legal department in an employer-employee relationship (for example, in-house counsel, or other attorney employees or contractors);

• A person employed within the entity’s human resources, human capital, employee relations, personnel, or similar department who is authorized to sign legal documents on behalf of the entity;

• An executor or administrator of an estate;

• A trustee of a trust or a duly appointed conservator; or

• Any other employee^[20] of the entity who has the authority to legally bind and commit the entity to the terms and conditions attached to the specific request and attestations made in the request.

A sole proprietor is the only person authorized to sign a request filed on behalf of a sole proprietorship.

In all cases involving authorized signers for corporations or other legal entities, the benefit request must contain a statement by the person signing the request, affirming that:

• He or she has the legal authority to file the request on the petitioning employer’s behalf;

• The employer is aware of all of the facts stated in the request; and

• Such factual statements are complete, true, and correct.

If such affirmation if the form itself, a signature by the person filing the form may be sufficient to meet this requirement. If the affirmation specified above is not contained in the form, the authorized signer must provide a separate statement affirming that he or she has the authority to legally bind the corporation or other legal entity.

If USCIS has reason to doubt a person’s authority to sign or act on behalf of a corporation or other legal entity, USCIS may request evidence that demonstrates the person has the requisite legal authority to sign the request. Such requested evidence may include, but is not limited to:

• Bylaws;

• Articles of organization;

• A letter reflecting delegation of such authority from a corporate officer or board member;

• Board of director’s minutes reflecting the grant or the board’s approval of such authority being exercised by the person in question; or

• A similar document that indicates the employee may legally bind the corporation or other legal entity with his or her signature.                 

D. Clarification Regarding Form G-28

An attorney or accredited representative may sign and submit a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) to certify that the person, corporation, or other legal entity named in the Form G-28 has authorized the attorney or representative to act on the person’s or legal entity’s behalf in front of Department of Homeland Security (DHS). However, a Form G-28 by itself does not authorize a representative to sign a request or other document on behalf of a person or legal entity. Further, an attorney or representative may not use a POA to sign a Form G-28 on behalf of a person or legal entity to authorize his or her own appearance.

Footnotes

[^ 1] Except as specifically authorized in the regulations, this guidance, or in the respective form instructions, an applicant, petitioner, or requestor must personally sign his or her own request before filing it with USCIS.

[^ 2] See 8 CFR 103.2(a)(2). The term “request” refers to any written request for an immigration benefit, service, or request for action, whether the request is submitted on an Office of Management and Budget-approved form or is an informal written request submitted to USCIS. The term also includes any form supplements and any other materials that require the signature of the requestor. An example of an exception to this requirement is for naturalization applications where a designated representative may sign an application on behalf of an applicant who otherwise qualifies for an oath waiver under INA 337(a) because of a physical or developmental disability or mental impairment. For more information, see Volume 12, Citizenship and Naturalization, Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers, Section C, Waiver of the Oath [12 USCIS-PM J.3(C)].

[^ 3] See 8 CFR 103.2(a)(7).

[^ 4] Unless otherwise specified, the term “person” as used in the Policy Manual refers to a natural person.

[^ 5] A rejection of a filing with USCIS may not be appealed, see 8 CFR 103.2(a)(7)(iii).

[^ 6] See 8 CFR 103.2(a)(2).

[^ 7] Must contain evidence (such as a physician's statement) indicating that the durable POA is in effect as a result of the person's disability.

[^ 8] For benefit requests filed electronically as permitted by form instructions, USCIS accepts signatures in an electronic format. Benefit requestors must follow the instructions provided to properly sign electronically, see 8 CFR 103.2(a)(2).

[^ 9] In certain instances, a stamped signature may be allowed as provided by the form instructions. For example, a health department physician who is acting as a blanket-designated civil surgeon and submitting a vaccination assessment for a refugee adjusting status on the Report of Medical Examination and Vaccination Record (Form I-693) may provide an original (handwritten) or stamped signature, as long as it is the signature of the health department physician. See Form I-693 instructions (PDF, 327.18 KB). See Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 4, Review of Medical Examination Documentation, Section C, Documentation Completed by Civil Surgeon, Subsection 3, Signatures [8 USCIS-PM B.4(C)(3)]. For benefit requests filed electronically as permitted by form instructions, USCIS accepts signatures in an electronic format. Benefit requestors must follow the instructions provided to properly sign electronically, see 8 CFR 103.2(a)(2).

[^ 10] See 8 CFR 103.2(a)(2).

[^ 11] This Part does not address agents who are filing as a petitioner on behalf of a corporation or other legal entity seeking an H, O, or P nonimmigrant worker, as provided in 8 CFR 214.2(h)(2)(i)(F), 8 CFR 214.2(h)(5)(i)(A), 8 CFR 214.2(h)(6)(iii)(B), 8 CFR 214.2(o)(2)(i), 8 CFR 214.2(o)(2)(iv)(E), 8 CFR 214.2(p)(2)(i), and 8 CFR 214.2(p)(2)(iv)(E). See the governing regulations and Petition for a Nonimmigrant Worker (Form I-129) instructions for more information on the applicable signature requirements for these particular nonimmigrant categories.

[^ 12] See 8 CFR 103.2(a)(2).

[^ 13] If a legal guardian signs on behalf of a requestor, the legal guardian must submit evidence to establish legal guardianship.

[^ 14] See 8 CFR 103.2(a)(2).

[^ 15] Different jurisdictions may have different terms for legal guardians, including conservator, committee, tutor, or other titles designating a duly appointed surrogate.

[^ 16] See Volume 12, Citizenship and Naturalization, Part J, Oath of Allegiance, Chapter 3, Oath of Allegiance Modifications and Waivers, Section C, Waiver of the Oath, Subsection 2, Legal Guardian, Surrogate, or Designated Representative [12 USCIS-PM J.3(C)(2)].

[^ 17] This scenario specifically describes a “springing” durable POA (as distinguished from an “immediate” durable POA). See Black’s Law Dictionary, 2nd Ed. (“durable power of attorney”). Because USCIS only accepts durable POAs that are in effect as the result of an incapacitated adult’s disability, a valid durable POA accepted by USCIS would necessarily be springing.

[^ 18] See 8 CFR 292.

[^ 19] This section does not address agents who are permitted to act as a petitioner for a corporation or other legal entity seeking an H, O, or P nonimmigrant worker, as provided in 8 CFR 214.2(h)(2)(i)(F), (h)(5)(i)(A), (h)(6)(iii)(B), (o)(2)(i), (o)(2)(iv)(E), (p)(2)(i), or (p)(2)(iv)(E). See the particular nonimmigrant category’s regulations or the Petition for a Nonimmigrant Worker (Form I-129) instructions for the requirements governing the scope of an agent’s authority in those contexts.

[^ 20] The person’s title or department within the corporation or other legal entity is not determinative.

If an interpreter assists the benefit requestor in reading the instructions and questions on a benefit request, the interpreter must provide his or her contact information, sign, and date the benefit request in the section indicated.

If a preparer assists the benefit requestor in completing his or her benefit request, the preparer and any other person who assisted in completing the benefit request must provide their contact information, sign, and date the benefit request in the section indicated.

If the person who helped interpret or prepare the benefit request is an attorney or accredited representative, he or she must determine if the level of involvement and rules of professional responsibility require him or her to submit a signed and completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) with the benefit request. If the person intends to represent the benefit requestor before USCIS, he or she must submit a completed Form G-28. The attorney or accredited representative of the benefit requestor cannot serve as an interpreter during the interview.^[1] 

Footnote

1. [^] Officers cannot make exceptions for good cause.

A. How to Submit

1. Traditional Mail

Benefit requestors may use traditional mail to file benefit requests involving fees with a USCIS Lockbox.^[1] Benefit requestors should refer to the form instructions and USCIS website for more information on where and how to submit a particular benefit request, and what initial evidence is expected.^[2]

Assembling and Submitting Application Package

USCIS recommends that benefit requesters assemble their benefit request packages in the order indicated for that particular benefit.^[3]

Application Intake Inquiries

Requestors who have questions or concerns about the intake of a benefit request should route their inquiries as indicated on the USCIS Contact Us webpage. 

2. Electronic Submission

Some USCIS forms are available for submission online. Filing online allows users to: 

• Set up and manage accounts;

• Submit benefit requests and supporting documents electronically;

• Manage and link paper-filed benefits with an online account;

• Receive and respond to notices and decisions electronically;

• Make payments online; and

• Access real-time information about the status of cases.

Information entered electronically in anticipation of filing online is saved for 30 days from the last time a person worked on the request. USCIS cannot accept the benefit request until the person completes the electronic submission process.

If a benefit requestor files a benefit request online, USCIS notifies the person electronically of any notices or decisions. In general, USCIS does not issue paper notices or decisions for electronically-filed benefit requests. However, an online filer may request that USCIS mail paper notices. USCIS may also, in its discretion, decide to issue a paper notice.^[4]

B. Intake Processing

Once USCIS receives a benefit request, USCIS assesses whether the request meets the minimum requirements for USCIS to accept the request. If all minimal requirements (including submission of initial evidence for intake purposes) for acceptance are not met, USCIS rejects the benefit request for improper filing.^[5]

USCIS only begins to adjudicate a benefit requests after USCIS accepts the request (and processes required fees).

In order for USCIS to accept a benefit request, a submission must satisfy all applicable acceptance criteria.^[6] USCIS generally accepts the request if it contains: 

• A complete, properly executed form, with a proper signature;

• The correct fees;^[7] and

• The required initial evidence for intake purposes, as directed by the form instructions.^[8]

USCIS rejects benefit requests that do not meet these minimum requirements. Reasons for rejection may include, but are not limited to:

• Incomplete benefit request;^[9]

• Improper signature or no signature;^[10]

• Use of an outdated version of a USCIS form at time of submission;

• Principal application error (USCIS cannot process derivative or dependent applications if the related principal application is in error); and

• Incorrect fee, including missing fees or fees in the wrong amount.^[11]

In addition, USCIS rejects benefit requests for an immigrant visa if an immigrant visa is not immediately available to the applicant.^[12]

The rejection of a filing with USCIS may not be appealed.^[13] However, rejections do not preclude a benefit requestor from resubmitting a corrected benefit request. If the benefit requestor later resubmits a previously rejected, corrected benefit request, USCIS processes the case anew, without prejudice.^[14] The rejected case does not retain its original receipt date when resubmitted. 

USCIS requires new fees with any new benefit request; a new filing date also generally applies.^[15] 

Effect of Returned Payment

If, subsequent to receipting, a check or other financial instrument submitted for payment is returned as not payable, USCIS re-submits the payment to the remitter institution one time. If the instrument used to pay the fee is returned as non-payable a second time, USCIS rejects the benefit request as improperly filed and the receipt date is forfeited. USCIS assesses a $30 returned check fee and pursues collection using administrative debt collection procedures. A rejection of a filing with USCIS may not be appealed.^[16]

Returned Payment for an Underlying Petition

If a dishonored payment rejection occurs on an underlying petition that is accompanied by other filings that are dependent on the filing that is rejected, such as an Immigrant Petition for an Alien Worker (Form I-140) concurrently filed with an Application to Register Permanent Residence or Adjust Status (Form I-485), even though the other filings’ fees may be honored, USCIS administratively closes the dependent filings and refunds the fees. 

Returned Payment for Premium Processing Service Requests

If a premium processing fee for a Request for Premium Processing Service (Form I-907) is dishonored when it is filed at the same time as a Petition for Nonimmigrant Worker (Form I-129) or Immigrant Petition for Alien Workers (Form I-140), USCIS rejects the entire filing.

If USCIS has approved the petition and any fee, including one fee of a multiple fee filing, is dishonored, USCIS may revoke the approval. In this case, USCIS issues a Notice of Intent to Revoke (NOIR) to the requestor. If the requestor does not rectify the dishonored payment within the requisite NOIR time period, USCIS revokes the approval and retains (and does not refund) any fee that was honored in association with the approval.

For example, if the Form I-907 fee is dishonored after USCIS approves an associated Form I-140, USCIS revokes the Form I-140 approval (assuming the NOIR time period has passed without sufficient response). USCIS then retains the Form I-140 fee, administratively closes the Form I-485, and refunds the Form I-485 fee.

Response to a NOIR

If the benefit request was approved by USCIS, the approval may be revoked upon notice.^[17] If the approved benefit request requires multiple fees, approval may be revoked if any fee submitted is not honored. USCIS may retain (and not refund) other fees that were paid for a benefit request that is revoked because of a dishonored fee payment.

To sufficiently respond to a NOIR, the requestor must demonstrate that the payment was honored or that it was rejected by USCIS by mistake.^[18] If USCIS issues a NOIR and the request does not return sufficient evidence to reinstate the case to pending status, then USCIS reopens and denies the request. USCIS then sends a notice to the applicant informing him or her that USCIS has been revoked the approval and denied the benefit request. In contrast with the rejection of a filing, a revocation of an approval due to a dishonored fee may be appealed to the USCIS Administrative Appeals Office.^[19] All revocation notices instruct the requestor on how they may appeal the revocation or denial due to a dishonored payment.^[20]

If USCIS does not have the authority to revoke or reopen and deny the benefit request, USCIS annotates the file to indicate that USCIS never received payment and notifies the benefit requestor of the payment deficiency. USCIS then notifies the applicant or petitioner that there is a payment deficiency. The officer should also request local counsel assess the applicant’s actions and intentions and assist in determining the appropriate next steps on a per case basis.  

If USCIS already denied or revoked the benefit request for other reasons, or determined that the requestor abandoned the benefit request, the existence of a dishonored payment does not affect that decision. USCIS pursues collection of all payment deficiencies, regardless of the outcome of adjudication.

C. Date of Receipt

USCIS considers a benefit request “received” on the date it is physically or electronically received. This date is also known as the filing date. Requestors may only obtain a date of receipt or filing date if their submission is accepted at the proper location, as designated on the USCIS website. USCIS does not assign a date of receipt or filing date to benefit requests that are rejected.^[21]

The date of receipt may impact eligibility for immigration benefits. For example, USCIS uses the date of receipt to determine whether an appeal, Application for Temporary Protected Status (From I-821), or Petition for a Nonimmigrant Worker (Form I-129) should be rejected for failure to timely file or because an annual numerical limit has been reached.

The date of receipt may also be significant for purposes of seeking lawful permanent residence; the filing date is referred to as the priority date for an approved immigrant visa petition in certain preference categories.^[22] For approved petitions in preference categories that are not current, the priority date dictates how soon the beneficiary may file for permanent residence. Similarly, the filing date establishes the statutory period for various benefits, including naturalization.

Footnotes

1. [^] Registration for Classification as a Refugee (Form I-590) must be completed with the assistance of the Resettlement Support Center (RSC) staff overseas after a referral to the U.S. Refugee Admissions Program (USRAP), and cannot be completed independently by a benefit requestor. As such, any information in this section regarding submitting or filing a benefit request does not apply to Form I-590. For more information, see the Refugees USCIS web page.

2. [^] See 8 CFR 103.2(b)(8)(ii). A benefit requestor may need to provide additional evidence to establish eligibility for the benefit sought at the time of an interview or in response to a Request for Evidence (RFE).

3. [^] For tips on filing applications with USCIS, see General Tips on Assembling Applications for Mailing and Lockbox Facility Filing Tips.  

4. [^] See 8 CFR 103.2(b)(19)(ii)(B).

5. [^] See 8 CFR 103.2.

6. [^] See 8 CFR 103.2(a).

7. [^] See 8 CFR 103.7(a)(1). For information on fee waivers, see Request for Fee Waiver (Form I-912). For information on reduced fees, see Request for Reduced Fee (Form I-942).

8. [^] For example, family-based or employment-based adjustment of status categories where an Affidavit of Support (Form I-864), if required, is submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).

9. [^] See 8 CFR 103.2(b)(1). Each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. Benefit requestors can determine which fields are required based on the form type and form instructions.

10. [^] See 8 CFR 103.2(a)(2).

11. [^] See 8 CFR 103.2(a). See 8 CFR 103.2(a)(1) (for location), 8 CFR 103.2(a)(7)(i) (for filing fee and signature), and 8 CFR 245.2(a)(2)(i) (available visas).

12. [^] For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)].

13. [^] See 8 CFR 103.2(a)(7)(iii).

14. [^] USCIS treats the benefit request as if the requestor had not previously submitted it.

15. [^] Some exceptions may apply. For example, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 3, Priority dates [7 USCIS-PM A.6(C)(3)]. See 8 CFR 204.2(h).

16. [^] See 8 CFR 103.2(a)(7)(iii).

17. [^] See 8 CFR 205.2.

18. [^] Otherwise, USCIS considers the requestor to have failed to file the required fees. See 8 CFR 103.2(a)(1).

19. [^] In accordance with 8 CFR 103.3 and the applicable form instructions.

20. [^] See 8 CFR 103.3.

21. [^] See 8 CFR 103.2(a)(7)(ii).

22. [^] For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 3, Priority Dates [7 USCIS-PM A.6(C)(3)] and the USCIS’ webpage on Visa Availability and Priority Dates.

A. Purpose

As part of its administration of immigration benefits, USCIS has the general authority to require and collect biometrics, which include fingerprints, photographs, and digital signatures, from any person^[1] seeking any immigration or naturalization benefit or request.^[2]

B. Background

Biometrics collection allows USCIS to verify a person’s identity, produce secure documents, and facilitate required criminal and national security background checks to protect national security and public safety, as well as to ensure that the person is eligible for the benefit sought. Biometrics collection and security checks enhance national security and protect the integrity of the immigration process by ensuring that USCIS only grants benefits to eligible requestors.

In addition, depending on the particular application, petition, or request filed, USCIS conducts security checks, which may include conducting fingerprint-based background checks, requesting a name check from the Federal Bureau of Investigation (FBI), and other DHS or inter-agency security checks.

The President has established priorities for enhancing national security and public safety by implementing uniform screening and vetting standards for all immigration programs.^[3] Screening and vetting standards include those needed for identity verification, which is crucial to protect against fraud and help USCIS determine if a person is eligible to receive an immigration benefit. Historically, USCIS collected biometrics (including photographs) for background and security checks. Presently, biometrics are also stored and used to verify a person’s identity in subsequent encounters with DHS.

C. Legal Authorities

• 8 CFR 103.16 – Collection, use, and storage of biometric information 

• 8 CFR 103.2 – Submission and adjudication of benefit requests

• INA 105 – Liaison with internal security officers

• INA 335; 8 CFR 335.1; 8 CFR 335.2 – Investigation and examination of applicants for naturalization

Footnotes

[^ 1] The term person includes any applicant, petitioner, beneficiary, sponsor, derivative, requestor, or person filing or associated with a benefit request.

[^ 2] The term biometrics refers to “the measurable biological (anatomical and physiological) or behavioral characteristics of a natural person, including the person’s fingerprints, photograph, or signature.”

[^ 3] See Executive Order 13780 (PDF), Protecting the Nation From Foreign Terrorist Entry Into the United States, signed March 6, 2017.

A. Application Support Center Appointments

After a person files an application, petition, or other benefit request, USCIS schedules a biometrics appointment at a local Application Support Center (ASC).^[1] The appointment notice (Notice of Action (Form I-797C)) indicates the date, time, and location of the ASC appointment. The person submitting biometrics must bring the Form I-797C and valid, unexpired photo identification (for example, Permanent Resident Card (Form I-551), passport, or driver’s license) to the appointment, if required.^[2] Generally, if a person requests an exemption from the collection of a particular biometric modality, that request must be made at the ASC during the scheduled appointment.

USCIS considers a person to have abandoned his or her application, petition, or request if he or she fails to appear for the biometrics appointment unless, by the appointment time, USCIS receives a change of address or rescheduling request that it concludes warrants excusing the failure to appear.^[3] 

B. Mobile Biometrics Collection

USCIS provides mobile biometrics services for those with a disability or health reason that renders them unable to appear in person.^[4] In other very limited circumstances, USCIS may in its sole discretion provide mobile biometrics services for those who are unable to attend scheduled ASC appointments in person.^[5]

Persons in Custody

USCIS does not grant requests to collect biometrics from persons in custody at correctional institutions. USCIS officers and contract staff therefore do not travel to jails, prisons, or similar non-Department of Homeland Security (DHS) detention facilities to perform biometric collections for any detained or incarcerated persons (including applicants, petitioners, beneficiaries, derivatives, sponsors, or other requestors, regardless of their immigration status or country of citizenship). In the case of an incarcerated person, USCIS officers must continue to follow all applicable regulations and procedures in issuing ASC notices to those whose appearance is required for biometrics collection. Per intradepartmental agreement, U.S. Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations (ERO) is responsible for completing background and security checks for those who are incarcerated at DHS facilities and applying for benefits with USCIS.

USCIS generally does not approve requests to reschedule a biometrics appointment for reason of detention or incarceration. The person must follow the procedures listed in the biometrics appointment notice to request their appointment be rescheduled.^[6]

C. Fingerprint Waivers

A person may qualify for a waiver of the fingerprint requirement if he or she is unable to provide fingerprints because of a medical condition,^[7] including but not limited to disability, birth defects, physical deformities, skin conditions, and psychiatric conditions.^[8] Only certain USCIS employees are authorized to grant a fingerprint waiver.

A USCIS employee responsible for overseeing a person’s fingerprinting may grant the waiver if all of the following requirements are met:

• The applicant, petitioner, beneficiary, sponsor, derivative, requestor, or individual person filing or associated with a benefit request appeared in person for the biometrics collection;

• ​The officer or authorized technician attempted to fingerprint the person (or determined that such an attempt was impossible); and

• ​The officer determines that the person is unable to be fingerprinted at all or is unable to provide a single legible fingerprint.

A USCIS employee should not grant a waiver if the waiver is solely based on the following situations:

• The person has fewer than 10 fingers;

• The officer considers the person’s fingerprints as unclassifiable; or

• ​The person’s condition preventing the fingerprint collection is temporary.

If a fingerprint waiver is granted, the waiver is valid only for the particular application(s), petition(s), or benefit request(s) listed on the ASC notice for which biometrics are collected. The person must request a fingerprint waiver for each individual application, petition, or benefit request subsequently filed if the subsequent filing has a biometrics collection requirement.

A person who is granted a fingerprint waiver must bring local police clearance letters or other form-specific documentation^[9] covering the relevant periods to the interview. All clearance letters become part of the record. In cases where the person is granted a fingerprint waiver or has two unclassifiable fingerprint results, USCIS must take a sworn statement from the person covering the relevant periods.

USCIS’ decision to deny a fingerprint waiver is final and may not be appealed.

D. Biometrics Collected [Partially Reserved]

1. Fingerprints [Reserved]

2. Photographs

USCIS imbeds a photograph when creating secure documents as a security feature.^[10] There are instances where USCIS requires a photograph be submitted with an application, petition, or request in order to create a secure document and the application, petition, or request does not have an associated biometrics collection requirement.^[11] Where the applicant, petitioner, or requestor fails to submit a photograph at time of filing, USCIS may issue a Request for Evidence.

3. Signatures [Reserved]

Footnotes

1. [^] Requestors residing overseas may be fingerprinted by USCIS officers overseas, a U.S. consular officer at a U.S. embassy or consulate, or at a U.S. military installation abroad. An exception to the requirement to collect new biometrics exists in the case of military naturalization. For military naturalization cases, a biometric background check must be performed, but USCIS may use previously collected fingerprints from a different immigration filing or may use fingerprints collected as part of enlistment processing to perform the check.

2. [^] For more information on how to prepare for a biometrics appointment, see the Preparing for Your Biometrics Services Appointment web page.

3. [^] See 8 CFR 103.2(b)(13)(ii).

4. [^] The USCIS website provides a definition of the term accommodation; mobile biometrics is only one subset of accommodations. See the USCIS website for information on Disability Accommodations for the Public.

5. [^] Please see the USCIS Contact Center web page.

6. [^] If the person is no longer in custody, he or she must also submit a change of address request on an Alien’s Change of Address Card (Form AR-11) for the appointment to be rescheduled at the new address.

7. [^] The regulations at 8 CFR 204.3(c)(3) allow USCIS to waive the fingerprint requirement for prospective adoptive couples or additional adult members of the prospective adoptive parents’ household when it determines that such adult is “physically unable to be fingerprinted because of age or medical condition.” (Emphasis added.) As such, solely with respect to Petition to Classify Orphan as an Immediate Relative (Form I-600) and Application for Advance Processing of an Orphan Petition (Form I-600A) adjudications, USCIS must also consider whether the person is unable to be fingerprinted due to age in addition to medical condition.

8. [^] The officer responsible for overseeing fingerprinting may request that a licensed mental health professional (that is, a psychologist, psychiatrist, or similar practitioner) or a licensed medical practitioner who has responsibility for the person’s care submit reasonable documentation in accordance with the procedure laid out in Part A, Public Services, Chapter 6, Disability Accommodation Requests [1 USCIS-PM-A.6].

9. [^] For example, affidavits under 8 CFR 204.310(b) for an Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A) if the person is “physically unable to comply” with biometrics collection.

10. [^] For example, Permanent Resident Card (Form I-551) and Employment Authorization Document (Form I-766).

11. [^] See the relevant form instructions for more information.

A. Purpose

In administering U.S. immigration laws, one of USCIS’ primary functions is to adjudicate immigration benefit requests.

Upon proper filing, each benefit request must be thoroughly reviewed to determine jurisdiction, presence of required supporting documentation, existence of related files, and eligibility.

This part provides general guidance on USCIS’ adjudications across the various types of benefit requests that USCIS adjudicates. Variations in requirements and procedures may exist, depending on the benefit type, and are discussed in more detail in the program-specific parts of the Policy Manual.

B. Background [Reserved]

C. Legal Authorities

• Homeland Security Act of 2002^[1] 

• Federal Records Act of 1950, 44 U.S.C. 31, as amended – Records management by federal agencies

• Privacy Act of 1974, 5 U.S.C. 552a, as amended^[2] – Records maintained on individuals

• Freedom of Information Act, 5 U.S.C. 552 – Public information; agency rules, opinions, orders, records, and proceedings

• INA 103 – Powers and duties of the Secretary, Under Secretary, and Attorney General

• 8 CFR 103.2 – Submission and adjudication of benefit requests 

• INA 291 – Burden of proof upon alien

• Delegation of Authority 0105.1 – Delegation to the Bureau of Citizenship and Immigration Services

Footnotes

[^ 1] See Pub. L. 107–296 (PDF), 116 Stat. 2135 (November 25, 2002).

[^ 2] See Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974).

A. Maintaining a Record of Proceeding

A record of proceeding is the organized, official material constituting the record of any application, petition, hearing, or other proceeding before USCIS. A record of proceeding is typically contained within an Alien Registration File (A-File) or other agency file or electronic case management system, or a hybrid paper and electronic file.^[1]

B. A-Files

A-files are a series of records maintained on an alien that document the alien’s immigration history. A-files are created when an application or petition for a long-term or permanent benefit is received, or when enforcement action is initiated.

A-files may exist in physical format, or they may be created in digital format in various electronic case management systems, or they may be a hybrid of both paper and electronic files.^[2]

A-files are stored and maintained by Department of Homeland Security (DHS) for aliens born less than 100 years ago. For aliens born 100 years ago or more, A-files are transferred to and stored by the National Archives and Records Administration (NARA).

Footnotes

1. [^] Information contained in a record of proceeding is protected by the Privacy Act. For more information on the Privacy Act and confidentiality provisions, see Part A, Public Services, Chapter 7, Privacy and Confidentiality, [1 USCIS-PM A.7].

2. [^] Digitized A-files may exist in the Enterprise Document Management System (EDMS) or STACKS.

A. Coordination in Cases Involving Removal Proceedings

In some cases, U.S. Immigration and Customs Enforcement (ICE) may notify USCIS of an application or petition pending with USCIS for a person in removal proceedings that must be timely adjudicated. In these cases, USCIS attempts to issue a decision on the relevant petition or application within 30 calendar days of receiving the necessary file(s) if the person is detained. If the person is not detained, USCIS attempts to issue a decision within 45 calendar days of receiving the file(s). If the next hearing in the removal case is scheduled within the 30- or 45-day time frame, USCIS typically works with ICE, to the extent possible, to complete action on the petition or application before the hearing date. USCIS maintains communication with ICE regarding the progress and status of the case. 

USCIS adjudicates all immigration benefit requests according to existing laws, regulations, and USCIS policies and procedures. If acting on ICE's request to adjudicate an application or petition might compromise those responsibilities or adherence to any law, regulation, policy or procedure, USCIS notifies ICE that the adjudication cannot be completed within the 30- or 45-day timeframe. USCIS continues to communicate with ICE about the status of the case. 

To the extent ICE currently coordinates directly with USCIS service centers with respect to benefit requests pending at the service centers, this guidance does not supersede or amend those arrangements. 

B. Transferring Jurisdiction

A pending application or petition may be transferred to a different office or jurisdiction for several reasons, including but not limited to:

• The application or petition was not filed in the proper jurisdiction;

• The benefit requestor now resides within another jurisdiction;

• An application or petition pending at a service center appears to warrant an in-person interview at a field office; or

• Regulations require transfer of an application or petition to another office for specific action.

For certain applications, such as an Application for Naturalization (Form N-400), the applicant must meet certain jurisdictional requirements relating to residency as of the date of filing; transferring jurisdiction alone may not adequately address such filing deficiency.^[1]

Footnote

[^ 1] See Volume 12, Citizenship and Naturalization, Part D, General Naturalization Requirements, Chapter 6, Jurisdiction, Place of Residence, and Early Filing [12 USCIS-PM D.6].

A. Burden of Proof

The burden of proof to establish eligibility for an immigration benefit always falls solely on the benefit requestor.^[1] The burden of proof never shifts to USCIS. 

Once a benefit requestor has met his or her initial burden of proof, he or she has made a prima facie case. This means that the benefit requestor has come forward with the facts and evidence which show that, at a minimum, and without any further inquiry, he or she has proven initial eligibility for the benefit sought, though in certain cases the officer is then required to determine whether approval or denial is appropriate, in his or her discretion. 

B. Standards of Proof

The standard of proof is different than the burden of proof. The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. The standard of proof applied in most administrative immigration proceedings is the preponderance of the evidence standard. Therefore, even if there is some doubt, if the benefit requestor submits relevant, probative, and credible evidence that leads an officer to believe that the claim is “probably true” or “more likely than not,” then the benefit requestor has satisfied the standard of proof.^[2]

If the requestor has not met this standard, it is appropriate for the officer to either request additional evidence or issue a notice of intent to deny, or deny the case.^[3]

The preponderance of the evidence standard of proof does not apply to those applications and petitions where a different standard is specified by law. The Immigration and Nationality Act (INA) provides for a higher standard in some cases, such as the clear and convincing evidence standard that is required when an alien enters into a marriage while in exclusion, deportation, or removal proceedings, and to determine the citizenship of children born out of wedlock.^[4]

Footnotes

[^ 1] See INA 291.

[^ 2] See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

[^ 3] See Adjudicator’s Field Manual (AFM) Chapter 10.5, Requesting Additional Information (PDF, 2.87 MB) for more information.

[^ 4] See INA 245(e)(3). See INA 309(a)(1).

As part of the adjudication of immigration benefits requests, USCIS reviews evidence and biometrics submitted by the benefit requestor, as well as USCIS systems, to verify identifying information.

A. Full Legal Name

In general, the requestor’s full legal name is comprised of his or her:

• Given name (first name);​

• Middle name(s) (if any); and​

• Family name (last name).

The legal name is one of the following:​

• The requestor’s name at birth as it appears on the birth certificate (or other qualifying identity documentation when a birth certificate is unavailable);^[1] or

• The requestor’s name following a legal name change.

For purposes of requesting immigration benefits, a married person may use a legal married name (spouse’s surname), a legal pre-marriage name, or any form of either (for example, hyphenated name, pre-married name or spouse’s surname). Requestors must submit legal documentation, such as that listed below, to show that the name used is the requestor’s legal name:^[2]

• Civil marriage certificate;

• Divorce decree;

• Family registry;

• Country identity document;

• Foreign birth certificate;

• Certificate of naming; or

• Court order.   

Construction of Foreign Names

Construction of foreign names varies from culture to culture. For example, certain countries’ birth certificates display names in this order: family name, middle name, given name. This is in contrast to most birth certificates issued in the United States, which display names in this order: given name, middle name, family name.^[3]

B. Personal Information

1. Date of Birth [Reserved]

2. Gender

Where a person claims to have legally changed his or her gender, USCIS may recognize that claim based upon the following documentation:

• A court order granting change of sex or gender;

• A government-issued document reflecting the requested gender designation. Acceptable government-issued documents include an amended birth certificate, a passport, a driver’s license, or other official document showing identity issued by the U.S. government, a state or local government in the United States, or a foreign government; or

• A letter from a licensed health care professional certifying that the requested gender designation is consistent with the person’s gender identity.^[4] Generally, a licensed health care professional includes licensed counselors, nurse practitioners, physicians (Doctors of Medicine or Doctors of Osteopathy), physician assistants, psychologists, social workers, and therapists.

If submitting a health care certification letter, ^[5] the letter must include the following information:

• The health care professional's full name, address, and telephone number;

• The health care professional’s license number and the issuing state, country, or other jurisdiction of the professional license;

• Language stating that the health care professional has treated or evaluated the person in relation to the person’s gender identity; and

• The health care professional’s assessment of the person’s gender identity.

USCIS may request additional evidence of the person’s gender identity, as necessary to verify the requested change in gender designation.

Many immigration benefits require the requestor^[1] to demonstrate that the request merits a favorable exercise of discretion in order to receive the benefit.^[2] For these benefits, a discretionary analysis is a separate, additional component of adjudicating the benefit request. Whether to favorably exercise discretion is typically assessed after an officer has determined that the requestor meets all applicable threshold eligibility requirements.

The discretionary analysis involves the review of all relevant, specific facts and circumstances in an individual case. However, there are limitations on how the officer may exercise discretion; the officer may not exercise discretion arbitrarily, inconsistently, or in reliance on biases or assumptions.

In some contexts, there are regulations and case law that outline certain factors that officers must review and use as a guide in making a discretionary determination. However, there is no exhaustive list of factors that officers must consider. To perform a discretionary analysis, officers must weigh all positive factors present in a particular case against any negative factors in the totality of the record.^[3] The analysis must be comprehensive, specific to the case, and based on all relevant facts known at the time of adjudication. For complex or difficult cases, officers should consult with supervisors and local counsel. 

A. Applicability

Congress generally provides discretionary authority explicitly in the statutory language that governs an immigration benefit. In some instances, however, discretionary authority is less explicit and must be inferred from the statutory language. Executive agencies may also outline their discretionary authority explicitly in regulations.^[4]

Many immigration benefit requests are filed under provisions of law that require the favorable exercise of discretion to administer the benefit.^[5] In these cases, the benefit requestor has the burden of demonstrating eligibility for the benefit sought and that USCIS should favorably exercise discretion.^[6] Where an immigration benefit is discretionary, meeting the statutory and regulatory requirements alone does not entitle the requestor to the benefit sought.

Certain immigration benefits are not discretionary.^[7] In these cases, if the requestor properly filed and meets the eligibility requirements then USCIS must approve the benefit request. There is no discretionary analysis as part of the adjudication, and these requests cannot be denied as a matter of discretion.

The following table provides a non-exhaustive overview of immigration benefits and whether discretion is involved in the adjudication of such benefits.

B. Overview of Discretion

1. Definition

The Board of Immigration Appeals (BIA) has described the exercise of discretion as:

• A balancing of the negative factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on his or her behalf to determine whether relief appears in the best interests of this country.^[31]

• A matter of administrative grace where the applicant has the burden of showing that discretion should be exercised in his or her favor.^[32]

• A consideration of negative factors and the need for the applicant to offset such factors by showing unusual or even outstanding equities.^[33]

These characterizations imply that the exercise of discretion cannot be arbitrary, inconsistent, or dependent on intangible or imagined circumstances.

In short, discretion is defined as the ability or power to exercise sound judgment in decision-making. While the discretionary analysis gives the officer some autonomy in the way in which he or she decides a particular case after all applicable eligibility requirements are established, that autonomy may only be exercised within the confines of certain legal restrictions. These restrictions define the scope of the officer’s discretionary authority.^[34]

2. Adjudicative Discretion

There are two broad types of discretion that may be exercised in the context of immigration law: prosecutorial (or enforcement) discretion^[35] and adjudicative discretion. The scope of discretion is defined by what type of discretionary decision is being made. This chapter only discusses the exercise of adjudicative discretion.

Adjudicative discretion requires an officer to decide whether to exercise discretion favorably when adjudicating a request for an immigration benefit. This decision is guided by the applicable statutes, regulations, and policies that outline the eligibility requirements for the benefit and the facts present in the case at issue. The U.S. Supreme Court has referred to adjudicative discretion as merit-deciding discretion.^[36]

In general, an officer may exercise favorable adjudicative discretion to approve a benefit request when the requestor has met the applicable eligibility requirements and negative factors impacting discretion are not present.^[37] An exercise of discretion to grant a benefit may also be appropriate when the requestor has met the eligibility requirements for the benefit, and the positive factors outweigh the negative factors. An exercise of discretion to deny, rather than to grant, may likewise be appropriate when the requestor has met the requirements of the request, but negative factors found in the course of the adjudication outweigh the positive factors.

3. Who Exercises Discretion

Congress expressly granted discretion to the Secretary of Homeland Security in deciding when to grant certain immigration benefits. For example, the Immigration and Nationality Act (INA) states: “The Secretary of Homeland Security or the Attorney General, in the Secretary’s or the Attorney General’s discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum . . . .”^[38]

The Secretary’s discretionary power is delegated to the officer, through DHS and USCIS. Therefore, when an officer exercises discretion in adjudicating a request for an immigration benefit, the officer is exercising discretion on behalf of the Secretary of Homeland Security.

In many cases, the INA still refers to the Attorney General’s discretion because the statutory text has not been changed to reflect the creation of DHS and the transfer of many functions from the U.S. Department of Justice (DOJ) to DHS.^[39] If USCIS has adjudicative authority over the benefit, the statute should be read as conferring the power to exercise discretion on the Secretary of Homeland Security.^[40]

4. Discretion

Eligibility Threshold

For discretionary benefits, there is never discretion to grant an immigration benefit if the benefit requestor has not first met all applicable threshold eligibility requirements.

It is legally permissible to deny an application as a matter of discretion without determining whether the requestor is otherwise eligible for the benefit.^[41] However, the record is essentially incomplete if USCIS denies an application, petition, or request in its exercise of discretion without making a determination concerning eligibility.

Therefore, as a matter of policy, officers should generally make a specific determination regarding eligibility before addressing the exercise of discretion. Where denying the benefit request is appropriate, the officer should generally include in the denial letter his or her determination on all eligibility requirements, including but not limited to discretionary grounds, if applicable, so that the reasons for the ultimate denial are clearly reflected in the record.

Lack of Negative Factors

A person’s threshold eligibility for the benefit sought is generally also a positive factor. Therefore, absent any negative factors, USCIS ordinarily exercises discretion positively.^[42] Generally, if there are no negative factors to weigh against that positive factor, denial of the benefit would be an inappropriate use of discretion.

C. Adjudicating Discretionary Benefits

When adjudicating a discretionary benefit, the officer should first determine whether the requestor meets all threshold eligibility requirements. For example, in adjudicating an application for adjustment of status under INA 245(a), the officer should first determine:

• Whether the applicant was inspected and admitted or paroled or has an approved petition as a VAWA self-petitioner;

• Is eligible to receive an immigrant visa;

• Is admissible to the United States for permanent residence; and

• Has an immigrant visa immediately available to him or her at the time he or she files the adjustment application.^[43]

If the officer finds that the requestor does not meet the eligibility requirements but may be eligible for a waiver, exemption, or other form of relief, the officer should determine whether the requestor qualifies for a waiver, exemption, or other form of relief. Not all applications are concurrently filed, and in some instances, applicants must file a separate waiver application or application for relief and have that application approved before the applicant qualifies for the benefit. 

If the officer finds that the requestor meets the eligibility requirements because of an approved waiver, exemption, or other form of relief, the officer must then determine whether the request should be granted as a matter of discretion. If the officer finds that the requestor does not meet all applicable eligibility requirements, the officer can still include a discretionary analysis in the denial. The discretionary determination is the final step in the adjudication of a benefit request. Adding a discretionary analysis to a denial is useful if an appellate body on review disagrees with the officer’s conclusion that the requestor failed to meet the threshold eligibility requirements. In such a situation, the discretionary denial may still stand.

1. Basic Adjudication Steps

Officers should generally follow a three-step process when adjudicating a benefit request involving a discretionary analysis.

Fact Finding^[44]

Fact finding refers to the process of gathering and assessing evidence. The focus of fact finding should be to obtain credible evidence relevant to a requestor’s eligibility for the benefit, including the discretionary determination. If a requestor is interviewed, the officer should elicit information pertinent to fact finding during the interview. As part of fact finding, officers should evaluate relevant information present in the record. Depending on the benefit sought, such information might include, but is not limited to:

• Immigration history;

• Family ties in the United States;

• Any serious medical conditions;

• Any criminal history;

• Other connections to the community; or

• Information indicating a public safety or national security concern.

Background information may be relevant for eligibility determinations and to the exercise of discretion.

For discretionary benefits, the benefit requestor has the burden of showing that a favorable exercise of discretion is warranted through the submission of evidence.^[45] In cases where negative factors are present, the officer may ask the requestor directly why he or she warrants a favorable exercise of discretion. The officer should document any response, or lack thereof, in the record.

Determining Whether Requestor First Meets Threshold Eligibility Requirements

The discretionary analysis is the final step in the adjudication. Generally, the officer should first determine whether the requestor meets all threshold eligibility requirements before beginning the discretionary analysis. If the officer determines the requestor has not met the eligibility requirements for the benefit sought, the officer may deny the request without completing a discretionary analysis. However, an officer may include a discretionary analysis if a discretionary denial would be warranted even if the requestor had met the threshold statutory and regulatory requirements.

In the process of determining whether the requestor has met the eligibility requirements for the benefit sought, the officer might find that certain facts related to threshold eligibility for the specific benefit may also be relevant to the discretionary determination.

For example, if an officer finds that an adjustment applicant was convicted of a crime, the applicant might be inadmissible. The criminal conviction may also affect the discretionary analysis.

Conducting Discretionary Analysis

The act of exercising discretion involves the weighing of positive and negative factors and considering the totality of the circumstances in the specific case. In the immigration context, the goal is to assess whether, based on the totality of the circumstances, the alien warrants a favorable exercise of discretion.^[46]

2. Identifying Discretionary Factors

Any facts related to the alien’s conduct, character, family ties, other lawful ties to the United States, immigration status, or any other humanitarian concerns may be appropriate factors to consider in the exercise of discretion. An alien’s conduct can include how he or she entered the United States and what he or she has done since arrival, such as employment, schooling, or any evidence of criminal activity. Whether the alien has family members living in the United States also is relevant to the discretionary analysis. Ties to the United States may include owning real estate or a business; the conduct of that business (including maintenance of such business in compliance with the law) may also be relevant to the discretionary analysis. Humanitarian concerns may include, but are not limited to, health issues.

Precedent case law provides guidance on how to consider evidence and weigh the positive and negative factors present in a case. These precedent decisions and USCIS guidance provide a framework to assist officers in arriving at decisions which are consistent and fair.^[47]

Factors That May Be Considered

There are a number of factors or factual circumstances that are generally considered when conducting a discretionary analysis. Factors may include, but are not limited to:

• Whether the requestor is eligible for the benefit sought;^[48]

• The applicant or beneficiary’s ties to family members in the United States and the closeness of the underlying relationships;^[49]

• Hardship due to an adverse decision;^[50]

• The applicant or beneficiary’s value and service to the community;^[51]

• Length of the applicant or beneficiary’s lawful residence in the United States and status held during that residence, including the age at which the alien began residing in the United States;^[52]

• Service in the U.S. armed forces;^[53]

• History of employment;^[54]

• Property or business ties in the United States;^[55]

• History of taxes paid;

• Nature and underlying circumstances of any inadmissibility grounds at issue, the seriousness of the violations, and whether the applicant or beneficiary is eligible for a waiver of inadmissibility or other form of relief;^[56]

• Likelihood that lawful permanent resident (LPR) status will ensue soon;

• Evidence regarding respect for law and order, good character, and intent to hold family responsibilities (for example, affidavits from family, friends, and responsible community representatives);^[57]

• Criminal history (in the United States and abroad) and whether the applicant or beneficiary has rehabilitated and reformed;^[58]

• Community service beyond any imposed by the courts;

• Whether the alien is under an unexecuted administratively final removal, deportation, or exclusion order;^[59]

• Public safety or national security concerns;^[60]

• Moral depravity or criminal tendencies reflected by a single serious crime or an ongoing or continuing criminal record, with attention to the nature, scope, seriousness, and recent occurrence of criminal activity.^[61]

• Findings of juvenile delinquency;^[62]

• Compliance with immigration laws;^[63]

• Previous instances of fraud or false testimony in dealings with USCIS or any government agency;

• Marriage to a U.S. citizen or LPR for the primary purpose of circumventing immigration laws;^[64]

• Other indicators of an applicant or beneficiary’s character.^[65]

This is a non-exhaustive list of factors; the officer may consider any relevant fact in the discretionary analysis.

3. Weighing Factors

The act of exercising discretion involves weighing both positive and negative factors and considering the totality of the circumstances in the case before making a decision. Whether a favorable exercise of discretion is warranted is case-specific and depends on the evidence of positive and negative factors submitted by the requestor. As the negative factors grow more serious, a favorable exercise of discretion may not be warranted without the existence of unusual or outstanding equities in the case.^[66]

Totality of the Circumstances: Evaluating the Case-Specific Considerations for Each Factor

An officer must consider the totality of the facts and circumstances of each individual case involving discretionary benefit requests. To do so, officers should ensure discretionary factors are considered in the context of all factors in the case.

There is no formula for determining the weight to be given a specific positive or negative factor. Officers should not attempt to assign numbers or points to a specific factor to determine if one factor is more or less favorable than another. Officers should consider each factor separately and then all the factors as a whole. The negative and positive factors should be balanced against each other and then evaluated cumulatively.^[67] The weight given to each factor may vary depending on the facts of a particular case as well as the relationship of the factor to other factors in the analysis.

Discretionary factors are often interrelated. Officers must therefore determine whether each particular factor is positive or negative and how it affects the other factors under consideration. Some factors are generally given more weight than others. A small number of positive factors may overcome a larger number of negative factors, and vice versa, depending on the specific factors.

For example, when weighing the positive and negative factors, the officer should not consider the various factors individually, in isolation from one another.^[68] When considering each factor individually, without considering how all the factors relate to each other, it becomes difficult to weigh the positive and negative factors properly.

Once the officer has weighed each factor individually, the officer should consider all the factors cumulatively to determine whether the unfavorable factors outweigh the favorable ones. If, after weighing all the factors, the officer determines that the positive factors outweigh the negative factors, then the requestor merits a favorable exercise of discretion. If the negative factors outweigh the positive factors, then the officer may decline to favorably exercise discretion and deny the benefit request. There may be instances where the gravity of a negative factor is of such significance that the factor by itself weighs heavily against a favorable exercise of discretion.^[69]

Cases that are denied on the basis of an unfavorable exercise of discretion must include an officer’s explanation of why USCIS is not exercising discretion in the requestor’s favor.^[70] The denial notice must clearly set forth the positive and negative factors considered and explain why the negative factors outweigh the positive factors.

4. Supervisory Review^[71]

Officers should discuss complex or difficult cases with their supervisors, as needed, particularly those involving criminality or national security issues, regardless of whether the outcome is favorable or unfavorable to the alien. As appropriate, supervisors may raise issues with USCIS local counsel.

Sometimes a case, especially when coupled with government errors or delay and compelling humanitarian factors, may justify an exercise of discretion resulting in an extraordinarily favorable outcome for the alien. Officers considering such action should carefully confirm the availability of such action under the law, weigh the factors as in every discretionary decision, consult with supervisors or counsel, and make a record of the analysis and consultation.

D. Documenting Discretionary Determinations

When issuing a decision that involves a discretionary determination, a careful explanation of the officer’s findings and analysis (communicating the positive and negative factors considered and how the officer weighed these factors) helps ensure that the decision is legally sufficient and appropriate. The discretionary determination gives the officer authority to ultimately approve a benefit or form of relief or deny a benefit or form of relief when the alien otherwise meets eligibility requirements. Officers, however, cannot exercise that authority arbitrarily or capriciously.

Favorable Exercise of Discretion

If no negative factors are present, the officer may provide a simple statement in the file noting the absence of negative factors (for example, comments indicating that the alien is eligible, that there are no negative factors, and that therefore USCIS grants the benefit in the exercise of discretion).

If an officer grants a benefit in the exercise of discretion where negative factors are present but the positive factors outweigh the negative factors, the file should contain a record of the officer’s deliberations. The officer should clearly annotate the favorable factors in the file. The officer should also annotate the file regarding any consultations that supported the approval in complex or difficult cases. In some situations, the file annotation may be the only record or documentation for other officers to understand the reasons for the decision.

The officer should indicate the rationale for the decision in a clear manner so that it is easily understandable to others reviewing the file. This may include the officer addressing the discretionary issues in the written decision or by making an annotation in the file.

Unfavorable Exercise of Discretion^[72]

If negative factors outweigh the positive factors and USCIS denies the benefit request, the written decision must contain an analysis of the factors considered in exercising discretion, where possible.^[73]

Negative factors must never be analyzed in a generalized way. The decision must address negative factors on an individualized basis, applying the totality of the circumstances to the specific facts of the case. The decision should specify both the positive and negative factors that the officer identified and considered in support of the decision and should explain how the officer weighted the different factors. The denial notice should set forth the rationale for the decision so that the officer’s deliberation may be understood by the requestor as well as any administrative reviewer (such as the Administrative Appeals Office or immigration judge) and the federal courts.

Articulating Analysis Separately for Discretion and Threshold Eligibility Requirements

In cases involving the negative exercise of discretion, officers should generally articulate clearly the legal analysis of whether the alien meets the threshold eligibility requirements and then, separately, the discretionary analysis.

Denying Benefit Requests as a Matter of Discretion

If the officer denies a benefit request as a matter of discretion, the officer generally must, in the written notice to the requestor:^[74]

• Indicate the decision to deny was made as a matter of discretion;

• Identify, specifically, each positive factor presented by the facts of the case;

• Identify, specifically, each negative factor;

• Explain the relative decisional weight given to each negative and positive factor; and

• Explain the cumulative weight given to the negative and positive factors, and reason for the outcome.

By including the appropriate articulation of discretionary determinations in USCIS decision-making, officers enhance the quality of adjudications and provide appropriate explanation to the requestor.

Footnotes

[^ 1] For purposes of this Policy Manual part, the term requestor means the person, organization, or business requesting an immigration benefit from USCIS. This may include an applicant or petitioner, depending on the request.

[^ 2] See Matter of Patel (PDF), 17 I&N Dec. 597 (BIA 1980). See the program-specific Policy Manual part to determine whether the adjudication of a benefit request requires the exercise of discretion.

[^ 3] See Section C, Adjudicating Discretionary Benefits, Subsection 3, Weighing Factors [1 USCIS-PM E.8(C)(3)].

[^ 4] For example, see Kucana v. Holder, 558 U.S. 233 (2010) (comparing discretion provided in statutory language against regulations promulgated by the U.S. Department of Justice).

[^ 5] See, for example, INA 245(a) (adjustment of status).

[^ 6] See INA 291. See Matter of Patel (PDF), 17 I&N Dec. 597 (BIA 1980). See Matter of Leung (PDF), 16 I&N Dec. 12 (BIA 1976). See Matter of Arai (PDF), 13 I&N Dec. 494 (BIA 1970).

[^ 7] See, for example, INA 316 (naturalization).

[^ 8] See Petition for a Nonimmigrant Worker (Form I-129). See INA 101(a)(15). See INA 214 and 8 CFR 214.

[^ 9] See Petition for Alien Fiancé(e) (Form I-129F). See INA 101(a)(15)(K). See INA 214(d) and INA 214(r). See 8 CFR 214.2(k).

[^ 10] See Application To Extend/Change Nonimmigrant Status (Form I-539). See INA 214 and 8 CFR 214.

[^ 11] See Application for Advance Permission to Enter as a Nonimmigrant (Form I-192). See INA 212(d)(3)(A).

[^ 12] See Application for Travel Document (Form I-131). See INA 212(d)(5)(A).

[^ 13] See Application for Temporary Protected Status (Form I-821). See INA 244 and 8 CFR 244.

[^ 14] See Refugee/Asylee Relative Petition (Form I-730). See INA 207 and 8 CFR 207.

[^ 15] Except for following-to-join refugee adjudications. See 8 CFR 207.7.

[^ 16] See Application for Asylum and for Withholding of Removal (Form I-589). See INA 208 and 8 CFR 208. See Matter of Pula (PDF), 19 I&N Dec. 467, 471 (BIA 1987).

[^ 17] See Petition for Alien Relative (Form I-130). See INA 203(a) and INA 204(a)(1)(A)-(D). See 8 CFR 204.

[^ 18] See Immigrant Petition for Alien Workers (Form I-140). See INA 203(b) and INA 204(a)(1)(E)-(G). See 8 CFR 204.

[^ 19] See Immigrant Petition by Alien Investor (Form I-526). See INA 203(b) and INA 204(a)(1)(H). See 8 CFR 204.

[^ 20] See Application to Register Permanent Residence or Adjust Status (Form I-485). For more information on how to conduct a discretionary analysis in the context of an adjustment application, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion [7 USCIS-PM A.10].

[^ 21] See, for example, INA 245(a) and INA 209(b). Exceptions include adjustment of status based on Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2193 (November 19, 1997); refugee-based adjustment under INA 209(a)(2); adjustment of status based on Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), Section 902 of Division A, Title IX of Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998); adjustment of status based on Liberian Refugee Immigration Fairness (LRIF) law, Section 7611 of the National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116-92 (PDF) (December 20, 2019).

[^ 22] See Application to Register Permanent Residence or Adjust Status (Form I-485). See INA 249. See 8 CFR 249. For more information, see Volume 7, Adjustment of Status, Part O, Registration [7 USCIS-PM O].

[^ 23] See INA 289 and 8 CFR 289.

[^ 24] See Application for Waiver of Grounds of Inadmissibility (Form I-601). See Application for Provisional Unlawful Presence Waiver (Form I-601A). See Application by Refugee for Waiver of Grounds of Excludability (Form I-602). See, for example, INA 209(c), INA 212(a)(9)(B)(v), INA 212(a)(9)(C)(iii), and INA 212(g)-(i). For more information on how to conduct a discretionary analysis in the context of a waiver application, see Volume 9, Waivers and Other Forms of Relief, Part A, Waiver Policies and Procedures, Chapter 5, Discretion [9 USCIS-PM A.5].

[^ 25] See Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212). See INA 212(a)(9)(A)(iii) and INA 212(a)(9)(C)(ii).

[^ 26] See Application for Employment Authorization (Form I-765). See INA 274A. See 8 CFR 274a.12. For more information, see Volume 10, Employment Authorization [10 USCIS-PM].

[^ 27] See Petition to Remove Conditions on Residence (Form I-751). See Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829). See INA 216 and INA 216A. See 8 CFR 216.

[^ 28] When a family-based conditional permanent resident files a Petition to Remove Conditions on Residence (Form I-751) as a waiver request based on termination of marriage, battery or extreme cruelty, or extreme hardship, it is a discretionary decision. See INA 216(c)(4).

[^ 29] See Application for Naturalization (Form N-400). See INA 316. For more information, see Volume 12, Citizenship and Naturalization [12 USCIS-PM].

[^ 30] See Application for Certificate of Citizenship (Form N-600). See INA 301, INA 309 and INA 320. For more information, see Volume 12, Citizenship and Naturalization, Part K, Certificates of Citizenship and Naturalization [12 USCIS-PM K].

[^ 31] See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 300 (BIA 1996).

[^ 32] See Matter of Patel (PDF), 17 I&N Dec. 597 (BIA 1980) (adjustment of status). See Von Pervieux v. INS, 572 F.2d 114, 118 (3rd Cir. 1978). See Ameeriar v. INS, 438 F.2d 1028, 1030 (3rd Cir. 1971). See Matter of Marques (PDF), 16 I&N Dec. 314 (BIA 1977).

[^ 33] See Matter of Ortiz-Prieto (PDF), 11 I&N Dec. 317 (BIA 1965).

[^ 34] See Subsection 4, Discretion [1 USCIS-PM E.8(B)(4)].

[^ 35] Prosecutorial discretion is a decision to enforce or not enforce the law against someone. Prosecutorial discretion is exercised when an agency makes a decision with respect to enforcing the law. USCIS, along with other DHS agencies such as U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection, has the authority to exercise prosecutorial discretion related to immigration enforcement actions it may take, particularly in the context of initiating removal proceedings through the issuance of a non-mandatory Notice to Appear. Prosecutorial discretion does not decrease USCIS’ commitment to enforcing the immigration laws. Rather, it is a means to use agency resources in a way that best accomplishes the mission of administering and enforcing the immigration laws of the United States.

[^ 36] See INS v. Doherty (PDF), 502 U.S. 314 (1992).

[^ 37] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970) (“In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.”). See Matter of Pula (PDF), 19 I&N Dec. 467, 474 (BIA 1987) (“In the absence of any adverse factors, however, asylum should be granted in the exercise of discretion.”).

[^ 38] See INA 209(b).

[^ 39] As of March 1, 2003, in accordance with Section 1517 of the Homeland Security Act of 2002 (HSA), Pub. L. 107-296 (PDF), 116 Stat. 2135, 2311 (November 25, 2002), any reference to the Attorney General in a provision of the INA describing functions that were transferred from the Attorney General or other DOJ official to DHS by the HSA “shall be deemed to refer to the Secretary” of Homeland Security. See 6 U.S.C. 557 (codifying Section 1517 of the HSA).

[^ 40] See 6 U.S.C. 275.

[^ 41] See INS v. Abudu (PDF), 485 U.S. 94, 105 (1988). See INS v. Bagamasbad (PDF), 429 U.S. 24, 26 (1976). See INS v. Rios-Pineda (PDF), 471 U.S. 444 (1985).

[^ 42] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Lam (PDF), 16 I&N Dec. 432 (BIA 1978).

[^ 43] See INA 245(a). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements [7 USCIS-PM B.2].

[^ 44] See Chapter 6, Evidence [1 USCIS-PM E.6].

[^ 45] See 8 CFR 103.2(b)(1).

[^ 46] See Matter of Marin (PDF), 16 I&N Dec. 581, 586-587 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990).

[^ 47] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Lam (PDF), 16 I&N Dec. 432, 434 (BIA 1978). See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 48] See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996) (In the context of waivers of inadmissibility requiring a showing of extreme hardship: “. . . those found eligible for relief under section 212(h)(1)(B) will by definition have already established extreme hardship to qualified family members, which would be a factor favorable to the alien in exercising discretion.”).

[^ 49] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301-302 (BIA 1996) (“. . . if the alien has relatives in the United States, the quality of their relationship must be considered in determining the weight to be awarded this equity.”).

[^ 50] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 51] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990).

[^ 52] See Matter of Arai (PDF), 13 I&N Dec. 494, 496 (BIA 1970). See Matter of Marin (PDF), 16 I&N Dec. 581, 584-85 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996). Residence must be lawful to be considered a positive factor. See Matter of Lee (PDF), 17 I&N Dec. 275, 278 (Comm. 1978).

[^ 53] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 54] See Matter of Lam (PDF), 16 I&N Dec. 432, 434 (BIA 1978). See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301-302 (BIA 1996) (“. . . if the alien has a history of employment, it is important to consider the type of employment and its length and stability.”).

[^ 55] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 56] See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 57] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990).

[^ 58] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996). However, reformation is not an absolute prerequisite to a favorable exercise of discretion. Rather, the discretionary analysis must be conducted on a case-by-case basis, with rehabilitation a factor to be considered in the exercise of discretion. See Matter of Edwards (PDF), 20 I&N Dec. 191, 196 (BIA 1990) (considering rehabilitation a significant factor in view of the nature and extent of the respondent’s criminal history, which spanned 10 years).

[^ 59] USCIS generally does not exercise discretion favorably to grant adjustment where the adjustment applicant has an unexecuted removal order. For information on the effect of an unexecuted removal order of an arriving alien on adjustment of status, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion, Section B, Discretion, Subsection 2, Issues and Factors to Consider [7 USCIS-PM A.10(B)(2)].

[^ 60] For definitions of public safety and national security concerns, see Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (PDF), PM-602-0050.1, issued June 28, 2018.

[^ 61] The officer should not go behind the record of conviction to reassess an alien’s ultimate guilt or innocence, but rather inquire into the circumstances surrounding the commission of the crime in order to determine whether a favorable exercise of discretion is warranted. See Matter of Edwards (PDF), 20 I&N Dec. 191, 197 (BIA 1990).

[^ 62] USCIS considers findings of juvenile delinquency on a case-by-case basis, based on the totality of the evidence, to determine whether a favorable exercise of discretion is warranted. Therefore, an adjustment applicant must disclose all arrests and charges. If any arrest or charge was disposed of as a matter of juvenile delinquency, the applicant must include the court or other public record that establishes this disposition. See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 4, Documentation, Section A, Initial Evidence, Subsection 7, Certified Copies of Arrest Records and Court Dispositions [7 USCIS-PM A.4(A)(7)]. For more information, see Volume 7, Adjustment of Status, Part B, 245(a) Adjustment [7 USCIS-PM B] and Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juveniles, Section C, Eligibility Requirements, Subsection 4, Admissibility and Waiver Requirements [7 USCIS-PM F.7(C)(4)].

[^ 63] See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Lee (PDF), 17 I&N Dec. 275, 278 (Comm. 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996). However, the BIA found that a record of immigration violations standing alone does not conclusively support a finding of lack of good moral character. Further, how recent the deportation was can only be considered when there is a finding of a poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience. In such circumstances, there must be a measurable reformation of character over a period of time in order to properly assess an applicant’s ability to integrate into society. In all other instances, when the cause for deportation has been removed and the person now appears eligible for issuance of a visa, the time factor should not be considered. See Matter of Lee (PDF), 17 I&N Dec. 275 (Comm. 1978).

[^ 64] Although this factor could lead to a statutory denial under INA 204(c).

[^ 65] See Matter of Marin (PDF), 16 I&N Dec. 581, 584 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996).

[^ 66] See Matter of Marin (PDF), 16 I&N Dec. 581, 585 (BIA 1978). See Matter of Buscemi (PDF), 19 I&N Dec. 628, 633 (BIA 1988). See Matter of Edwards (PDF), 20 I&N Dec. 191, 195 (BIA 1990). See Matter of Mendez-Morales (PDF), 21 I&N Dec. 296, 301 (BIA 1996). For example, USCIS generally does not favorably exercise discretion in certain cases involving violent or dangerous crimes except in extraordinary circumstances. See 8 CFR 212.7(d). For more information, see Volume 9, Waivers and Other Forms of Relief, Part A, Waiver Policies and Procedures, Chapter 5, Discretion, Section C, Cases Involving Violent or Dangerous Crimes [9 USCIS-PM A.5(C)]. See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion, Section B, Discretion, Subsection 2, Issues and Factors to Consider [7 USCIS-PM A.10(B)(2)]. Another example relates to applicants seeking adjustment based on U nonimmigrant status: Depending on the nature of the adverse factors, applicants may be required to clearly demonstrate that denial of adjustment would result in exceptional and extremely unusual hardship. Even if the applicant makes such a showing, however, USCIS may still find favorable exercise of discretion is not warranted in certain cases. See 8 CFR 245.24(d)(11).

[^ 67] See Matter of Edwards (PDF), 20 I&N Dec. 191, 200 (BIA 1990) (concurring opinion).

[^ 68] See Matter of Pula (PDF), 19 I&N Dec. 467, 473-74 (BIA 1987).

[^ 69] See, for example, 8 CFR 212.7(d) (In adjudicating an application for a waiver of a criminal ground of inadmissibility involving a violent or dangerous crime, “depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion . . . .”) For more information on discretion in the context of waivers of inadmissibility, see Volume 9, Waivers and Other Forms of Relief, Part A, Waiver Policies and Procedures, Chapter 5, Discretion [9 USCIS-PM A.5].

[^ 70] See 8 CFR 103.3(a).

[^ 71] Supervisory review is required in certain situations. The law provides for outcomes that may be extraordinarily favorable for the alien but uphold principles of fairness and equity. See Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003) (stating, “It is true that equitable tolling is available in INA cases, as there is a 'presumption, read into every federal statute of limitation, that filing deadlines are subject to equitable tolling [and that] the same rebuttable presumption of equitable tolling . . . applies in suits against private defendants and . . . in suits against the United States’”, but concluding that the April 1, 1990 (asylum application deadline to qualify under the Nicaraguan Adjustment and Central American Relief Act, Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160 (November 19, 1997)) is a statute of repose that cannot be subject to equitable tolling). See Mohawk Power Corp. v. Federal Power Commission, 379 F.2d 153, 160 (D.C. Cir. 1967) (“Conceptions of equity are not a special province of the courts but may properly be invoked by administrative agencies seeking to achieve ‘the necessities of control in an increasingly complex society without sacrifice of fundamental principles of fairness and justice.’”)

[^ 72] These analytical steps amplify guidance concerning denial notices, and do not replace them.

[^ 73] See 8 CFR 103.3(a). In some cases, the officer may not be able to fully reveal negative discretionary factors if they are classified. Additionally, an exception may be made for denial letters issued to applicants for admissions as a refugee under the U.S. Refugee Admissions Program, which contain only summary reasons for denials and are not required to contain detailed analysis of the basis for negative decisions.

[^ 74] See 8 CFR 103.3(a). In some cases, the officer may not be able to fully reveal negative discretionary factors if they are classified. Additionally, an exception may be made for denial letters issued to applicants for admissions as a refugee under the U.S. Refugee Admissions Program, which contain only summary reasons for denials and are not required to contain detailed analysis of the basis for negative decisions.

A. Purpose

A nonimmigrant is an alien who is admitted to the United States for a specific temporary period of time. Section 101(a)(15) of the Immigration and Nationality Act (INA) lists most categories of nonimmigrants; additionally, nonimmigrant categories may be authorized in legislation other than the INA.^[1] In order to be admitted to the United States as a nonimmigrant, an alien must generally have a permanent residence abroad and qualify for the nonimmigrant classification sought.

B. Background

The U.S. Department of State (DOS) issues nonimmigrant visas at U.S. embassies and consulates abroad. Background and history specific to each nonimmigrant visa is discussed in the category-specific parts of the Policy Manual.

C. Legal Authorities

• INA 101(a)(15) – Nonimmigrant classifications

• INA 214; 8 CFR 214 – Admission of nonimmigrants and nonimmigrant classes; extension of stay

• INA 248; 8 CFR 248 – Change of nonimmigrant classification

Footnote

[^ 1] For example, certain professional nonimmigrants are authorized under the North American Free Trade Agreement (NAFTA) and implementing legislation and regulations. See 8 CFR 214.6.

A. Nonimmigrants Seeking Extension of Stay or Change of Status

Generally, certain nonimmigrants present in the United States admitted for a specified period of time may request an extension of their admission period in order to continue to engage in those activities permitted under the nonimmigrant classification in which they were admitted.^[1]

Also, certain nonimmigrants present in the United States may seek to change their status to another nonimmigrant classification if certain requirements are met.^[2]

An application for an extension of stay (EOS) or change of status (COS) is generally filed on a Petition for a Nonimmigrant Worker (Form I-129) or Application to Extend/Change Nonimmigrant Status (Form I-539),^[3] depending upon the nonimmigrant classification the applicant seeks to extend or change.^[4]

B. Public Benefits Condition^[5]

The public charge ground of inadmissibility does not apply to nonimmigrants seeking either an EOS^[6] or a COS^[7] in the United States. ^[8] 

However, to ensure that nonimmigrants remain self-sufficient while present in the United States,^[9] applicants seeking EOS and COS are subject to the public benefits condition, unless the status the applicant seeks to extend or to which they seek to change, is statutorily exempt from the public charge ground of inadmissibility. ^[10]

The public benefits condition requires an applicant seeking EOS or COS on or after February 24, 2020 (postmarked or if applicable, submitted electronically on or after that date) to demonstrate that he or she has not received, since obtaining the nonimmigrant status he or she is seeking to extend or from which he or she seeks to change, one or more public benefits,^[11] for more than 12 months in the aggregate within any 36-month period (where, for instance, receipt of two public benefits in 1 month counts as 2 months). USCIS only considers public benefits received on or after February 24, 2020 for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date.^[12]

The officer should review the information provided with the application or petition, as well as the information contained in the file and systems, to determine whether there is any indication that the alien has received, since obtaining the nonimmigrant status he or she seeks to extend or change from, any of the listed public benefits. An officer may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) as needed, in accordance with current USCIS policy.

1. Exemption^[13]

This public benefits condition does not apply if:

• The nonimmigrant classification the alien seeks to apply for, extend, or change to, is exempt from the public charge inadmissibility ground by law or regulation;^[14]

• The public charge ground of inadmissibility has been waived for purposes of the nonimmigrant status that the alien seeks to extend or from which the alien seeks to change; or

• The applicant filed the request for EOS or COS before February 24, 2020 (postmarked date).

For a list of aliens subject to the public charge condition at the time of the application or petition for EOS or COS, refer to Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition.

2. Evidence

If the public charge condition applies, the applicant must demonstrate that he or she has not received, since obtaining the nonimmigrant status he or she is seeking to extend or from which he or she seeks to change, one or more public benefits, for more than 12 months in the aggregate within any 36-month period.^[15] If the applicant has received, since having obtained the nonimmigrant status, one or more public benefits for more than 12 months, in the aggregate, within any 36 month period, USCIS must deny EOS or COS, even if the applicant otherwise meets the requirements of the nonimmigrant classification.^[16]

The officer should review the statements and documentation provided in the Form I-539 or Form I-129 to determine whether the alien has received public benefits in excess of the regulatory threshold.^[17] If the applicant has been certified to receive public benefits in excess of the threshold at the time of filing of the application or petition but had not yet received the benefits, the officer must review whether the applicant has received more than 12 months of public benefits at the time the application or petition is adjudicated and finalized.

3. Decision

Denial

If the alien seeking COS or EOS has received public benefits at the time of adjudication exceeding the threshold limitation, the officer should deny the EOS or COS request for lack of eligibility based on not meeting the public benefits condition.

Approval

If the alien seeking EOS or COS has not received public benefits exceeding the threshold, the officer must continue to review all other requirements to determine whether the applicant is eligible for the nonimmigrant classification requested or the EOS or COS request.

C. Step-by-Step Overview: Determining Whether Applicant Meets Public Benefits Condition

The following is an overview of the steps an officer should take to determine whether the alien meets the public benefits condition.^[18]

Footnotes

1. [^] See 8 CFR 214.1(a). See 8 CFR 214.1(c) for general requirements, such as those relating to passport validity and waivers of inadmissibility for an EOS. 

2. [^] See INA 248. See 8 CFR 248.

3. [^] See 8 CFR 214.1(c). The application should be filed in accordance with the form instructions.

4. [^] See Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition for a full list. The instructions for Form I-539 and Form I-129 provide detailed information regarding who may file each form. Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A) or Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I-129CW) may also be filed where applicable.

5. [^] See 8 CFR 214.1(a)(3)(iv). See 8 CFR 248.1(a). See 8 CFR 248.1(c).

6. [^] See 8 CFR 214.1.

7. [^] See INA 248. See 8 CFR 248.

8. [^] See INA 212(a)(4).

9. [^] See 83 FR 51114 (PDF) (Oct. 10, 2018) (proposed rule). See 84 FR 41292 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction). See 8 CFR 213.1(a)(3)(iv). See 8 CFR 248.1(a). See 8 CFR 248.1(c).

10. [^] See 8 CFR 212.23.

11. [^] As described in 8 CFR 212.21(b). For a list of what public benefits USCIS considers, see Volume 8, Admissibility, Part G, Public Charge, Chapter 10, Public Benefits [8 USCIS-PM G.10]. For more on when an alien is deemed to have received public benefits, see Volume 8, Admissibility, Part G, Public Charge, Chapter 9, Assets, Resources and Financial Status, Section A, Standard, Subsection 8, Application for, Certified to Receive, and Receipt of Public Benefits [8 USCIS-PM G.9(A)(8)].

12. [^] See 8 CFR 214.1(a)(3)(iv) and 8 CFR 248.1(a).

13. [^] See Appendix: Summary of Nonimmigrant Categories Subject to Public Benefits Condition.

14. [^] See 8 CFR 212.23.

15. [^] For example, the receipt of two public benefits in 1 month counts as 2 months.

16. [^] If the EOS or COS application or petition is denied, the alien must depart the United States and process the visa abroad where he or she will be assessed for public charge grounds of inadmissibility as part of the Department of State visa application process and upon entry into the United States.

17. [^] For more information on receipt of public benefits, see Volume 8, Admissibility, Part G, Public Charge, Chapter 9, Assets, Resources and Financial Status, Section A, Standard, Subsection 8, Application for, Certified to Receive, and Receipt of Public Benefits [8 USCIS-PM G.9(A)(8)].

18. [^] See 8 CFR 214.1(a)(3)(iv) (EOS). See 8 CFR 248.1(a) and 248.1(c)(4) (COS).

A. Purpose

The Immigration and Nationality Act (INA) provides a nonimmigrant classification for alien participants coming temporarily to the United States to participate “in an international cultural exchange program approved by the Secretary of Homeland Security for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien’s nationality and who will be employed under the same wages and working conditions as domestic workers.”^[1]

B. Background

In 1990, Congress created new immigration classification for cultural visitors, commonly known as the “Q” visa category.^[2] The implementing regulation establishes the process by which DHS evaluates both the proposed international cultural exchange program and the prospective Q nonimmigrants.^[3] The cultural exchange program must have a cultural component that “is an essential and integral part of the international cultural exchange visitor’s employment or training.”^[4] The Q nonimmigrants must meet age, qualifications for the job, and communication requirements. Petitions seeking Q-1 status may be filed for multiple participants.^[5]

C. Legal Authorities

• INA 101(a)(15)(Q) – Definition of Q nonimmigrant classification

• 8 CFR 214.2(q) – Cultural visitors

Footnotes

[^ 1] See INA 101(a)(15)(Q).

[^ 2] See INA 101(a)(15)(Q).

[^ 3] See 8 CFR 214.2(q).

[^ 4] See 8 CFR 214.2(q)(3)(iii)(B).

[^ 5] See 8 CFR 214.2(q)(5)(ii).

A. Petitioner Requirements

1. Qualified Employer

A qualified employer is a United States or foreign firm, corporation, non-profit organization, or other legal entity, including its U.S. branches, subsidiaries, affiliates, and franchises,^[1] which:

• Is actively doing business in the United States;^[2] and

• Administers a DHS-designated international cultural exchange program.^[3] 

Doing business means the regular, systematic, and continuous provision of goods or services (including lectures, seminars and other types of cultural programs) by a qualified employer which has employees, and does not include the mere presence of an agent or office of the qualifying employer.^[4]

To establish eligibility as a qualified employer, the petitioner must provide evidence that it maintains an established international cultural exchange program.^[5]  

2. Agent

A designated agent may file the petition if he or she is employed by the employer on a permanent basis in an executive or managerial capacity and is a U.S. citizen, an alien lawfully admitted for permanent residence, or an alien provided temporary residence status under INA 210 or INA 245A.^[6]

B. Program Requirements

1. Accessibility to the Public

The culture sharing must take place in a school, museum, business or other establishment where the American public, or a segment of the public sharing a common cultural interest, is exposed to aspects of a foreign culture as part of a structured program. A private home or an isolated business setting that is not open to direct access by the public would not qualify.^[7]

2. Cultural Component

The program must have a cultural component that is an essential and integral part of the participant’s employment or training, and is designed to exhibit or explain the attitude, customs, history, heritage, philosophy, or traditions of the participant’s country of nationality.^[8] The cultural component may include structured instructional activities, such as:

• Seminars;

• Courses;

• Lecture series; or

• Language camps.^[9]

3. Work Component

The participant’s employment or training in the United States may not be independent of the cultural component of the international cultural exchange program. The work component must serve as the vehicle to achieve the objectives of the cultural component of the program. In other words, the participant’s work or training in the United States must be tied to the cultural component which is to exhibit or explain attitude, customs, history, heritage, philosophy or traditions of the participant's country of nationality.

The sharing of the culture of the participant’s country of nationality must result from his or her employment or training with the qualified employer in the United States.^[10]

4. Services in More than One Location

The participant may engage in employment or training in different locations for the same employer. If there are different locations, the petition must include an itinerary with the dates and locations of the services, labor, or training to be performed.^[11] The employment occurring at each location must meet the requirements of an international exchange program.

C. Participant Requirements

1. Participant Requirements

Participants in Q-1 cultural exchange programs must:^[12]

• Be at least 18 years of age at the time the petition is filed;

• Be qualified to perform the service or labor or receive the training stated in the petition; and

• Have the ability to communicate effectively about the cultural attributes of his or her country of nationality^[13] with the American public.

In addition, participants who have previously spent 15 months in the United States as a Q-1 nonimmigrant must have resided and been physically present outside the United States for the immediate prior year.^[14] Brief trips into the United States do not break the continuity of the 1-year foreign residency.^[15]

2. Family Members

The Q-1 nonimmigrant classification does not have a provision for any spouse or children to accompany or follow to join a Q-1 nonimmigrant. Therefore, any spouse or children wishing to enter the United States must qualify independently for a nonimmigrant classification.

Footnotes

[^ 1] See 8 CFR 214.2(q)(1)(iii) (definition of qualified employer).

[^ 2] See 8 CFR 214.2(q)(4)(i)(C).

[^ 3] See 8 CFR 214.2(q)(1)(iii) (definition of qualified employer).

[^ 4] See 8 CFR 214.2(q)(1)(iii) (definition of doing business).

[^ 5] See 8 CFR 214.2(q)(4)(i)(A).

[^ 6] See 8 CFR 214.2(q)(1)(iii) (definition of petitioner).

[^ 7] See 8 CFR 214.2(q)(3)(iii)(A). See Matter of R-C-C-S-D- (PDF, 356.08 KB), Adopted Decision 2016-04 (AAO Oct. 24, 2016).

[^ 8] See 8 CFR 214.2(q)(3)(iii)(B). See Matter of R-C-C-S-D- (PDF, 356.08 KB), Adopted Decision 2016-04 (AAO Oct. 24, 2016).

[^ 9] See 8 CFR 214.2(q)(3)(iii)(B). See Matter of R-C-C-S-D- (PDF, 356.08 KB), Adopted Decision 2016-04 (AAO Oct. 24, 2016).

[^ 10] See 8 CFR 214.2(q)(3)(iii)(C). See Matter of R-C-C-S-D- (PDF, 356.08 KB), Adopted Decision 2016-04 (AAO Oct. 24, 2016).

[^ 11] See 8 CFR 214.2(q)(5)(iii).

[^ 12] See 8 CFR 214.2(q)(3)(iv).

[^ 13] The country of nationality is the country of which the participant was a national at the time of filing. See 8 CFR 214.2(q)(1)(iii).

[^ 14] See 8 CFR 214.2(q)(7)(iv).

[^ 15] See 8 CFR 214.2(q)(2)(ii).

A. Filing Process

A qualified employer or its designated agent may file a Petition for a Nonimmigrant Worker (Form I-129), with the Q-1 Classification Supplement and required fee, generally within the 6-month period before the participant’s employment begins. A petitioner may include multiple participants on one petition.^[1] A participant may provide services, labor, or training for more than one employer at a time, provided each employer files a separate petition.^[2]

A petitioner must file a new petition on Form I-129, with the applicable fee, each time it wants to bring in additional international cultural exchange visitors. Each person named on an approved petition will be admitted only for the duration of the approved program. Replacement or substitution may be made for any person named on an approved petition, but only for the remainder of the approved program.^[3]

B. Evidence

1. Evidence Relating to the Employer

The petitioner must provide evidence that demonstrates that the employer:

• Has designated a qualified employee as a representative who will be responsible for administering the program and will serve as a liaison with USCIS;

• Is actively doing business in the United States (for example, the regular, systematic and continuous provisions of goods or services, including lectures, seminars and other types of cultural programs);

• Will offer the participant(s) wages and working conditions comparable to those accorded local domestic workers similarly employed; and  

• Has the financial ability to remunerate the participant(s).^[4]

Evidence to demonstrate financial ability to remunerate the participants includes the organization’s most recent annual report, business income tax return, or other form of certified accountant’s report.

2. Evidence Relating to the Program

The petitioner must provide evidence that the employer maintains an established international exchange program that meets the factor listed in the Program Requirements section above.^[5] In addition to the position description, evidence that can show the program has a cultural component which is an essential and integral part of the participant’s employment or training may include:

• Catalogs;

• Brochures;

• Curriculum; or

• Any other evidence describing the program.

The program’s cultural component must be designed, on the whole, to exhibit or explain the attitude, customs, history, heritage, philosophy, traditions, or other cultural attributes (arts, literature, language) of the participant’s country of nationality.^[6] If there are different locations, the petition must include an itinerary with the dates and locations of the services, labor, or training to be performed.^[7]

Multiple Petitions in Same Calendar Year

When petitioning to repeat a previously approved international cultural exchange program, petitioners may submit a copy of the initial program approval notice in lieu of the documentation required with an initial filing.^[8] Officers should request additional documentation only if clarification is needed.^[9]

3. Evidence Relating to the Alien Participants

The record must contain documentation of the following information for each participant:

• Date of birth;

• Country of nationality;

• Level of education;

• Position title; and

• Job description. ^[10]

The petitioner must verify and certify that the participants are qualified to perform the service or labor, or receive the type of training, described in the petition.^[11] In addition, the petitioner must report the participants’ wages and certify they are offered wages and working conditions comparable to those accorded to local domestic workers similarly employed.^[12]

For petitions involving multiple participants, the petitioner must include the name, date of birth, nationality, and other identifying information required on the petition for each participant. The petitioner must also indicate the U.S. consulate at which each participant will apply for a Q-1 visa. For participants who are visa-exempt,^[13] the petitioner must indicate the port of entry at which each participant will apply for admission to the United States.^[14]

Finally, if the participant has spent an aggregate of 15 months in the United States as a Q-1 nonimmigrant, the petitioner must document that the participant has resided and been physically present outside the United States for the immediate prior year.^[15]

Footnotes

[^ 1] See 8 CFR 214.2(q)(5)(ii).

[^ 2] See 8 CFR 214.2(q)(5)(iv).

[^ 3] See 8 CFR 214.2(q)(5)(i).

[^ 4] See 8 CFR 214.2(q)(4)(i)(B), (C), (D), and (E).

[^ 5] See 8 CFR 214.2(q)(4)(i)(A).

[^ 6] See 8 CFR 214.2(q)(3)(iii)(B).

[^ 7] See 8 CFR 214.2(q)(5)(iii).

[^ 8] See 8 CFR 214.2(q)(4)(i).