Policy Manual
The USCIS Policy Manual is the agency’s centralized online repository for USCIS’ immigration policies. The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other policy repositories.
The USCIS Policy Manual is the agency’s centralized online repository for USCIS’ immigration policies. The Policy Manual is replacing the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other USCIS policy repositories. The Policy Manual contains separate volumes pertaining to different areas of immigration benefits administered by the agency, such as citizenship and naturalization, adjustment of status, and nonimmigrants. The content is organized into different volumes, parts, and chapters.
The Policy Manual provides transparency of immigration policies and furthers consistency, quality, and efficiency consistent with the USCIS mission. The Policy Manual provides all the latest policy updates; an expanded table of contents; keyword search function; and links to the Immigration and Nationality Act and Code of Federal Regulations, as well as public use forms. The Policy Manual contains tables and charts to facilitate understanding of complex topics. The Policy Manual also contains all historical policy updates.
The Policy Manual contains the official policies of USCIS and assists immigration officers in rendering decisions. The Policy Manual is to be followed by all USCIS officers in the performance of their duties but it does not remove their discretion in making adjudicatory decisions. The Policy Manual does not create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
USCIS is retiring its Adjudicator's Field Manual (AFM), a collection of our immigration policies and procedures. We are working to update and incorporate all AFM content into the USCIS Policy Manual. Until then, we have moved any remaining AFM content in PDF format to its corresponding Policy Manual Part. To the extent that a provision in the Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the Policy Manual prevails. If you have questions or concerns about any discrepancies among these resources, contact PolicyFeedback@uscis.dhs.gov.
To find remaining AFM content, see the crosswalk (PDF, 309.16 KB) between the AFM and the Policy Manual.
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Updates
Table of Contents
- Part A - Public Services
- Chapter 1 - Purpose and Background
- Chapter 2 - Web-Based Information
- Chapter 3 - Types of Assistance
- Chapter 4 - Service Request Management Tool
- Chapter 5 - Expedite Requests
- Chapter 6 - Disability Accommodation Requests
- Chapter 7 - Privacy and Confidentiality
- Chapter 8 - Conduct in USCIS Facilities
- Chapter 9 - Feedback, Complaints, Misconduct, and Discrimination
- Chapter 10 - Changes of Address
- Part C - Biometrics Collection and Security Checks
- Chapter 1 - Purpose and Background
- Chapter 2 - Biometrics Collection
- Chapter 3 - Security Checks [Reserved]
- Part E - Adjudications
- Chapter 1 - Purpose and Background
- Chapter 2 - Record of Proceeding
- Chapter 3 - Jurisdiction
- Chapter 4 - Burden and Standards of Proof
- Chapter 5 - Verification of Identifying Information
- Chapter 6 - Evidence
- Chapter 7 - Interviews [Reserved]
- Chapter 8 - Discretionary Analysis
- Chapter 9 - Rendering a Decision
- Chapter 10 - Post-Decision Actions
- Part G - Notice to Appear
- Part A - Nonimmigrant Policies and Procedures
- Chapter 1 - Purpose and Background
- Chapter 2 - General Requirements [Reserved]
- Chapter 3 - Maintaining Status [Reserved]
- Chapter 4 - Extension of Stay, Change of Status, and Extension of Petition Validity
- Part C - Visitors for Business or Tourism (B)
- Part D - Exchange Visitors (J)
- Chapter 1 - Purpose and Background
- Chapter 2 - J Exchange Visitor Eligibility
- Chapter 3 - Terms and Conditions of J Exchange Visitor Status
- Chapter 4 - Waiver of the Foreign Residence Requirement
- Chapter 5 - Change of Status, Extensions of Stay, Program Transfers, and Reinstatement
- Chapter 6 - Family Members of J-1 Exchange Visitor
- Part F - Students (F, M)
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility Requirements
- Chapter 3 - Courses and Enrollment, Full Course of Study, and Reduced Course Load
- Chapter 4 - School Transfer
- Chapter 5 - Practical Training
- Chapter 6 - Employment
- Chapter 7 - Absences From the United States
- Chapter 8 - Change of Status, Extension of Stay, and Length of Stay
- Chapter 9 - Dependents
- Part I - Temporary Agricultural and Nonagricultural Workers (H-2)
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility for Temporary Agricultural Worker (H-2A) Classification [Reserved]
- Chapter 3 - Documentation and Evidence for Temporary Agricultural Worker (H-2A) Classification [Reserved]
- Chapter 4 - Adjudication of Temporary Agricultural Worker (H-2A) Petitions [Reserved]
- Chapter 5 - Post-Adjudication Issues related to Temporary Agricultural Worker (H-2A) Petitions [Reserved]
- Chapter 6 - Temporary Agricultural Worker (H-2A) Petitions Requiring Special Handling [Reserved]
- Chapter 7 - Eligibility for Temporary Nonagricultural Worker (H-2B) Classification [Reserved]
- Chapter 8 - Documentation and Evidence for Temporary Nonagricultural Worker (H-2B) Classification [Reserved]
- Chapter 9 - Adjudication of Temporary Nonagricultural Worker (H-2B) Petitions [Reserved]
- Chapter 10 - Post-Adjudication Issues related to Temporary Nonagricultural Worker (H-2B) Petitions [Reserved]
- Chapter 11 - Temporary Nonagricultural Worker (H-2B) Petitions Requiring Special Handling
- Part J - Trainees (H-3)
- Chapter 1 - Purpose and Background
- Chapter 2 - H-3 Categories
- Chapter 3 - Trainee Program Requirements
- Chapter 4 - Special Education Exchange Visitor Program Requirements
- Chapter 5 - Family Members of H-3 Beneficiaries
- Chapter 6 - Adjudication
- Chapter 7 - Admissions, Extensions of Stay, and Change of Status
- Part L - Intracompany Transferees (L)
- Chapter 1 - Purpose and Background
- Chapter 2 - General Eligibility
- Chapter 3 - Managers and Executives (L-1A)
- Chapter 4 - Specialized Knowledge Beneficiaries (L-1B)
- Chapter 5 - Ownership and Control
- Chapter 6 - Key Concepts
- Chapter 7 - Filing
- Chapter 8 - Documentation and Evidence
- Chapter 9 - Adjudication
- Chapter 10 - Period of Stay
- Part M - Nonimmigrants of Extraordinary Ability or Achievement (O)
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility for O Classification
- Chapter 3 - Petitioners
- Chapter 4 - O-1 Beneficiaries
- Chapter 5 - O-2 Beneficiaries
- Chapter 6 - Family Members
- Chapter 7 - Documentation and Evidence
- Chapter 8 - Adjudication
- Chapter 9 - Admission, Extension of Stay, Change of Status, and Change of Employer
- Part A - Protection and Parole Policies and Procedures
- Part B - Victims of Trafficking
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility Requirements
- Chapter 3 - Documentation and Evidence for Principal Applicants
- Chapter 4 - Family Members
- Chapter 5 - Documentation and Evidence for Family Members
- Chapter 6 - Bona Fide Determinations
- Chapter 7 - Adjudication
- Chapter 8 - Annual Cap and Waiting List
- Chapter 9 - Applicants in Removal Proceedings
- Chapter 10 - Duration and Extensions of Status
- Chapter 11 - Federal Benefits and Work Authorization
- Chapter 12 - Travel Outside the United States
- Chapter 13 - Revocation of Status
- Chapter 14 - Confidentiality Protections and Prohibitions Against Disclosure
- Part C - Victims of Crimes
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility Requirements for U Nonimmigrant Status
- Chapter 3 - Documentation and Evidence [Reserved]
- Chapter 4 - Adjudication
- Chapter 5 - Bona Fide Determination Process
- Chapter 6 - Waiting List
- Chapter 7 - Final Adjudication
- Chapter 8 - Post-Adjudicative Matters [Reserved]
- Part I - Reserved
- Part A - Reserved
- Part B - Reserved
- Part C - Child Eligibility Determinations (Orphan)
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility
- Chapter 3 - Identity and Age
- Chapter 4 - Eligibility Requirements Specific to Orphans
- Chapter 5 - Qualifying Adoptive or Custodial Relationship
- Chapter 6 - Additional Requirements
- Chapter 7 - Documentation and Evidence
- Chapter 8 - Adjudication
- Chapter 9 - Pre-Adoption Immigration Review Programs
- Part D - Child Eligibility Determinations (Hague)
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility
- Chapter 3 - Identity and Age
- Chapter 4 - Eligibility Requirements Specific to Convention Adoptees
- Chapter 5 - Qualifying Adoptive or Custodial Relationship
- Chapter 6 - Additional Requirements
- Chapter 7 - Required Order of Immigration and Adoption Steps
- Chapter 8 - Documentation and Evidence
- Chapter 9 - Adjudication
- Part B - Family-Based Immigrants
- Chapter 1 - Purpose and Background
- Chapter 2 - Principles Common to Family-Based Petitions [Reserved]
- Chapter 3 - Filing
- Chapter 4 - Documentation and Evidence for Family-Based Petitions [Reserved]
- Chapter 5 - Adjudication of Family-Based Petitions
- Chapter 6 - Post-Adjudication of Family-Based Petitions [Reserved]
- Chapter 7 - Spouses [Reserved]
- Chapter 8 - Children, Sons, and Daughters
- Chapter 9 - Parents of U.S. Citizens [Reserved]
- Chapter 10 - Siblings of U.S. Citizens [Reserved]
- Part E - Employment-Based Immigration
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility Requirements
- Chapter 3 - Successor-in-Interest in Permanent Labor Certification Cases
- Chapter 4 - Ability to Pay
- Chapter 5 - Reserved
- Chapter 6 - Permanent Labor Certification
- Chapter 7 - Schedule A Designation Petitions
- Chapter 8 - Documentation and Evidence
- Chapter 9 - Evaluation of Education Credentials
- Chapter 10 - Decision and Post-Adjudication
- Part G - Investors
- Chapter 1 - Purpose and Background
- Chapter 2 - Immigrant Petition Eligibility Requirements
- Chapter 3 - Immigrant Petition Adjudication
- Chapter 4 - Regional Center Applications
- Chapter 5 - Project Applications
- Chapter 6 - Direct and Third-Party Promoters
- Chapter 7 - Removal of Conditions
- Chapter 8 - Sanctions and Discretionary Determinations
- Part H - Designated and Special Immigrants
- Chapter 1 - Purpose and Background
- Chapter 2 - Religious Workers
- Chapter 3 - Panama Canal Zone Employees
- Chapter 4 - Certain Physicians [Reserved]
- Chapter 5 - Certain G-4 or NATO-6 Employees and their Family Members [Reserved]
- Chapter 6 - Members of the U.S. Armed Forces
- Chapter 7 - Certain Broadcasters [Reserved]
- Chapter 8 - Certain Iraqi Nationals
- Chapter 9 - Certain Afghan Nationals
- Chapter 10 - Certain Iraqi and Afghan Translators and Interpreters
- Chapter 11 - Decision and Post-Adjudication
- Part I - Family-Based Conditional Permanent Residents
- Chapter 1 - Purpose and Background
- Chapter 2 - Terms and Conditions of CPR Status
- Chapter 3 - Petition to Remove Conditions on Residence
- Chapter 4 - Joint Petitions and Individual Filing Requests
- Chapter 5 - Waiver of Joint Filing Requirement
- Chapter 6 - Decision and Post-Adjudication
- Chapter 7 - Effect of Removal Proceedings
- Part A - Adjustment of Status Policies and Procedures
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility Requirements
- Chapter 3 - Filing Instructions
- Chapter 4 - Documentation
- Chapter 5 - Interview Guidelines
- Chapter 6 - Adjudicative Review
- Chapter 7 - Child Status Protection Act
- Chapter 8 - Transfer of Underlying Basis
- Chapter 9 - Death of Petitioner or Principal Beneficiary
- Chapter 10 - Legal Analysis and Use of Discretion
- Chapter 11 - Decision Procedures
- Part B - 245(a) Adjustment
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility Requirements
- Chapter 3 - Unlawful Immigration Status at Time of Filing (INA 245(c)(2))
- Chapter 4 - Status and Nonimmigrant Visa Violations (INA 245(c)(2) and INA 245(c)(8))
- Chapter 5 - Employment-Based Applicant Not in Lawful Nonimmigrant Status (INA 245(c)(7))
- Chapter 6 - Unauthorized Employment (INA 245(c)(2) and INA 245(c)(8))
- Chapter 7 - Other Barred Adjustment Applicants
- Chapter 8 - Inapplicability of Bars to Adjustment
- Part E - Employment-Based Adjustment
- Chapter 1 - Purpose and Background [Reserved]
- Chapter 2 - Eligibility Requirements [Reserved]
- Chapter 3 - Immigrant Visa Availability and Priority Dates [Reserved]
- Chapter 4 - Documentation and Evidence [Reserved]
- Chapter 5 - Job Portability after Adjustment Filing and Other AC21 Provisions
- Chapter 6 - Adjudication [Reserved]
- Chapter 7 - National Interest Waiver Physicians [Reserved]
- Part F - Special Immigrant-Based Adjustment
- Chapter 1 - Purpose and Background
- Chapter 2 - Religious Workers
- Chapter 3 - International Employees of U.S. Government Abroad
- Chapter 4 - Panama Canal Zone Employees
- Chapter 5 - Certain Physicians
- Chapter 6 - Certain G-4 or NATO-6 Employees and their Family Members
- Chapter 7 - Special Immigrant Juveniles
- Chapter 8 - Members of the U.S. Armed Forces
- Chapter 9 - Certain Broadcasters
- Chapter 10 - Certain Afghan and Iraqi Nationals
- Part H - Reserved
- Part O - Registration
- Chapter 1 - Presumption of Lawful Admission
- Chapter 2 - Presumption of Lawful Admission Despite Certain Errors Occurring at Entry
- Chapter 3 - Children Born in the United States to Accredited Diplomats
- Chapter 4 - Aliens Who Entered the United States Prior to January 1, 1972
- Chapter 5 - Other Special Laws
- Part P - Other Adjustment Programs
- Chapter 1 - Reserved
- Chapter 2 - Reserved
- Chapter 3 - Reserved
- Chapter 4 - Reserved
- Chapter 5 - Liberian Refugee Immigration Fairness
- Chapter 6 - Reserved
- Chapter 7 - Reserved
- Chapter 8 - Reserved
- Chapter 9 - Amerasian Immigrants
- Chapter 10 - Reserved
- Part R - Abandonment of Lawful Permanent Residence
- Part A - Admissibility Policies and Procedures
- Part B - Health-Related Grounds of Inadmissibility
- Chapter 1 - Purpose and Background
- Chapter 2 - Medical Examination and Vaccination Record
- Chapter 3 - Applicability of Medical Examination and Vaccination Requirement
- Chapter 4 - Review of Medical Examination Documentation
- Chapter 5 - Review of Overall Findings
- Chapter 6 - Communicable Diseases of Public Health Significance
- Chapter 7 - Physical or Mental Disorder with Associated Harmful Behavior
- Chapter 8 - Drug Abuse or Drug Addiction
- Chapter 9 - Vaccination Requirement
- Chapter 10 - Other Medical Conditions
- Chapter 11 - Inadmissibility Determination
- Chapter 12 - Waiver Authority
- Part D - Criminal and Related Grounds of Inadmissibility
- Part E - Terrorism
- Part F - National Security and Related Grounds of Inadmissibility
- Chapter 1 - Purpose and Background [Reserved]
- Chapter 2 - [Reserved]
- Chapter 3 - Immigrant Membership in Totalitarian Party
- Part G - Public Charge Ground of Inadmissibility
- Chapter 1 - Purpose and Background
- Chapter 2 - Definitions
- Chapter 3 - Applicability
- Chapter 4 - Prospective Determination Based on the Totality of the Circumstances
- Chapter 5 - Statutory Minimum Factors
- Chapter 6 - Affidavit of Support Under Section 213A of the INA
- Chapter 7 - Consideration of Current and/or Past Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense
- Chapter 8 - Waivers of Inadmissibility Based on Public Charge Ground
- Chapter 9 - Adjudicating Public Charge Inadmissibility for Adjustment of Status Applications
- Chapter 10 - Public Charge Bonds
- Chapter 11 - Public Charge Bonds: Posting and Accepting Bonds
- Chapter 12 - Public Charge Bonds: Maintaining, Substituting, and Canceling Bonds
- Part H - Labor Certification and Select Immigrant Qualifications
- Part L - Documentation Requirements
- Part M - Citizenship Ineligibility
- Part N - Aliens Previously Removed
- Part O - Aliens Unlawfully Present
- Chapter 1 - Purpose and Background [Reserved]
- Chapter 2 - Reserved
- Chapter 3 - Reserved
- Chapter 4 - Reserved
- Chapter 5 - Reserved
- Chapter 6 - Effect of Seeking Admission Following Accrual of Unlawful Presence
- Part Q - Practicing Polygamists, International Child Abductors, Unlawful Voters, and Tax Evaders
- Part C - Family Unity, Humanitarian Purposes, or Public or National Interest
- Part E - Criminal and Related Grounds of Inadmissibility
- Part G - Unlawful Presence
- Part H - Provisional Unlawful Presence
- Part I - Immigrant Membership in Totalitarian Party
- Part J - Alien Smuggling
- Part K - Aliens Subject to Civil Penalty
- Part L - Refugees and Asylees
- Part M - Temporary Protected Status Applicants
- Part N - Special Immigrant Juvenile Adjustment Applicants
- Part P - Crime Victims
- Part Q - Violence Against Women Act Applicants
- Part R - Other Waivers and Provisions Overcoming Inadmissibility
- Part A - Employment Authorization Policies and Procedures
- Chapter 1 - Purpose and Background
- Chapter 2 - Eligibility Requirements
- Chapter 3 - Documentation and Evidence [Reserved]
- Chapter 4 - Adjudication
- Chapter 5 - Reserved
- Chapter 6 - Card Production and Card Correction [Reserved]
- Chapter 7 - Post-Decision Actions [Reserved]
- Part D - General Naturalization Requirements
- Chapter 1 - Purpose and Background
- Chapter 2 - Lawful Permanent Resident Admission for Naturalization
- Chapter 3 - Continuous Residence
- Chapter 4 - Physical Presence
- Chapter 5 - Modifications and Exceptions to Continuous Residence and Physical Presence
- Chapter 6 - Jurisdiction, Place of Residence, and Early Filing
- Chapter 7 - Attachment to the Constitution
- Chapter 8 - Educational Requirements
- Chapter 9 - Good Moral Character
- Part H - Children of U.S. Citizens
- Chapter 1 - Purpose and Background
- Chapter 2 - Definition of Child and Residence for Citizenship and Naturalization
- Chapter 3 - U.S. Citizens at Birth (INA 301 and 309)
- Chapter 4 - Automatic Acquisition of Citizenship after Birth (INA 320)
- Chapter 5 - Child Residing Outside the United States (INA 322)
- Chapter 6 - Special Provisions for the Naturalization of Children
- Chapter 7 - Deriving Citizenship Before the Child Citizenship Act of 2000 (Former INA 321 and 320)
- Part I - Military Members and their Families
- Chapter 1 - Purpose and Background
- Chapter 2 - One Year of Military Service during Peacetime (INA 328)
- Chapter 3 - Military Service during Hostilities (INA 329)
- Chapter 4 - Permanent Bars to Naturalization
- Chapter 5 - Application and Filing for Service Members (INA 328 and 329)
- Chapter 6 - Required Background Checks
- Chapter 7 - Revocation of Naturalization
- Chapter 8 - Posthumous Citizenship (INA 329A)
- Chapter 9 - Spouses, Children, and Surviving Family Benefits
Volume 1 - General Policies and Procedures
Part A - Public Services
Chapter 1 - Purpose and Background
A. Purpose
USCIS is the government agency that administers lawful immigration to the United States.[1] 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 benefit requests[2] and public services.
This part provides guidance on USCIS public services, including case assistance, online tools, feedback, procedures when a person is a member of a special protected class, privacy and confidentiality requirements, 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).[3]
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.[4] 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. Legal Authorities
- Homeland Security Act of 2002, Pub. L. 107–296 (PDF)[5] – 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[6] – 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)[7] – 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] For more information, see the About Us webpage.
[^ 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 Homeland Security Act of 2002, Pub. L. 107–296 (PDF), 116 Stat. 2135 (November 25, 2002).
[^ 4] See the Organizational Timeline page on USCIS’ website.
[^ 5] See Pub. L. 107–296 (PDF), 116 Stat. 2135 (November 25, 2002).
[^ 6] See Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974).
[^ 7] See Section 504 of Pub. L. 93-112 (PDF), 87 Stat. 355, 394 (September 26, 1973).
Chapter 2 - Web-Based Information
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 sub-sites, including:
- 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
- USCIS Tools and Resources – Online tools and resources to check case status online, ask questions about a case, and calculate fees
- Enterprise Change of Address – Self-service change of address tool available through a USCIS online account[2]
- 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[3]
- My Appointment – Online form for benefit requestors or their authorized representatives to request an in-person appointment at their local field office.
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.[4]
Footnotes
[^ 1] See the Contact Us page on USCIS’ website.
[^ 2] See the How to Change Your Address webpage. See Chapter 10, Changes of Address, Section A, Updating Address Online [1 USCIS-PM A.10(A)].
[^ 3] The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other policy repositories.
[^ 4] See the USCIS website for information on Social Media Policy.
Chapter 3 - Types of Assistance
A. In-Person
In general, benefit requestors can use the USCIS Contact Center resources, including USCIS online tools, to manage and obtain information about their cases. Specific customer service options are available for certain programs and populations. The Contact Us webpage provides more information on how to obtain assistance.
To prevent the unauthorized disclosure of information, USCIS follows privacy and confidentiality protections when managing case-specific inquiries.[1]
1. Local Field Office
In-person appointments at field offices[2] are reserved for services that require a person’s physical presence in the office to resolve an inquiry.
USCIS does not allow walk-in appointments. Benefit requestors must have an appointment to visit a USCIS field office. Benefit requestors generally may request an appointment using the My Appointment online tool. Benefit requestors who are not able to request an appointment online may call the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833) for additional assistance.
Benefit requestors should bring any applicable forms, payment, photos, and evidence, including documentation related to their requested service to their appointment. For example, a person requesting an emergency travel document should bring evidence to support the emergency request.
If USCIS closes an office or changes office hours, USCIS informs the public of such on the USCIS Office Closing webpage. Benefit requestors should check this webpage on the day of their appointment for any office closures and other important information.
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.
Benefit requestors can send messages and inquiries directly to the USCIS Contact Center, using the online webform when they need assistance with their online account, such as resetting their password or Online Access Code.[3] USCIS generally responds to these messages and inquiries by email or phone within 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 timely and effective responses to case-specific inquiries.
2. 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.
3. 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 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.[4]
C. Telephone
1. USCIS Contact Center
For the convenience of benefit requestors and other interested parties located within the United States, the USCIS Contact Center provides a toll-free phone number: 1-800-375-5283 (TTY: 1-800-767-1833). For more information, see the USCIS Contact Center webpage.
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[5] and a multi-tiered level of live assistance.
- IVR – The IVR system may initially answer callers’ questions and can send links via email and text. The IVR system offers callers live assistance if additional assistance is needed.
- 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.
- Tier 2 – If Tier 1 is unable to completely resolve an inquiry, Tier 1 staff members may escalate the inquiry to a Tier 2 Immigration Services Officer. The Tier 2 Immigration Services Officer then contacts the caller by phone or email.
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
For the convenience of benefit requestors and other interested parties located outside the United States, USCIS provides a phone number for international callers. The phone number for persons calling from outside of the United States is (+1) 212-620-3418.
Benefit requestors located outside of the United States may also contact the international office with jurisdiction over their place of residence. USCIS provides a complete listing of international field offices and their contact information through the International Immigration Offices webpage.
D. Traditional Mail or Facsimile
While USCIS may respond to case-specific inquiries and requests for assistance by U.S. mail, the USCIS Contact Center and online tools are generally the preferred method of contacting the agency for timely and effective customer service.[6] Dedicated mailing addresses may be available, as appropriate, to address specific types of inquiries. Before submitting an inquiry, the benefit requestor should review the Contact Us webpage to ensure they properly submit their request.
USCIS does not provide general delivery facsimile (fax) numbers, but USCIS offices may provide a fax number in specific circumstances when appropriate. For example, an officer may provide a fax number 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 Field Offices webpage.
[^ 3] See the Password Resets and Technical Support webpage.
[^ 4] See Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].
[^ 5] IVR is an automated phone system technology that allows callers to access information through a voice response system without speaking to a person.
[^ 6] See Section B, Online [1 USCIS-PM A.3(B)].
Chapter 4 - Service Request Management Tool
If a benefit requestor or interested party who is entitled to receive the requested case-specific information needs assistance on a specific case,[1] they may place a service request with USCIS for certain applications, petitions, and services.[2] The Service Request Management Tool (SRMT) enables USCIS to record and transfer unresolved requests to the appropriate USCIS service center, National Benefits Center, domestic USCIS field office, USCIS asylum office, Administrative Appeals Office, or other USCIS entity where the benefit request is pending a decision or was adjudicated.
USCIS offers online tools and resources to deliver the information benefit requestors and interested parties need without having to call USCIS or create a service request. Benefit requestors who have a USCIS online account can utilize self-service options that may make it unnecessary to submit a service request. Self-service options allow certain benefit requestors to change their address, reschedule their biometrics appointment, access enhanced case processing time information for certain case types, and access receipt notices, requests for evidence, and other correspondence from USCIS.
A. Creating Service Requests
1. By USCIS Customer Service
If an inquiry received by the USCIS Contact Center cannot be resolved through secure messaging in the benefit requestor’s USCIS online account or during the call and the inquiry warrants creation of a service request, the USCIS Contact Center staff creates 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. By Requestor Through Online Tools
By using an online tool, a person may create a service request for the following reasons (unless a person is a protected person):[3]
- Request regarding a notice, card, or other document that was not received;[4]
- Request regarding a case outside normal processing time;
- Request for accommodations;[5] or
- Request for correction of a typographic error.[6]
3. By Requestor Through U.S. Mail
Benefit requestors may also submit a service request by mailing in a request to a domestic USCIS office.[7] However, the USCIS Contact Center and online tools are generally the preferred method of contacting the agency for timely and effective responses to case-specific inquiries.
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 business days from the date of creation.
2. Prioritized Requests
The following requests receive processing priority:
Expedite Requests[8]
Immigration benefit requestors or their authorized representative may request that USCIS expedite the adjudication of their application, petition, request, appeal, or motion that is under USCIS jurisdiction.
Reasonable Accommodation[9]
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] See Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].
[^ 2] Requestors generally submit service requests through the USCIS Contact Center or online.
[^ 3] Protected person refers to a person covered by 8 U.S.C. 1367 confidentiality protections, including VAWA self-petitioners, Form I-765V filers, and individuals seeking or who hold Continued Presence, U nonimmigrant status or T nonimmigrant status. If a protected person also has filed a benefit request that does not trigger 8 U.S.C. 1367 (for example, a U petitioner has also filed for temporary protected status), USCIS nonetheless considers that individual as covered by 8 U.S.C. 1367 protections for purposes of service requests related to all pending and approved benefits. See Chapter 7, Privacy and Confidentiality, Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)]. In addition, there is specialized customer service for asylum and refugee-related applications. For more information see Chapter 7, Privacy and Confidentiality, Section F, Asylees and Refugees [1 USCIS-PM A.7(F)].
[^ 4] Before submitting a service request for a non-delivered secure document or card, benefit requestors should track delivery. If a secure document or card was returned to USCIS as non-deliverable, USCIS may be able to resend it. However, if a non-delivered secure document or card was not returned to USCIS, the requestor may need to file a new form for a new document to be issued (rather than submit a service request). For more information on reissuance of secure travel and identity documents, see Volume 11, Travel and Identity Documents, Part A, Secure Identity Documents Policies and Procedures [11 USCIS-PM A].
[^ 5] See Chapter 6, Disability Accommodation Requests [1 USCIS-PM A.6].
[^ 6] See Volume 11, Travel and Identity Documents, Part A, Secure Identity Documents Policies and Procedures, Chapter 3, Reissuance of Secure Identity Documents [11 USCIS-PM A.3]. See the Immigration Documents and How to Correct, Update, or Replace Them webpage.
[^ 7] See Chapter 3, Types of Assistance, Section D, Traditional Mail or Facsimile [1 USCIS-PM A.3(D)]. See the Find a USCIS Office webpage.
[^ 8] For information on expedite requests, see Chapter 5, Expedite Requests [1 USCIS-PM A.5].
[^ 9] See Chapter 6, Disability Accommodation Requests [1 USCIS-PM A.6].
Chapter 5 - Expedite Requests
Immigration benefit requestors or their authorized representative may request that USCIS expedite the adjudication of their application, petition, request, appeal, or motion that is under USCIS jurisdiction.[1] USCIS considers all expedite requests on a case-by-case basis in the exercise of discretion and generally requires documentation to support such requests. The decision to expedite is within the sole discretion of USCIS.
As expediting an application, petition, request, appeal, or motion generally means that USCIS would adjudicate the requestor's benefit ahead of others who filed earlier, USCIS carefully weighs the urgency and merit of each expedite request.
A. Expedite Criteria or Circumstances
USCIS may expedite adjudication of an application, petition, request, appeal, or motion at its discretion. USCIS considers the totality of the circumstances and evidence submitted in support of an expedite request.
Relevant criteria or circumstances that may be considered in determining whether to grant an expedite request include, but are not limited to, the following:
- Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to timely file the benefit request or to timely respond to any requests for evidence.[2]
- Emergencies or urgent humanitarian situations.
- Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States.
- Government interests, including cases identified by the government as urgent because they involve the public interest, public safety, national interest, or national security interests.
- Clear USCIS error.
1. Severe Financial Loss as a Basis for Expedited Treatment
A company can demonstrate that it would suffer a severe financial loss if it is at risk of failing, losing a critical contract, or required to lay off other employees. For example, a medical office may suffer severe financial loss if a gap in a doctor’s employment authorization would require the medical practice to lay off its medical assistants.
Job loss may be sufficient to establish severe financial loss for a person, depending on the individual circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment. The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment.
In addition, severe financial loss may also be established where failure to expedite would result in a loss of critical public benefits or services.
2. Expedited Treatment Based on Emergency or Urgent Humanitarian Situations
In the context of an expedite request, an emergency or urgent humanitarian situation is a pressing or critical circumstance related to human welfare. Human welfare means issues related to the well-being of a person or group. Examples include, but are not limited to, illness, disability, death of a family member or close friend, or extreme living conditions, such as those caused by natural catastrophes or armed conflict.
USCIS considers requests related to a requestor’s individual welfare and requests that are related to the welfare of others. For example, to facilitate the well-being of an individual, USCIS may expedite a benefit request where a vulnerable person’s safety may be otherwise compromised. To facilitate the well-being of others, for example, USCIS may expedite employment authorization for healthcare workers during a pandemic.
Certain benefit requests, such as asylum applications, refugee applications, and requests for humanitarian parole, by their nature involve urgent humanitarian situations. Therefore, filing a humanitarian-based benefit, standing alone, without evidence of other time-sensitive or compelling factors, generally may not warrant expedited treatment under this criterion.[3]
Travel-Related Requests
USCIS considers expedited processing of an Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131) when there is a pressing or critical need for an applicant to travel outside the United States.
Expedited processing of a travel document may be warranted when there is an unexpected event, such as the pressing or critical need to travel outside the United States to obtain medical treatment in a limited amount of time, or due to the death or grave illness of a family member or close friend.
Expedited processing of a travel document may also be warranted when there is a pressing or critical need to travel outside the United States for a planned event, but processing times prevent USCIS from issuing the travel document by the planned date of departure. When the need to expedite issuance of a travel document is related to a planned event, USCIS considers whether the applicant timely filed the Form I-131 or timely responded to a request for evidence.[4]
For example, a requestor may have applied for a travel document 5 months ago when they learned of the event, but their case remains pending, and they must travel for an event which is now in 45 days, such as for a:
- Work or professional commitment (such as a meeting, conference, forum, seminar, or training);
- Academic commitment (such as a study abroad program, research trip, forum, seminar, conference, or practicum); or
- Personal commitment (such as a wedding or graduation).
The examples of travel-related emergencies provided above are not exhaustive. Officers should review travel-related expedite requests on a case-by-case basis to determine if the need to travel is pressing or critical.
A benefit requestor’s desire to travel solely for vacation generally does not meet the definition of a pressing or critical need to travel.
3. Nonprofit Organization Seeking Expedited Treatment
A nonprofit organization seeking to expedite a beneficiary’s benefit request must demonstrate an urgent need to expedite the case based on the beneficiary’s specific role within the nonprofit in furthering cultural or social interests (as opposed to the organization’s role in furthering social or cultural interests). Examples may include a medical professional urgently needed for medical research related to a specific “social” U.S. interest (such as the COVID-19 pandemic or other socially impactful research or project) or a university professor urgently needed to participate in a specific and imminent cultural program. Another example is a religious organization that urgently needs a beneficiary’s specific services and skill set to continue a vital social outreach program. In such instances, the religious organization must articulate why the respective beneficiary is specifically needed, as opposed to pointing to a general shortage alone.
4. Expedited Treatment Based on Government Interests
Government interests refer to interests of any federal, state, tribal, territorial, or local government of the United States.[5] This includes cases identified as urgent by the government because they involve public interest, public safety, national interest, or national security interests. The request must be made by a person who has authority to represent the agency or department, such as an official, manager, supervisor, or tribal leader, on the matter for which expedited treatment is being requested. The request must demonstrate that the interests are pressing and substantive.
Where a federal agency or department identifies an articulable federal government interest in accordance with these criteria, USCIS generally defers to that federal agency or department’s assessment.
If the request relates to employment authorization, the request must demonstrate that the need for the applicant to be authorized to work is critical to the mission of the requesting agency or department, and goes beyond a general need to retain a particular worker or person. For example, an applicant for employment authorization may warrant expedited processing based on government interests when the applicant is a victim or witness who is cooperating with the government and needs employment authorization because the respective agency is seeking back pay or reinstatement in court proceedings.
5. Clear USCIS Error
USCIS may consider an expedite request based on clear USCIS error when a requestor establishes an urgent need to correct the error. For example, an applicant who receives an Employment Authorization Document with incorrect information that prevents them from being able to work may request a replacement document on an expedited basis if USCIS caused the error.[6]
B. How to Request Expedited Processing
The process to request expedited processing may vary by form type and the office that has jurisdiction over the benefit request. USCIS provides specific information on submitting expedite requests on the Expedite Requests webpage.
Benefit requestors must demonstrate their need for expedited processing. Generally, USCIS requires documentation to support expedite requests. When additional documentation is needed, USCIS asks the requestor to submit supporting evidence.
1. Premium Processing
A benefit requestor cannot request expedited processing for petitions and applications where premium processing service is available for their filing category unless they meet the exception for certain nonprofit organizations.
A benefit requestor that is designated as a nonprofit organization by the IRS seeking a beneficiary whose services are needed in furtherance of the cultural or social interests of the United States may request that the benefit it seeks be expedited without a fee, even if premium processing is available for that benefit.[7] USCIS retains discretion not to expedite the benefit request. The benefit requestor may also request premium processing for the benefit.
C. How USCIS Processes Requests for Expedited Treatment
Using its discretion, USCIS considers expedite requests according to the criteria and circumstances described above. Not every circumstance that fits under the criteria or examples above necessarily results in expedited processing.[8]
Circumstances that Impact USCIS' Ability to Expedite
Some circumstances may prolong or inhibit USCIS’ ability to expedite certain benefit requests. Examples include, but are not limited to, when:
- The benefit requestor must perform a certain action or submit additional documentation or evidence, such as attend a biometric services appointment, be interviewed, or complete any required immigration medical examination;[9]
- There is a required background check that remains pending with a third-party agency;
- An application or petition requires an on-site inspection;[10] or
- An application or petition is dependent on the adjudication of a principal’s application or petition.
Responding to Expedite Requests
USCIS generally sends a response to expedite requests that are submitted through the Contact Center. However, to increase efficiency in processing expedite requests, USCIS generally does not provide justifications regarding expedite decisions.
Requestors in Removal Proceedings
Expedited processing of benefit requests for aliens with final orders of removal or aliens in removal proceedings is coordinated between USCIS and U.S. Immigration and Customs Enforcement (ICE).[11]
Footnotes
[^ 1] Expedite procedures may vary by form type and the office that has the benefit request. For example, there are specific processes and requirements for requests to expedite certain benefits, such as asylum applications, refugee applications, and requests for humanitarian parole, among others. For more information, see specific procedures information on the Expedite Requests webpage.
[^ 2] For more information on timely filed requests, see Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests [1 USCIS-PM B.6]. For more information about failure to timely respond to Requests for Evidence and Notices of Intent to Deny, see Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 3] Expedite procedures may vary by form type and the office that has the benefit request. For example, there are specific processes and requirements for requests to expedite certain benefits, such as asylum applications, refugee applications, and requests for humanitarian parole, among others. For more information, see specific procedures information on the Expedite Requests webpage.
[^ 4] USCIS considers a Form I-131 timely filed when the applicant files as soon as practicable after learning of the planned event. However, USCIS provides certain flexibilities if the applicant’s failure to timely file or respond to a request for evidence is because of a situation outside of the applicant’s control, such as an emergency or unforeseen circumstance. See the Immigration Relief in Emergencies or Unforeseen Circumstances webpage.
[^ 5] Examples include, but are not limited to, the Equal Employment Opportunity Commission, National Labor Relations Board, National Transportation Safety Board, U.S. Department of Defense, U.S. Department of Health and Human Services, U.S. Department of Justice, U.S. Department of Labor, U.S. Department of Commerce, U.S. Department of State, and other DHS agencies.
[^ 6] For more information about correcting documents based on USCIS error, see the Updating or Correcting Your Documents webpage.
[^ 7] See Section A, Expedite Criteria or Circumstances, Subsection 3, Nonprofit Organization Seeking Expedited Treatment [1 USCIS-PM A.5(A)(3)].
[^ 8] See Section A, Expedite Criteria or Circumstances [1 USCIS-PM A.5(A)].
[^ 9] For more information, see Part C, Biometrics Collection and Security Checks [1 USCIS-PM C]; Part E, Adjudications [1 USCIS-PM E]; and Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility [8 USCIS-PM B].
[^ 10] USCIS cannot expedite certain aspects of its processing, including on-site inspections.
[^ 11] See Part E, Adjudications, Chapter 3, Jurisdiction, Section A, Coordination in Cases Involving Removal Proceedings [1 USCIS-PM E.3(A)].
Chapter 6 - Disability Accommodation Requests
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] It is USCIS policy to provide equal access to its benefits, services, and activities for persons with disabilities, and to provide religious accommodations in accordance with applicable requirements.
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 appropriate 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. See Volume 1, General Policies and Procedures, Part A, Public Service, Chapter 9, Feedback, Complaints, Misconduct, and Discrimination, Section D, Allegations of Discrimination, Subsection 1, Anti-Discrimination Policy [1 USCIS-PM A.9(D)(1)].
[^ 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] For additional instructions on how to submit a disability accommodation request, see the Disability Accommodations for the Public webpage. Applicants who cannot submit their request online should call the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833).
[^ 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)(3)].
Chapter 7 - Privacy and Confidentiality
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.
Principle | Description |
---|---|
Transparency | DHS provides transparency for how it handles sensitive information through various mechanisms, including Privacy Impact Assessments, System of Records Notices, Privacy Act Statements, and the Freedom of Information Act (FOIA). |
Individual Participation | To the extent practicable, DHS should involve persons in the process of using their personal information, and they may always request information about themselves through a FOIA request. |
Purpose Specification | DHS’ default action should be to not collect information, and if it is otherwise necessary, DHS should articulate the authorities that permit collection and must clearly state the purposes of the information collection. |
Data Minimization | DHS collects only information relevant and necessary to accomplish the purposes specified and special emphasis is placed on reducing the use of sensitive personal information, where practical. |
Use Limitation | Any sharing of information outside of the agency must be consistent with the use or purpose originally specified. |
Data Quality and Integrity | DHS should, to the extent practical, ensure that PII is accurate, relevant, timely, and complete. |
Security | DHS uses appropriate security safeguards against risks such as loss, unauthorized access or use, destruction, modification or unintended or inappropriate disclosure. |
Accountability and Auditing | DHS has a number of accountability mechanisms, including reviews of its operations, training for employees, and investigations when appropriate. |
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 correspondence to the address on file. Before USCIS is able to send any correspondence to a different address, the person must update their address in USCIS systems.[7] Change of address requests associated with people protected by 8 U.S.C. 1367 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 U.S. 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 webpage 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 the 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
Persons eligible for and recipients of victim-based immigration relief (specifically, Violence Against Women Act (VAWA) self-petitioners[11] as well as applicants and petitioners for, and recipients of, T and U nonimmigrant status (protected person[12])) are entitled to protections under 8 U.S.C. 1367. USCIS also extends the provisions of 8 U.S.C. 1367 to abused spouses of certain persons applying for employment authorization under INA 106.[13] The governing statute generally 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 U.S. Department of Justice (DOJ), or DOS for a legitimate agency purpose.[14]
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,[15] 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. The protections end when the request for immigration relief is denied and all opportunities for appeal of the denial have been exhausted.
These protections also terminate once a protected person naturalizes. 8 U.S.C 1367 was drafted with the intention of protecting the “alien.”[16] Naturalized U.S. citizens were not the intended category of persons to be protected.
USCIS maintains the ability to reapply 8 U.S.C 1367 protections to naturalized U.S. citizens in limited circumstances. For example, if a previously protected naturalized citizen’s eligibility for citizenship were called into question, the protections would be reinstated. Additionally, the derivative beneficiaries of a protected naturalized U.S. citizen remain protected by statute until the beneficiaries become naturalized U.S. citizens.
Disclosure of Information
The statute prevents DHS from disclosing any information which relates to a person protected under 8 U.S.C. 1367 (protected person), subject to certain limited exceptions.[17] This includes information USCIS has in its records or other information about the protected person, even if those records do not specifically identify the person as one who has sought VAWA, T, or U benefits. Consequently, USCIS cannot disclose information about a protected person even if that information is not contained in a VAWA, T, or U filing.[18]
USCIS cannot release any information relating to a protected person until USCIS verifies both the identity of the requestor of information and the requestor’s authorization to receive the protected information. USCIS must verify the identity and authorization before responding to any inquiry, expedite request, referral, or other communication. After identity and authorization verification, USCIS can provide protected information directly to the protected person or the protected person’s representative authorized to receive 1367-protected information.
Representative refers to an attorney or accredited representative who has properly filed a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on behalf of a protected person and who remains in good standing or is not otherwise ineligible to represent persons with matters before USCIS.
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.[19]
- 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.[20]
- 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[21] and government personnel carrying out mandated duties under the Immigration and Nationality Act (INA)[22] may, with the prior written consent of the person 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 DOS or DOJ, for legitimate Department, bureau, or agency purposes.
Prohibited Source
USCIS employees are prohibited from making an adverse determination of admissibility, deportability, or removability on a protected person using information furnished solely by a prohibited source. The officer must not use information provided by the following prohibited sources to make an adverse determination:
- The abuser or perpetrator of the offense;
- Family member of the abuser; or
- Someone acting at the request of the abuser.
If the officer can independently corroborate the information from a non-prohibited source, the officer may use the information from the non-prohibited source in the adjudication process.
USCIS employees may receive information about a protected person through an anonymous personal letter, phone call, statement, tip form submission, or other method that raises questions regarding their eligibility for immigration benefits. USCIS employees should treat the information as inherently suspect and presume that derogatory information received from an unknown source came from a prohibited source.[23]
3. USCIS Assistance
USCIS employees must ensure confidentiality is maintained when a benefit requestor protected under 8 U.S.C. 1367 requests assistance.
Change of Address
Benefit requestors with a pending or approved VAWA, T, or U-related case can request a change of address by following the instructions on the How to Change Your Address webpage.
A benefit requestor with a pending or approved VAWA, T, or U-related case may also call the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833) to request an address change. The benefit requestor’s identity must be verified before making the requested change. If the Contact Center is unable to make the change requested, they schedule an in-person appointment at a USCIS field office. If the change is made during an in-person appointment, the field office must make the change in electronic systems and notify the office with jurisdiction over the pending case of the change.
Customer Service Inquiries
Due to 8 U.S.C. 1367 protections, protected persons have specialized customer service options for their case inquiries to USCIS. As noted above, benefit requestors with pending or approved VAWA, T, or U-related cases may request customer service via the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833). USCIS must verify the identity of the person inquiring about a confidential case and verify that person’s eligibility to receive information before providing any information or other requested service. To access Contact Center services, protected persons calling about a particular form (or forms) should have their receipt notice(s) on hand for reference during the call. They should also have a copy of the pending or approved application or petition that they are calling about readily available, if possible.
For more information related to how to make customer service inquiries for protected persons who have VAWA, T, and-U related filings, see the USCIS Contact Us webpage.
4. Mailing Address Procedures for Persons Protected Under 8 U.S.C. 1367
Defining “Safe Mailing Address” and “Preferred Mailing Address”
USCIS is committed to incorporating victim-centered approaches into agency policies, programs, and procedures related to interactions with protected persons.
A critical component of this approach is the prioritization of victim safety and autonomy. Under this framework, USCIS acknowledges that protected persons are best positioned to make decisions about where correspondence should be directed.
USCIS has policies and procedures in place so that information related to protected persons is disclosed only to authorized parties.[24] In the context of mailed correspondence, USCIS has implemented procedures to minimize the risk of unauthorized parties viewing the protected information. Many of the forms that initiate the 8 U.S.C. 1367 protections (victim-based forms) include a specific address field for a designated “safe mailing address.”[25]
Other forms may not have a designated safe mailing address field, but instead may include space to provide a mailing address that may be different from the person’s home or physical address (referred to in this guidance as the “preferred mailing address”). When a form does not have a safe mailing address field, but the protected person has listed a preferred mailing address, USCIS considers the preferred mailing address to be a safe and secure address to use for notices, correspondence, and secure identity documents for the protected person. The safe mailing address or preferred mailing address may change over time as the protected person files new benefit requests or submits a request to change their address.[26]
Adjudication of Non-Victim-Based Benefit Requests
The protections provided by 8 U.S.C. 1367 do not change which USCIS office has jurisdiction to adjudicate a benefit request that a protected person has filed.
In instances where a protected person files a non-victim-based benefit request, the USCIS office that has jurisdiction over that matter may still adjudicate the benefit request even though it contains information about a protected person. Officers are not required to involve the USCIS offices assigned to adjudicate victim-based benefit requests in the adjudication of the non-victim-based benefit request.[27]
The prohibition on adverse determinations described in 8 U.S.C. 1367(a)(1) applies to all cases where a protected person is an applicant, beneficiary, or petitioner. Therefore, even if an officer is adjudicating a non-victim-based application or petition (such as a Petition for Nonimmigrant Worker (Form I-129), Petition for Alien Relative (Form I-130), Immigrant Petition for Alien Worker (Form I-140), or Application for Naturalization (Form N-400)), officers cannot make adverse determinations of admissibility, deportability, or removability based solely on information provided by a prohibited source. Officers can use information if that information can be located in, and sourced to, an independent, non-prohibited source.[28]
Sending Notices to the Designated Safe Mailing Address or Preferred Mailing Address
The designated safe mailing address or preferred mailing address may be the protected person’s home address, their attorney or accredited representative’s address, their preparer’s address, or any other address listed on a form under the safe mailing address field or mailing address field.[29] If a protected person designates a safe mailing address or provides a preferred mailing address in an applicable field, USCIS sends original notices (including the notice containing the Arrival/Departure Record (Form I-94)), correspondence, and secure identity documents to that address, unless the person is represented and has a properly filed Form G-28 on record that requests USCIS send original notices, the Form I-94, and secure identity documents to the attorney or accredited representative.[30] In such a case, USCIS only sends courtesy copies of notices to the protected person at their designated safe or preferred mailing address.
Sending Notices to Protected Persons on Subsequent, Concurrent, or Previous Filings
Officers must review each form individually to determine where to send notices or secure identity documents issued from an adjudication of that form. Officers should not rely on addresses contained in prior filings, including any prior Form G‑28 where representation does not extend to other forms, when sending notices related to forms filed with, or after, the 8 U.S.C. 1367 filing. This guidance applies to both the primary forms that are protected by 8 U.S.C. 1367, as well as any related or subsequent forms or requests submitted by a protected person, such as an Application for Employment Authorization (Form I-765), Application to Replace Permanent Resident Card (Form I-90), or Form N-400.
When adjudicating benefit requests filed by or for the protected person before the 8 U.S.C. 1367 protections applied, officers should review the immigration records to determine if the person filed a request for an address change.[31] In general, officers should use the preferred mailing address listed on the individual’s benefit form under adjudication for notices, correspondence, or secure identity documents related to that form unless the person has changed their address for that specific form with USCIS or an exception to the policy applies.
There are certain exceptions to this policy, such as when the underlying basis for an Application to Register Permanent Residence or Adjust Status (Form I-485), is changed from a Form I-130 to a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), filed as a VAWA self-petition. USCIS changes the mailing address of the pending ancillary forms, such as the Form I-765 and Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131) to the safe mailing address on the VAWA self-petition. USCIS changes the mailing address on the Form I-485 to the safe mailing address on the VAWA self-petition after approval of the petition.
Guide to Mailing Address Procedures for Protected Persons
The table below outlines common scenarios relevant to safe address procedures. Officers should follow the instructions below to ensure all notices and secure identity documents are sent to the correct location.
If the protected person… | Then |
---|---|
Provided their representative’s address as the safe or preferred mailing address. | USCIS sends original and courtesy copies of notices and secure identity documents to the address of the protected person’s representative. |
Provided a safe or preferred mailing address, which is not their representative’s address, and selected the options on the Form G-28 for all original notices and secure identity documents to be sent to their representative. | According to the preferences indicated by the protected person on the Form G-28, USCIS sends all original notices and secure identity documents to the representative listed on the Form G-28. USCIS only sends a courtesy copy of a notice to the protected person at their safe or preferred mailing address. |
Provided only a physical address. | For victim-based forms, USCIS always sends all notices or secure identity documents to the address of the protected person’s representative, regardless of their selections on the Form G-28.[32] For non-victim-based forms,[33] USCIS sends original notices or secure identity documents to the physical address listed on the Form G-28. The representative only receives a courtesy copy of any notices sent to the protected person. |
Provided only a physical address and selected the option on the Form G-28 that the Form I-94 be sent to the protected person’s mailing address. | For victim-based forms, USCIS sends the Form I-94 to the address of the protected person’s representative, regardless of their selections on the Form G-28.[34] For non-victim-based forms,[35] USCIS sends the Form I-94 to the physical address listed on the Form G-28. The representative only receives a courtesy copy of any notices sent to the protected person. |
If the protected person… | Then |
---|---|
Provided a safe mailing address or preferred mailing address. | Provided only a physical address. |
Provided only a physical address. | USCIS sends all original notices and secure identity documents to the protected person’s physical address listed on the form.[36] |
Instructions for Mailing Address Procedures for Protected Persons with Multiple Pending Forms
If the protected person has more than one pending benefit request, in general, USCIS uses the safe mailing address or preferred mailing address that the person listed on the relevant form. USCIS may send correspondence to multiple addresses depending on the protected person’s preferences listed on the relevant form or Form G-28.
Example
A protected person lists a friend’s address as a safe mailing address on a Petition for U Nonimmigrant Status (Form I-918), but uses their physical address as a mailing address on their pending Application for Temporary Protected Status (Form I-821). In this case, USCIS considers the friend’s address as the safe or preferred mailing address for the Form I-918. However, USCIS considers the physical address as the safe or preferred mailing address for the Form I-821. If the protected person has a Form G-28 on file, USCIS sends all original notices or secure documents according to their preferences listed on Form G-28.
The protected person must change their address for each individual form they have filed with USCIS. The filing of a subsequent benefit request with a new address does not automatically update the address for the prior filing.
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.[37] 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 of Removal (Pursuant to Section 203 of Public Law 105-100 (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.[38]
This includes neither confirming nor denying that a particular person filed a protection claim by submitting any of the following:
- Form I-589;
- Form I-590;
- Form 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
- 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
Aliens can request a change of address by following the instructions on the How to Change Your Address webpage.[39]
If a requestor calls the USCIS Contact Center for a change of address request, staff members cannot confirm or deny the existence of a pending protection claim without completing enhanced identity and authorization verification. USCIS Contact Center staff may direct the requestor to the How to Change Your Address webpage and explain how a requestor can change their address.
Case Status Inquiries for Form I-589, Form I-881, and Screening Interviews
Form I-589 applicants and their authorized representatives may use the Case Status Online tool for case status updates. If they need further assistance, they may contact the USCIS Contact Center with case inquiries.
Form I-589 applicants, Form I-881 applicants, and aliens in the credible fear, reasonable fear, and Safe Third Country Agreement protection screening processes or their authorized representatives may request customer service via the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833). To access USCIS Contact Center services, applicants or their authorized representatives calling about Form I-589 or Form I-881 should have their receipt notices on hand for reference during the call. They should also have a copy of the pending or approved application that they are calling about readily available, if possible.
Due to certain confidentiality provisions,[40] USCIS must complete enhanced identity and authorization verification before confirming or denying the existence of these applications and protection screenings or responding to any such inquiry, expedite request, referral, or other communication. Only the alien or their authorized representative may receive information on the application or protection screening.
USCIS Contact Center personnel may direct the caller to USCIS tools or resources or to information on office-specific in-person appointment requirements when appropriate. If USCIS Contact Center staff is unable to resolve the inquiry, the USCIS Contact Center staff submits a service request to the appropriate office with jurisdiction for resolution. To locate an asylum office, use the Asylum Office Locator tool.
Asylum offices may also accept case inquiries directly from the alien or their attorney or accredited 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. After enhanced identity and authorization verification is complete, asylum offices may respond to inquiries using any of those communication channels. To protect confidential information, asylum offices use encryption and password-protected attachments if responding by email. If it is not possible to verify the identity of the inquirer, asylum offices should respond by providing a written response to the last address the applicant provided.
USCIS Contact Center Status Inquiries for Form I-730
All preliminary case inquiries are fielded by the USCIS Contact Center for Form I-730 petitions. Should Contact Center staff be unable to resolve the inquiry, a service request is submitted to the appropriate office with jurisdiction for resolution. The domestic USCIS offices that process and make decisions on Form I-730 petitions may only respond to inquiries received through a service request from the USCIS Contact Center. International USCIS offices may respond to email inquiries from I-730 petitioners.
Due to certain confidentiality provisions that apply to asylees and refugees,[41] USCIS cannot release any information contained in or pertaining to Form I-730 petitions until USCIS verifies the identity of the requestor of information and the requestor’s authorization to receive the protected information. The petitioner or their authorized representative may request information on the petition. USCIS must verify identity and authorization before responding to any inquiry, expedite request, referral, or other communication related to the Form I-730 petition. After identity and authorization verification, USCIS Contact Center personnel may respond to inquiries.
Form I-730 petitioners or their authorized representatives may request customer service via the USCIS Contact Center at 1-800-375-5283 (TTY: 1-800-767-1833). To access Contact Center services, petitioners or their authorized representatives calling about Form I-730 should have their receipt notice(s) on hand for reference during the call. They should also have a copy of the pending or approved petition that they are calling about readily available, if possible.
Representative refers to an attorney or accredited representative who has properly filed a Form G-28 on behalf of a petitioner and who remains in good standing or is not otherwise ineligible to represent persons with matters before USCIS.
Asylum offices do not process Form I-730 petitions. USCIS Contact Center personnel should not direct the caller to appear in person or contact asylum offices to inquire or seek information about Form I-730 petitions.
Additionally, initial domestic processing of Form I-730 following-to-join asylee and following-to-join refugee petitions is completed in offices that are not public facing. USCIS Contact Center personnel should not direct the caller to appear at USCIS service centers or RAIO offices in the United States relating to Form I-730 petitions.
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 International and Refugee Affairs Division (IRAD) 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 Form I-131, Form I-765, or Form I-485). Staff members may not confirm or deny the existence of the underlying Form I-590; however, staff members may confirm or deny the existence of the underlying Form I-589 application or Form I-730 petition after completing enhanced identity and authorization verification.
General Inquiries
USCIS employees may respond to general questions about the asylum program, the U.S. Refugee Admissions Program (USRAP), and credible and reasonable fear screenings.[42] However, for certain specific case questions relating to:
- Form I-589 applications: the inquiries may be routed to the local asylum office with jurisdiction over the application;
- Form I-730 petitions: the inquiries may be routed to the USCIS office with jurisdiction over the petition; or
- Form I-590 refugee applications: the inquiries may be routed to Refugee and International Operations (RIO) for response.
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.[43]
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 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.[44] 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:
- 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 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.[45] 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 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.[46] 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.[47] 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;[48] or
- In preparation of certain reports to Congress.
A breach in confidentiality of legalization cases can result in a $10,000 fine.[49]
2. USCIS Assistance
Case-specific information may be provided to the applicant and the applicant’s attorney or authorized representative (with a properly completed 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.[50]
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.[51] 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.[52]
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.[53] 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 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:[54]
- An Interagency Alien Witness and Informant Record (Form I-854A);
- An Interagency Alien Witness and Informant Adjustment of Status (Form I-854B); and
- 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 a participant 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.[55] 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).
[^ 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, or with a decision issued on a given date.
[^ 7] See the How to Change Your Address webpage.
[^ 8] See Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)].
[^ 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 Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162 (PDF) (January 5, 2006). When VAWA was reauthorized in 2005, Congress added the definition “VAWA self-petitioner” at INA 101(a)(51), which includes persons requesting relief as: a VAWA self-petitioner under INA 204(a); an abused conditional permanent resident spouse or child filing a waiver based on battery or extreme cruelty under INA 216(c)(4)(C) or INA 216(c)(4)(D); an abused spouse or child under the Cuban Adjustment Act, Pub. L. 89-732 (PDF) (November 2, 1966); an abused spouse or child under the Haitian Refugee Immigrant Fairness Act, Division A, Section 902 of Pub. L. 105-277 (PDF), 112 Stat. 2681, 2681-538 (October 21, 1998); and an abused spouse or child under the Nicaraguan Adjustment and Central American Relief Act, Title II of Pub. L. 105-100 (PDF), 111 Stat. 2160, 2193 (November 19, 1997). Applicants for special rule cancellation of removal under INA 240A(b)(2) are also protected under 8 U.S.C. 1367.
[^ 12] See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF) (October 28, 2000). T nonimmigrant status is available for victims of a severe form of human trafficking and U nonimmigrant status is designated for victims of qualifying criminal activities.
[^ 13] See Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants, PM-602-0130, issued March 8, 2016. Abused spouses of certain nonimmigrants may apply for employment authorization by filing an Application for Employment Authorization for Abused Nonimmigrant Spouse (Form I-765V).
[^ 14] See 8 U.S.C. 1367(a)(2).
[^ 15] See Pub. L. 104-208 (PDF), 110 Stat. 3009-546, 3009-652 (September 30, 1996).
[^ 16] See INA 101(a)(3) (“The term ‘alien’ means any person not a citizen or national of the United States.”).
[^ 17] See 8 U.S.C. 1367(a)(2) and 8 U.S.C. 1367(b).
[^ 18] See Implementation of Section 1367 Information Provisions (PDF), DHS Instruction 002-02-001, Revision 00.1, issued November 7, 2013.
[^ 19] See 13 U.S.C. 8.
[^ 20] See 8 U.S.C. 1641(c).
[^ 21] This applies to application for relief under 8 U.S.C. 1367(a)(2).
[^ 22] See INA 101(i)(1).
[^ 23] See Implementation of Section 1367 Information Provisions (PDF), DHS Instruction 002-02-001, Revision 00.1, issued November 7, 2013 for more information.
[^ 24] The term “authorized parties” includes employees of DHS, DOS, and DOJ for legitimate agency purposes. It also includes an attorney or accredited representative who has properly filed a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on behalf of a protected person and who remains in good standing or is not otherwise ineligible to represent persons with matters before USCIS, as well as the protected person themselves.
[^ 25] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). See Petition for U Nonimmigrant Status (Form I-918). See Application for T Nonimmigrant Status (Form I-914). See Application for Employment Authorization for Abused Nonimmigrant Spouse (Form I-765V).
[^ 26] For information on how to register an address change with USCIS, see the How to Change Your Address webpage.
[^ 27] However, officers may only disclose information from the previously-filed victim-based form in compliance with the confidentiality provisions of 8 U.S.C. 1367(a)(2).
[^ 28] See Implementation of Section 1367 Information Provisions (PDF), DHS Instruction 002-02-001, Revision 00.1, issued November 7, 2013 for more information.
[^ 29] Attorneys or accredited representatives can change their mailing address with USCIS by either submitting a new Form G-28 for every pending case (with the receipt number) or submitting a letter on office stationery that clearly states: “ATTORNEY CHANGE OF ADDRESS.” The letter must include a list of pending cases with the form type, receipt number, A-number, and the benefit requestor’s name listed for each case. A change of address for the attorney or accredited representative also changes the benefit requestor’s safe address if the attorney or accredited representative’s address is listed as the safe mailing address or preferred mailing address on the form. See the Filing Your Form G-28 webpage for additional information.
[^ 30] Prior editions of the Form G-28 may not include an option for sending certain notices or secure identity documents to an attorney or accredited representative. Officers should review the Form G-28 associated with the underlying form to determine which options were checked, if any.
[^ 31] As described above, 8 U.S.C. 1367(a)(2) protections apply when a person files a VAWA, T, or U benefit request.
[^ 32] This exception is in recognition of long-standing safe address procedures in place at the service centers with jurisdiction over adjudication of victim-based-forms. As described above, victim-based-forms are the forms that initiate 1367-protections, including the Form I-360, Form I-918, Petition for Qualifying Family Member of a U-1 Nonimmigrant (Form I-929), Form I-914, Form I-765V, Petition to Remove Conditions on Residence (Form I-751), and Form I-485.
[^ 33] This includes forms that may be commonly used by a person filing a VAWA, T, or U benefit requests, including but not limited to Notice of Appeal or Motion (Form I-290B), Application to Extend/Change Nonimmigrant Status (Form I-539), Application for Waiver of Grounds of Inadmissibility (Form I-601), or Form I-765.
[^ 34] This exception is in recognition of long-standing safe address procedures in place at the service centers with jurisdiction over adjudication of victim-based-forms. As described above, victim-based-forms are the forms that initiate 1367-protections, including the Form I-360, Form I-918, Form I-929, Form I-914, Form I-765V, Form I-751, and Form I-485.
[^ 35] This includes forms that may be commonly used by a person filing a VAWA, T, or U benefit requests, including but not limited to Form I-290B, Form I-539, Form I-601, or Form I-765.
[^ 36] Certain form instructions state that if a petitioner or applicant does not provide a safe mailing address, then USCIS may use the address of the preparer of the form. USCIS recognizes that preparers who are not the attorney or accredited representative listed on a Form G-28 may be only engaged in the case for a temporary period of time. In consideration of this factor, and USCIS’ acknowledgment that protected persons are best positioned to make decisions about where their correspondence should be directed, USCIS sends notices and secure identity documents to the physical address listed on a form, should an unrepresented petitioner or applicant decide not to complete the safe mailing address or mailing address field on a form. Certain forms may require the completion of the mailing address field. Applicants and petitioners should review form instructions to determine when this field may be required.
[^ 37] See 8 CFR 208.6.
[^ 38] See 8 CFR 208.6.
[^ 39] For more information on changes of address, see Chapter 10, Changes of Address [1 USCIS-PM A.10].
[^ 40] See 8 CFR 208.6. The provisions of 8 CFR 208.6 currently applicable are those of the regulation as it existed prior to changes made by the rule titled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274 (PDF) (Dec. 11, 2020) (final rule amending 8 CFR parts 208, 235, 1003, 1208, 1235, also called the “Global Asylum Rule”). The Global Asylum Rule, which made significant changes to 8 CFR 208.6, was to go into effect on January 11, 2021. However, it was enjoined on January 8, 2021, in Pangea Legal Services v. Department of Homeland Security, 512 F. Supp. 3d 966 (N.D. Cal. 2021) (order granting preliminary injunction). The previous version of 8 CFR 208.6 remains in effect and can be viewed on the USCIS Fact Sheet: Federal Regulation Protecting the Confidentiality of Asylum Applicants (PDF, 383.8 KB).
[^ 41] See 8 CFR 208.6, which is applied to refugees by policy.
[^ 42] 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 asylum interview scheduling priorities.
[^ 43] See INA 244(c)(6). See 8 CFR 244.16.
[^ 44] See 8 CFR 244.16 for exceptions.
[^ 45] 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.
[^ 46] See 8 CFR 244.16.
[^ 47] See INA 245A(c)(4)-(5). See 8 CFR 245a.2(t), 8 CFR 245a.3(n), and 8 CFR 245a.21.
[^ 48] See INA 245A(c)(6).
[^ 49] See INA 245A(c)(5)(E).
[^ 50] See 13 U.S.C. 8.
[^ 51] See INA 210. This pertains to the 1987-1988 SAW program.
[^ 52] See INA 210(b)(6)(D).
[^ 53] See INA 210(b)(7).
[^ 54] See 8 CFR 274a.12(c)(21).
[^ 55] 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.
Chapter 8 - Conduct in USCIS Facilities
USCIS provides services to a diverse set of benefit requestors. USCIS always strives for the highest level of integrity and respect in all interactions with the public to ensure all parties are treated with dignity and courtesy. USCIS employees play a critical role in upholding these standards. USCIS employees should approach interactions in a manner that is consistent with USCIS policy.
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].
Chapter 9 - Feedback, Complaints, Misconduct, and Discrimination
A. Feedback
Information on providing feedback is available on the USCIS website, including on the Contact Us and Feedback Opportunities webpages.
1. USCIS Contact Center
Through a brief and confidential survey solicited by email from the USCIS Contact Center, USCIS collects feedback on benefit requestors’ interactions with the agency. USCIS sends the survey to any benefit requestor who interacts with the Contact Center, including by phone, live chat, or secure message.
2. In-Person Appointments
Benefit requestors may provide feedback by asking to talk to a supervisor, if available, while at the in-person appointment.
Benefit requestors may submit fraud, waste, and abuse allegations directly to DHS’s Office of Inspector General (OIG). USCIS posts information on reporting fraud and employee misconduct on the Contact Us webpage and in the waiting rooms of USCIS field offices.
3. USCIS Website
USCIS collects feedback on the website by offering visitors an optional survey. USCIS regularly reviews the results of the survey and identifies opportunities to improve the USCIS website. USCIS also conducts analysis and performs research such as usability testing and focus groups to make improvements to the website. The data also informs USCIS where resources might best be used to improve overall satisfaction.
B. Complaints[1]
1. Ways to Submit 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 received during a call to the USCIS Contact Center, the caller may ask to speak to a supervisor.[4]
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. Allegations of Misconduct
USCIS employees are also subject to mandatory reporting requirements for known or suspected misconduct by federal employees and contractors.
1. Employee Misconduct
Allegations of misconduct by USCIS employees and contractors may 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;[5]
- Unauthorized release of classified or special protected class[6] 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
Benefit requestors and other interested parties should report allegations of misconduct by USCIS employees promptly to a USCIS supervisor, USCIS Office of Investigations (OI), or DHS OIG.[7] Individuals may report allegations of misconduct involving discriminatory conduct to DHS Office of Civil Rights and Civil Liberties (CRCL).[8]
USCIS OI makes every effort to maintain the confidentiality of informational sources to protect the integrity of the investigation. 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 deemed appropriate.
As a matter of procedure, OI does not provide a complainant, victim, witness, or subject of a complaint with the investigative determination of a complaint, since a disclosure of this nature could adversely impact the investigative process or agency resolution of the alleged behavior.
D. Allegations of Discrimination
1. Anti-Discrimination Policy
USCIS does not tolerate discriminatory treatment of any persons. USCIS considers discrimination to include the unlawful treatment of a person or group of persons based on classes or other categories to which they belong or are perceived to belong. It also includes retaliation against a person who reports or complains about discrimination, or who participates in the investigation of a discrimination complaint. It is USCIS policy to treat the public in a non-discriminatory manner regardless of whether they belong to a class or group specifically protected under federal anti-discrimination laws or other legal authorities.
USCIS policy on anti-discrimination is not limited to specific classes or groups. This policy prohibits discrimination by any USCIS employee[9] towards any benefit requestor,[10] other USCIS employee, or anyone else with whom USCIS employees interact by virtue of their work for USCIS.
In addition to training employees on the administration of immigration benefits, USCIS provides agency-wide training on USCIS’ anti-discrimination policy to all employees who interact directly or indirectly with members of the public.
2. Reporting Discrimination
Benefit requestors and other interested parties should report allegations of discrimination, including those based on race, ethnicity, national origin, religion, sex, sexual orientation, or disability, promptly to a USCIS supervisor or to DHS CRCL; allegations may also be reported to USCIS OI or DHS OIG.[11] Individuals may report allegations of discrimination involving physical assault (such as grabbing, fondling, hitting, or shoving) to OI or DHS OIG.[12] USCIS employees also have a duty to report allegations of misconduct by federal employees and contractors promptly to a USCIS supervisor, USCIS OI, or DHS OIG.[13]
3. Retaliation
USCIS does not tolerate retaliation against any person for reporting discrimination. This includes filing a complaint, helping any other person file a complaint, or participating in an inquiry into potential violations of this policy. Any employee found to have engaged in retaliatory conduct or behavior is subject to disciplinary action.
E. 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, 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, Types of Assistance, Section C, Telephone [1 USCIS-PM A.3(C)].
[^ 5] Physical assault may include grabbing, fondling, hitting, or shoving.
[^ 6] See Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].
[^ 7] Members of the public may file allegations of misconduct by following the instructions provided on the Report USCIS Employee Misconduct webpage. USCIS employees are also subject to mandatory reporting requirements for known or suspected misconduct by federal employees and contractors. In addition, see the DHS Office of Inspector General webpage.
[^ 8] See Section D, Allegations of Discrimination [1 USCIS-PM A.9(D)].
[^ 9] For the purposes of this anti-discrimination policy, USCIS considers the term “USCIS employee” to include both persons employed directly by the federal government and government contractors.
[^ 10] In accordance with DHS policy, USCIS may use race or ethnicity only when a compelling governmental interest is present, and only in a way narrowly tailored to meet that compelling interest. This policy further permits consideration of nationality when it is expressly relevant to the administration or enforcement of a statute, regulation, or Executive Order, or for individualized discretionary use of nationality as a screening, investigation, or enforcement factor. See DHS Memorandum, The Department of Homeland Security’s Commitment to Nondiscriminatory Law Enforcement and Screening Activities (PDF), issued April 26, 2013.
[^ 11] See the DHS Make a Civil Rights Complaint webpage. The DHS Office for Civil Rights and Civil Liberties webpage also contains detailed information about avenues for filing complaints with different offices and components of DHS.
[^ 12] See Section C, Allegations of Misconduct [1 USCIS-PM A.9(C)].
[^ 13] See Section C, Allegations of Misconduct [1 USCIS-PM A.9(C)].
Chapter 10 - Changes of Address
All aliens in the United States (except A and G visa holders and visa waiver visitors) have a legal requirement to report a change of address to USCIS within 10 days of moving, regardless of whether they have a pending benefit request.[1]
Aliens who have pending applications, petitions, or other benefit requests should notify USCIS as soon as possible of an address change (and no later than 10 days after they move) to help ensure they receive correspondence and benefits in a timely manner.
The primary avenues for aliens to update their address are:
USCIS has specific procedures for change of address requests for certain populations.[4]
A. Updating Address Online
USCIS encourages requestors to submit their address change online using the Enterprise Change of Address (E-COA) self-service tool.
Aliens who do not have any pending applications, petitions, or requests can use the E-COA tool to meet the requirement to notify USCIS they have moved, eliminating the need for them to submit a paper Alien’s Change of Address Card (Form AR-11).
Requestors who have pending applications, petitions, or other benefit requests can use the E-COA tool to both meet the notification requirement and update their mailing and physical address with USCIS for such pending cases. When using E-COA, requestors should include the receipt numbers for all cases for which they would like their address updated.
The E-COA tool provides for a near-immediate change of address, helping to minimize risk of requestors not receiving correspondence and benefits in a timely manner. Requestors can access the E-COA tool through a USCIS online account and use it for all pending cases, regardless of whether the case was filed online or by mail.
The E-COA tool automates address changes for almost all form types.[5] Certain populations, however, may need to follow special procedures for change of address requests and are therefore unable to use this tool. These populations include, but are not limited to:
- Protected persons;[6]
- Certain intercountry adoption-based petitioners and applicants (for orphan and Hague intercountry adoption cases);[7]
- Certain special immigrant Afghan or Iraqi nationals;
- Attorneys and accredited representatives seeking to change their office address;
- Civil surgeons;
- U.S. citizens or nationals who have submitted an affidavit of support for another person; and
- Certain people with international addresses.
If a requestor falls into one of the above categories, they should visit the How to Change Your Address webpage for information on changing their address instead of using the E-COA tool.
B. Updating Address by U.S. Mail
Aliens may choose to file a Form AR-11 by U.S. mail to meet the requirement to notify USCIS they have moved. Some aliens may choose to send a signed written notice by mail to meet the requirement to notify USCIS they have moved.[8] However, mailing a paper Form AR-11 or signed written notice of an address change does not provide for near immediate processing of a change of address request like the E-COA online tool or the USCIS Contact Center.[9] If a requestor has a pending benefit request, filing the Form AR-11 or signed written notice of an address change by mail may increase the risk that important correspondence or benefits are sent to an outdated address.
C. Address Discrepancies
USCIS does not update the requestor’s address outside of a specific request to change the requestor’s address. For example, if the address listed for the requestor in a service request (such as a case status inquiry) is different from the address listed in USCIS case management systems, USCIS continues to use the address in USCIS case management systems as the address of record until the requestor specifically submits a change of address request.
Footnotes
[^ 1] See INA 265. See 8 CFR. 265.1 (Aliens who are required to report each change of address must do so in accordance with instructions provided by USCIS.).
[^ 2] See Section A, Updating Address Online [1 USCIS-PM A.10(A)].
[^ 3] See Section B, Updating Address by U.S. Mail [1 USCIS-PM A.10(B)].
[^ 4] For more information, see the How to Change Your Address webpage.
[^ 5] For more information, see the How to Change Your Address webpage.
[^ 6] Protected person refers to a person covered by 8 U.S.C. 1367 confidentiality protections, including VAWA self-petitioners, Form I-765V filers, and individuals seeking or who hold Continued Presence, U nonimmigrant status or T nonimmigrant status. If a protected person also has filed a benefit request that does trigger 8 U.S.C. 1367 protections (for example, a U petitioner has also filed for temporary protected status), USCIS nonetheless considers that individual as covered by 8 U.S.C. 1367 protections for purposes of E-COA requests related to all pending and approved benefits. See Chapter 7, Privacy and Confidentiality, Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)]. See the Change of Address Procedures for VAWA/T/U Cases and Form I-751 Abuse Waivers webpage.
[^ 7] See the Updated Home Studies and Significant Changes webpage.
[^ 8] See the Change of Address Procedures for VAWA/T/U Cases and Form I-751 Abuse Waivers webpage.
[^ 9] For more information, see Section A, Updating Address Online [1 USCIS-PM A.10(A)].
Part B - Submission of Benefit Requests
Chapter 1 - Purpose and Background
A. Purpose
Those 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 requestors.[5] Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA). The fees collected are to ensure recovery of the full cost of providing all USCIS services, including those provided without charge to refugee, asylum, and certain other filers.
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]
Benefit Sought | Relevant Form(s) | For More Information |
---|---|---|
Nonimmigrant status | Petition for a Nonimmigrant Worker (Form I-129) | Volume 2, Nonimmigrants [2 USCIS-PM] |
Petition for Alien Fiancé(e) (Form I-129F) | ||
Petition for U Nonimmigrant Status (Form I-918) | ||
Petition for Qualifying Family Member of a U-1 Nonimmigrant (Form I-929) | ||
Application to Extend/Change Nonimmigrant Status (Form I-539) | ||
Immigrant status | Petition for Alien Relative (Form I-130) | Volume 6, Immigrants [6 USCIS-PM] |
Immigrant Petition for Alien Worker (Form I-140) | ||
Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) | ||
Immigrant Petition by Alien Investor (Form I-526) | Volume 6, Immigrants, Part G, Investors [6 USCIS-PM G] | |
Application to Register Permanent Residence or Adjust Status (Form I-485) | Volume 7, Adjustment of Status [7 USCIS-PM] | |
Refugee or asylee status | Application for Asylum and for Withholding of Removal (Form I-589) | Volume 4, Refugees [4 USCIS-PM] Volume 5, Asylees [5 USCIS-PM] |
Refugee/Asylee Relative Petition (Form I-730) | ||
Temporary Protected Status | Application for Temporary Protected Status (Form I-821) | Volume 3, Protection and Parole [3 USCIS-PM] |
Employment authorization | Application for Employment Authorization (Form I-765) | Volume 10, Employment Authorization [10 USCIS-PM] |
Travel authorization (including reentry permit, humanitarian parole, and advance parole document) | Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131) | Volume 11, Travel and Identity Documents [11 USCIS-PM] |
Citizenship | Application for Naturalization (Form N-400) | Volume 12, Citizenship and Naturalization [12 USCIS-PM] |
Application for Certificate of Citizenship (Form N-600) | Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens [12 USCIS-PM H] | |
Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K) | ||
Overcoming Inadmissibility | Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal (Form I-212) | Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM] |
Application for Waiver of Grounds of Inadmissibility (Form I-601) | ||
Application by Refugee for Waiver of Grounds of Excludability (Form I-602) | ||
Application for Advance Permission to Enter as a Nonimmigrant (Form I-192) | ||
Application for Waiver of Grounds of Inadmissibility (Form I-690) |
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
- 8 CFR 106 - USCIS fee schedule, including fee requirements, fees, waivers and exemptions, and premium processing service
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.
[^ 5] See INA 286(m).
[^ 6] See the USCIS All Forms webpage 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).
Chapter 2 - Signatures
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]
Acceptable | Unacceptable |
---|---|
|
|
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 Immigration 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. 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.
[^ 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.
Chapter 3 - Fees
Requestors must include any required fees with the submission of a benefit request to USCIS. This payment must be in U.S. currency.[1]
The fee amount for each benefit request is controlled by regulation[2] and is published in the Fee Schedule (Form G-1055). The total fee amount for each request is not determined solely by the fee required for the associated form.[3] Additional fees may be required, such as a biometric services fee[4] or the fraud detection and prevention fee.[5]
The additional services needed in a given situation dictate which additional fees, if any, are added to the total amount. Form G-1055 indicates which fees are required.
USCIS may waive the fee for certain immigration benefit requests if the individual requests that the fee be waived and meets the eligibility criteria for the fee waiver.[6] Certain forms and categories of requestors are exempt from fees. In addition to Form G-1055, the Filing Fees webpage provides information about how to pay USCIS fees. Requestors can use the Fee Calculator to determine the exact filing fee for any form processed at a USCIS Lockbox facility.[7]
A. Fee Submission
1. Submission of Benefit Request with Fee
Once USCIS receives the proper fee[8] and determines the benefit request meets all other acceptance criteria,[9] USCIS accepts the submission of the benefit request and sends the benefit requestor a receipt notice. USCIS rejects submissions that do not contain valid payment of the correct fee amount or otherwise do not meet the acceptance criteria.[10] If the payment is not collectable and USCIS has approved the benefit request, USCIS may revoke, rescind, or cancel the approval with notice.[11]
The USCIS online system guides those benefit requestors filing online through the process of paying fees online. Once the form is ready for submission, the system directs the benefit requestor to Pay.gov to pay. If the payment is declined, the request cannot be submitted due to lack of payment.[12]
2. Unfunded Payments
USCIS fees are generally non-refundable and must be paid when the benefit request is filed.[13] If the requestor pays a fee by credit card and the credit card is declined for any reason, USCIS does not attempt to process the credit card payment a second time and may reject the associated request for lack of payment.[14] If a check or other method of payment used to pay a fee is dated more than 1 year before USCIS receives the request, USCIS may reject the payment and request.[15]
If a form of payment other than a credit card is used to pay a fee, and it is returned as unpayable because of insufficient funds, USCIS resubmits the payment to the remitter institution one time.[16] If the remitter institution returns the form of payment as unpayable a second time, USCIS may reject or deny the filing.[17] USCIS does not resubmit payments returned as unpayable for a reason other than insufficient funds.[18]
If a payment is unfunded at the time of filing, USCIS does not generally issue a receipt. However, if a receipt was issued, the unfunded payment renders it void and the requestor does not retain the receipt date.[19]
If a payment was unfunded after the benefit request was approved, USCIS may revoke, rescind, or cancel the approval with notice, typically in the form of a Notice of Intent to Revoke (NOIR).[20] USCIS may at its discretion separately bill the requestor for the unpaid fee instead of sending a NOIR. If a requestor receives such a NOIR, the requestor may respond with payment of the correct fee amount.
USCIS does not ultimately revoke, rescind, or cancel the approval on the basis of an unfunded fee payment if the requestor cures the deficiency noted in the NOIR with payment of the correct fee amount. USCIS may revoke the approval with notice of an approved benefit request that required multiple fees if any single fee is unfunded. In such cases, any other fees paid for the approved benefit request are non-refundable.[21]
B. Forms of Payment
USCIS accepts different payment methods depending on whether the benefit requestor resides inside or outside of the United States or the nature of the request. USCIS does not accept all forms of payment. Details regarding acceptable forms and methods of payment can be found on the Filing Fees webpage.
Benefit requestors filing from inside the United States may pay their fees in one of the following ways, depending on the form that is being submitted:
- Online using a credit card, debit card, or bank withdrawal; or
- By mail with an Authorization for Credit Card Transactions (Form G-1450), check, or money order.
In limited circumstances, an individual may submit a benefit request directly at a USCIS field office. In such cases, the benefit requestor may submit their request and appropriate fee by mail to the field office using either a check or Form G-1450.[22]
Benefit requestors filing from outside the United States should go to the Forms webpage to determine whether a form may be filed from outside of the United States. Depending on the form, the benefit requestor may pay fees online, by mail, or in person at a U.S. embassy or consulate.[23]
1. Credit Card, Debit Card, or Pre-paid Card
USCIS accepts payments by credit card, debit card, or pre-paid card for fees associated with benefit requests filed with one of the USCIS Lockbox facilities, the appropriate Service Center, and most USCIS field office locations.
Applicants filing by mail must use Form G-1450 to pay with a credit card, debit card, or pre-paid card. USCIS uses the information provided on Form G-1450 to process a credit card, debit card, or pre-paid card payment through either the U.S. Department of Treasury Pay.gov Collection Control Panel (CCP) or the Trusted Collections Service (TCS).
CCP and TCS are web-based applications that allow federal government agencies to process payments by credit, debit, or prepaid cards. After USCIS processes Form G-1450, USCIS destroys the authorization, regardless of whether USCIS accepts or rejects the associated benefit request.
2. Check
Benefit requestors may generally pay fees with bank drafts, cashier’s checks, certified checks, personal checks, and money orders drawn on U.S. financial institutions and payable in U.S. funds. Some USCIS field offices and international immigration offices no longer accept money orders or cashier’s checks. Benefit requestors should refer to the form instructions and form landing page on uscis.gov for the most up-to-date information.[24]
3. Cash
USCIS does not accept payment by cash to pay fees associated with benefit requests.
C. Refunds
Fees submitted to USCIS are generally non-refundable regardless of the ultimate decision on the benefit request or how much time is required to issue a decision.[25] There are a few exceptions to this rule, such as if USCIS makes an error that results in the inappropriate filing of a form or if USCIS collects the wrong fee.[26]
If a benefit requestor believes they are entitled to a refund of a fee, the requestor should contact the USCIS Contact Center or submit a written request for a refund to the USCIS office with jurisdiction over the benefit request.
USCIS reviews the request for a refund and either approves or denies the request based on the available information. If the officer finds USCIS made an error, the officer should complete a Request for Refund of Fee (Form G-266). USCIS then notifies the requestor of its decision on the request. All Forms G-266 must be signed by a District or Service Center Director, or a person within the chain of command that has been delegated that authority.
Fees paid to USCIS using a credit card, debit card, or pre-paid card are not subject to dispute, chargeback, forced refund, or return to the cardholder for any reason except at the discretion of USCIS.[27]
Footnotes
[^ 1] See 8 CFR 103.2(a)(7)(D). See 8 CFR 106.1.
[^ 2] See 8 CFR 106.2. See the USCIS All Forms webpage for a complete list of all forms and form instructions.
[^ 3] See 8 CFR 106.2.
[^ 4] See 8 CFR 103.17. Most forms no longer require a separate biometric services fee. See the form instructions for specific information about biometric services fee requirements.
[^ 5] See 8 CFR 106.2(c).
[^ 6] See INA 286(m) (authorizing USCIS fees to recover the costs of services provided without charge). See 8 CFR 106.3(a). For more information on Fee Waivers, see Chapter 4, Fee Waivers and Fee Exemptions [1 USCIS-PM B.4].
[^ 7] For more information, see the Forms Processed at a USCIS Lockbox webpage.
[^ 8] Unless the requestor is otherwise exempt from the fees or has an approved fee waiver.
[^ 9] For more information, see the Filing Guidance and Tips for Filing Forms by Mail webpages. For forms that are available for online filing, see the Tips for Filing Forms Online webpage.
[^ 10] See 8 CFR 103.2.
[^ 11] See 8 CFR 103.2(a)(7)(ii)(D). See also 8 CFR 106.1(c)(2).
[^ 12] For more information on submitting an online payment, see the Tips for Filing Forms Online webpage.
[^ 13] See 8 CFR 103.2(a).
[^ 14] See 8 CFR 103.2(a)(7)(ii)(D)(3).
[^ 15] See 8 CFR 103.2(a)(7)(ii)(D)(4).
[^ 16] See 8 CFR 103.2(a)(7)(ii)(D)(2).
[^ 17] See 8 CFR 103.2(a)(7)(ii)(D)(2).
[^ 18] See 8 CFR 103.2(a)(7)(ii)(D)(3).
[^ 19] See 8 CFR 106.1(c)(1).
[^ 20] See 8 CFR 103.2(a)(7)(ii)(D). See also 8 CFR 106.1(c)(2).
[^ 21] See 8 CFR 106.1(c)(2).
[^ 22] Applicants submitting an Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131) with an emergency advance parole request must make an appointment with the USCIS Contact Center, apply in person with their payment (if applicable) and supporting documentation, and pay the application fee by credit card with Form G-1450 or check at the field office.
[^ 23] For information on how to pay USCIS fees outside of the United States, see the International Immigration Offices webpage or contact the appropriate U.S. Embassy or Consulate.
[^ 24] For more information on paying by check, see the Filing Fees webpage.
[^ 25] See 8 CFR 103.2(a)(1).
[^ 26] For example, when USCIS requests that an applicant file a waiver application for a ground of inadmissibility that was not necessary.
[^ 27] See 8 CFR 106.1(e).
Chapter 4 - Fee Waivers and Fee Exemptions
A. General
1. Eligibility to Request a Fee Waiver
USCIS permits certain categories of benefit requestors to submit a Request for Fee Waiver (Form I-912) for certain immigration benefits and services.[1] There is no fee required for filing a fee waiver request.
A benefit requestor may request a fee waiver from USCIS if:
- The form is eligible for a fee waiver and the benefit requestor meets any applicable conditions; and
- The benefit requestor is unable to pay the requisite fee based on one of three criteria described below (Section D, Basis for Inability to Pay).
If a benefit request includes both the appropriate filing fee and a fee waiver request, USCIS does not adjudicate the fee waiver request. In such a case, USCIS deposits the fee and processes the immigration benefit request, if it is otherwise acceptable.
2. Filing a Fee Waiver Request
To request a fee waiver, a benefit requestor must submit:
- A Request for Fee Waiver (Form I-912) or written statement requesting a fee waiver; and
- Documentation establishing eligibility for a fee waiver.
Generally, each person requesting a fee waiver must submit a separate Form I-912 or written statement and supporting documentation.[2] The requestor must sign the Form I-912 or written statement.[3]
USCIS does not review fee waiver requests submitted for benefit requests that USCIS rejected for reasons unrelated to the fee. For example, USCIS does not review fee waiver requests if an application is defective due to a missing signature.
3. Burden of Proof and Standard of Proof
The burden of proof is on the requestor to establish an inability to pay the required fee by a preponderance of the evidence by establishing at least one of the criteria for eligibility.[4] The requestor satisfies the standard of proof if they submit relevant, probative, and credible evidence that leads the USCIS officer to conclude that it is “probably true” or “more likely than not” that the requestor is unable to pay the required fee.[5]
B. Forms Eligible for Fee Waiver
If not otherwise exempt from paying the fee, a benefit requestor may submit a request for a fee waiver for certain eligible forms.[6] There are three general categories of fee waivers allowed for eligible forms:
- General fee waivers;
- Conditional fee waivers; and
- Humanitarian fee waivers.
General fee waivers are available for eligible forms for requestors who demonstrate an inability to pay. Conditional fee waivers are available for eligible forms for requestors who demonstrate an inability to pay and meet certain conditions. Humanitarian fee waivers are available for eligible forms for requestors for humanitarian purposes as authorized by statute.
1. General Fee Waivers
The following table provides a list of forms for which USCIS may waive the fees based on a requestor’s inability to pay.
Forms Eligible for General Fee Waivers |
---|
Application to Replace Permanent Resident Card (Form I-90) |
Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) (Form I-191)[7] |
Petition to Remove Conditions on Residence (Form I-751) |
Application for Family Unity Benefits (Form I-817) |
Application for Temporary Protected Status (Form I-821)[8] |
Application for Suspension of Deportation or Special Rule Cancellation of Removal (Form I-881) |
Application to File Declaration of Intention (Form N-300) |
Request for a Hearing on a Decision in Naturalization Proceedings (Form N-336) |
Application for Naturalization (Form N-400) |
Application to Preserve Residence for Naturalization Purposes (Form N-470) |
Application for Replacement of Naturalization/Citizenship Document (Form N-565) |
Application for Certificate of Citizenship (Form N-600) |
Application for Citizenship and Issuance of Certificate under Section 322 (Form N-600K) |
2. Conditional Fee Waivers
Certain fee waivers depend on specific conditions. The following table provides a list of forms for which USCIS may waive fees based on the requestor’s inability to pay and if they meet the specified conditions.
Forms Eligible for Conditional Fee Waivers |
---|
Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I–129CW) petitioning for an E–2 CNMI investor |
Application to Extend/Change Nonimmigrant Status (Form I–539), only in the case of an alien applying for CW–2 nonimmigrant status |
Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131) for those applying for humanitarian parole |
Application for Advance Permission to Enter as Nonimmigrant (Form I-192) for an applicant who is exempt from the public charge grounds of inadmissibility[9] |
Application for Waiver of Passport and/or Visa (Form I-193) for an applicant who is exempt from the public charge grounds of inadmissibility[10] |
Notice of Appeal or Motion (Form I-290B) if the underlying benefit request was fee exempt, the fee was waived, or it was eligible for a fee waiver |
Application to Register Permanent Residence or Adjust Status (Form I-485) for an applicant who is exempt from the public charge grounds of inadmissibility[11] |
Petition for a CNMI-Only Nonimmigrant Transitional Worker, or an Application to Extend/Change Nonimmigrant Status (Form I-539) for an applicant applying for CW-2 nonimmigrant status |
Application for Waiver of Grounds of Inadmissibility (Form I-601) for an applicant who is exempt from the public charge grounds of inadmissibility[12] |
Notice of Appeal of Decision Under Sections 210 or 245A of the Immigration and Nationality Act (Form I-694) if the underlying application or petition was fee exempt, the filing fee was waived, or was eligible for a fee waiver |
Application for Employment Authorization (Form I-765), except persons filing under category (c)(33), Deferred Action for Childhood Arrivals (DACA) |
For the following forms if the applicant is exempt from public charge ground of inadmissibility under INA 212(a)(4):
|
3. Humanitarian Fee Waivers
USCIS provides fee exemptions for many forms filed by certain humanitarian categories of requestors.[13] If not otherwise exempt from paying the fee, an individual may request a fee waiver for any application or petition that is related to any of the following humanitarian categories:
- Battered spouses of A, G, E-3, or H nonimmigrants;
- Battered spouses or children of a lawful permanent resident or U.S. citizen under INA Section 240A(b)(2);
- T nonimmigrants;
- Temporary Protected Status (TPS);
- U nonimmigrants;
- VAWA self-petitioners and derivative(s);
- Conditional permanent residents (CPRs) filing a waiver of the joint filing requirement based on battery or extreme cruelty;
- Abused spouses and children adjusting status under the Cuban Adjustment Act (CAA) and Haitian Refugee Immigration Fairness Act of 1998 (HRIFA);
- Abused spouses and children seeking benefits under Nicaraguan Adjustment and Central American Relief Act (NACARA);
- Special immigrant juveniles;
- Asylees; or
- Refugees.[14]
C. Category of Requestor Eligible for Fee Waiver
1. Documentation of an Eligible Category
A requestor must submit documentation to show that they fall into a category eligible for a fee waiver. Such documentation may include:
- A copy of any type of Notice of Action (Form I-797) for the eligible benefit;
- A copy of a permanent resident card with the eligible category annotated; or
- Any other evidence of a petition or application pending with USCIS for an eligible benefit category.
For concurrently filed applications, USCIS officers review the type of benefit request submitted and the category requested to determine whether the requestor is eligible for a fee waiver.
For separately filed applications, if the primary benefit eligible for a fee waiver has already been filed, the requestor may submit a copy of the primary benefit petition or application that was filed with the fee waiver request.
An officer may verify in the available systems whether the requestor has applied for or received a benefit for one of the eligible categories.
2. Other Agency Fee Waiver Request
USCIS cannot waive the fee for any U.S. Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) forms, but an immigration judge may waive fees for EOIR forms as well as requests filed on USCIS forms in an immigration court proceeding.[15]
Immigration judges may also request that USCIS consider a fee waiver request for a party in their court. In such cases, the requestor must still submit Form I-912 or written statement along with evidence of eligibility for the fee waiver.
D. Basis for Inability to Pay
USCIS evaluates whether the requestor is unable to pay the filing fee based on the following criteria:
- The requestor or qualifying member of the requestor’s household is receiving a means-tested benefit;
- The requestor’s household income level is at or below 150 percent of the Federal Poverty Guidelines (FPG); or
- The requestor is experiencing extreme financial hardship due to extraordinary expenses or other circumstances that render the individual unable to pay the fee.
An officer must evaluate whether the requestor establishes an inability to pay under any of these three criteria.
1. Means-Tested Benefit
USCIS approves a request for fee waiver if the requestor or their qualifying family member is receiving a means-tested benefit at the time of filing the request for fee waiver. A means-tested benefit is a public benefit where a person’s eligibility for the benefit, the amount of the benefit, or both, is based on the person’s income and resources.
The benefit-granting agency determines whether the person is lawfully eligible for the means-tested benefit. USCIS considers means-tested benefits that are federally, state, locally, or tribal funded and granted by the benefit agency.
Examples of means-tested benefit programs include, but are not limited to:
- Any federal, state, local, or tribal cash assistance for income maintenance, such as:
- Supplemental Security Income (SSI);
- Temporary Assistance for Needy Families (TANF), which may be provided under another TANF-Program state name;
- Other federal, state, or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names);
- Supplemental Nutrition Assistance Program (SNAP);
- Medicaid (federally funded Medicaid may also be provided under a Medicaid Program state name);
- Section 8 Housing Assistance under the Housing Choice Voucher program, Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation), and housing assistance under the McKinney-Vento Homeless Assistance Act;
- Housing under the Housing Act of 1937;
- Low Income Home Energy Assistance Program (LIHEAP) and other energy assistance programs;
- CNMI Nutrition Assistance Program (NAP);
- Any services provided under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act);
- Any cash benefit provided by the Department of Veteran's Affairs or other federal or state, local, or tribal benefit provided based on veteran status;
- Benefits under the Emergency Food Assistance Program (TEFAP);
- Child and Adult Care Food Program (CACFP);
- Food Distribution Program on Indian Reservations (FDPIR);
- Benefits through the Child Nutrition Act, Benefits from the National School Lunch Act and Summer Food Service program;
- Child Care and Development Block Grant Program (CCDBGP);
- Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); and
- Children's Health Insurance Program (CHIP) and State Children's Health Insurance Program (SCHIP).
Family Member’s Means-Tested Benefit
A requestor’s spouse and unmarried children under 21 years of age who reside with the requestor are generally eligible for a fee waiver based on the requestor’s receipt of a means-tested benefit. If the requestor is legally separated from the spouse or not living with the spouse, then the requestor is ineligible for the fee waiver based on the spouse’s means-tested benefit.
A requestor may be eligible for a fee waiver based on their child’s receipt of a means-tested benefit so long as their child is unmarried, under 21 years of age, resides with the requestor, and the child’s eligibility for the benefit is based on the requestor’s income.[16]
For example, a parent may use evidence of a child’s receipt of public housing, WIC, or SNAP as proof of inability to pay when the parent resides in the same residence because the child’s eligibility for public housing is partly based on the parent's income.
In general, a child over 21 years of age cannot use a parent’s means-tested benefit to qualify for a fee waiver. However, if the child is disabled and the parent is the child’s legal guardian or surrogate, the child may use the parent’s means-tested benefit to support a request for fee waiver.[17]
Documentation
In general, if a requestor provides documentation of receipt of a means-tested benefit, the request for fee waiver is approved and no further information is required. To demonstrate that an individual is currently receiving a means-tested benefit, the requestor must provide a letter, notice, or other agency document(s) containing the following information:
- The name of the individual receiving the means-tested benefit;
- The name of the agency granting the public benefit;[18]
- The type of benefit; and
- Indication that the benefit is currently being received (for example, a recently dated letter or document with effective dates, date of renewal or period the approval ends, if available). If the documentation is more than 12 months old, the requestor must provide additional evidence that shows the benefit is currently being received.
If the basis of a request for fee waiver is a qualifying family member’s receipt of a means-tested benefit, then the requestor must also provide documentation establishing that the requestor is listed as a person receiving the means-tested benefit or documentation establishing the qualifying familial relationship and that the requestor is residing in the same household as the individual that is receiving the means-tested benefit.
2. Household Income at or Below 150 percent of the Federal Poverty Guidelines
USCIS approves a request for fee waiver if the requestor demonstrates that their total adjusted gross household income at the time of the request is at or below 150 percent of the current FPG based on household size. USCIS does not review the requestor’s past history of income or future income or financial situation when determining household income.
The Secretary of the U.S. Department of Health and Human Services (HHS) establishes the FPG annually. USCIS uses the adjusted gross income from an IRS Form 1040 or the gross income from an IRS Form W-2 including any overtime and irregular hours as listed to calculate the annual income.
For fee waiver purposes, a household[19] may include:
- The requestor;
- The head of household (if not the requestor);[20]
- The requestor’s spouse, if living with the requestor (if the requestor and spouse are separated or not living together, then the spouse is not included as part of the household);[21] and
- Any family members living in the requestor’s household who are dependent on the applicant’s income, the spouse’s income, or the head of household’s income.
Family members living in the requestor’s household may include:
- The requestor’s children or legal wards who are unmarried and under 21 years of age;
- The requestor’s children or legal wards who are unmarried, are 21 years of age or over, but under 24 years of age, and are full-time students;
- The requestor’s children or legal wards who are unmarried and for whom the requestor is the legal guardian because the child or legal ward is physically or developmentally disabled, or mentally impaired and unable to self-care, establish, maintain, or re-establish their own household;
- The requestor’s parents; and
- Any other dependents listed on the requestor’s federal income tax return, or the spouse’s or head of household’s federal income tax return.[22]
For a fee waiver request, USCIS does not include people who are cohabitating with the applicant, but not financially supported by the applicant, such as roommates or nannies, within the definition of household or household member.
Additionally, if the requestor has been deemed legally incompetent[23] by a court of law, then the requestor’s individual income is still used to determine household income. However, the income of any household member, legal guardian or surrogate, or any other care provider, does not count towards the calculation of household income for such requestors.
Documentation
To demonstrate household income at or below 150 percent of the FPG, the requestor may provide a copy of one or more of the following, where applicable, for each household member:
- Most recent federal tax return with signature (or transcript);[24]
- Most recent Wage and Tax Statement (IRS Form W-2);
- Consecutive pay statements (stubs) for a minimum period of one month dated within the three months preceding the receipt of the fee waiver request;
- Certain Government Payments (Form 1099-G);
- Form SSA-1099; or
- Documentation of any additional financial assistance.[25]
An officer may grant a request for fee waiver in the absence of some of this documentation so long as the available documentation supports that the requestor is more likely than not unable to pay the fee.
If the household member’s income has changed since the tax return filing because of unemployment, the requestor provides evidence of the household member’s unemployment such as a termination letter or unemployment insurance receipt. If the household member’s income has changed since the tax return filing due to a change in employment or change in income, the requestor provides information on the current employment and income, such as recent pay statements (stubs) or Form W-2.
If the household members reside and filed tax returns in a U.S. territory and were not required to file a federal tax return, the requestor must submit the tax returns (or transcript) from the territory instead of a federal tax return.
Tax Returns
A copy of the most recent tax return with signature alone may provide sufficient proof of income for fee waiver purposes. However, where the requestor provides other proof of income (or lack of income), a request for fee waiver should not be rejected solely based on the absence of tax return(s).
If the request for fee waiver is filed between January 1 and the deadline for filing income taxes for the year, and the household member has not yet filed the previous year’s income tax return, the requestor may submit the household member’s tax return (or transcript[26]) for the most recently filed year. The requestor must certify by signing their fee waiver request that their income has not changed since the most recently filed tax return. If the household member’s income has changed since their most recently filed tax return, the requester must submit additional evidence of the household member’s income.[27]
USCIS does not accept Earned Income Tax Credit (EITC) statements, Miscellaneous Income (Form 1099-MISC), and Certain Government Payments (Form 1099-G) or other G-1099 forms as proof of income without the tax returns, tax transcripts, W-2s, or Social Security statements.
If the requestor’s current situation is different from the documentation provided, the requestor must provide an explanation regarding the inconsistency in the documentation. For example, if a tax return or transcript indicates the requestor is married, but the requestor is currently separated or annotates single in the fee waiver request, the requestor must provide an additional explanation for the inconsistency and the documentation for income. The requestor may provide additional documentation to establish marital status and household size.
A requestor may use IRS Form 4506-T (PDF) to request:
- An income tax transcript;
- A copy of Form W-2; or
- Form 1099-G.
Requestors do not need to submit multiple copies of tax returns. If the requestor provided their most recent tax returns as part of the underlying petition or application filed with the Form I-912, such as a naturalization application and tax returns, filed concurrently, the requestor does not need to submit additional tax returns or a transcript.
Additional Financial Assistance
To establish the total income, a request must include any additional financial assistance (not otherwise included in a tax return or W-2) including any Social Security income (as reflected on the SSA-1099) to the adjusted gross income in the tax return.
The table below includes some types of additional financial assistance that USCIS considers household income for a fee waiver request. The requestor must provide documentation of each type of additional financial assistance that applies.
Additional Financial Assistance |
---|
Parental support |
Child support |
Pensions |
Royalties |
Unemployment benefits |
Alimony |
Educational stipends |
Social Security |
Veterans benefits |
A court order granting any child support or documentation from an agency providing other income or financial assistance |
Consistent or regular financial support from adult children, parents, dependents, or other people living in the applicant’s household |
VAWA, T, and U-Based Requestors
Requestors seeking a fee waiver for any immigration benefit associated with or based on a pending or approved petition or application for VAWA benefits[28] or T or U nonimmigrant status that are not otherwise fee exempted do not need to list as household members or provide income information for the following people:
- Any person in the household who is or was the requestor’s abuser, human trafficker, or perpetrator; or
- A person who is or was a member of the abuser, human trafficker, or perpetrator’s household.
In addition, such requestors do not need to list their spouse as a household member or include their spouse’s income in the fee waiver request.
If a VAWA self-petitioner or recipient[29] (or their derivative(s)) or applicant, petitioner, or recipient of T or U nonimmigrant status does not have any income or cannot provide proof of income, the requestor may:
- Describe the situation in sufficient detail in the fee waiver request to substantiate lack of income or income at or below 150 percent of the FPG, as well as the inability to obtain the required documentation; and
- Provide any documentation of the income, such as pay stubs or affidavits from religious institutions, non-profits, or other community-based organizations, verifying that the requestor is currently receiving some benefit or support from that entity and attesting to the financial situation, if available.
Special Immigrant Juveniles
A petitioner or recipient of Special Immigrant Juvenile (SIJ) classification who files a fee waiver request for a filing not otherwise fee exempted does not need to provide proof of income. USCIS considers requestors in this category as part of their own household, without including any foster or group home household members.
Instead of proof of income, the fee waiver request must include documentation showing that the requestor has an approved petition for SIJ classification (for example, a copy of Notice of Action (Form I-797) for Form I-360).[30]
3. Extreme Financial Hardship
Even if a requestor has income above 150 percent of the FPG, the requestor may be able to demonstrate that extreme financial hardship makes the requestor unable to pay the fee(s). Extreme financial hardship occurs when a requestor requires substantially all of their current income and liquid assets to meet current ordinary and necessary living expenses. An extreme financial hardship is more than a financial burden caused by paying the filing fee.
The requestor may demonstrate extreme financial hardship due to extraordinary expenses or other circumstances affecting the requestor’s financial situation to the degree of inability to pay the fee. If the requestor is under extreme financial hardship, the requestor should demonstrate negative financial impact as a result of this hardship in the 12 months preceding the receipt of the fee waiver request that rendered the requestor unable to pay the fee.
The following list contains some examples of financial hardships for which USCIS may grant a request for fee waiver:
- A medical emergency or catastrophic illness affecting the alien or the alien’s dependents;[31]
- Unemployment;
- Significant loss of work hours and wages (change in employment status);
- Eviction;
- Homelessness;
- Military deployment of spouse or parent;
- Natural disaster;
- Loss of home (destruction such as fire, water, or collapse);
- Inability to pay basic utilities, rent, childcare, or mortgage (payments and bills for each month are more than the monthly income);
- Substantial financial losses to small business that affect personal income;
- Victimization;
- Divorce or death of a spouse that affects overall income; or
- Other situations that could not normally be expected in the regular course of life events that would limit a person’s ability to meet necessary living expenses.
Documentation
In addition to explaining the financial hardship in the request for fee waiver, a requestor may submit documentation as follows to demonstrate extreme financial hardship:
- Documentation of income, as provided above;
- Documentation of all assets owned, possessed, or controlled by the requestor and dependents; or
- Documentation concerning liabilities and expenses owed by the requestor and dependents, and any other expenses for which the requestor is responsible.
An officer may grant a request for fee waiver in the absence of some of this documentation as long as the available documentation supports that the requestor is more likely than not unable to pay the fee.
The table below provides a list of some assets and liabilities that may be identified as part of the fee waiver request.
Assets | Liabilities |
---|---|
|
|
In general, if a requestor provides proof of inability to pay the fee based on financial hardship, the request for fee waiver may be approved on this basis and no further information is required.
4. Requestors Without Income
If the requestor has no income due to unemployment, homelessness, or other factors, the requestor may provide, as applicable:
- A detailed description of the financial situation that demonstrates eligibility for the fee waiver;
- Hospital bills;
- Bankruptcy documents;
- If the requestor is receiving support services, an affidavit from a religious institution, non-profit, hospital, or community-based organization verifying the person is currently receiving some benefit or support from that entity and attesting to the requestor’s financial situation; or
- Evidence of unemployment, such as a termination letter or unemployment insurance receipt.
An officer may grant a request for fee waiver in the absence of some of this documentation, as long as the available documentation supports that the requestor is more likely than not unable to pay the fee.
VAWA, T, and U-Based Requestors
USCIS considers whether a requestor is unable to obtain proof of income due to alleged victimization such as trafficking or abuse. If not otherwise eligible for a fee exemption, the requestor should describe the situation in the Form I-912 or written request to substantiate the inability to pay as well as the inability to obtain the required documentation.
The requestor should provide any available documentation, such as affidavits from religious institutions, non-profits, or other community-based organizations verifying that the requestor is currently receiving some benefit or support from that entity and attesting to the financial situation.
E. Emergent Circumstance
Natural catastrophes and other extreme situations[32] beyond a person’s control may affect the ability to pay USCIS fees. Based on the USCIS Director’s authority to waive a required fee,[33] USCIS may designate certain time periods or events in which a person may file a fee waiver request when not otherwise eligible.[34]
In such cases, the requestor must still file a fee waiver request and establish eligibility under one of the criteria (generally, financial hardship). USCIS may accept the request based on the requestor’s statement even if there is no documentation of the emergencies and unforeseen circumstances.
Unless otherwise eligible, requestors may only seek a fee waiver under those emergent circumstances described in the Immigration Relief in Emergencies or Unforeseen Circumstances webpage.
F. Adjudication
USCIS may grant a fee waiver request when USCIS determines that the requestor has met the eligibility requirements.
USCIS adjudicates the fee waiver request based on the information provided in the Request for Fee Waiver (Form I-912) or written statement, as well as any additional documentation submitted in support of the fee waiver request at the time of filing. USCIS does not issue any Requests for Evidence for fee waiver requests.
The table below provides a general outline to guide the adjudication of a request for a fee waiver.
Step | For More Information | |
---|---|---|
1 | Determine whether the application or petition form was properly signed. | Chapter 2, Signatures [1 USCIS-PM B.2] |
2 | Identify whether the form has a fee, or the requestor falls within a fee exempt category. | Chapter 3, Fees [1 USCIS-PM B.3], Section G, Fee Exemptions [1 USCIS-PM B.4(G)] |
3 | Verify whether the form type is eligible for a fee waiver. | Section B, Forms Eligible for Fee Waiver [1 USCIS-PM B.4(B)] |
4 | If applicable, verify whether the requestor has a pending or approved petition or application for a benefit category eligible for a fee waiver. | Section C, Category of Requestor Eligible for Fee Waiver [1 USCIS-PM B.4(C)] |
5 | Determine whether the requestor or a qualifying member of the requestor’s household receives a means-tested benefit. | Section D, Basis for Inability to Pay, Subsection 1, Means-Tested Benefit [1 USCIS-PM B.4(D)(1)] |
5a | If sufficient proof of a means-tested benefit, the request for fee waiver is approved and no further information is required. | Section D, Basis for Inability to Pay, Subsection 1, Means-Tested Benefit [1 USCIS-PM B.4(D)(1)] |
5b | If no documentation of a means-tested benefit, proceed to 6. | Section D, Basis for Inability to Pay, Subsection 1, Means-Tested Benefit [1 USCIS-PM B.4(D)(1)] |
6 | Determine the household size and the income level at which the requestor may qualify based on the household size. | Section D, Basis for Inability to Pay, Subsection 2, Household Income at or Below 150 percent of Federal Poverty Guidelines [1 USCIS-PM B.4(D)(2)] |
7 | Identify all valid sources of income applicable to the household and that the requestor submitted the proper documentation of income (or lack of income). | Section D, Basis for Inability to Pay, Subsection 2, Household Income at or Below 150 percent of Federal Poverty Guidelines [1 USCIS-PM B.4(D)(2)] |
8 | Determine whether the requestor’s adjusted gross income from tax returns (or gross income from W-2) is at or below 150 percent of the relevant FPG level (based on household size). | Section D, Basis for Inability to Pay, Subsection 2, Household Income at or Below 150 percent of Federal Poverty Guidelines [1 USCIS-PM B.4(D)(2)] |
8a | If sufficient proof of household income at or below 150 percent of the FPG, the request for fee waiver is approved and no further information is required. | Section D, Basis for Inability to Pay, Subsection 2, Household Income at or Below 150 percent of Federal Poverty Guidelines [1 USCIS-PM B.4(D)(2)] |
8b | If insufficient proof of household income at or below 150 percent of the FPG, proceed to 9. | Section D, Basis for Inability to Pay, Subsection 2, Household Income at or Below 150 percent of Federal Poverty Guidelines [1 USCIS-PM B.4(D)(2)] |
9 | Determine if the requestor is under extreme financial hardship due to extraordinary expenses or other circumstances that render the individual unable to pay the fee. | Section D, Basis for Inability to Pay, Subsection 3, Financial Hardship [1 USCIS-PM B.4(D)(3)] |
9a | If sufficient proof of extreme financial hardship, the request for fee waiver is approved and no further information is required. | Section D, Basis for Inability to Pay, Subsection 3, Financial Hardship [1 USCIS-PM B.4(D)(3)] |
9b | If insufficient proof of extreme financial hardship such that the requestor is unable to pay the fee, the requestor is not eligible for a fee waiver and the request is rejected. | Section D, Basis for Inability to Pay, Subsection 3, Extreme Financial Hardship [1 USCIS-PM B.4(D)(3)] |
1. Family-Related Applications or Petitions
In general, a requestor may file one request for fee waiver for all eligible family-related applications or petitions filed together. For example, if the requestor files the Application to Register Permanent Residence or Adjust Status (Form I-485) and the requestor’s spouse and children file separate Forms I-485 at the same time, the requestor, spouse, and children need only file one Form I-912 or written request for fee waiver.
If eligible family-related applications or petitions are filed separately, each individual family member must separately submit a Form I-912 or written request for fee waiver with the eligible application or petition.
Each fee waiver request is unique and USCIS considers each request on its own merits. However, where family members separately submit family-related applications or petitions and related requests for fee waiver, USCIS should issue consistent determinations on the family members’ individual requests for fee waiver.
2. Rejection
If USCIS determines that the requestor is not eligible for a fee waiver, then USCIS rejects the fee waiver request and the benefit request. The rejection notice must provide the requestor detailed reasons for the rejection. The table below provides a non-exhaustive list of common reasons for rejection.
Reason | Explanation |
---|---|
Lack of proper filing |
|
Ineligible form or category |
|
Income is above 150 percent of the FPG and does not otherwise qualify |
|
Unable to determine household income |
|
Lack of income documentation[37] | Lack of documentation of income (such as tax return or transcript, W-2, or pay statements) and additional income or financial support for the requestor and each household member identified in the fee waiver request or of the person providing additional income, as appropriate. |
There is no appeal of a rejection of a fee waiver request. Requestors may, however, file another fee waiver request with the required documentation to establish eligibility. An applicant may also refile the benefit request with the proper fees for USCIS to process the request. The filing of a fee waiver does not toll or pause any other applicable deadlines, such as the deadline for filing an appeal or motion. Therefore, if a fee waiver request is rejected, the requestor must endeavor to re-file within the applicable timeframe. USCIS uses the postmark date of a filing to determine which form version and fees are correct but uses the receipt date for purposes of any regulatory or statutory filing deadlines.[38]
G. Fee Exemptions
Aside from fee exemptions specifically listed in regulations, the USCIS Director may provide an exemption for any fee required.[39] The Director must determine that such action would be in the public interest and the action is consistent with the applicable law.
Fee exemptions are distinct from fee waivers in that exemptions apply automatically and do not require the requestor to establish eligibility. A benefit requestor may not individually request a fee exemption as they would a fee waiver. The Director may also provide temporary fee exemptions as necessary. A request for a USCIS Director’s fee exemption must be submitted to the Office of the Director for clearance.
All current fee exemptions can be found in the Fee Schedule (Form G-1055).
Footnotes
[^ 1] See 8 CFR 106.3.
[^ 2] There is an exception for family-related applications or petitions filed at the same time. See Section F, Adjudication [1 USCIS-PM B.4(F)].
[^ 3] For information on valid signatures and who may sign, see Chapter 2, Signatures [1 USCIS-PM B.2].
[^ 4] See Section D, Basis for Inability to Pay [1 USCIS-PM B.4(D)]. See Matter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010) (identifying preponderance of the evidence as the standard for immigration benefits generally, and in that case specifically naturalization).
[^ 5] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (preponderance of the evidence means more likely than not). 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).
[^ 6] See 8 CFR 106.3(a)(3).
[^ 7] Also known as the Application for Advance Permission to Return to Unrelinquished Domicile.
[^ 8] See 8 CFR 106.2(a)(50). Re-registrants are exempt from paying the Form I-821 fee. Note that the biometric services fee for TPS applicants and re-registrants is not waivable.
[^ 9] See INA 212(a)(4). The receipt of public benefits does not negatively affect the review of a fee waiver request. For detailed guidance on the public charge grounds of inadmissibility, see Volume 8, Admissibility, Part G, Public Charge Ground of Inadmissibility [8 USCIS-PM G] and the Public Charge Resources page.
[^ 10] See INA 212(a)(4). The receipt of public benefits does not negatively affect the review of a fee waiver request. For detailed guidance on the public charge grounds of inadmissibility, see Volume 8, Admissibility, Part G, Public Charge Ground of Inadmissibility [8 USCIS-PM G] and the Public Charge Resources page.
[^ 11] See INA 212(a)(4). The receipt of public benefits does not negatively affect the review of a fee waiver request. For detailed guidance on the public charge grounds of inadmissibility, see Volume 8, Admissibility, Part G, Public Charge Ground of Inadmissibility [8 USCIS-PM G] and the Public Charge Resources page.
[^ 12] See INA 212(a)(4). The receipt of public benefits does not negatively affect the review of a fee waiver request. For detailed guidance on the public charge grounds of inadmissibility, see Volume 8, Admissibility, Part G, Public Charge Ground of Inadmissibility [8 USCIS-PM G] and the Public Charge Resources page.
[^ 13] See 8 CFR 106.2 and 8 CFR 106.3(b). See Fee Schedule (Form G-1055).
[^ 14] See Instructions for Form I-912.
[^ 15] See 8 CFR 1003.24(d) and 8 CFR 1103.7.
[^ 16] The requestor may also use the child’s means-tested benefit to support a fee waiver request based on household income. See Subsection 2, Household Income at or Below 150 Percent of the Federal Poverty Guidelines [1 USCIS-PM B.4(D)(2)] for further discussion of qualifying members of a household.
[^ 17] In this situation, the child may also use the parent’s means-tested benefit to support a fee waiver request based on household income. See Subsection 2, Household Income at or Below 150 Percent of the Federal Poverty Guidelines [1 USCIS-PM B.4(D)(2)].
[^ 18] USCIS may accept documentations from school for meal-related public benefits.
[^ 19] If the requestor submits any joint-filed federal tax returns, USCIS reviews the household size to determine household members or spouses.
[^ 20] In general, the head of the household is the person who files the most recent federal tax return with the Internal Revenue Service (IRS) for the household, or the person who earns most of the income for the household.
[^ 21] However, any additional income or financial support provided by the spouses must be included in the request, as discussed later in this subsection.
[^ 22] USCIS reviews the IRS federal income tax return to examine whether the requestor listed any dependents.
[^ 23] See Black’s Law Dictionary (11th ed. 2019) (incompetency is generally defined as the quality, state, or condition of being unable or unqualified to do something).
[^ 24] The requestor is not required to have the IRS certify the tax return or transcript. A copy of an unsigned tax return alone is insufficient to establish income.
[^ 25] Documentation of additional financial assistance is discussed later in this subsection.
[^ 26] For information on obtaining federal income tax transcripts without a fee, see the IRS' Get Your Tax Record webpage.
[^ 27] Details on the type of documentation required to show the household member’s income is discussed earlier in this subsection.
[^ 28] VAWA benefits include VAWA self-petitioners and derivatives as defined under INA 101(a)(51) and anyone otherwise self-petitioning due to battery or extreme cruelty under INA 204(a).
[^ 29] Includes VAWA self-petitioners and their derivatives as defined under INA 101(a)(51) and anyone otherwise self-petitioning due to battery or extreme cruelty under INA 204(a).
[^ 30] An officer may verify in the available systems whether the requestor has received SIJ classification.
[^ 31] Dependents include the alien’s spouse, children, parents, or ward.
[^ 32] Including major natural disasters declared in accordance with 44 CFR 206, subpart B.
[^ 33] See 8 CFR 106.3(c). This discretionary authority may be delegated only to the USCIS Deputy Director.
[^ 34] See USCIS' Immigration Relief in Emergencies or Unforeseen Circumstances webpage. For example, USCIS allowed for consideration of fee waivers for those affected by South Carolina floods in 2015. See Volume 1, General Policies and Procedures, Part H, Emergencies or Unforeseen Circumstances, Chapter 2, Emergencies or Unforeseen Circumstances-Related Flexibilities, Section A, Immigration Policy Flexibilities, Subsection 10, Fee Waivers and Exemptions [1 USCIS-PM H.2(A)(10)].
[^ 35] Applicants for any immigration benefit associated with or based on a pending or approved petition or application for VAWA benefits or T or U nonimmigrant status do not need to list as a member of their household or provide the income of any person who is or was their abuser, human trafficker, or perpetrator or is or was a member of the abuser, human trafficker, or perpetrator’s household. For more information, see Section D, Basis for Inability to Pay, Subsection 2, Household Income at or Below 150 Percent of Federal Poverty Guidelines, [1 USCIS-PM B.4(D)(2)].
[^ 36] Applicants for any immigration benefit associated with or based on a pending or approved petition or application for VAWA benefits or T or U nonimmigrant status do not need to list their spouse as a household member or provide their spouse’s income.
[^ 37] Generally, applicants for any immigration benefit associated with or based on a pending or approved petition or application for VAWA benefits or T or U nonimmigrant status are not rejected for a lack of documentation if the applicant has described the inability to provide the required documentation in sufficient detail and provided any other available documentation. In addition, USCIS does not require SIJs to provide proof of income but does require other documentation for a fee waiver request. See Section D, Basis for Inability to Pay, Subsection 2, Household Income at or Below 150 Percent of the Federal Poverty Guidelines [1 USCIS-PM B.4(D)(2)].
[^ 38] See 8 CFR 103.2(a)(7).
[^ 39] See 8 CFR 106.3(c).
Chapter 5 - Interpreters and Preparers
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.
Chapter 6 - Submitting Requests
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 the USCIS All Forms webpage 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, including an appeal or motion, USCIS assesses whether the request meets the minimum requirements for USCIS to accept it. If all minimum 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 request after USCIS accepts the request, processes any required fees, and issues a receipt notice (or date stamp, where applicable) to reflect the date of physical or electronic receipt.[6] USCIS does not consider benefit requests that are rejected to be properly filed.[7]
In order for USCIS to accept a benefit request, a submission must satisfy all applicable acceptance criteria.[8] USCIS generally accepts the request if it contains:
- A complete, properly executed form, with a proper signature;
- The correct fees;[9] and
- The required initial evidence for intake purposes, as directed by the form instructions.[10]
USCIS rejects benefit requests that do not meet these minimum requirements. Reasons for rejection may include, but are not limited to:
- Incomplete benefit request;[11]
- Improper signature or no signature;[12]
- 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.[13]
In addition, USCIS rejects benefit requests for an immigrant visa if an immigrant visa is not immediately available to the applicant.[14]
The rejection of a filing with USCIS may not be appealed.[15] However, rejections do not preclude a benefit requestor from resubmitting a corrected benefit request. If the benefit requestor later resubmits a previously rejected but corrected benefit request, USCIS processes the case anew, without prejudice.[16] 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.[17]
Effect of Declined or Returned Payment
Filing fees generally are non-refundable regardless of the outcome of the benefit request, or how much time the adjudication requires, and any decision to refund a fee is at the discretion of USCIS.[18]
If the benefit requestor pays a fee by credit card and the credit card is declined for any reason, USCIS does not attempt to process the credit card payment a second time and may reject the associated request for lack of payment.[19]
If a form of payment other than a credit card submitted for payment is returned as not payable because of insufficient funds, USCIS re-submits the payment to the remitter institution one time.[20] If the form of payment is returned as non-payable a second time, USCIS may reject or deny the benefit request as improperly filed and the receipt date is forfeited.[21]
USCIS does not resubmit payments returned as unpayable for a reason other than insufficient funds.[22] A rejection of a filing with USCIS may not be appealed.[23]
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 declined or returned 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 declined or returned, USCIS may revoke the approval upon notice.
In this case, USCIS issues a Notice of Intent to Revoke (NOIR) to the requestor. If the requestor does not rectify the declined or returned 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 declined or returned 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 USCIS has approved the petition and any fee, including one fee of a multiple fee filing, is declined or returned, USCIS may revoke, rescind, or cancel the approval. In this case, USCIS issues a NOIR to the requestor.[24] If the approved benefit request requires multiple fees, approval may be revoked if any fee submitted is not honored. USCIS does not refund other fees that were paid for an approved benefit request that is revoked because of a declined or returned fee payment.[25]
To sufficiently respond to a NOIR, the requestor must, within the requisite NOIR time period, provide payment of the correct fee amount or demonstrate that the payment was honored or that it was rejected by USCIS by mistake.[26] 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 requestor informing them that USCIS has revoked the approval and denied the benefit request. In contrast with the rejection of a filing, a revocation of an approval due to a declined or returned fee may be appealed to the USCIS Administrative Appeals Office.[27] All revocation notices instruct the requestor on how they may appeal the revocation or denial due to a declined or returned payment.[28]
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 declined or returned 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 submission or filing date,[29] and is listed on the receipt notice, or the date stamp (where applicable), issued by USCIS. 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 All Forms webpage. USCIS does not assign a date of receipt or filing date to benefit requests that are rejected.[30]
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 (Form 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.[31] 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.
D. Filing Periods Ending on Weekends or Federal Holidays
Benefit requestors must file a benefit request within the period for filing, if applicable, as prescribed by statute, regulation, and form instructions. This includes filing with USCIS before a certain time period ends or event occurs, such as before a period of lawful status ends or an individual reaches a certain age. For example, petitioners for special immigrant juvenile classification must file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) before their 21st birthday.[32] As another example, principal refugees and asylees seeking to request follow-to-join immigration benefits for qualifying family members must file a Refugee/Asylee Relative Petition (Form I-730) for each member within 2 years of the refugee’s admission to the United States as a refugee or the asylee’s grant of asylum.[33]
USCIS does not accept paper-based applications or petitions on Saturdays, Sundays, or federal holidays.[34] Therefore, when the last day of the filing period for a paper benefit request falls on a Saturday, Sunday, or federal holiday, USCIS applies the regulatory definition of day[35] and extends the deadline for filing until the end of the next business day that is not a Saturday, Sunday, or federal holiday.[36] In these situations, while the receipt date will continue to reflect the date USCIS physically received the request, USCIS considers the benefit request to have been timely filed.[37]
The determination of whether a benefit request was timely submitted is not a criterion for acceptance; rather, it is part of the eligibility determination for the benefit request that an officer makes at the time of adjudication. Therefore, USCIS does not reject filings at intake due to missed deadlines.
USCIS considers electronically submitted benefit requests to be received immediately upon submission. Therefore, electronic filings are not affected by the fact that USCIS does not accept deliveries on Saturdays, Sundays, or federal holidays, and USCIS does not apply the regulatory definition of day to extend the filing period for benefit requests filed electronically.[38]
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 Section C, Date of Receipt [1 USCIS-PM B.6(C)].
[^ 7] See 8 CFR 103.2(a)(7).
[^ 8] See 8 CFR 103.2(a). Other regulations in Title 8 of the CFR may impose filing requirements specific to the request type.
[^ 9] See 8 CFR 106.2 and 8 CFR 106.3. See Fee Schedule (Form G-1055). For additional information on fee waivers, see Chapter 4, Fee Waivers and Fee Exemptions [1 USCIS-PM B.4].
[^ 10] 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).
[^ 11] 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.
[^ 12] See 8 CFR 103.2(a)(2).
[^ 13] See 8 CFR 103.2(a).
[^ 14] See 8 CFR 245.2(a)(2)(i). 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)].
[^ 15] See 8 CFR 103.2(a)(7)(iii).
[^ 16] USCIS treats the benefit request as if the requestor had not previously submitted it.
[^ 17] 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).
[^ 18] See 8 CFR 103.2(a).
[^ 19] See 8 CFR 103.2(a)(7)(ii)(D)(3).
[^ 20] See 8 CFR 103.2(a)(7)(ii)(D)(2).
[^ 21] See 8 CFR 103.2(a)(7)(ii)(D)(3).
[^ 22] See 8 CFR 103.2(a)(7)(ii)(D)(3).
[^ 23] See 8 CFR 103.2(a)(7)(iii).
[^ 24] See 8 CFR 205.2.
[^ 25] See 8 CFR 106.1(c)(2).
[^ 26] Otherwise, USCIS considers the requestor to have failed to file the required fees. See 8 CFR 103.2(a)(1).
[^ 27] In accordance with 8 CFR 103.3 and the applicable form instructions.
[^ 28] See 8 CFR 103.3.
[^ 29] The Registration for Classification as Refugee (Form I-590) is deemed filed on the date of interview with the USCIS refugee officer. USCIS does not apply a date stamp and does not issue a receipt notice.
[^ 30] See 8 CFR 103.2(a)(7)(ii).
[^ 31] 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.
[^ 32] See 8 CFR 204.11(b)(1).
[^ 33] See 8 CFR 207.7(d) and 8 CFR. 208.21(d).
[^ 34] See the U.S. Office of Personnel Management’s website for a list of federal holidays.
[^ 35] See 8 CFR 1.2 (“when computing the period of time for taking any action provided in this chapter including the taking of an appeal, shall include Saturdays, Sundays, and legal holidays, except that when the last day of the period computed falls on a Saturday, Sunday, or a legal holiday, the period shall run until the end of the next day which is not a Saturday, Sunday, or a legal holiday.”). For example, in the case of an individual who applies for adjustment of status on the basis of eligibility as a T or U nonimmigrant, if the last day before the expiration date of T or U nonimmigrant status occurs on a Saturday, Sunday, or federal holiday, the applicant has until the end of the next business day after the Saturday, Sunday, or federal holiday for USCIS to physically receive their properly filed and receipted application. See 8 CFR 103.2(a)(7)(ii) (properly filed and receipted), 8 CFR 245.24(b)(2)(ii) (pertaining to U nonimmigrant eligibility for adjustment of status) and 8 CFR 245.23(a)(2)(ii) (pertaining to T nonimmigrant eligibility for adjustment of status).
[^ 36] The definitions in 8 CFR 1.2 generally apply to all benefit requests in 8 CFR Chapter I unless the statutes or regulations for the specific benefit request contain provisions that supersede those definitions. Certain immigration benefits, such as asylum applications, are governed by different regulations and procedures regarding Requests for Evidence, Notices of Intent to Deny, denials, and terminations. Therefore, the guidance in this Part does not apply to those immigration benefits governed by different regulations. For example, 8 CFR 1.2 does not apply to calculating the 1-year filing deadline for asylum, because it is superseded by 8 CFR 208.4(a)(2).
[^ 37] As provided under 8 CFR 103.2(a)(7)(i).
[^ 38] Regulations at 8 CFR 103.2(a)(7)(i) state, “USCIS will consider a benefit request received and will record the receipt date as of the actual date of receipt at the location designated for filing such benefit request whether electronically or in paper format.” In addition, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section A, How to Submit [1 USCIS PM B.6(A)].
Part C - Biometrics Collection and Security Checks
Chapter 1 - Purpose and Background
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.
USCIS promotes national security and public safety by conducting screening and vetting in all immigration programs. 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.”
Chapter 2 - Biometrics Collection
A. Biometric Services Appointments
After a person files an application, petition, or other benefit request, USCIS may schedule a biometric services appointment at a local Application Support Center (ASC).[1] The appointment notice indicates the date, time, and location of the appointment. The person submitting biometrics should bring the appointment notice and valid, unexpired photo identification (for example, Permanent Resident Card (Form I-551), passport, or driver’s license), or other identity documentation[2] as authorized by USCIS to the appointment.
USCIS considers a person to have abandoned an application, petition, or request if the person fails to appear for the biometric services 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]
1. Timely Requests to Reschedule
Benefit requestors[4] who need to reschedule a biometric services appointment should follow the instructions provided in the appointment notice. USCIS only accepts rescheduling requests made through a myUSCIS online account or to the USCIS Contact Center and does not accept requests to reschedule submitted by mail or in person at a USCIS office.[5]
An authorized representative with a properly filed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) may also request to reschedule an appointment on behalf of their client through a myUSCIS online account or the USCIS Contact Center.
Any person required to appear for a biometric services appointment may, before the scheduled date and time, request that USCIS reschedule the appointment for good cause.[6] For the purposes of determining whether to grant a biometric services appointment reschedule request, good cause exists when the benefit requestor provides a sufficient reason for their inability to appear on the scheduled date.
Sufficient reasons may include, but are not limited to:
- Illness, medical appointment, or hospitalization;
- Previously planned travel;
- Significant life events such as a wedding, funeral, or graduation ceremony;
- Inability to obtain transportation to the appointment location;
- Inability to obtain leave from employment or caregiver responsibilities; and
- Late delivered or undelivered biometric services appointment notice.[7]
2. Missed Biometric Services Appointments[8]
In accordance with regulations, USCIS considers a benefit request abandoned and denied[9] if the benefit requestor fails to appear for a biometric services appointment unless, by the appointment time, USCIS receives a notice of a change of address or a request to reschedule the appointment that USCIS concludes warrants excusing the failure to appear.[10]
Applicants who have filed an Application for Asylum and for Withholding of Removal (Form I-589) who fail to comply with fingerprint processing without good cause will not have their applications denied for abandonment. Instead, USCIS may dismiss[11] the asylum application if the applicant is in lawful immigration status or paroled, or refer the application to an immigration judge if the applicant is not in lawful immigration status or paroled.
Timely Notice of Change of Address
Before USCIS denies a benefit request for abandonment, USCIS reviews the record of proceeding and relevant systems for evidence of a notice of a change of address.[12] USCIS reschedules the biometric services appointment when a change of address is received by the appointment time.
Timely Request to Reschedule
Before denying for abandonment, USCIS reviews the record of proceeding and relevant systems for reschedule requests. USCIS reschedules the biometric services appointment when the benefit requestor submits, by the appointment time, a request to reschedule and provides a sufficient reason for the inability to appear.[13]
Untimely Request to Reschedule
A benefit request is considered abandoned and is denied when a requestor fails to appear for a biometric services appointment and USCIS has not received a rescheduling request by the appointment time.[14] However, notwithstanding the regulation and based on case law, agencies have some latitude to relax procedural rules adopted for the orderly transaction of business if justice so requires under the circumstances.[15]
Therefore, when a benefit requestor submits a request to reschedule the appointment after the appointment date has passed, and if the benefit request remains pending, USCIS may, in its discretion and based on the applicant’s circumstances, consider whether the benefit request has been abandoned. In considering abandonment and whether the officer should exercise discretion to reschedule based on the applicant’s circumstances, USCIS reviews such factors as:
- The length of time between the missed appointment and the reschedule request;
- Whether the benefit requestor has a sufficient reason[16] for failing to appear; and
- Whether a denial would cause undue hardship or expense.
USCIS only accepts untimely rescheduling requests made to the USCIS Contact Center and does not accept untimely requests to reschedule by mail or in person at a USCIS office or through the myUSCIS online rescheduling tool.
No Evidence of Change of Address or Request to Reschedule
USCIS considers a benefit request abandoned if the requestor fails to appear for a biometric services appointment and there is no evidence of a change of address or a request to reschedule.[17]
When USCIS denies an application for abandonment, USCIS notifies the requestor and the authorized representative, as appropriate, of the decision in writing.[18] The priority or processing date of an abandoned benefit request may not be applied to a later benefit request.[19]
B. Mobile Biometrics Collection
Mobile biometrics collection refers to a service USCIS provides in which the agency collects biometrics (for example, fingerprints and photographs, etc.) from persons with pending benefit requests (including derivatives, beneficiaries, or both), at pre-determined locations outside of an ASC. Mobile biometrics collection is typically performed by USCIS employees or contractors.[20] USCIS has sole discretion to conduct mobile biometrics collection.[21]
USCIS may provide domestic mobile biometric services to persons with a disability or health reason that prevents them from appearing in person at an ASC.[22] In very limited circumstances, USCIS may, in its sole discretion, provide domestic mobile biometric services to other benefit requestors who are unable to attend scheduled ASC appointments in person.[23]
Remote Locations
USCIS may, in its sole discretion and on a case-by-case basis, provide mobile biometrics collection services to persons residing in remote locations within the United States who are unable to attend scheduled ASC appointments in person.
When determining whether to exercise its discretion after a request for mobile biometrics collection, USCIS considers circumstances such as the difficulty of travel, the distance a person must travel to an ASC, and efficient use of USCIS resources. If USCIS can provide mobile biometric services, USCIS will inform the person.
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-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, Enforcement and Removal Operations 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.[24]
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,[25] including but not limited to disability, birth defects, physical deformities, skin conditions, and psychiatric conditions.[26] 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[27] 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]
[Partially Reserved]
1. Fingerprints [Reserved]
[Reserved]
2. Photographs
USCIS imbeds a photograph when creating secure documents as a security feature.[28] 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.[29] 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]
[Reserved]
Footnotes
[^ 1] See 8 CFR 103.2(b)(9). For benefit requestors residing outside of the United States, USCIS may schedule biometrics collection at a USCIS office abroad, at a U.S. embassy or consulate, or at a U.S. military installation abroad. See 8 CFR 103.16. 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. For more information relating to biometrics collection for military members, see Volume 12, Citizenship and Naturalization, Part I, Military Members and their Families, Chapter 6, Required Background Checks, Section C, Ways Service Members may Meet Fingerprint Requirement [12 USCIS-PM I.6(C)].
[^ 2] Some aliens classified as special immigrant juvenile (SIJs) may not have government-issued photo identification. In this situation, USCIS may accept as evidence of identity a court-issued order citing the SIJ as the subject of the order, or official documentation issued by the U.S. Department of Health and Human Services (HHS) for unaccompanied children who are or have been in the custody of HHS. For more information on how to prepare for a biometric services appointment, see the Preparing for Your Biometric Services Appointment webpage.
[^ 3] See 8 CFR 103.2(b)(13)(ii).
[^ 4] For purposes of this Policy Manual part, the term requestor means any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request. See 8 CFR 103.2(b)(9).
[^ 5] For more information on rescheduling a biometric services appointment, see the Preparing for Your Biometric Services Appointment webpage.
[^ 6] See 8 CFR 103.2(b)(9)(ii). A benefit requestor may also appear at the ASC before the scheduled date or withdraw the benefit request. See 8 CFR 103.2(b)(9)(i) and 8 CFR 103.2(b)(9)(iii).
[^ 7] Benefit requestors may become aware of an undelivered biometric services appointment notice through their myUSCIS account or USCIS’ Case Status Online tool.
[^ 8] This subsection does not apply to applicants who have filed an Application for Asylum and for Withholding of Removal (Form I-589). See instead 8 CFR 208.10 (Failure to comply with fingerprint processing without good cause may result in dismissal of the application. Failure to appear at the fingerprint appointment will be excused if the applicant demonstrates that such failure was the result of exceptional circumstances.).
[^ 9] See Part E, Adjudications, Chapter 9, Rendering a Decision, Section B, Denials, Subsection 2, Abandonment Denials [1 USCIS-PM E.9(B)(2)].
[^ 10] See 8 CFR 103.2(b)(13)(ii).
[^ 11] See 8 CFR 208.10.
[^ 12] Evidence of such notice may include written correspondence from the benefit requestor or authorized representative, notice of change of address to the USCIS Contact Center, U.S. Postal Service address correction services, or Alien’s Change of Address Card (Form AR-11). For more information, see the How to Change Your Address webpage.
[^ 13] For examples of what warrants excusing a failure to appear, see Subsection 1, Timely Requests to Reschedule [1 USCIS-PM C.2(A)(1)].
[^ 14] See 8 CFR 103.2(b)(13)(ii).
[^ 15] While generally regulations must be followed by an agency as well as the regulated public, courts have allowed agencies some latitude to relax their procedural requirements in the interest of justice. See American Farm Lines v. Black Ball Freight Services, 397 U.S. 533, 539 (1970).
[^ 16] For examples of sufficient reasons, see Subsection 1, Timely Requests to Reschedule [1 USCIS-PM C.2(A)(1)].
[^ 17] See 8 CFR 103.2(b)(13).
[^ 18] See 8 CFR 103.3(a)(1)(i). A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen. See 8 CFR 103.2(b)(15). A denial due to abandonment may only be reopened in limited circumstances. See 8 CFR 103.5(a)(2)(i)-(iii).
[^ 19] See 8 CFR 103.2(b)(15).
[^ 20] In some instances, USCIS may use other government agencies to perform remote biometrics collection. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Title I, Pub. L. 105-119 (PDF), 111 Stat. 2440, 2447-2448 (November 26, 1997). See 8 CFR 103.2(b)(9) and 8 CFR 103.16(a).
[^ 21] See 8 CFR 103.16 and 8 CFR 103.2(b).
[^ 22] The USCIS website provides a definition of the term accommodation; mobile biometrics is only one subset of accommodations. For more information on accommodations generally, see the Disability Accommodations for the Public webpage.
[^ 23] See the USCIS Contact Center webpage.
[^ 24] 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.
[^ 25] 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.
[^ 26] 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].
[^ 27] 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.
[^ 28] For example, Permanent Resident Card (Form I-551) and Employment Authorization Document (Form I-766).
[^ 29] See the relevant form instructions for more information.
Chapter 3 - Security Checks [Reserved]
Part D - Attorneys and Representatives
Part E - Adjudications
Chapter 1 - Purpose and Background
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 how USCIS adjudicates across the various types of benefit requests.[1] 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.[2]
B. Background [Reserved]
[Reserved]
C. Legal Authorities
-
Homeland Security Act of 2002[3]
-
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[4] – 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 0150.1 – Delegation to the Bureau of Citizenship and Immigration Services
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. The term benefit request means any application, petition, appeal, motion, or other request submitted to USCIS for adjudication.
[^ 2] Certain immigration benefit requests, such as asylum or refugee applications, are governed by different regulations and procedures. Therefore, the guidance in this chapter may not apply to these immigration benefits governed by different regulations. Officers should consult the corresponding Policy Manual part and procedures for program-specific guidance.
[^ 3] See Pub. L. 107–296 (PDF), 116 Stat. 2135 (November 25, 2002).
[^ 4] See Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974).
Chapter 2 - Record of Proceeding
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 a person that document the person'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 persons born less than 100 years ago. For persons 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.
Chapter 3 - Jurisdiction
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].
Chapter 4 - Burden and Standards of Proof
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 a beneficiary enters into a marriage while in exclusion, deportation, or removal proceedings, and to determine the citizenship of children born out of wedlock.[4]
Footnotes
[^ 2] See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).
[^ 3] See Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)] for more information.
[^ 4] See INA 245(e)(3). See INA 309(a)(1).
Chapter 5 - Verification of Identifying Information
As part of the adjudication of immigration benefits requests, USCIS reviews evidence, including biographical and biometrics information, submitted by the benefit requestor, as well as DHS systems, to verify identifying information.
A. Full Legal Name
In general, the requestor’s full legal name is comprised of the requestor’s:
- 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]
- The requestor’s name following a legal name change (such as a petition for name change or adoption decree or order); or
- The requestor’s name following a common law name change evidenced by a state-issued identification document.[2]
Determining a Benefit Requestor’s Legal Name
When reviewing an immigration benefit request, the officer must review all evidence to support the name provided on the request.[3] Examples of evidence that the name used is the requestor’s legal name are as follows:
- Birth certificate;[4]
- Civil marriage certificates, certificates of domestic partnership, and civil union certificates;
- Divorce decree;
- Family registry entry;
- Government-issued identity document (including passport);
- Certificate of naming;
- Court order; or
- Documentation demonstrating change of name by operation of state or local law.[5]
Officers may determine the legal name by examining any one document or a combination of documents. Officers should use the requestor’s expressed preference for their name from the evidence reviewed if their preferred name is confirmed by the governing state or local law.[6] If documents submitted in support of the benefit request do not support the name desired or claimed by the requestor, an officer may request additional evidence.[7]
1. Name Changes
The place of jurisdiction controls whether the name change is legally valid.
Foreign Law
If the benefit requestor changes their name while under foreign jurisdiction, USCIS considers the name change to be legally valid if the country has jurisdiction over the requestor at the time of the change and the change is legally valid and documented under that country’s law. For questions relating to the validity of a legal name change that occurred in a foreign country, officers may review the case with local counsel, review the U.S. Department of State’s Reciprocity Schedule for available documentation, and request a Library of Congress report.
Common Law
In the United States, including its territories and possessions, state and local law govern name changes. Therefore, USCIS may issue a document in a new name based on the operation of the provisions of any state or local law that recognizes a new name. If the requestor resides in a state that recognizes common law name changes, the requestor may provide a state-issued identification document and appropriate documentation issued by the state or locality recognizing a common law name change based upon customary usage. The documentary evidence should show the issue date, acquired name, and at least one other piece of identifying data such as the applicant’s date of birth, place of birth, age, photograph, or Social Security number. Acceptable documentary evidence includes but is not limited to driver’s licenses and non-driver state-issued identification. For questions relating to the validity of a common law name change, officers may review the case with local counsel.
Name After Marriage or Divorce
A married person may retain their pre-marital name or use a different legal married name (such as a spouse’s surname or a hyphenated name combining the pre-marital name and spouse’s surname). This change is often dependent on the married person’s preferences and may not be the name as it appears on a marriage license or certificate. However, if the marriage occurred in the United States, the officer should refer to the applicable state law to determine if the name change should be reflected on the marriage license or certificate.
Similarly, a divorce might result in a change of name. Such change may be reflected on the divorce decree or order in support of the decree. As with marriages, the officer should refer to the applicable state law to determine if the name change should be reflected on the divorce decree.
2. Construction of Foreign Names
Construction of foreign names varies from culture to culture.[8] For example, certain countries’ birth certificates display names in this order: family name, middle name, given name. This contrasts with most birth certificates issued in the United States, which display names in this order: given name, middle name, family name.[9]
When determining a benefit requestor’s legal name, officers should be aware of the varying construction of foreign names. Officers also can consider the requestor’s preferences if consistent with the governing state or local law.[10] Officers should verify that the legal name entered in USCIS systems reflects U.S. customary name order (given name, middle name, family name) to avoid USCIS issuing an incorrect name on USCIS secure identity documents.[11]
For purposes of determining a requestor’s legal name, officers consider the foreign construction of the name. For example, a Vietnamese birth certificate or passport might read:
Nguyen [Family Name] Van [Middle Name] Nam [Given Name]
Although the foreign government-issued documentation may display in that order, USCIS considers the legal name to be Nam Van Nguyen.
In some cultures, a person may have two first names and two last names and may use all their names or only some through customary usage. For example, a Mexican birth certificate or passport might read:
Maria [Given Name] Guadalupe [Given Name] Gonzalez [Father’s Paternal Last Name] Gomez [Mother’s Paternal Last Name]
Although the foreign government-issued documentation may be displayed in that order, USCIS may consider the legal name to be any of the following, if supported by evidence:
- Maria Guadalupe Gonzalez Gomez
- Maria Gonzalez Gomez
- Guadalupe Gonzalez Gomez
- Maria Gonzalez
- Guadalupe Gonzalez
One-Word Names
Some benefit requestors may only have a one-word name, or mononym. The mononym may be a given name only, or a family name (last name) only. For example, in Afghanistan, it is common to have a name that consists of a given name only:
- Laila [Given Name]
For purposes of properly filing benefit requests, data entry in USCIS systems, and issuing secure documents such as Permanent Resident Cards or travel documents, when a benefit requestor has a single name, USCIS considers the single name as the family name. USCIS may insert No Name Given as the given name in this circumstance.
B. Personal Information
1. Date of Birth [Reserved]
[Reserved]
2. Sex
Certain USCIS applications, petitions, and requests require a benefit requestor to indicate his or her sex. In these cases, a benefit requestor must provide his or her biological sex as generally evidenced on his or her birth certificate issued at the time of birth or issued closest to the time of birth. Sex is not “gender identity.”
Many immigration benefits require sex (male (M) or female (F)) and not gender, two examples of which are INA 338 that requires the bearer’s “sex” on the Certificate of Naturalization, and a host of immigration benefits that rely on the binary legal term “sons or daughters” for the allocation of immigrant visas, such as family-sponsored visas under INA 203(a), alien witness or informant (S) visas under INA 101(a)(15)(S), and employment-based investor (EB-5) visas under INA 203(b)(5).[12]
USCIS only recognizes the two biological sexes: male (M) or female (F). If there is a discrepancy between the requestor’s selection and the birth certificate issued at the time of birth or issued closest to the time of birth, USCIS considers the sex indicated on the requestor’s birth certificate to be controlling, provided the birth certificate issued at the time of birth or issued closest to the time of birth indicates a male or female sex. Where a birth certificate issued at the time of birth or issued closest to the time of birth indicates a sex other than male or female, USCIS may base the determination of sex on secondary evidence in the record, where available.[13]
USCIS does not deny immigration benefits solely based on a failure to properly indicate the benefit requestor’s sex. However, USCIS must indicate the benefit requestor’s sex when issuing certain documents,[14] and USCIS does not issue a document indicating a sex that is inconsistent with the benefit requestor’s biological sex as generally evidenced on a birth certificate issued at the time of birth or issued closest to the time of birth (provided the birth certificate indicates a male or female sex).[15] Therefore, if a benefit requestor does not indicate their sex or indicates a sex different from the sex on his or her birth certificate issued at the time of birth or issued closest to the time of birth, it may cause delays in adjudication.
Footnotes
[^ 1] There may be instances in which a birth certificate is unobtainable because of country conditions or personal circumstances. In these instances, a requestor may submit secondary evidence or affidavits to establish the requestor’s identity. Any affidavit should explain the reasons primary evidence is unavailable. For more information, see the Department of State (DOS) Reciprocity Tables for identity documents that cannot be obtained in particular countries and during specific time periods. Asylum applicants may be able to establish their identity, including their full legal name, with testimony alone.
[^ 2] Certain states recognize common law name changes. USCIS recognizes common law name changes if the benefit requestor’s state of residence has recognized such a name change through the issuance of a state-issued identification document. See Subsection 1, Name Changes [1 USCIS-PM E.5(A)(1)].
[^ 3] In addition, various regulatory provisions specifically discuss name change requirements. See 8 CFR 204.2 (certain family-based immigrant petitions). See 8 CFR 320.3(b) and 8 CFR 322.3(b) (Certificates of Citizenship for certain children born outside the United States).
[^ 4] An adoption decree or order may result in the issuance of a birth certificate in a new name.
[^ 5] In the United States, including its territories and possessions, state and local law govern name changes. Therefore, USCIS may issue a document in a new name based on the operation of the provisions of any state law that recognizes a new name. If the requestor resides in a state that recognizes common law name changes, the requestor may provide a state-issued identification document recognizing a common law name change based upon customary usage. The documentary evidence should show the issue date, acquired name, and one other piece of identifying data such as the applicant’s date of birth, place of birth, age, photograph, or Social Security number. Acceptable documentary evidence includes but is not limited to driver’s licenses or non-driver state-issued identification. See Subsection 1, Name Changes [1 USCIS-PM E.5(A)(1)].
[^ 6] Additional considerations may apply when adjudicating refugee and asylum-based adjustment of status applications. See Volume 7, Adjustment of Status, Part L, Refugee Adjustment, Chapter 5, Adjudication Procedures, Section C, Requests to Change Name or Date of Birth [7 USCIS-PM L.5(C)] and Section D, Spelling of Names and Naming Convention Issues [7 USCIS-PM L.5(D)]; and Part M, Asylee Adjustment, Chapter 5, Adjudication Procedures, Section D, Requests to Change Name or Date of Birth [7 USCIS-PM M.5(D)], and Section E, Spelling of Names and Naming Convention Issues [7 USCIS-PM M.5(E)].
[^ 7] See Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 8] For more information on the construction of foreign names and country or region-specific information, see A Guide to Names and Naming Practices (PDF).
[^ 9] For more information, see 8 Foreign Affairs Manual (FAM) 403.1, Name Usage and Name Change.
[^ 10] Additional considerations may apply when adjudicating refugee and asylum-based adjustment of status applications. See Volume 7, Adjustment of Status, Part L, Refugee Adjustment, Chapter 5, Adjudication Procedures, Section C, Requests to Change Name or Date of Birth [7 USCIS-PM L.5(C)] and Section D, Spelling of Names and Naming Convention Issues [7 USCIS-PM L.5(D)]; and Part M, Asylee Adjustment, Chapter 5, Adjudication Procedures, Section D, Requests to Change Name or Date of Birth [7 USCIS-PM M.5(D)], and Section E, Spelling of Names and Naming Convention Issues [7 USCIS-PM M.5(E)].
[^ 11] Benefit requestors may seek a new USCIS-issued secure document, often without a new application or fee, if based on correction of a USCIS error on the document. See Volume 11, Travel and Identity Documents, Part A, Secure Identity Documents Policies and Procedures, Chapter 3, Reissuance of Secure Identity Documents [11 USCIS-PM A.3].
[^ 12] See INA 203(b)(5)(A)(ii), which specifies “sons, or daughters.”
[^ 13] For more information, see Chapter 6, Evidence [1 USCIS-PM E.6].
[^ 14] For example, USCIS indicates the benefit requestor’s sex on Permanent Resident Cards, Employment Authorization Documents, Certificates of Naturalization, and Certificates of Citizenship.
[^ 15] USCIS may provide notice to benefit requestors if USCIS issues a USCIS document reflecting a sex different than that indicated by the benefit requestor on the request.
Chapter 6 - Evidence
Any evidence submitted in connection with a benefit request is incorporated into and considered part of the request.[1] The purpose of gathering evidence is to determine some fact or matter at issue. When adjudicating a benefit request under the preponderance of evidence standard, the officer examines each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is “more likely than not” or “probably” true.[2]
The administrative record created by an officer is often crucial in later proceedings relating to the same requestor, such as appeals, rescission proceedings, removal proceedings, applications for relief and protection from removal, other benefit requests, and investigations of fraud. Additionally, under the Jencks Act,[3] anyone who provides a statement at an administrative proceeding, such as an immigration interview, is a potential government witness whose statement the government may be required to produce. Therefore, officers and other USCIS staff must retain and enter into the administrative record the following:
- Written and signed affidavits from statements, such as sworn statements;
- Recordings and transcripts of interviews;
- Original interview notes;
- Original notes made during site visits and surveillance operations; and
- Original drafts of reports concerning interviews or surveillance operations if they are the first written record of the interview or surveillance.
A requestor must establish eligibility for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication. If the evidence the requestor provides meets their burden of proof to establish eligibility,[4] USCIS approves the benefit request. If the law requires an exercise of discretion, USCIS can approve the request only if the requestor merits a favorable exercise of discretion and otherwise establishes eligibility.[5] If the evidence is not sufficient to establish eligibility, USCIS may request evidence or proceed to denial, as appropriate.
A. Initial and Additional Evidence [Reserved]
[Reserved]
B. Primary and Secondary Evidence
Each benefit request has specific eligibility requirements that a requestor must meet, which must be demonstrated by evidence. Any evidence the requestor submits in connection with a benefit request is incorporated into and considered part of the request.[6]
Some evidence is considered primary evidence, and other evidence is considered secondary evidence. Primary evidence is evidence that on its own proves an eligibility requirement. For example, a divorce certificate is primary evidence of a divorce. Secondary evidence is evidence that may demonstrate a fact is more likely than not true, but the evidence does not derive from a primary, authoritative source. Records maintained by religious or faith-based organizations showing that a person was divorced at a certain time are an example of secondary evidence of the divorce.
Likewise, a government-issued birth certificate is an example of primary evidence of the birth of a child, whereas a baptismal certificate is an example of secondary evidence of the birth of a child.[7]
USCIS requires primary evidence where such evidence is generally available according to the U.S. Department of State (DOS).[8] If the requestor cannot obtain such primary evidence, the requestor must demonstrate that the required primary evidence does not exist or cannot be obtained and provide secondary evidence.[9] Any secondary evidence submitted must overcome the unavailability of primary evidence.[10]
However, for some applications and petitions, such as asylum applications and applications for classification as a refugee, testimony alone may meet the evidentiary requirements.[11]
Primary Evidence that Does not Exist or Cannot be Obtained
Officers might encounter situations in which primary evidence is available according to DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage, but the applicant asserts it does not exist or cannot be obtained.[12] This generally gives rise to a presumption of ineligibility, which is the requestor’s burden to overcome.[13] A requestor cannot simply assert that primary evidence does not exist.
In the absence of primary evidence as required by regulation,[14] the requestor must:
- Demonstrate that the required document does not exist or cannot be obtained by providing a written statement from the appropriate issuing authority attesting to the fact that no primary record exists and the reason the record does not exist;[15] and
- Submit secondary evidence that overcomes the unavailability of the primary evidence.
In the absence of primary and secondary evidence as required by regulation,[16] the requestor must:
- Demonstrate that the required document does not exist or cannot be obtained by providing a written statement from the appropriate issuing authority attesting to the fact that the primary record does not exist and the reason the record does not exist;
- Demonstrate the unavailability of any secondary evidence; and
- Submit two or more affidavits by persons who are not parties to the benefit request and who have direct personal knowledge of the event and circumstances.[17]
A requestor who is not able to provide a written statement of unavailability from the relevant foreign authority may instead submit evidence of repeated good faith attempts to obtain the required document or statement.[18]
Primary Evidence that is Generally Available but is Unreliable
Officers may also encounter cases where primary evidence is generally available, but DOS reports that such documents are unreliable. Civil records may be considered unreliable or require additional scrutiny for various reasons, including inaccurate recording, date of issuance, inconsistent standards for issuance, or widespread fraud.
If foreign documents submitted as primary evidence are unreliable according to DOS,[19] USCIS may request secondary evidence[20] in support of the benefit request. In cases where the secondary evidence is insufficient, or where interview criteria indicate, USCIS may refer the benefit requestor for an in-person interview. In addition, petitioners or applicants should be encouraged to submit all evidence at their disposal in response to any Request for Evidence (RFE). Whether evidence establishes the eligibility requirements is evaluated by the totality and quality of the evidence presented.
C. Copies vs. Originals
When adjudicating an immigration benefit, officers need to verify facts such as dates of marriage, birth, death, and divorce, as well as criminal and employment history. The “best evidence rule” states that where the facts are at issue in a case, the officer should request the original document. For example, if evidence of a divorce decree is required and a submitted photocopy looks altered, the officer should request the original divorce decree.
1. When Originals Required and Photocopies Permitted
When a requestor files a paper form[21] with USCIS, original documents may be required. Examples of supporting documents that requestors must generally present in the original are:
- Medical examinations;
- Affidavits; and
- Labor certifications.
Unless otherwise required, the requestor may submit a legible photocopy of any other supporting document at the time of filing.[22]
2. Requesting Original Documents
USCIS may, at any time, request submission of an original document for review. The request sets a deadline for submission of the original document.
If a requestor does not submit the requested original of the document by the deadline, USCIS may deny the benefit request as abandoned, based on the record, or both.[23]
3. Returning Original Documents
Upon completion of the adjudication, USCIS may return original documents if the submission was in response to a USCIS request. All retained originals become part of the record. Although USCIS does not automatically return originals that it did not request, offices are encouraged to voluntarily return submitted original documents.[24]
To request return of originals that were not returned during the adjudication process, the requestor may submit a Request for the Return of Original Documents (Form G-884).
D. Types of Evidence
Strict rules of evidence used in judicial proceedings do not apply in administrative proceedings, including benefits requests before USCIS. Usually, requestors may submit any oral or documentary evidence for USCIS’ consideration when determining eligibility for the benefit sought.
Because the strict rules of evidence do not apply in administrative proceedings, officers may consider a wide range of oral or documentary evidence.
1. Documentary Evidence
Documentary evidence includes all types of documents, records, and writings and is subject to the same considerations regarding competency and credibility as is testimonial evidence discussed below. Documentary evidence may be divided into two categories: public documents and private documents.
Public Documents
Public documents are the official records of legislative, judicial, and administrative bodies. A requestor may submit public documents as evidence to demonstrate eligibility for the benefit sought. For example, a government-issued birth certificate is a public document.
Birth or baptismal records maintained by officials in religious or faith-based organizations are not considered public documents but may be accepted as secondary evidence of birth if the actual place of birth is indicated on the certificate.
Private Documents
Private documents include all documents other than the official records of legislative, judicial, or administrative bodies of government. Requestors often submit private documents as supporting evidence for benefit requests. Private documents can include, but are not limited to, business or tax records, bank statements, affidavits, education credentials, or photographs.
2. Testimonial Evidence
Officers frequently take testimony to determine eligibility for immigration benefits.[25] An officer should only take testimony from a person who is mentally competent at the time set to testify. An officer should not attempt to take testimony from any person who might lack the mental capacity, such as:
- A person who has been found mentally incompetent by an appropriate authority;
- A person who is under the influence of drugs or alcohol; or
- A person the officer suspects is mentally incompetent. In those cases, the officer must clearly document their reason(s) for reaching that conclusion.
In any situation where the witness’ competency is in doubt, officers should supplement the record with the testimony of another witness, with other evidence relating to the same matter or reschedule the interview, per local procedures.
When interviewing minors, officers should consider the child’s age, stage of language development, and emotional maturity when eliciting testimony. Such interviews must be conducted with sensitivity and may warrant special considerations, including determining whether a trusted adult may be present.
Credibility of Testimony
Discrepancies in statements do not necessarily discredit the witness.[26] A truthful witness, in speaking of a past event, might not repeatedly reproduce the facts in their entirety without some change in detail.
Witnesses who have signed statements might later indicate that they wish to retract the statement, or they might give contrary testimony when later called upon to testify. USCIS may not prevent such witnesses from retracting or changing prior statements. However, contradictory statements may adversely impact the credibility of the witness.[27]
If an officer determines that the testimony of a witness is not credible, the written decision or interview notes or both should indicate this conclusion. However, it generally is not enough to simply say that the witness is not credible. Instead, the officer’s decision should give the specific reason(s) for the conclusion and refer to evidence in the record that supports the conclusion.
Privileged Testimony
Officers may occasionally encounter the issue of privilege. A testimonial privilege allows the person who invokes it to bar testimony that would violate the privilege. Examples include the privilege against self-incrimination and spousal privileges.
Each privilege differs slightly in how it applies, such as whose testimony may be barred and who may invoke the privilege. The scope of the material covered by the privilege also differs.[28]
Sworn Statements
An officer may also take a sworn statement. A sworn statement is a written declaration given under an oath (or affirmation). It must be witnessed and signed and contain an accurate record of the questions asked, and answers received. The sworn statement becomes part of the permanent, official record and may be used in a subsequent proceeding or prosecution. The determination of benefit eligibility may depend on the evidence in the sworn statement and the interview record it creates may be particularly important in complex cases, such as those involving national security or fraud concerns.
An officer taking a sworn statement must focus on gathering all necessary information to make a decision. The officer must structure the statement in a manner that is logical, using a clear progression of facts and questions. Officers should explore each relevant fact uncovered in a statement by further questioning to the extent necessary before changing topics.
When a sworn statement is taken and the affiant signs it, the affiant (the person making the statement) or authorized representative may request a copy of the statement. Upon request, USCIS provides a copy of the signed sworn statement to an affiant, without fee, at the conclusion of the interview where the statement was taken.[29]
3. Expert and Opinion Evidence
On occasion, officers may require evidence from an expert to assist in completing an adjudication. For example, in cases involving handwritten, counterfeit, or altered documents, U.S. Immigration and Customs Enforcement (ICE)’s Homeland Security Investigations Forensic Laboratory may serve as experts.[30] A requestor may also submit evidence from a non-DHS expert.
An expert is permitted to give an opinion on a particular set of facts or circumstances involving scientific, technical, or other specialized knowledge. Knowledge, skill, experience, training, or education must qualify the expert. Officers may reject or afford lesser evidentiary weight to expert opinions that conflict with the evidence of record or are questionable.[31]
E. Translations
1. Document Translations
Any document containing a foreign language submitted in support of a benefit request must be accompanied by a full English language translation.[32] The translator must certify that the translation is complete and accurate, and that the translator is competent to translate from the foreign language into English.[33] Sometimes the keeper of a record issues an “extract” version of a document. Such official extracts are acceptable, but only if they contain all the information necessary to make a decision on a case. Only extracts prepared by an authorized official (the “keeper of record”) are acceptable. A summary of a document prepared by a translator is unacceptable.
2. Document Translators
If an officer takes a written statement in a foreign language and a translator translates it into English, it may be necessary to produce the translator at a subsequent interview or hearing. When there is evidence that a written statement might not be accurately translated, the translator may be called upon to testify not only as to knowledge of the English and the foreign language, but also to confirm the accuracy of the translation.[34]
F. Requests for Evidence and Notices of Intent to Deny
Under the regulations, USCIS has the discretion to issue Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) for immigration benefit requests in appropriate circumstances.[35] USCIS also has the discretion in some instances to issue a denial without first issuing an RFE or a NOID.
An officer should issue an RFE or NOID when the facts and the law warrant; an officer should not avoid issuing an RFE or NOID when one is needed. However, an officer should not issue an RFE or NOID if the officer determines the evidence already submitted establishes eligibility or ineligibility for the request. An unnecessary RFE or NOID can delay case completion and result in additional unnecessary costs to both the government and the benefit requestor.[36]
Generally, USCIS issues written notices in the form of an RFE or NOID to request missing initial[37] or additional evidence from benefit requestors. However, USCIS has the discretion to deny a benefit request without issuing an RFE or NOID. If the officer determines a benefit request does not have any legal basis for approval, the officer should issue a denial without prior issuance of an RFE or a NOID.[38]
1. Evaluating Evidence and Eligibility
Unless otherwise specified, officers should generally follow these principles in each case:
- Understand the specific elements required to demonstrate eligibility for the benefit request.[39]
- Understand the standard of proof that applies to the benefit request. In most instances, the benefit requestor must establish eligibility under the preponderance of the evidence standard. Under that standard, the benefit requestor must prove it is more likely than not that the requestor meets each of the required elements.[40]
- Review all the evidence to determine if each of the essential elements has been satisfied by the applicable standard of proof.
If the officer determines that the benefit requestor is eligible for the benefit requested (all the essential elements have been satisfied by the applicable standard of proof, including but not limited to, when applicable, that a favorable exercise of discretion is warranted), the officer approves the benefit request without issuance of an RFE or NOID.[41]
If the benefit requestor has not established eligibility under the applicable standard of proof, the officer generally issues an RFE or NOID to request evidence of eligibility. However, if the benefit request does not have a legal basis for approval, and the officer determines that there is no possibility that additional information or explanation will establish a legal basis for approval, then the officer generally should deny the benefit request without first issuing an RFE or NOID.[42]
2. Considerations Before Issuing Requests for Evidence or Notices of Intent to Deny
Instead of or in addition to issuing an RFE or NOID, the officer may also:
- Perform additional research;
- If not already required for the benefit type, interview the benefit requestor or other witnesses; or
- Initiate an investigation.
Each option requires varying degrees of resources. Therefore, officers should carefully evaluate each option when deciding next steps.
Performing Additional Research
Although the burden of proof to establish eligibility for an immigration benefit is on the benefit requestor,[43] an officer may assess, before issuing an RFE or a NOID, whether the information or evidence needed is available in USCIS records or systems. Officers have the discretion[44] to validate assertions or corroborate evidence and information by reviewing USCIS (or other governmental) files, systems, and databases, or by obtaining publicly available information that is readily accessible.[45]
For example, an officer may, in the exercise of discretion, verify information relating to a petitioner’s corporate structure by consulting a publicly available government website or corroborate evidence relating to a person’s history of nonimmigrant stays in the United States by searching a U.S. government database.
3. Requests for Evidence
If the benefit requestor either has not submitted all of the required initial evidence[46] for the benefit request, or the evidence in the record does not establish eligibility for the benefit sought, the officer should issue an RFE or NOID requesting such evidence unless the officer determines that there is no legal basis for the benefit request and no possibility that additional information or explanation will establish a legal basis for approval.[47]
Content of RFEs
RFEs should:
- Identify the eligibility requirement(s) that has not been established and why the evidence submitted is insufficient;
- Identify any missing evidence specifically required by the applicable statute, regulation, or form instructions;
- Identify examples of other evidence that may be submitted to establish eligibility; and
- Request that evidence.
An officer should not request evidence that is outside the scope of the adjudication or otherwise irrelevant to an identified deficiency.
The RFE should ask for all the evidence the officer anticipates needing to determine eligibility and should clearly state the deadline for response.
Avoiding Multiple RFEs
In certain instances, the evidence provided in response to an RFE may raise eligibility questions that the officer did not identify during initial case review or open new lines of inquiry. In such a case, the officer may issue a follow-up RFE or NOID. However, officers should include in a single RFE all the evidence they anticipate needing to determine eligibility. The officer’s careful consideration of all the apparent deficiencies in the evidence minimizes the need for multiple RFEs.
Timeframe for Response
The maximum response time for an RFE is 12 weeks (84 days); regulations prohibit officers from granting additional time to respond to an RFE.[48]
However, the regulations permit USCIS to assign flexible timeframes for benefit requestors to respond to an RFE.[49] To ensure consistency, officers should follow standard timeframes but may reduce the response time on a case-by-case basis after obtaining supervisory concurrence. This discretion should only be used when warranted by circumstances as determined by the officer and the supervisor.
The RFE must clearly state the deadline by which the requested initial or additional evidence must be submitted to USCIS.
Regulations govern the effect of service, which may be in person, by ordinary mail, or electronically.[50] When USCIS serves an RFE by ordinary mail, the service of the RFE is complete upon the benefit requestor on the day that USCIS physically mails the RFE.[51] When USCIS serves an RFE by ordinary mail, an RFE response is timely if USCIS receives it no more than 3 days after the prescribed period. This provides a total of 87 days after USCIS mails the RFE, for USCIS to receive an RFE response.
Further, USCIS applies the regulatory definition of day[52] when reviewing a mailed RFE response for timeliness. Where USCIS receives the response on a Monday or on the next business day after a federal holiday, USCIS considers the response to be timely if the deadline fell on the preceding Saturday, Sunday, or federal holiday. As such, when the last day of the filing period falls on a Saturday, Sunday, or federal holiday, the RFE response period is extended until the end of the next business day that is not a Saturday, Sunday, or federal holiday.
USCIS considers a response to an RFE that is issued through the USCIS online system to be received on the date it is electronically filed through the individual’s (or attorney or representative’s) online account, regardless of whether the day is on a weekend or federal holiday.
Additional mailing time (14 days) should be given to benefit requestors residing outside the United States or when USCIS mails an RFE from an international USCIS field office.
Standard Timeframes
In compliance with the regulations, the guidelines in the table below provide standard timeframes for benefit requestors to respond to RFEs.[53] These standard timeframes do not apply to circumstances in which a fixed maximum response time is specified by regulation.[54]
When Submitting Evidence Required For | Standard Response Time (Calendar Days) | Additional Mailing Time When Residing Inside the United States | Additional Mailing Time When Residing Outside the United States or When an International Field Office Issues RFEs |
---|---|---|---|
Application to Extend/Change Nonimmigrant Status (Form I-539)[55] | 30 | 3 | N/A |
Application for Provisional Unlawful Presence Waiver (Form I-601A)[56] | 30 | 3 | N/A |
All other form types, regardless of whether the request is for initial or additional evidence, or whether the evidence is available in the United States or from overseas sources[57] | 84 | 3 | 14 |
4. Notices of Intent to Deny
Circumstances Under Which NOIDs are Required[58]
USCIS issues a NOID before denying any immigration benefit requests submitted on the following forms:
- Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A) based on a mandatory denial ground;[59]
- Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800) based on a mandatory denial ground;[60] or
- Application to Register Permanent Residence or Adjust Status (Form I-485) filed by a physician because the physician failed to comply with the conditions attached to his or her national interest waiver.[61]
Derogatory Information Unknown to the Benefit Requestor
In general, USCIS is also required to issue a NOID when derogatory information is uncovered during the course of the adjudication that is not known to the benefit requestor and USCIS intends to deny the benefit request on the basis of that derogatory information.[62] The benefit requestor may be either unaware of the derogatory information or unaware of its impact on eligibility.
When USCIS bases an adverse decision on derogatory information that may be unknown to the benefit requestor, USCIS must provide the requestor an opportunity to rebut that information.[63] A NOID provides a benefit requestor with adequate notice and sufficient opportunity to respond and the opportunity to review and rebut derogatory information not known to the benefit requestor.
Any explanation, rebuttal, or information presented by or on behalf of the benefit requestor must be included in the record of proceeding.
Additional Circumstances Under Which USCIS May Issue NOIDs
While not required in other situations, a NOID also provides a benefit requestor with adequate notice and sufficient opportunity to respond to an intended denial because of a determination of ineligibility.[64]
It is also appropriate for officers to issue NOIDs in the following circumstances:
- The benefit requestor submitted little or no evidence;[65] or
- The benefit requestor has met the eligibility requirements for the requested benefit or action but has not established that he or she warrants a favorable exercise of discretion (where there is also a discretionary component to the adjudication).[66]
Content of NOIDs
NOIDs should:
- Identify the reasons for the intended denial, including the eligibility requirement(s) that has not been established, and why the evidence submitted is insufficient;
- Explain the nature of the adverse information, if any.
- Identify any missing evidence specifically required by the applicable statute, regulation, or form instructions;
- Identify examples of other evidence that may be submitted to establish eligibility; and
- Request that evidence.
The NOID should also instruct the benefit requestor that a failure to respond may result in a denial and must clearly state the deadline for response.[67]
Timeframe for Response
The NOID must clearly state the deadline by which the response must be submitted to USCIS. The maximum response time for a NOID is 30 days.[68]
Regulations govern the effect of service, which may be in person, by ordinary mail, or electronically.[69] When USCIS serves a NOID by ordinary mail, the service of the NOID is complete upon the benefit requestor on the day that USCIS physically mails the NOID.[70] When USCIS serves a NOID by ordinary mail, a NOID response is timely if USCIS receives it no more than 3 days after the prescribed period. If the response time is 30 days, this provides a total of 33 days after USCIS mails the NOID, for USCIS to receive a NOID response.
Further, USCIS applies the regulatory definition of day[71] when reviewing a mailed NOID response for timeliness. Where USCIS receives the response on a Monday or on the next business day after a federal holiday, USCIS considers the response to be timely if the deadline fell on the preceding Saturday, Sunday, or federal holiday. As such, when the last day of the filing period falls on a Saturday, Sunday, or federal holiday, the NOID response period is extended until the end of the next business day that is not a Saturday, Sunday, or federal holiday.
USCIS considers a response to a NOID that is issued through the USCIS online system to be received on the date it is electronically filed through the individual’s (or attorney or representative’s) online account, regardless of whether the day is a weekend or federal holiday.
Additional mailing time (14 days) should be given to benefit requestors residing outside the United States or when USCIS mails a NOID from an international USCIS field office.
Standard Timeframes
In compliance with the regulations, the guidelines in the table below provide standard timeframes for benefit requestors to respond to NOIDs.[72]
When Submitting Evidence Required For | Standard Response Time (Calendar Days) | Additional Mailing Time When Residing Inside the United States | Additional Mailing Time When Residing Outside the United States or When an International Field Office Issues NOIDs |
---|---|---|---|
All form types[73] | 30 | 3 | 14 |
5. Responses to Requests for Evidence and Notices of Intent to Deny
Within the timeframe specified, benefit requestors may respond to an RFE or NOID in one of three ways:
- Submit a complete response containing all requested information;
- Submit a partial response, which is considered a request for a decision on the record; or
- Withdraw the application or petition.[74]
Requested Materials Must Be Submitted Together
Whether in response to an RFE or a NOID, benefit requestors must submit all requested materials together at one time, along with the original RFE or NOID. USCIS treats any submission partially responding to an RFE or NOID as a request for a final decision on the record.[75] USCIS does not wait for a second response or issue a second RFE simply because a response from the benefit requestor is a partial response.
Failure to Respond to an RFE or NOID
Failure to submit requested evidence that is relevant to the adjudication is grounds for denying the request.[76] If a benefit requestor does not respond to an RFE or NOID by the required date,[77] USCIS may:
- Deny the benefit request as abandoned;[78]
- Deny the benefit request on the record; or
- Deny the benefit request for both reasons.[79]
Footnotes
[^ 1] See 8 CFR 103.2(b).
[^ 2] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). Certain documentation requirements do not apply to asylees adjusting status. See INA 212(a)(7)(A).
[^ 3] See 18 U.S.C. 3500. The Jencks Act requires that a statement that was made by a government witness be produced after the government witness has testified upon demand by the defense. Failure by the government to produce the statement requires the suppression of the testimony of that witness.
[^ 5] See Chapter 8, Discretionary Analysis [1-USCIS PM E.8].
[^ 6] See 8 CFR 103.2(b)(1).
[^ 7] Although birth certificates are primary evidence, when the birth certificate was not registered contemporaneously with the birth, the officer must consider the birth certificate, as well as all the other evidence of record and the circumstances of the case, to determine whether the petitioner has submitted sufficient reliable evidence to demonstrate the claimed relationship by a preponderance of the evidence. See Matter of Rehman, 27 I&N Dec. 124 (BIA 2017). In addition, as of September 30, 2010, all birth certificates that were issued in Puerto Rico before July 1, 2010 are invalid. For any benefit request received after September 30, 2010, officers should verify that the Puerto Rico birth certificate was issued by the General Vital Statistics Office of Puerto Rico (Puerto Rico Department of Health) on or after July 1, 2010. For additional information related to the legislation that amended Puerto Rico law with respect to the issuance and validity of birth certificates, see S.B. 1653, Law No. 68 of 2009.
[^ 8] Officers reference DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage for country-specific document standards.
[^ 9] See 8 CFR 103.2(b).
[^ 10] See 8 CFR 103.2(b)(2). For self-petitions under the Violence Against Women Act (VAWA) and petitions and applications for T and U nonimmigrant status (for victims of human trafficking and other specified crimes), USCIS considers any credible evidence relevant to the petition or application. Requestors may submit any credible, relevant, and probative evidence to establish eligibility. The determination of what evidence is credible and the weight to be given that evidence is within the sole discretion of USCIS and determined on a case-by-case basis. See INA 204(a)(1)(J). See INA 214(p)(4). See 8 CFR 103.2(b)(2)(iii). See 8 CFR 204.1(f)(1). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i). See 8 CFR 214.14(c)(4). See 8 CFR 214.11(d)(2) and 8 CFR 214.11(d)(5). VAWA self-petitioners may not be required to demonstrate that preferred primary or secondary evidence is unavailable. See 8 CFR 103.2(b)(2)(iii). See Volume 3, Humanitarian Protection and Parole [3 USCIS-PM].
[^ 11] See INA 208(b)(1)(B)(ii).
[^ 12] The DOS’s website provides country-specific information on the availability of various foreign documents. If DOS shows that a record is generally not available in a particular country, USCIS may accept secondary evidence without requiring the written statement from the issuing authority. See 8 CFR 103.2(b)(2)(ii).
[^ 13] See 8 CFR 103.2(b)(2)(i).
[^ 14] See 8 CFR 103.2(b).
[^ 15] See 8 CFR 103.2(b)(2)(ii).
[^ 16] See 8 CFR 103.2(b).
[^ 17] Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence. See 8 CFR 103.2(b)(2).
[^ 18] See 8 CFR 103.2(b)(2)(ii).
[^ 19] See 8 CFR 204.1(f)(1). DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage provides country-specific information on the availability and reliability of various foreign documents. If DOS shows that a record is generally not reliable in a particular country, USCIS should request secondary evidence.
[^ 20] Secondary evidence may include optional submission of DNA results. In certain cases where primary and secondary evidence are not sufficient to demonstrate a claimed family relationship, USCIS may send the requestor a Request for Evidence (RFE) suggesting DNA testing to support a claim of a biological family relationship. DNA collection is voluntary and a decision to omit DNA evidence is not factored into an adjudicative decision. For additional information on voluntary DNA submission, see USCIS Response to COVID-19 webpage.
[^ 21] For benefit requests filed electronically as permitted by form instructions, requestors must follow the instructions provided to properly submit all required evidence. For additional information relating to electronic filings, see Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests [1 USCIS-PM B.6].
[^ 22] For additional information on when USCIS requires original documents, see form-specific filing instructions.
[^ 23] See 8 CFR 103.2(b)(4)-(5). See 8 CFR 103.2(b)(13).
[^ 24] See 8 CFR 103.2(b)(5).
[^ 25] For example, an officer reviews all relevant records and considers the applicant’s testimony to determine whether a naturalization applicant has met the required period of continuous residence.
[^ 26] Witnesses may include, but are not limited to, applicants, petitioners, and other benefit requestors.
[^ 27] Retraction of prior statements made under oath may, under certain conditions, render the witnesses liable for perjury. However, witnesses have a legal right to claim that written statements are not true, or that they were obtained by fraud or duress.
[^ 28] Officers should not confuse privileged testimony with confidentiality provisions. For more information on confidentiality, see Part A, Public Services, Chapter 7, Privacy and Confidentiality. [1 USCIS-PM A.7].
[^ 29] See 8 CFR 103.2(b)(7).
[^ 30] If an officer intends to issue an adverse decision based on derogatory information of which the benefit requestor is unaware, the officer must disclose the information and provide the benefit requestor the opportunity to rebut the information and present information in the requestor’s own behalf. See 8 CFR 103.2(b)(16)(i).
[^ 31] See Matter of Caron Int'l, Inc. (PDF), 19 I&N Dec. 791, 795 (Comm. 1988).
[^ 32] See 8 CFR 103.2(b)(3).
[^ 33] See 8 CFR 103.2(b)(3).
[^ 34] See 8 CFR 103.2(b)(3).
[^ 35] See 8 CFR 103.2(b)(8). However, certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear; therefore, the guidance in this chapter does not apply to these immigration benefits governed by different regulations. The terms “benefit request” and “immigration benefit request,” as used in this Policy Manual 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.
[^ 36] For purposes of this Policy Manual part, the terms “benefit requestor” and “requestor” mean the person, organization, or business requesting an immigration benefit from USCIS. In most instances, this will either be an applicant or a petitioner, depending on the request.
[^ 37] 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.
[^ 38] For more information, see Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [1 USCIS-PM E.9(B)(1)].
[^ 39] See the program-specific part of the Policy Manual for more information on eligibility requirements that apply to a particular benefit request.
[^ 40] For more information, see Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 41] See 8 CFR 103.2(b)(8)(i).
[^ 42] See Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [1 USCIS-PM E.9(B)(1)].
[^ 43] See INA 291. See Matter of Arthur (PDF), 16 I&N Dec. 558 (BIA 1978).
[^ 44] However, under 8 CFR 103.2(b)(17), officers must verify the status of an applicant or petitioner who claims that he or she is a lawful permanent resident by reviewing USCIS records.
[^ 45] See INA 287(b). See 8 CFR 103.2(b)(16)(i).
[^ 46] For applications and petitions for T and U nonimmigrant status (for victims of trafficking and other specified crimes) and Violence Against Women Act (VAWA) benefit requests, USCIS considers any credible evidence relevant to the request. Requestors may submit any credible, relevant, and probative evidence to establish eligibility. See INA 204(a)(1)(J). See INA 214(p)(4). See 8 CFR 103.2(b)(2)(iii). See 8 CFR 204.1(f)(1). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i). See 8 CFR 214.14(c)(4). See 8 CFR 214.11(d)(2) and 8 CFR 214.11(d)(5).
[^ 47] If there is no legal basis for the benefit request and no possibility that additional information or explanation will establish a legal basis, the officer may deny the request without first issuing an RFE or NOID. See Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [1 USCIS-PM E.9(B)(1)].
[^ 48] See 8 CFR 103.2(b)(8)(iv). Officers adjudicating a benefit request may exercise their discretion to consider late responses to RFEs to have been submitted timely if in their view circumstances warrant it.
[^ 49] See 8 CFR 103.2(b)(8) and 8 CFR 103.2(b)(11).
[^ 50] See 8 CFR 103.8(b) (“[w]henever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”). See 8 CFR 103.8(a) (describing routine service by ordinary or electronic mail and personal service, performed by a government employee).
[^ 51] See 8 CFR 103.8(b) (“[w]henever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”).
[^ 53] See 8 CFR 103.2(b)(8)(iv).
[^ 54] For example, USCIS generally provides an applicant for naturalization 30 days (33 if mailed) to respond to an RFE. See 8 CFR 335.7. See Volume 12, Citizenship and Naturalization, Part B, Naturalization Examination, Chapter 4, Results of the Naturalization Examination, Section B, Continuation of Examination, Subsection 1, Continuation to Request Evidence [12 USCIS-PM B.4(B)(1)].
[^ 55] Due to the relatively short processing times required by the Form I-539, a response time of only 30 days applies to RFEs for Form I-539 filings.
[^ 56] Due to the streamlined nature of the provisional unlawful presence waiver process and to avoid long delays in immigrant visa processing, a response time of 30 days applies to RFEs for the Form I-601A. Officers, in their discretion, may increase the response time for the Form I-601A after obtaining supervisory concurrence. This discretion should be used on a case-by-case basis when warranted by circumstances as determined by the officer and the supervisor.
[^ 57] Certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear. Therefore, the guidance in this table does not apply to these immigration benefits governed by different regulations.
[^ 58] Certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear. Therefore, the guidance in this section does not apply to these immigration benefits governed by different regulations.
[^ 59] See 8 CFR 204.309(a). See 8 CFR 204.309(c).
[^ 60] See 8 CFR 204.309(a). See 8 CFR 204.309(c).
[^ 61] See 8 CFR 245.18(i).
[^ 62] See 8 CFR 103.2(b)(16).
[^ 63] See 8 CFR 103.2(b)(16)(i).
[^ 64] However, if the officer determines that there is no legal basis for the benefit request, the officer generally denies the request. See Chapter 9, Rendering a Decision, Section B, Denials, Subsection 1, Denials Based on Lack of Legal Basis [1 USCIS-PM E.9(B)(1)].
[^ 65] USCIS generally issues RFEs when some required evidence is missing but may issue a NOID if all or most of the required evidence is missing. However, USCIS generally rejects incomplete benefit requests, including those with filing deficiencies, such as missing or invalid signatures. USCIS does not issue NOIDs for such filing deficiencies since the requests were never accepted for adjudicative review and therefore are not subject to approval or denial criteria. See 8 CFR 103.2(a)(7)(ii). See Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section B, Intake Processing [1 USCIS-PM B.6(B)].
[^ 66] For more information, see Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].
[^ 67] See 8 CFR 103.2(b)(13).
[^ 68] See 8 CFR 103.2(b)(8)(iv). Officers adjudicating a benefit request may exercise their discretion to consider late responses to NOIDs to have been submitted timely if in their view circumstances warrant it.
[^ 69] See 8 CFR 103.8(b) (“[w]henever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”). See 8 CFR 103.8(a) (describing routine service by ordinary or electronic mail and personal service, performed by a government employee).
[^ 70] See 8 CFR 103.8(b) (“[w]henever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”).
[^ 72] See 8 CFR 103.2(b)(8)(iv).
[^ 73] Certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failures to appear. Therefore, the guidance in this table does not apply to these immigration benefits governed by different regulations.
[^ 74] See 8 CFR 103.2(b)(6). USCIS’ acknowledgement of a withdrawal may not be appealed. See 8 CFR 103.2(b)(15).
[^ 75] See 8 CFR 103.2(b)(11).
[^ 76] See 8 CFR 103.2(b)(14).
[^ 77] Applications for asylum are not subject to denial under 8 CFR 103.2(b), like other benefit requests, generally. See 8 CFR 208.14(d).
[^ 78] The benefit requestor may not appeal a denial due to abandonment, but the benefit requestor may file a motion to reopen. See 8 CFR 103.2(b)(15). See Notice of Appeal or Motion (Form I-290B). A new proceeding will not be affected by the withdrawal or denial due to abandonment, but the facts and circumstances surrounding the prior benefit request will otherwise be material to the new benefit request. See 8 CFR 103.2(b)(15). See 8 CFR 1.2 (definition of benefit request).
[^ 79] See 8 CFR 103.2(b)(13).
Chapter 7 - Interviews [Reserved]
Chapter 8 - Discretionary Analysis
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.
Benefit Type | Discretion Involved (Yes or No) |
---|---|
Petition to classify an alien as a nonimmigrant worker[8] | No (with some exceptions) |
Petition to classify an alien as a fiancé(e) of a U.S. citizen[9] | Yes |
Application to extend or change nonimmigrant status[10] | Yes |
Advance permission to enter as a nonimmigrant[11] | Yes |
Humanitarian parole[12] | Yes |
Temporary protected status[13] | Yes |
Refugee status[14] | Yes (with some exceptions)[15] |
Asylum[16] | Yes |
Petition to classify an alien as a family-based immigrant[17] | No (with some exceptions) |
Petition to classify an alien as an employment-based immigrant[18] | Yes |
Petition to classify an alien as an immigrant investor[19] | Yes |
Adjustment of status[20] | Yes (with some exceptions)[21] |
Registration[22] | No |
Recognition as an American Indian born in Canada[23] | No |
Waivers of inadmissibility[24] | Yes |
Consent to reapply for admission after deportation or removal[25] | Yes |
Employment authorization[26] | Yes (with some exceptions) |
Removal of conditions on permanent residence[27] | No (with some exceptions)[28] |
Naturalization[29] | No |
Application for a Certificate of Citizenship[30] | No |
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 the person’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.
Basic Adjudication Steps Involving Discretion | |
---|---|
Step One | Fact finding |
Step Two | Determine whether requestor meets the threshold eligibility requirements |
Step Three | Conduct 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 person warrants a favorable exercise of discretion.[46]
2. Identifying Discretionary Factors
Any facts related to the person’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. A person’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 person 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 person 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 person 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 applicant. 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 applicant. 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 applicant 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 applicant 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 applicant 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 Documents, Parole Documents, and Arrival/Departure Records (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), 113 Stat. 1198, 2309 (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 applicant’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 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 assimilate 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 applicant 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.
Chapter 9 - Rendering a Decision
A. Approvals
If the requestor properly filed the benefit request and the officer determines that the requestor meets all eligibility requirements, then the officer may approve the request. Upon approval, the officer updates all relevant electronic systems to reflect the approval.
B. Denials[1]
If, after evaluating all evidence submitted (including in response to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if applicable), the officer determines the requestor is ineligible for the benefit sought, the officer denies the benefit request.[2] Upon denial of a request, the officer updates all relevant electronic systems and issues a written decision informing the requestor of the reason(s) for denial.[3]
If the denial notice is returned as undeliverable, USCIS verifies the mailing address and places the notice, including the original mailing envelope, in the appropriate file as evidence of service of the decision.[4]
Written decisions should use plain language that the requestor can understand. When applicable, the decision includes guidance on the procedures for filing appeals and motions, including instructions for where to find the appropriate forms.[5]
1. Denials Based on Lack of Legal Basis
Generally, if a benefit request does not have a legal basis for approval, and the officer determines there is no possibility additional evidence could establish a legal basis for approval, the officer should issue a denial without first issuing an RFE or NOID.
This includes any filing in which the benefit requestor has no legal basis for the benefit sought or submits a request for an inactive or terminated program. For example, this includes family-based petitions filed for family members based on claimed relationships under categories not provided by statute (such as a grandparent filing a petition for a grandchild).
2. Abandonment Denials[6]
USCIS denies the benefit request as abandoned if the requestor fails to appear for a required interview or biometrics appointment or fails to provide an original document or other evidence when requested to do so.[7] When USCIS denies an application for abandonment, USCIS must notify the requestor, and the authorized representative, as appropriate, of the decision in writing.[8] Such a denial is without prejudice to a later re-filing of the benefit request.[9] The priority or processing date of a withdrawn or abandoned benefit request may not be applied to a later benefit request.[10]
3. Discretionary Denials
Many immigration benefits require requestors to demonstrate that their request merits a favorable exercise of discretion. 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, both favorable and unfavorable to the exercise of discretion. 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.
If the officer denies a request as a matter of discretion, the denial will explain the reasons the request was not granted.
Footnotes
[^ 1] See 8 CFR 103.3. Generally, applications for asylum are not subject to denial under 8 CFR 103.2(b), unlike most other benefit requests. See 8 CFR 208.14(d).
[^ 2] Except that, if an asylum applicant appears to be deportable, excludable, or removable, the asylum officer must either grant asylum or refer the application to an immigration judge for adjudication in deportation, exclusion, or removal proceedings. See 8 CFR 208.14.
[^ 3] See 8 CFR 103.3(a)(1)(i).
[^ 4] See 8 CFR 103.8.
[^ 5] See 8 CFR 103.3(a)(1)(iii)(A) (appeal) and 8 CFR 103.5 (motion to reopen or reconsider). When USCIS denies a benefit request for lack of prosecution due to abandonment, the denial cannot be appealed (although the requestor can file a motion). See 8 CFR 103.2(b)(15).
[^ 6] Asylum officers should refer to asylum-specific procedures regarding abandonment of an asylum application.
[^ 7] See 8 CFR 103.2(b)(13).
[^ 8] See 8 CFR 103.3(a)(1)(i). A denial due to abandonment may not be appealed. See 8 CFR 103.2(b)(15).
[^ 9] A denial due to abandonment may not be appealed, but an applicant or petitioner may file a motion to reopen. See 8 CFR 103.2(b)(15).
[^ 10] See 8 CFR 103.2(b)(15).
Chapter 10 - Post-Decision Actions
A. Updating Systems [Reserved]
[Reserved]
B. Notices to Appear [Reserved]
[Reserved]
C. Action on an Approved Application or Petition
In most instances, once a benefit request is adjudicated and notices are sent to the relevant parties, no further action on the part of the officer is required. However, there are certain situations that may require additional actions. Such actions may be initiated by the requestor, ordinarily by filing an Application for Action on an Approved Application or Petition (Form I-824).
For example, Form I-824 may be filed, with fee, to request a duplicate approval notice or to transfer a visa petition requiring visa issuance from one consulate to another.
Jurisdiction to act on a Form I-824 lies with the office that originally approved the underlying benefit or, if the file has been transferred, with the office currently holding the file. Officers should follow local procedures for completing action on Form I-824.
D. Revocation, Rescission, or Termination
After approving a benefit request, USCIS may revoke, rescind, or terminate that immigration benefit in certain circumstances.[1] For example, USCIS may revoke the approval of an immigrant visa petition, in the agency’s discretion, for good and sufficient cause.[2]
Timeframe for Response
The maximum response time for a Notice of Intent to Revoke or a Notice of Intent to Rescind (NOIR) is 30 days.[3] Generally, the maximum response time for a Notice of Intent to Terminate (NOIT) is also 30 days.[4] The NOIR or NOIT must clearly state the deadline by which the response must be submitted to USCIS.
Regulations govern the effect of service, which may be in person, by ordinary mail, or electronically.[5] When USCIS serves a NOIR or NOIT by ordinary mail, the service of the NOIR or NOIT is complete upon the benefit requestor on the day that USCIS physically mails it.[6] When USCIS serves a NOIR or NOIT by mail, a NOIR or NOIT response is timely if USCIS receives it no more than 3 days after the deadline. This provides a total of 33 days after USCIS mails the NOIR or NOIT, for USCIS to receive a NOIR or NOIT response.[7]
Further, USCIS applies the regulatory definition of day[8] when reviewing a mailed NOIR or NOIT response for timeliness. Where USCIS receives the response on a Monday or on the next business day after a federal holiday, USCIS considers the response to be timely if the deadline fell on the preceding Saturday, Sunday, or federal holiday. As such, when the last day of the filing period falls on a Saturday, Sunday, or federal holiday, the NOIR or NOIT response period is extended until the end of the next business day that is not a Saturday, Sunday, or federal holiday.
USCIS considers a response to a NOIR or NOIT that is issued through the USCIS online system to be received on the date it is electronically filed through the individual’s (or attorney or representative’s) online account, regardless of whether the day is a weekend or federal holiday.
Additional mailing time (14 days) should be given to benefit requestors residing outside the United States or when USCIS mails a NOIR or a NOIT from an international USCIS field office.
Footnotes
[^ 1] For example, see INA 205 (revocation of approval of petitions), 8 CFR 246.1 (rescission of lawful permanent resident status), and 8 CFR 204.6(m)(6) (notice of intent to terminate the designation of a regional center). See the program-specific parts of the Policy Manual for more information about revocation, rescission, or termination.
[^ 3] See 8 CFR 205.2 and 8 CFR 246.1.
[^ 4] See, for example, 8 CFR 204.6(m)(6)(iv). However, procedures that relate to USCIS seeking to terminate a grant of asylum differ in that USCIS schedules an interview at least 30 days after USCIS sends the asylee the NOIT. See 8 CFR 208.24.
[^ 5] See 8 CFR 103.8(b) (“[w]henever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”). See 8 CFR 103.8(a) (describing routine service by ordinary or electronic mail and personal service, performed by a government employee).
[^ 6] See 8 CFR 103.8(b) (“[w]henever a person has the right or is required to do some act within a prescribed period after the service of a notice upon him and the notice is served by mail, 3 days shall be added to the prescribed period. Service by mail is complete upon mailing.”).
[^ 7] This does not apply to the termination of asylum status, as the regulations regarding the termination of a grant of asylum by USCIS provide that USCIS must set the termination interview at least 30 days after the date of mailing the NOIT. See 8 CFR 208.24.
Part F - Motions and Appeals
Part G - Notice to Appear
Part H - Emergencies or Unforeseen Circumstances
Chapter 1 - Purpose and Background
A. Purpose
Whether occurring in the United States or abroad, emergencies or unforeseen circumstances, such as natural disasters (for example, hurricanes, wildfires, or severe weather), national emergencies (for example, public health emergencies), or other circumstances (for example, terrorist attacks, mass shootings, system outages, or cyber attacks), may present unanticipated challenges to immigration benefit requestors.
Generally, USCIS may, in its discretion, implement certain flexibilities to assist benefit requestors during and after these events on a case-by-case basis. The degree to which USCIS may exercise discretion depends on the specific circumstances and applicable legal authorities. USCIS may also publicly announce the flexibilities and may issue guidance to ensure consistent application of these flexibilities.
B. Background
During or after an emergency or unforeseen circumstances, benefit requestors may experience various setbacks, including difficulties in obtaining documentation demonstrating eligibility for certain immigration benefits, being unable to receive notification of (or respond in a timely manner to) a USCIS-issued request or notice related to a pending benefit request, failing to appear for a scheduled appointment, or being unable to depart the United States before their authorized period of stay expires.
Benefit requestors may also experience unanticipated economic hardship, endure prolonged family separation, find that their USCIS-issued documents are damaged or destroyed, or find that they need to travel outside the United States because of the emergency or unforeseen circumstances.
Emergencies or unforeseen circumstances may also affect the operations of USCIS offices.[1] USCIS management officials may consider the operational requirements for implementing the flexibilities described in this part as they develop contingency plans in response to emergencies.
In response to certain emergencies or unforeseen circumstances, USCIS informs the public of the availability of various flexibilities.[2] If a benefit requestor seeks accommodation from USCIS based on the flexibilities referenced in this part, officers must follow corresponding guidance, including any guidance from USCIS headquarters related to the emergency or unforeseen circumstances.
C. Legal Authorities
- INA 103 – Powers and duties of the Secretary, Under Secretary, and Attorney General
- INA 291 – Burden of proof
- 8 CFR 103 – Immigration benefit requests; USCIS filing requirements; Biometric requirements; Availability of records
Footnotes
[^ 1] See Federal Emergency Management Agency’s Federal Continuity Directive 1, Federal Executive Branch National Continuity Program and Requirements (PDF), issued January 17, 2017, which provides guidance to federal executive branch departments and agencies for use in developing contingency plans and programs for Continuity of Operations (COOP). COOP planning is an effort to ensure that the capability exists to continue essential agency functions across a wide range of emergencies.
[^ 2] See USCIS’ Immigration Relief in Emergencies or Unforeseen Circumstances webpage.
Chapter 2 - Emergencies or Unforeseen Circumstances-Related Flexibilities
USCIS may, in its discretion, implement certain flexibilities when there are emergencies or unforeseen circumstances, such as:
- Natural disasters (for example, hurricanes, wildfires, or other severe weather);[1]
- National emergencies (for example, public health emergencies);
- Conflicts abroad; or
- Other unforeseen circumstances (for example, terrorist attacks, mass shootings, system outages, or cyber attacks) that may present unanticipated challenges to benefit requestors.
When an emergency or unforeseen circumstance occurs, USCIS may analyze the potential challenges presented to benefit requestors. USCIS may decide to implement flexibilities available within existing authorities to address the challenges.
If a requestor has been affected by an emergency or unforeseen circumstance, USCIS may have discretion to take measures on a case-by-case basis including, but not limited to, requests related to:
- Delays in filing applications, petitions, or requests by or on behalf of nonimmigrants present in the United States;
- Fee waivers;
- Document replacement;
- Rescheduling;
- Parole;
- Expedited processing; and
- Additional periods of satisfactory departure by Visa Waiver Program (VWP) entrants.
The President and the Secretary of Homeland Security have the discretionary authority to provide certain additional flexibilities for requestors, which include:
- Approving individual requests for deferred action submitted by aliens inside the United States;[2]
- For certain students, suspending limitations on employment, authorizing off-campus work, or authorizing a reduced course load under special student relief;[3]
- Designating, at the Secretary of Homeland Security’s discretion, a foreign state (or part of a foreign state) for temporary protected status, if the statutory conditions exist to support such designation;[4]
- Exercising discretion to defer certain employment eligibility verification requirements;[5] or
- Authorizing deferred enforced departure for a designated class of aliens.[6]
A. Immigration Policy Flexibilities
1. Nonimmigrants Present in the United States
Generally, nonimmigrants must depart the United States before their authorized period of stay expires.[7] USCIS recognizes that nonimmigrants affected by an emergency or unforeseen circumstance may unexpectedly remain in the United States beyond their authorized period of stay.
Extension of Stay and Change of Status
If seeking an extension of stay or change of status in the United States, nonimmigrants (or petitioners filing on their behalf) generally must file such a request before their authorized period of stay expires to be eligible for an extension of stay or change of status.[8]
Officers may, in their discretion, excuse a failure to timely file applications or petitions to extend or change status if:
- The benefit requestor is otherwise eligible for the benefit;
- The failure to timely file the extension of stay or change of status before the authorized period of stay expired was due to extraordinary circumstances beyond the control of the applicant or petitioner; and
- The delay in filing was commensurate with the circumstances.[9]
Officers determine whether an emergency or unforeseen circumstance constitutes extraordinary circumstances beyond the control of the benefit requestor and, if so, may excuse the failure to timely file.[10]
If the officer denies an extension of stay or change of status request, and the alien has fallen out of status, the officer should follow current Notice to Appear (NTA) policies to determine if issuance of an NTA is appropriate.
Visa Waiver Program Entrants – Satisfactory Departure
VWP entrants are generally not eligible for an extension of stay or change of status.[11] However, where an emergency or unforeseen circumstance prevents the departure of a VWP entrant, USCIS may exercise discretion to grant up to 30 days to allow for satisfactory departure.[12] For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of an emergency or unforeseen circumstance, USCIS has the authority to provide an additional 30-day period of satisfactory departure.[13] Officers determine whether an emergency or unforeseen circumstance constitutes an emergency that merits an approval of satisfactory departure.
To request satisfactory departure from USCIS, a VWP entrant should contact the USCIS Contact Center[14] and provide proof of the emergency or unforeseen circumstance. The USCIS Contact Center forwards the request to the local field office for consideration. If USCIS approves the request, the officer provides the requestor with a notification of a grant of satisfactory departure. Any notice issued by USCIS approving satisfactory departure should reflect:
- The period of satisfactory departure;
- The A-number, if any;
- The office name; and
- The date of notification.
USCIS provides similar notification to U.S. Customs and Border Protection (CBP).
Aliens stranded at a U.S. port of departure should contact CBP officers to request satisfactory departure. Alternatively, VWP entrants may contact the USCIS Contact Center.[15]
Adjustment of Status
Generally, aliens applying for adjustment of status must demonstrate that they have maintained continuous lawful immigration status since entry into the United States.[16] However, an applicant for adjustment of status may still be eligible notwithstanding their failure to maintain continuously a lawful status if such a failure was through no fault of the applicant or for technical reasons.[17]
Reinstatement to Student Status
If otherwise eligible for reinstatement, students who fail to maintain their F-1 or M-1 nonimmigrant status as a result of an emergency or unforeseen circumstances may apply for reinstatement to student status by filing an Application to Extend/Change Nonimmigrant Status (Form I-539).[18] Exchange visitors who fail to maintain their J-1 nonimmigrant status may request reinstatement to exchange visitor status under the U.S. Department of State regulations.[19]
2. Parolees
Parole allows an individual, who may be inadmissible or otherwise ineligible for admission into the United States, to come to or remain in the United States for a temporary period.[20] Generally, parolees must depart the United States when their authorized period of parole expires.[21]
USCIS recognizes that emergencies and unforeseen circumstances may unexpectedly prevent parolees from departing the United States before the expiration of their authorized period of parole, which would result in the accrual of unlawful presence unless the alien is otherwise protected from such accrual under the law or USCIS policy.
Parolees whose initial period of parole was authorized by USCIS who wish to request a new period of parole, also known as re-parole, may generally file such a request with USCIS before their initial parole period expires.[22] USCIS may exercise discretion to approve re-parole for urgent humanitarian reasons or significant public benefit on a case-by-case basis.[23]
3. Expedited and Emergency Issuance of Travel Documents
USCIS may, in its discretion, consider expedited or emergency issuance of certain travel documents for applicants who are inside the United States and wish to travel outside the United States due to an emergency or unforeseen circumstances and later return to the United States.[24] USCIS considers these requests on a case-by-case basis.
4. Deferred Action
Deferred action is a form of prosecutorial discretion to defer removal action (deportation) against an alien for a certain period of time.[25] Aliens granted deferred action are considered to be in a period of stay authorized under USCIS policy for the period deferred action is in effect.[26] However, deferred action is not a lawful immigration status and does not excuse any past or future periods of unlawful presence.[27]
USCIS reviews deferred action requests on a case-by-case basis and considers all positive and negative factors when considering whether to exercise discretion to defer removal action.[28]
USCIS may consider emergencies or unforeseen circumstances that prevent the departure of an alien without another lawful basis to remain in the United States when determining whether to approve deferred action.
5. Employment Authorization for F-1 Students
Emergencies or unforeseen circumstances beyond the student’s control may cause alien students severe economic hardship. If otherwise eligible, an F-1 student who is experiencing severe economic hardship may qualify for off-campus employment authorization or other relief.[29]
6. Document Replacement
A benefit requestor may file to replace a USCIS-issued document in the event that the document is not delivered, lost, damaged, destroyed, or contains incorrect information.[30] The requestor must file any application for document replacement according to the instructions and regulations in existence at the time of filing. Eligible applicants may seek a fee waiver or be eligible for a fee exemption for certain document replacement requests.[31]
7. Flexibilities for Conditional Permanent Residents
In general, conditional permanent residents must file either a Petition to Remove Conditions on Residence (Form I-751) or a Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829) during the 90-day period immediately preceding the second anniversary of the conditional permanent resident receiving permanent resident status.[32]
Officers may excuse the late filing of Form I-751 or Form I-829 if the conditional permanent resident files after the 90-day period and includes a written statement indicating that there is good cause, such as an emergency, that prevented a timely filing.[33]
8. Flexibilities for Failure to Respond to a Request for Evidence or to Certain Notices
If the evidence a benefit requestor submits is incomplete or insufficient to establish eligibility, officers may issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) to the requestor.[34] USCIS may deny an application, petition, or request on the merits of the case if the requestor fails to establish eligibility through the submission of additional evidence before the deadline provided in the notice.
USCIS may also (or alternatively) deny for abandonment if the requestor fails to respond to the RFE or NOID or fails to provide required initial evidence by the required date.[35] In general, USCIS does not reopen applications or petitions denied for abandonment unless the benefit requestor meets certain limited criteria, or USCIS decides to reopen the proceeding on its own motion.[36]
In response to an emergency or unforeseen circumstance, USCIS may temporarily delay the adjudication of the benefit request following the RFE or NOID deadline. During this period of time the requestor may submit additional evidence, including that requested in the RFE or NOID, and USCIS may consider such evidence before adjudicating the benefit request.
In determining such a period, USCIS considers any applicable extenuating circumstances related to the emergency or unforeseen circumstance, including, but not limited to:
- Disruptions to the postal service during or after an emergency;
- Disruptions to public transportation;
- Loss of domicile;
- Loss or damage to property;
- Displacement;
- Inoperable telephone or cellular service; or
- Lack of access to the internet.
If the benefit requestor fails to respond to any notice issued by the end of the flexibility period, the officer may adjudicate the case on the existing record. USCIS must notify the requestor of the decision and, if applicable, the termination of any associated benefit.[37]
If the benefit requestor demonstrates that they are unable to obtain certain evidence due to an emergency or unforeseen circumstances, the officer may exercise their discretion to provide the benefit requestor an opportunity to demonstrate they meet eligibility requirements through alternative means, if permitted under the applicable statutory or regulatory framework.[38]
Officers may also exercise their discretion to reopen a denial decision upon USCIS motion and reconsider the benefit requestor’s eligibility if the benefit requestor establishes that they failed to respond as a result of an emergency or unforeseen circumstance.[39]
9. Motions to Reopen and Appeals
Untimely Motions to Reopen
Applicants and petitioners must file a motion to reopen a proceeding within 30 calendar days of the decision that the motion seeks to reopen, or within 33 days if the decision was mailed.[40] USCIS may excuse failure to file before this period expires where the applicant or petitioner demonstrates that the delay was reasonable and was beyond their control.[41] USCIS may consider delays caused by emergencies or unforeseen circumstances to be reasonable and beyond the control of the applicant or petitioner.
There is no similar provision excusing untimely filings for a motion to reconsider.
Untimely Appeals
Appeals must be filed within 30 calendar days of the adverse decision, or within 33 days if the decision was mailed.[42] The Administrative Appeals Office must reject an appeal that is not filed within the time allowed.[43] However, if the untimely appeal meets the requirements of a motion, USCIS treats the appeal as a motion to reopen or reconsider.[44]
10. Fee Waivers and Exemptions
Individuals impacted by an emergency or unforeseen circumstances may experience financial disruptions, including unexpected expenses and temporary or permanent loss of income or employment. Such disruptions may impact the ability of benefit requestors to pay required filing fees. A fee waiver request may be filed with certain benefit requests based on various criteria, including financial hardship.[45]
USCIS announces via the public website any fee exemption the USCIS Director may approve in connection with an emergent circumstance,[46] including a declared major natural disaster.[47]
11. Expedited Processing
Immigration benefit requestors may request that USCIS expedite the adjudication of an application, petition, request, appeal, or motion that is under USCIS jurisdiction.[48] Relevant expedite criteria or circumstances that may be considered in determining whether to approve an expedite request include, but are not limited to, emergencies or urgent humanitarian situations.[49]
Benefit requestors seeking expedited processing must demonstrate that their request merits expedited processing as a matter of discretion based on one or more criteria or circumstances.[50] If a benefit requestor is seeking expedited processing on the basis of an emergency or unforeseen circumstance, they must demonstrate how the emergency or unforeseen circumstance created the need for expedited processing.
USCIS may expedite adjudication of an application, petition, request, appeal, or motion at its discretion. USCIS considers the totality of the circumstances and evidence submitted in support of an expedite request. In general, officers do not need to request approval before deciding whether to expedite; however, local policies for various immigration applications, petitions, or requests may outline operational requirements associated with expedited processing, including supervisory review.
B. Burden of Proof
The benefit requestor has the burden of proof to establish eligibility for an immigration benefit.[51] To satisfy this burden, requestors must provide sufficient evidence to meet the applicable standard of proof.[52]
In the event of an emergency or unforeseen circumstances, requestors may have difficulty presenting certain types of evidence to meet their burden of proof for the benefit sought. In these situations, if permitted under the applicable statutory or regulatory framework, officers may exercise discretion in evaluating other types of evidence to determine whether it is sufficient for the benefit requestor to satisfy the applicable standard of proof for the benefit sought.[53]
If a requestor does not provide certain documentation to meet the burden of proof, officers may, in their discretion, corroborate the information through systems checks, file review, third-party affidavits, testimony, or other means, in determining whether the evidence meets the standard of proof.[54] USCIS may also extend this flexibility to a specified group of benefit requestors and their family members following an emergency or unforeseen circumstance.
C. Considerations for Aliens Outside the United States
USCIS may assist certain aliens requesting urgent travel to the United States or who require documentation to return from temporary travel outside the United States.
1. Humanitarian or Significant Public Benefit Parole
Aliens who are outside of the United States may request parole into the United States based on urgent humanitarian reasons or significant public benefit.[55] Parole is not intended to be used solely to avoid normal visa processing procedures and timelines, to bypass inadmissibility waiver processing, or to replace established refugee processing channels.
An applicant may demonstrate urgency by establishing a reason to be in the United States that calls for immediate or other time-sensitive action, including (but not limited to) critical medical treatment, or the need to visit, assist or support a family member who is at an end-of-life stage of an illness or disease. The factors considered in determining urgent humanitarian reasons depend on the type of parole request.[56]
Parole based on significant public benefit includes, but is not limited to, law enforcement and national security reasons or foreign or domestic policy considerations.
2. Returning from Temporary Travel Outside the United States
Lawful Permanent Residents (LPRs), including conditional residents, returning from temporary travel outside the United States of less than 1 year and whose Permanent Resident Card has been lost, stolen, or destroyed may apply for a travel document (carrier documentation) that allows them to board an airline or other transportation carrier without the airline or transportation carrier being penalized. LPRs returning from temporary travel outside the United States of less than 2 years and whose reentry permits have been lost, stolen, or destroyed may do so as well.
Aliens outside the United States whose advance parole document, TPS travel document, or Employment Authorization Document with travel endorsement has not expired but has been lost, stolen, damaged, or destroyed while the alien was abroad may also request carrier documentation from USCIS.
LPRs and other aliens who wish to request carrier documentation may do so by filing an Application for Carrier Documentation (Form I-131A).
Footnotes
[^ 1] Domestically, USCIS may apply flexibilities, as appropriate, to individuals affected by natural catastrophes who live in a location that the Federal Emergency Management Agency (FEMA) has identified as a disaster area for purposes of public assistance. See FEMA’s Disasters & Assistance and How a Disaster Gets Declared webpages for more information.
[^ 2] USCIS, as well as U.S. Immigration and Customs Enforcement (ICE), may authorize deferred action as a discretionary act of administrative convenience to delay or decline to exercise immigration enforcement authority on a case-by-case basis. See Section 442(c) of the Homeland Security Act of 2002, Pub. L. 107-296 (PDF), 116 Stat. 2135, 2194 (November 25, 2002). See Delegation to the Bureau of Citizenship and Immigration Services, Delegation 0150.1, signed June 5, 2003 (effective March 1, 2003) (delegating authority to grant deferred action).
[^ 3] ICE may allow designated school officials to authorize a reduced course load for students. See 8 CFR 214.2(f)(6)(iii). ICE or USCIS may authorize a temporary change to employment requirements for students. See INA 101(a)(15)(F)(i). See 8 CFR 214.2(f). See Volume 2, Nonimmigrants, Part F, Students (F, M) [2 USCIS-PM F].
[^ 4] The Secretary of Homeland Security, after consultation with appropriate federal agencies, may designate a foreign state (or any part of such foreign state) for temporary protected status if the conditions in the foreign state fall into one, or more, of the three statutory bases for designation: armed conflict, environmental disasters, or extraordinary and temporary conditions. See INA 244(b)(1).
[^ 5] DHS may exercise discretion to defer requirements associated with Employment Eligibility Verification (Form I-9) generally found in INA 274A.
[^ 6] The President of the United States may authorize deferred enforced departure for a designated group of aliens as an exercise of the President’s power to conduct foreign relations.
[^ 7] See Volume 2, Nonimmigrants, Part A, Nonimmigrant Policies and Procedures, Chapter 4, Extension of Stay, Change of Status, and Extension of Petition Validity [2 USCIS-PM A.4].
[^ 8] See 8 CFR 214.1(c)(4) and 8 CFR 248.1(b) (timely filling for change of status applications). However, this requirement does not apply to an alien applying to obtain V nonimmigrant status. See INA 101(a)(15)(V). See 8 CFR 214.15(f). For specific filing and eligibility requirements for extensions of stay and changes of status, see instructions for Petition for a Nonimmigrant Worker (Form I-129) and instructions for Application to Extend/Change Nonimmigrant Status (Form I-539).
[^ 9] See 8 CFR 214.1(c)(4) and 8 CFR 248.1(b).
[^ 10] For more discussion of how USCIS exercises its discretion for these untimely requests and the effect of approval on the nonimmigrant’s lawful status, see Volume 2, Nonimmigrants, Part A, Nonimmigrant Policies and Procedures, Chapter 4, Extension of Stay, Change of Status, and Extension of Petition Validity [2 USCIS-PM A.4]. For a discussion of how approved untimely requests could impact a subsequent adjustment of status application, see Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 4, Status and Nonimmigrant Visa Violations (INA 245(c)(2) and INA 245(c)(8)) [7 USCIS-PM B.4].
[^ 11] See 8 CFR 248.2(a).
[^ 12] See 8 CFR 217.3(a). USCIS determines whether unforeseen circumstances qualify as an emergency under this provision.
[^ 13] See 8 CFR 217.3(a).
[^ 14] See the USCIS Contact Center webpage.
[^ 15] See the USCIS Contact Center webpage.
[^ 16] See INA 245(c)(2) and INA 245(c)(7). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 4, Status and Nonimmigrant Visa Violations (INA 245(c)(2) and INA 245(c)(8)) [7 USCIS-PM B.4].
[^ 17] See INA 245(c). See 8 CFR 245.1(b)(6), 8 CFR 245.1(d)(2)(i), 8 CFR 245.1(d)(2)(ii), and 8 CFR 245.1(d)(2)(iii) (maintenance of status in adjustment of status to permanent residence applications). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 4, Status and Nonimmigrant Visa Violations (INA 245 (c)(2) and INA 245 (c)(8)), Section E, Exceptions [7 USCIS-PM B.4(E)].
[^ 18] See 8 CFR 214.2(f)(16) and 8 CFR 214.2(m)(16).
[^ 19] See 22 CFR 62.45.
[^ 20] See INA 212(d)(5)(A). For more information on parole, see the Humanitarian or Significant Public Benefit Parole for Aliens Outside the United States webpage.
[^ 21] See 8 CFR 212.5(d). Parole is not an immigration status and is temporary in nature. However, a parolee may apply for any immigration status for which they may otherwise be eligible while present in the United States, which may allow them to remain in the United States pursuant to such lawful status.
[^ 22] For information on filing requirements, see instructions for Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131). See Volume 3, Humanitarian Protection and Parole, Part F, Parolees [3 USCIS-PM F]. Re-parole requests should generally be directed to the DHS component that initially authorized parole. However, in certain limited instances, DHS components may agree that USCIS may consider re-parole requests submitted by aliens present in the United States pursuant to parole authorized by another DHS component. Certain populations have their own specific filing requirements for re-parole requests, which must be followed as applicable. See the Humanitarian webpage for additional information.
[^ 23] See INA 212(d)(5)(A).
[^ 24] For general policy on expedite requests related to travel documents, see Part A, Public Services, Chapter 5, Expedite Requests [1 USCIS-PM A.5]. For information on how to make an expedite request, see the Expedite Requests webpage. For information on emergency issuance of certain travel documents, see the Emergency Travel webpage. For filing requirements, see instructions for Form I-131.
[^ 25] See AFM 40.9.2(b)(3)(J) (PDF, 1017.74 KB).
[^ 26] See AFM 40.9.2(b)(3)(J) (PDF, 1017.74 KB).
[^ 27] See AFM 40.9.2(b)(3)(J) (PDF, 1017.74 KB).
[^ 28] To request deferred action, an individual must submit to a local field office Biographic Information (for Deferred Action) (Form G-325A), along with a signed written request and supporting evidence of the underlying basis for the request.
[^ 29] See 8 CFR 214.2(f)(9)(ii)(C). For information on employment authorization flexibilities for certain students, including when the Secretary of Homeland Security may suspend duration of status, full course of study, and on-campus and off-campus employment regulatory requirements due to emergent circumstances, see Volume 2, Nonimmigrants, Part F, Students (F, M), Chapter 6, Employment, Section B, Off-Campus Employment, Subsection 2, Severe Economic Hardship Due to Emergent Circumstances (Special Student Relief) [2 USCIS-PM F.6(B)(2)]. See DHS’s Study in the States, Special Student Relief webpage.
[^ 30] See Volume 11, Travel and Identity Documents, Part A, Secure Identity Documents Policies and Procedures, Chapter 3, Reissuance of Secure Identity Documents [11 USCIS-PM A.3]. For information on replacing an Arrival/Departure Record (Form I-94), see USCIS’ How do I replace a Form I-94, Arrival-Departure Record (PDF, 584.42 KB) guide. For information on requesting CBP replace a Form I-94, see CBP’s Official Site for Travelers Visiting the United States: Apply for or Retrieve Form I-94, Request Travel History and Check Travel Compliance webpage. To request USCIS replace a Form I-94, see the Application for Replacement/Initial Nonimmigrant Arrival-Departure Document (Form I-102). Asylees issued Form I-94 by a USCIS asylum office as proof of asylee status should contact the asylum office with jurisdiction over their current residence for further information on replacing or correcting the form.
[^ 31] For more information, see Subsection 10, Fee Waivers and Exemptions [1 USCIS-PM H.2(A)(10)].
[^ 32] See INA 216 and INA 216A. See 8 CFR 216.
[^ 33] See 8 CFR 216.4(a)(6). For more information, see Volume 6, Immigrants, Part I, Family-Based Conditional Permanent Residents, Chapter 3, Petition to Remove Conditions on Residence, Section C, Filing Requirements, Subsection 2, Late Joint Filing [6 USCIS-PM I.3(C)(2)].
[^ 34] See 8 CFR 103.2(b)(8). See Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 35] See 8 CFR 103.2(b)(13). However, certain immigration benefits, such as refugee and asylum applications, are governed by different regulations and procedures regarding RFEs, NOIDs, denials, and failure to appear; therefore, the guidance in this chapter does not apply to these immigration benefits governed by different regulations.
[^ 36] See 8 CFR 103.5.
[^ 37] See 8 CFR 103.3(a).
[^ 38] See 8 CFR 103.2(b)(9). See Part E, Adjudications, Chapter 6, Evidence, Section B, Primary and Secondary Evidence [1 USCIS-PM E.6(B)] and Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 39] See 8 CFR 103.5(a).
[^ 40] See 8 CFR 103.5 and 8 CFR 103.8(b).
[^ 41] See 8 CFR 103.5(a)(1)(i).
[^ 42] See 8 CFR 103.3(a)(2)(i) and 8 CFR 103.8(b). This guidance does not apply to an appeal of a decision on a Petition for Alien Relative (Form I-130) or on a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). Benefit requestors must file appeals of decisions on these petitions to the Board of Immigration Appeals. See 8 CFR 1003.1(b)(5).
[^ 43] See 8 CFR 103.3(a)(2)(v)(B)(1).
[^ 44] See 8 CFR 103.3(a)(2)(v)(B)(2) and 8 CFR 103.5(a)(1)(iii). Only a motion to reopen may be excused as late. However, the appellate period for a revocation on notice is generally 15 days, so an appeal filed after 15 days could be treated as a motion. See 8 CFR 205.2.
[^ 45] For additional information see, Part B, Submission of Benefit Requests, Chapter 4, Fee Waivers and Fee Exemptions, Section D, Basis for Inability to Pay [1 USCIS-PM B.4(D)]. See the Frequently Asked Questions on the USCIS Fee Rule webpage.
[^ 46] See Part B, Submission of Benefit Requests, Chapter 4, Fee Waivers and Fee Exemptions, Section E, Emergent Circumstance [1 USCIS-PM B.4(E)]. See USCIS’ Immigration Relief in Emergencies or Unforeseen Circumstances webpage and the Frequently Asked Questions on the USCIS Fee Rule webpage.
[^ 47] See 8 CFR 106.3.
[^ 48] See Part A, Public Services, Chapter 5, Expedite Requests [1 USCIS-PM A.5].
[^ 49] For more information on the criteria or circumstances that may be considered in determining whether to grant an expedite request, see Part A, Public Services, Chapter 5, Expedite Requests, Section A, Expedite Criteria or Circumstances [1 USCIS-PM A.5(A)].
[^ 50] For more information on what criteria, circumstances, and scenarios warrant expedited processing, see Part A, Public Services, Chapter 5, Expedite Requests, Section A, Expedite Criteria or Circumstances [1 USCIS-PM A.5(A)].
[^ 51] See INA 291. See Part E, Adjudications, Chapter 4, Burden and Standards of Proof, Section A, Burden of Proof [1 USCIS-PM E.4(A)].
[^ 52] See INA 291. See Part E, Adjudications, Chapter 4, Burden and Standards of Proof, Section B, Standards of Proof [1 USCIS-PM E.4(B)].
[^ 53] See Part E, Adjudications, Chapter 6, Evidence [1 USCIS-PM E.6].
[^ 54] See Part E, Adjudications, Chapter 6, Evidence [1 USCIS-PM E.6].
[^ 55] For more information on requesting humanitarian or significant public benefit parole for someone who is outside the United States, please see USCIS’ Humanitarian or Significant Public Benefit Parole for Aliens Outside the United States webpage.
[^ 56] For more information on factors often considered in some of the more common types of requests, see USCIS’ Guidance on Evidence for Certain Types of Humanitarian or Significant Public Benefit Parole Requests webpage.
Chapter 3 - Operational Responses
A. General
When an emergency or unforeseen circumstance arises that may disrupt operations at a USCIS facility or facilities that are open to the public, both local USCIS leadership and USCIS Headquarters assess the situation and determine the appropriate response. USCIS tailors its response based on numerous factors and measures, which in general include filing a report, informing the public, and activating local emergency response procedures, as appropriate.
B. Informing the Public
When an emergency or unforeseen circumstance disrupts operations at a public-facing USCIS facility, USCIS uses a variety of tools to communicate with the public.[1]
1. Facility Closures or USCIS System Outages or Impairments
If the emergency or unforeseen circumstance results in the closure of a public-facing facility such as a field office, asylum office, or application support center, or in the impairment or unavailability of USCIS information technology systems, the responsible official ensures the closure is announced on the USCIS website.[2] USCIS also uses USCIS social media channels to inform the public, as appropriate.
Additionally, when feasible, USCIS attempts to directly contact individuals with appointments scheduled at the closed facility, as well as their attorneys or representatives of record, to inform them of the closure and to reschedule their appointments. Local USCIS staff also contact the public affairs specialist with responsibility for the impacted facility to notify their media contacts of the closure.
When the field office is accessible and an employee is able to go the field office safely, USCIS places signage informing the public of the closure at all entrances to the impacted facility and adds outgoing messages regarding the closure to any public telephone numbers or email addresses utilized by the facility.
In the event a closure occurs during business hours, USCIS notifies staff and visitors of the impacted facility verbally or via a public address system and gives instructions to facilitate their safe and orderly departure.
2. Facility Remains Open
In the event an emergency or unforeseen circumstance arises within the jurisdiction of a public-facing USCIS facility, but the facility remains open, USCIS may reschedule missed appointments for individuals in the impacted area. USCIS may also attempt to directly contact individuals with appointments scheduled at the facility, as well as their attorneys or representatives of record, to provide them the option to reschedule their appointments, especially in situations where benefit requestors may have difficulty receiving USCIS notices due to disruptions to the postal service, displacement or loss of housing, or other factors.
C. Local Emergency Response
Depending on the nature of the emergency or unforeseen circumstance, USCIS staff at an impacted facility may need to activate local emergency responses procedures. In the event of a facility closure occurring when staff or visitors are present, USCIS evacuates the facility according to the facility’s Occupant Emergency Plan. As appropriate, facility leadership and the field security manager with responsibility for the facility also coordinate with local first responders, as well as relevant federal, state, and municipal entities.
As part of the USCIS response, the local USCIS field office may be activated to a local emergency response center to assist the affected population with immigration matters. USCIS personnel may be able to assist with immigration questions, provide Alien Documentation, Identification, and Telecommunication (ADIT) stamps for temporary evidence of lawful permanent resident status, provide Arrival/Departure Records (Form I-94) for proof of status, process biometrics through mobile biometrics machines, and provide verification of U.S. citizenship through a verification letter. Local USCIS field offices coordinate closely with their headquarters and other USCIS directorates to ensure USCIS provides consistent information and services to the affected population.[3]
Footnotes
[^ 1] Depending on the nature and extent of the emergency or unforeseen circumstance, USCIS may issue a web alert on USCIS’ Alerts webpage or similar public communications.
[^ 2] See the USCIS Office Closings webpage.
[^ 3] See Part C, Biometrics Collection and Security Checks, Chapter 2, Biometrics Collection, Section B, Mobile Biometrics Collection [1 USCIS-PM C.2(B)].
Volume 2 - Nonimmigrants
Part A - Nonimmigrant Policies and Procedures
Chapter 1 - Purpose and Background
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, the 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.
Chapter 2 - General Requirements [Reserved]
Chapter 3 - Maintaining Status [Reserved]
Chapter 4 - Extension of Stay, Change of Status, and Extension of Petition Validity
A. Extension of Stay or Change of Status
Generally, certain nonimmigrants present in the United States admitted for a specified period of time, or their petitioners, 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 or their petitioners may seek to change their status to another nonimmigrant classification if certain requirements are met.[2]
A petitioner or applicant seeking an extension of stay (EOS) or change of status (COS) generally files the request 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 petitioner or applicant seeks to extend or change.[4]
Requirements to Timely File a Request to Extend Stay or Change Status
In general, USCIS does not approve an extension of stay or change of status for a person who failed to maintain the previously accorded status or where such status expired before the filing date of the application or petition.[5] USCIS, in its discretion, may excuse the failure to file before the period of authorized status expired where the requester demonstrates within the extension of stay or change of status request that:
- The delay was due to extraordinary circumstances beyond the person’s control;
- The length of the delay was commensurate with the circumstances;
- The person has not otherwise violated their nonimmigrant status;
- The person remains a bona fide nonimmigrant; and
- The person is not the subject of removal proceedings and, in the case of extensions of stay, is also not the subject of deportation proceedings.[6]
In general, subject to its discretion, examples of what USCIS considers extraordinary circumstances beyond the control of the person may include, but are not limited to:
- Where the person remained in the United States after the expiration of the period of admission due to a slowdown or stoppage of work involving a strike, lockout, or other labor dispute; or
- Where the primary reason for the late filing is the inability to obtain a certified labor condition application or temporary labor certification due to a lapse in government funding supporting those adjudications.
If USCIS approves an untimely filed application or petition to extend an applicant’s or beneficiary’s stay, the approval is effective as of the date of the expiration of the prior nonimmigrant admission period.[7] When USCIS approves a late filed application for a change of status, the change of status takes effect on the approval date. USCIS considers the applicant or beneficiary of an approved untimely change of status request to have maintained lawful status during the period USCIS excused.[8]
B. Extension of Petition Validity
1. Significance of Prior USCIS Approvals and Deference
Deference to Previous Approvals
A request for an extension of petition validity, which is often submitted in conjunction with an EOS request, follows a previous finding of eligibility for the classification. Typically, these determinations are made by USCIS, although U.S. Customs and Border Protection (CBP) and U.S. Department of State (DOS) also make these determinations. Although there is a previous finding of eligibility, the burden of proof in the request for an extension of petition validity remains on the petitioner.[9]
Officers are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated strictly because of a prior approval (which may have been erroneous).[10] USCIS decides each matter according to the evidence of record on a case-by-case basis.[11] However, deviation from a previous approval carries important consequences and implicates predictability and consistency concerns.
As such, any deviation requires close consideration of the previous approval by USCIS. When adjudicating a subsequent petition or application involving the same parties (for example, petitioner and beneficiary) and the same underlying facts, officers should defer to a prior determination that the beneficiary or applicant is eligible for the nonimmigrant classification sought, where appropriate.
Deviating from Previous Approvals
Officers should not defer to prior approvals in cases where:
- There was a material error involved with previous approval(s);
- There has been a material change in circumstances or eligibility requirements;[12] or
- There is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.[13]
An officer who determines that deference to a prior approval is not appropriate must acknowledge the previous approval(s) in the denial, Request for Evidence (RFE), or Notice of Intent to Deny (NOID). In addition, the officer must articulate the reason for not deferring to the previous determination (for example, due to a material error, change in circumstances, or new adverse material information). Officers must provide the petitioner or applicant an opportunity to respond to the new information.[14]
As mentioned above, an officer should not defer to a prior approval where new material information is available. This may include publicly available information that affects eligibility for a benefit. For example, an officer may be aware that a petitioner has recently gone out of business. This also includes information that affects national security or public safety garnered from security checks conducted on beneficiaries and petitioners. An officer should not defer to a prior approval when there are indicators of potential fraud or willful misrepresentation of a material fact. The officer must articulate the new material information in an RFE or NOID.
In all cases, officers must obtain supervisory approval before deviating from a prior approval in their final decision.
2. Cases Involving Previous Determinations by Other Agencies
USCIS officers consider, but do not defer to, previous eligibility determinations on petitions or applications made by CBP or DOS.[15] Officers make determinations on the petition filed with USCIS and corresponding evidence on record, as provided above.
C. Split Decisions in Extension Requests
Officers may, when warranted, deny an applicant or petitioner’s request to extend the nonimmigrant’s stay in the United States in the same classification.[16] Even if an applicant or petitioner continues to demonstrate eligibility for the nonimmigrant classification, an officer may determine that sufficient reason exists to deny the request for an extension of stay (such as inadmissibility factors or failure to maintain status).
This “split” decision process may result in approval of the petition for the same classification where the petitioner and the beneficiary relationship has not changed, and a simultaneous denial of the extension of stay request.
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] The instructions for Form I-539 and Form I-129 provide detailed information regarding who may file each form. A petitioner or applicant may file a Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A) or Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I-129CW) where applicable.
[^ 5] See 8 CFR 214.1(c)(4) and 8 CFR 248.1(b).
[^ 6] See 8 CFR 214.1(c)(4) and 8 CFR 248.1(b).
[^ 7] See 8 CFR 214.1(c)(4).
[^ 8] The period of stay for a beneficiary admitted as an H-1B or H-2 is limited by the validity of the labor certification as modified by 8 CFR 214.2(h)(13)(i)(A) and 8 CFR 214.2(h)(5)(viii)(B) (setting the number of days before the validity period when a beneficiary may be admitted and after the expiration of that period before the beneficiary must depart). See 8 CFR 214.2(h)(15)(ii)(C) and 8 CFR 214.2(h)(9)(iii)(A)(1). For a discussion of how approved untimely requests impact the adjudication of a subsequent adjustment application, see Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 4, Status and Nonimmigrant Visa Violations (INA 245(c)(2) and INA 245(c)(8)), Section E, Exceptions, Subsection 3, Effect of Extension of Stay and Change of Status [7 USCIS-PM B.4(E)(3)].
[^ 9] See INA 291. See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 10] See Matter of Church Scientology International (PDF), 19 I&N Dec. 593, 597 (Comm. 1988).
[^ 11] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 2, Record of Proceeding [1 USCIS-PM E.2] for information on what constitutes a record of proceeding.
[^ 12] This includes situations in which the regulations require criteria to be met after approval, such as the nonimmigrant treaty investor (E) classification at 8 CFR 214.2(e)(2)(i) (petitioner must be actively in the process of investing a substantial amount of capital in a bona fide enterprise), and the nonimmigrant intracompany transferee (L) classification at 8 CFR 214.2(l)(3)(v)(C) (a new office has 1 year from the date of the initial approval to support an executive or managerial position).
[^ 13] A fact is material if it would have a natural tendency to influence or is predictably capable of affecting the decision. See Kungys v. United States, 485 U.S. 759, 770-72 (1988). See Matter of D-R- (PDF), 25 I&N Dec. 445, 450 (BIA 2011).
[^ 14] See 8 CFR 103.2(b)(16)(i).
[^ 15] For example, L-1, TN, E-1, E-2, and H-1B1 eligibility determinations.
[^ 16] See 8 CFR 214.1(c)(5).
Part B - Diplomatic and International Organization Personnel (A, G)
Part C - Visitors for Business or Tourism (B)
Part D - Exchange Visitors (J)
Chapter 1 - Purpose and Background
A. Purpose
Congress created the J-1 nonimmigrant visa classification (category) for exchange visitors who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or receiving graduate medical education or training.[1] Within the J-1 category, there are a number of different programs designed to promote educational and cultural exchanges between the United States and other countries around the world.[2]
The U.S. Department of State (DOS) plays the primary role in administering the J-1 exchange visitor program, including the designation of public and private entities to act as designated exchange sponsors. Once the exchange visitor is in the United States, USCIS adjudicates change of status requests, extension of stay requests (for J exchange visitors not admitted for duration of status), waiver applications (when required), and employment authorization applications filed by their dependent family members who are in J-2 nonimmigrant status.[3]
B. Background
1. Establishment of Exchange Visitor Program
Congress established the exchange visitor program in 1948 with the passage of the Information and Educational Exchange Act of 1948 (the Smith-Mundt Act).[4] The Smith-Mundt Act provided for the interchange between the United States and other countries of “students, trainees, teachers, guest instructors, professors, and leaders in fields of specialized knowledge or skill.”[5] At that time, those who entered the United States to participate in the exchange program were admitted as nonimmigrant visitors for business under the Immigration Act of 1924, as amended.[6]
2. 2-year Foreign Residence Requirement and Waiver
In 1952, Congress passed the Immigration and Nationality Act (INA), which provided that all persons who come to the United States under an exchange visitor program would be subject to a 2-year foreign residence requirement before being eligible to either immigrate to the United States or obtain temporary worker (H nonimmigrant) status.[7] These provisions helped address Congress’s concern that program participants were subverting the goals of the program by immigrating to the United States.
This provision, which became INA 212(e), applied to both J-1 exchange program participants and their J-2 dependent family members.[8] The amendment also allowed waivers of the 2-year foreign residence requirement under limited circumstances. Since then, Congress has amended the INA multiple times to further specify the circumstances under which an exchange visitor may seek a waiver of the foreign residence requirement.[9]
Congress further amended the INA in 1961 with the passage of the Mutual Educational and Cultural Exchange Act of 1961 (the Fulbright-Hayes Act). The Fulbright-Hayes Act allowed waivers under limited circumstances dealing with exceptional hardship.[10]
In 1970, Congress amended the INA further so that the 2-year foreign residence requirement only applied to those exchange visitors who:
-
Participated in programs financed in whole or in part by either their own government or the U.S. government; or
-
Were engaged in a field of specialized knowledge or skill that the U.S. Information Agency designated as being a knowledge or skill that was needed in the exchange visitor’s country of nationality or last residence.
In 1970, Congress also created additional waivers of the 2-year foreign residence requirement based on a determination that the exchange visitor’s departure from the United States would impose exceptional hardship upon the exchange visitor’s U.S. citizen or lawful permanent resident spouse or child, a determination that the exchange visitor would be subject to persecution in the exchange visitor’s country of nationality or last residence, a finding that the exchange visitor’s admission to the United States would be in the public interest, or a “no objection” statement by the exchange visitors’ home country.[11]
The Exchange Visitor Skills List was first published on April 25, 1972, and has been revised a number of times since then.[12] A 1976 amendment to the statute (which took effect in January 1977) made any exchange visitor who seeks an immigrant visa, adjustment of status, or H or L nonimmigrant status after having received graduate medical education or training subject to the 2-year foreign residence requirement.[13]
3. Conrad 30 Program
The Immigration and Nationality Technical Corrections Act of 1994 created a special program to waive the 2-year foreign residence requirement for J-1 foreign medical graduates. The waiver must be based on a request by a state department of public health, or its equivalent, who enter into a 3-year contract to practice medicine at a health care facility located in a medically underserved area designated by the Department of Health and Human Services (HHS designated shortage area). This program was initially commonly referred to as the Conrad 20 program and is now referred to as the Conrad 30 program.[14]
4. Electronic System to Collect Information
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).[15] IIRIRA required the legacy Immigration and Naturalization Service (INS) to collect current information from schools and exchange programs relating to nonimmigrant foreign students and exchange visitors during the course of their stay in the United States. IIRIRA authorized legacy INS to create an electronic system to collect information on F, M, and J nonimmigrants to address the problem of F, M, and J nonimmigrants who are out of status and remain in the United States without authorization.
After September 11, 2001, Congress updated the legislation to mandate the use of an electronic system to collect information on all F, M, and J nonimmigrants. To meet this mandate, DHS and DOS deployed the Student and Exchange Visitor Information System (SEVIS), a web-based information system that tracks and monitors F, M, and J nonimmigrants and their dependents throughout the duration of approved participation within the U.S. education system or designated exchange visitor program.[16]
IIRIRA also imposed new terms and conditions on INA 212(e) waivers granted to foreign medical graduates that are based on a request by an interested U.S. government agency (federal program). The terms and conditions are the same as those applied to waivers requested by a state department of public health.[17]
5. Adding Air Flight, Language, and Vocational Schools
In 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) became law and added air flight schools, language training schools, and vocational schools to the schools that must comply with SEVIS requirements. It also authorized $36.8 million for SEVIS implementation.[18]
The Enhanced Border Security and Visa Entry Reform Act (EBSVER) amended Section 641 of IIRIRA by requiring additional features to be incorporated into SEVIS.[19] In 2006, DOS determined that it did not have the expertise and resources to fully monitor its J-1 exchange visitor flight training programs and ensure their compliance with program requirements. Consequently, DOS announced that it would no longer designate any new J-1 visa flight training programs, nor would it permit currently designated flight training programs to expand.[20]
C. Legal Authorities
-
INA 101(a)(15)(J) – Definition of J nonimmigrant
-
INA 212(e) – Educational visitor status; foreign residence requirement; waiver
-
INA 212(j)(1) – Limitation on immigration of foreign medical graduates
-
INA 214(l) – Restrictions on waiver of the foreign residence requirement
-
INA 248 – Change of nonimmigrant classification
-
8 CFR 212.7(c) – Waiver of inadmissibility grounds, documentary requirements
-
8 CFR 214.2(j) – Exchange aliens
-
8 CFR 248.2 – Change of nonimmigrant classifications, ineligible classes
-
22 CFR 62, Subpart B – Specific program provisions
Footnotes
[^ 1] See INA 212(e).
[^ 2] See Chapter 2, J Exchange Visitor Eligibility, Section A, Programs [2 USCIS-PM D.2(A)].
[^ 3] Spouse and unmarried child(ren) under the age of 21 of J-1 exchange visitors who accompany or join the J-1 in the United States are eligible for a J-2 nonimmigrant visa as a dependent family member.
[^ 4] See the Information and Educational Exchange Act of 1948, Pub. L. 80-402 (January 27, 1948).
[^ 5] See Section 201 of Pub. L. 80-402, 62 Stat. 6, 7 (January 27, 1948).
[^ 6] See the Immigration Act of 1924, Pub. L. 68–139 (May 26, 1924).
[^ 7] See Immigration and Nationality Act of 1952, Pub. L. 82–414 (PDF) (June 27, 1952). Currently, if the J-1 nonimmigrant’s training is in a field that is on the Exchange Visitor Skills List for the J-1 nonimmigrant’s country of nationality or last legal residence, the J-1 nonimmigrant may be subject to the 2-year residence requirement. See 9 FAM 402.5-6(L)(1), Subject to INA 212(e).
[^ 8] See INA 212(e).
[^ 9] For more information on the J-1 foreign residence requirement, see Chapter 4, Waiver of the Foreign Residence Requirement [2 USCIS-PM D.4].
[^ 10] See Mutual Educational and Cultural Exchange Act of 1961, Pub. L. 87-256 (PDF) (September 21, 1961).
[^ 11] See INA Amendments, Pub. L. 91-225 (PDF), 84 Stat. 116, 117, amending INA 212(e) (April 7, 1970).
[^ 12] DOS periodically updates the Exchange Visitor Skills List. It was last updated in 2009. See 74 FR 20108 (PDF) (Apr. 30, 2009).
[^ 13] See Health Professions Educational Assistance Act of 1976, Pub. L. 94-484 (PDF) (October 12, 1976).
[^ 14] See Section 220 of the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416 (PDF), 108 Stat. 4305, 4319 (October 25, 1994).
[^ 15] See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C, Title III of Pub. L. 104-208 (PDF) (September 30, 1996).
[^ 16] See the Immigration and Customs Enforcement’s Student Exchange Visitor Information System webpage for an overview of the creation of SEVIS.
[^ 17] The terms and conditions imposed on INA 212(e) waivers under the federal and state programs are specified in INA 214(l).
[^ 18] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. 107-56 (PDF) (October 26, 2001).
[^ 19] See Section 501 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. 107-173 (PDF), 116 Stat. 543, 560 (May 14, 2002). See 67 FR 76256 (PDF) (Dec. 11, 2002).
[^ 20] See Vision 100 – Century of Aviation Reauthorization Act, Pub. L. 108-176 (PDF) (December 12, 2003). See 71 FR 3913 (PDF) (Jan. 24, 2006) (statement of policy), 71 FR 17768 (PDF) (Apr. 7, 2006) (proposed rule), and 72 FR 33669 (PDF) (Jun. 19, 2007) (interim final rule).
Chapter 2 - J Exchange Visitor Eligibility
A. Programs
The J exchange visitor must be entering the United States to take part in a program that has been designated by the U.S. Department of State (DOS) and meets the DOS regulatory requirements stated in 22 CFR 62. The designated exchange visitor program categories are:
-
Professors and research scholars;
-
Short-term scholars;
-
Trainees and interns;
-
College and university students;
-
Teachers;
-
Secondary school students;
-
Specialists;
-
Physicians;
-
International visitors;
-
Government visitors;
-
Camp counselors;
-
Au pairs; and
-
Summer work travel.[1]
B. General Criteria
While each program has specific requirements, J-1 exchange visitors are required to:
-
Have been accepted in a DOS-approved exchange visitor program before applying for a visa[2] or applying for a change of status to J-1 while in the United States;
-
Have sufficient funds to cover their expenses while in the United States;[3]
-
Have sufficient knowledge of English to be able to participate effectively in the exchange visitor program;[4] and
-
Have a residence abroad which they do not intend to abandon.[5]
Footnotes
[^ 1] See 22 CFR 62, Subpart B.
[^ 2] See 9 FAM 402.5-6(C), Qualifying for an Exchange Visitor Visa (J-1). DOS is responsible for visa processing. See 22 CFR 41.62(a)(1).
[^ 3] Exchange visitors must maintain sufficient medical insurance for accident or illness for themselves and their dependent family members in a minimum amount of $50,000 per accident or illness. See 22 CFR 62.14.
[^ 4] See 22 CFR 41.62(a)(3).
[^ 5] See INA 101(a)(15)(J).
Chapter 3 - Terms and Conditions of J Exchange Visitor Status
A. Eligibility for Admission
U.S. Customs and Border Protection may admit the exchange visitor and any accompanying dependent family members into the United States in J-1 and J-2 classifications[1] if each applicant:
-
Presents a valid passport;
-
Valid J-1 or J-2 visa; and
-
Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019), issued in the exchange visitor’s (or accompanying dependent family member’s) name by a program approved by the U.S. Department of State (DOS) for participation by J-1 exchange visitors.[2]
B. Admission and Grace Periods
DOS may issue J-1 and J-2 visas to qualified applicants at any time that the Form DS-2019 is valid. However, the exchange visitor may not enter the United States more than 30 days before the program start date on the Form DS-2019 and may only remain in the United States for 30 days after completing the program for the purpose of travel.[3]
C. Length of Programs and Duration of Status
J-1 exchange visitors are initially admitted for duration of status. Duration of status is defined as completion of the J-1 program plus 30 days.[4] J-1 exchange visitors and their dependent family members are admitted for duration of status, but a Responsible Officer (RO) has the discretion to extend a participant's program to its maximum regulatory duration (the limit imposed by the regulations specific to a program category or to a program sponsor's designation).
The total length of time that a J-1 exchange visitor is permitted to stay in the United States depends on the program. The durational limits for each of the J-1 programs are set forth below.
Category |
Length of Stay[5] |
---|---|
Secondary School Students |
Minimum 1 semester, maximum not to exceed 1 academic year. |
College or University Students |
Time needed to complete the academic program and practical training, not to exceed the duration of program or 18 months (36 months for postdoctoral students). |
Short-Term Scholars |
Time necessary to complete the program, not to exceed 6 months. |
Trainees and Interns |
18 months for a training program and 12 months for an intern program (limited exception for training programs in the field of agriculture, which may be designated for a total duration of 18 months). |
Teachers |
Time necessary to complete the program but may not exceed 3 years. Exception: Sponsors may request from DOS an extension of 1 or 2 years, but not by a semester or by other fractions of academic years. |
Professors and Research Scholars |
Time necessary to complete the program but may not exceed 5 years. Extension of the 5-year limitation is possible when the J-1 visa holder is engaged with a G-7 program sponsor. |
Specialists |
Time necessary to complete the program, but not to exceed 1 year. |
Physicians |
Time necessary to complete the program, but may not exceed 7 years, unless the country the J-1 exchange visitor will return to requires a person with additional qualifications. |
International Visitors |
Time necessary to complete the program, but not to exceed 1 year. |
Government Visitors |
Time necessary to complete the program, but not to exceed 18 months. |
Camp Counselors |
No more than 4 months. |
Au Pairs |
12 months, but may be extended for an additional 6, 9, or 12 months. |
Summer Work Travel Participants |
4-month period during post-secondary school summer vacation. |
D. Reporting Requirements
A J-1 exchange visitor must inform USCIS and exchange visitor program RO of any legal name changes or change of address within 10 days of the change in a manner prescribed by the program sponsor.[6]
A J-1 exchange visitor enrolled in a Student and Exchange Visitor Information System (SEVIS) program satisfies the requirement of notifying USCIS by providing a notice of a change of address within 10 days to the RO, who in turn is required to enter the information in SEVIS within 21 days of notification by the exchange visitor.[7]
J-1 foreign medical graduates granted a waiver of the 2-year foreign residence requirement under the Conrad 30 program[8] must notify USCIS of any material change in the terms and conditions of the H-1B employment during the 3-year period following waiver approval.[9]
E. Employment Authorization
Several J-1 exchange visitor programs involve a work component. Exchange visitors participating in those programs are authorized to work incident to status.[10]
F. Foreign Residence Requirement
Certain J-1 exchange visitors are subject to a 2-year foreign residence requirement.[11] After leaving the United States, J-1 exchange visitors subject to the requirement must reside and be physically present in their country of nationality or last legal residence abroad for an aggregate of at least 2 years before they are eligible to apply for an immigrant visa, adjustment of status, or a nonimmigrant H, L, or K visa.[12] Such country is the country of nationality or legal permanent residence listed on the Certificate of Eligibility for Exchange Visitor Status (Form DS-2019), and is referred to herein as the “Home Country.”
These exchange visitors are further prohibited from changing status from J nonimmigrant status to another nonimmigrant status, other than A, G, T, or U, or H-1B for physicians receiving waivers on the basis of a 3-year waiver position.[13]
Exchange visitors participating in the following programs are subject to the foreign residence requirement: [14]
-
Programs facilitated by the DOS designated sponsor, Educational Commission for Foreign Medical Graduates (ECFMG), for medical trainees. (ECFMG sponsored medical researchers are generally not subject to the requirement as medical trainees, but may be subject to the requirement on another basis);
-
Programs in which the exchange visitor has received any type of government funding or support from the exchange visitor’s home country or country of last legal permanent residence, the U.S. Government, or an international organization, as indicated on the Form DS-2019. (Government-sponsored programs beginning with G in the program number on Form DS-2019 are usually government-funded where the exchange visitor received financial support from the sponsor);
-
Programs in which the exchange visitor’s field of endeavor appears on the DOS Exchange Visitor Skills List (list of fields of specialized knowledge or skills in which the services of exchange visitor participants are critically needed) for the exchange visitor’s home country or country of last legal permanent residence; [15] and
-
Programs whose purpose is graduate medical training, typically a residency or fellowship.
Determining if the Foreign Residence Requirement Has Been Met
USCIS determines whether the exchange visitor has met the 2-year foreign residence requirement within the context of a subsequent application or petition. USCIS applies the preponderance of the evidence standard when it makes this determination.
Benefit requestors may submit any relevant evidence showing their physical presence in the Home Country. For example, benefit requestors may submit a chart of days spent in the Home Country. Benefit requestors may also submit supporting evidence such as passport stamps, travel receipts, employment records, school transcripts, leases, or affidavits.
Any day where a fraction of a day is spent in the Home Country counts toward satisfaction of the requirement. For example, a travel day, where a fraction of the day is spent in the country of last permanent residence, counts as a day towards satisfying the requirement.
In certain cases, conditions in the applicant’s Home Country, such as war or civil unrest, may make compliance with the 2-year residence requirement effectively impossible. Additionally, some countries have periodically imposed travel bans that have made traveling to the Home Country effectively impossible. In other cases, the applicant’s Home Country is now part of another country due to shifting borders or other political changes. USCIS considers these circumstances, on a case-by-case basis, in consultation with the Department of State.
Footnotes
[^ 1] See INA 101(a)(15)(J).
[^ 2] The Form DS-2019 is issued by an exchange program sponsor to an exchange visitor at the time of application for admission or change to J-1 nonimmigrant classification. An official who is authorized to issue Form DS-2019 is known as a Responsible Officer (RO) or Alternate Responsible Officer (ARO). Information about exchange visitors and any dependent family members is captured in the Student and Exchange Visitor Information System (SEVIS).
[^ 3] See 8 CFR 214.2(j)(1)(ii). Employment is not authorized during this 30-day period, also known as a grace period. Employment is also not authorized during the 30-day period before the report date of the program listed on the Form DS-2019.
[^ 4] See 8 CFR 214.2(j)(1)(ii).
[^ 5] See 9 FAM 402.5, Students and Exchange Visitors – F, M, and J Visas. An RO or ARO seeking to extend the participation of an exchange visitor beyond the maximum duration of participation for the category in which the exchange visitor is participating must receive prior approval from DOS for an extension of program. The RO or ARO must submit a request in SEVIS and provide the required written documentation in support of the request to the DOS Office of Exchange Designation, Bureau of Educational and Cultural Affairs. If approved, the exchange visitor presents a Form DS-2019 with an extended end date. Such a form can only be produced from SEVIS with DOS approval.
[^ 6] See 8 CFR 214.2(j)(1)(viii).
[^ 7] See 8 CFR 265.1.
[^ 8] For more information on the Conrad 30 programs, see Chapter 4, Waiver of the Foreign Residence Requirement, Section F, Foreign Medical Graduates – Federal, State, and Conrad 30 Programs [2 USCIS-PM D.4(F)].
[^ 9] See 8 CFR 212.7(c)(9)(vi).
[^ 10] See 8 CFR 274a.12(b)(11). For information about employment authorization for J-2s, see Chapter 6, Family Members of J-1 Exchange Visitor [2 USCIS-PM D.6]. For information about applications for adjustment of status to permanent residence and associated requests for employment authorization filed by J-1 foreign medical graduates with an approved Immigrant Petition for Alien Workers (Form I-140) with a national interest waiver pursuant to 8 CFR 245.18(d)(2), see the Green Card Through a Physician National Interest Waiver (NIW) website.
[^ 11] See INA 212(e).
[^ 12] See INA 212(e), INA 214(l), and INA 248. See Friedberger v. Schultz, 616 F. Supp. 1315 (D.C. Pa 1985). An exchange visitor could be subject to the 2-year foreign residence requirement even if the J visa was obtained by fraud. See Espejo v. INS, 311 F.3d 976 (9th Cir. 2002), and Matter of Park (PDF), 15 I&N Dec. 436 (BIA 1975).
[^ 13] See INA 212(e), INA 214(l), and INA 248.
[^ 14] See INA 212(e).
[^ 15] For the Exchange Visitor Skills List, see 74 FR 20108 (PDF) (Apr. 30, 2009). A determination is made on the basis of the most current skills list at the time of admission or acquisition of J-1 status or when beginning a new program or changing program objective. Advancing to a higher level of study in the field of study is not considered a change of program objective.
Chapter 4 - Waiver of the Foreign Residence Requirement
A. Bases for Waiver
Exchange visitors who are subject to the foreign residence requirement may apply for a waiver. There are five bases for waiving the requirement:
- Exceptional hardship to U.S. citizen or lawful permanent resident (LPR) spouse or child;
- Persecution;
- No objection;
- Interested U.S. government agency (IGA); and
- Federal, state, and Conrad 30 programs for foreign medical graduates.
The filing of an application for a waiver of the 2-year foreign residence requirement does not terminate an exchange visitor's nonimmigrant status.[1]
Applicants are required to submit the Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended) (Form I-612), to USCIS only if requesting a waiver on the basis of exceptional hardship or persecution. If USCIS determines that the applicant has established exceptional hardship or persecution, it transmits the information to the U.S. Department of State’s (DOS) Waiver Review Division (DOS-WRD). DOS-WRD makes a recommendation after reviewing the program, policy, and foreign relations aspects of the case and transmits its recommendation to USCIS.
If USCIS denies the waiver before the referral to the DOS, the applicant may appeal the decision to the USCIS Administrative Appeals Office (AAO). If a waiver is denied due to a negative DOS recommendation, there is no appeal, but it may be possible for the applicant reapply for a waiver.[2]
DOS-WRD makes a recommendation for waivers based on the remaining grounds, no objection, IGA, or federal, state, and Conrad 30 programs for foreign medical graduates, and transmits the recommendation to USCIS. USCIS reviews and issues the decision to the applicant and if applicable, to the applicant’s attorney. If a waiver is denied due to a negative DOS recommendation, there is no appeal of that denial, but it may be possible for the applicant to reapply on a different basis.[3]
B. Exceptional Hardship
Exchange visitors may be eligible for a waiver of the foreign residence requirement if they can establish exceptional hardship to their U.S. citizen or LPR spouse or child. Exceptional hardship must be beyond the normal hardship expected from a temporary relocation or separation.
There are different levels of hardship. In the context of general immigration waivers, there is exceptional hardship, extreme hardship, and exceptional and extremely unusual hardship.[4] Exceptional hardship is more than normal hardship (general disruption), but less than extreme or exceptional and extremely unusual hardship.[5]
When determining whether the applicant has established that the foreign residence requirement would result in an exceptional hardship to the U.S. citizen or LPR spouse or child, USCIS officers must evaluate whether:
- The qualifying spouse or child or children would experience exceptional hardship if they were to relocate with the applicant to the country of foreign residence; and
- The qualifying spouse or child children would experience exceptional hardship if they were to be separated from the applicant for the 2-year foreign residence requirement period.
1. Evidence
To request a waiver based on exceptional hardship to the U.S. citizen or LPR spouse or child, applicants must file a Foreign Residence Requirement waiver application with USCIS.[6]
Applicants must submit evidence to demonstrate that:
- The applicant and their dependents, if any, are subject to the foreign residence requirement;[7]
- There is a qualifying relationship (U.S. citizen or LPR spouse or child);[8] and
- Exceptional hardship would occur for the qualifying relative.[9]
If the applicant fails to provide such evidence, the officer issues a Request for Evidence (RFE), providing the applicant an opportunity to submit the requested documentation or information. If the applicant fails to respond to the RFE or does not provide the requested documentation or information, the officer denies the waiver for failure to establish exceptional hardship.
While no single factor is normally determinative with exceptional hardship findings, USCIS generally considers the following when adjudicating the foreign residence requirement waiver application:
- Whether the anxiety, loneliness, and altered financial circumstances to the qualifying family member is greater than normal hardship;[10]
- The country conditions of the country of foreign residence;[11]
- Medical conditions of the qualifying family member or members where treatment in the country of foreign residence is insufficient or where the medical problems would be worse in the country of foreign residence than in the United States;[12] and
- Other relevant evidence submitted by the applicant.[13]
Such evidence could include DOS travel alerts, medical diagnosis and prognosis from physicians, and comprehensive bank records. In addition, USCIS officers may consult with DOS-WRD in cases where the DOS-WRD has better access to information necessary for the adjudication, or if DOS-WRD has made a recommendation that appears to be based upon incomplete or inaccurate information (for example, where an applicant failed to mention previously participating in a J-1 program funded by the government).
2. Adjudication
If the evidence establishes a prima facie[14] case of exceptional hardship, officers must notify the DOS-WRD of USCIS’ determination, so that DOS-WRD can make a recommendation based on the program, policy, and foreign relations considerations. USCIS may not approve the foreign residence requirement waiver application without a favorable recommendation from DOS-WRD.
Cases that USCIS sends to DOS-WRD for recommendation must include:
- A completed Request for Waiver Review Division Recommendation (Form I-613);
- A copy of the waiver application; and
- Copies of supporting documentation, if applicable.
The dependent family members of a principal applicant (J-1) who have been in J-2 status during a time when the principal applicant was subject to the foreign residence requirement must be included on the Form I-613 sent to DOS-WRD. Officers should review the Arrival/Departure Record (Form I-94) for each dependent family member to make that determination. Where the application includes such dependent family members, officers should designate USCIS as the interested agency recommending their inclusion in the waiver request on Form I-613.
Burden of Proof
In all cases, applicants have the burden of proving eligibility for a waiver and must demonstrate by a preponderance of the evidence that they are fully qualified for the waiver.[15]
Officers generally should not apply leniency in the adjudication of exceptional hardship waivers, including in cases where the applicant uses a marriage occurring in the United States, or the birth of a child or children, to support the contention that the applicant’s departure from this country would cause personal hardship.[16]
3. Decision
If the applicant cannot establish a prima facie case of exceptional hardship through the documentary evidence submitted, USCIS does not send the case to DOS-WRD, but, rather, denies the application. Applicants may appeal this determination to the AAO.
If the applicant establishes a prima facie case of exceptional hardship, but DOS-WRD does not recommend approval, USCIS denies the application. There is no appeal right from this type of denial because the unfavorable recommendation came from DOS-WRD, not from USCIS.
If the applicant establishes a prima facie case of exceptional hardship and DOS-WRD recommends approval, USCIS approves the waiver and notifies the applicant and the applicant's legal representative, if applicable, of the approval.
C. Persecution
J-1 exchange visitors subject to the foreign residence requirement may apply for a waiver if they would be subject to persecution in their respective home countries on account of race, religion, or political opinion. The persecutor may be either the government itself or a group that the government is unwilling or unable to control.
The standard for a J-1 persecution waiver requires the exchange visitor to show that they would be subject to persecution on account of race, religion, or political opinion.[17] This is a higher standard than persecution claims filed under the asylum provisions of the INA.[18] Notably, INA 212(e) requires the applicant to establish that the applicant would be subject to persecution upon a return to the home country, whereas an applicant under INA 208 must only establish a well-founded fear of persecution.
1. Evidence
To request a foreign residence requirement waiver based on persecution, applicants must file the waiver application with USCIS.[19] Applicants must submit evidence that they are in fact subject to the requirement and that they would be subject to persecution in their home country because of their race, religion, or political opinion.[20]
2. Adjudication
If USCIS determines that the applicant would be persecuted upon return to the home country, it then transmits the information to DOS. DOS may choose not to recommend an approval of a waiver based on program, policy, or foreign relations aspects of a case, even if USCIS finds that the J-1 exchange visitor would be subject to persecution.[21]
Burden of Proof
In all cases, applicants have the burden of proving eligibility for a waiver and must demonstrate by a preponderance of the evidence that they are fully qualified for the waiver.[22]
3. Decision
If the applicant cannot establish a prima facie case of persecution through the documentary evidence submitted, USCIS does not send the case to DOS-WRD, but, rather, denies the application. Applicants may appeal this determination to the AAO.
If the applicant establishes a prima facie case of persecution, but DOS-WRD does not recommend approval, USCIS denies the application. There is no appeal right from this type of denial because the unfavorable recommendation came from DOS-WRD, not from USCIS.
If the applicant establishes a prima facie case of persecution and DOS-WRD recommends approval, USCIS approves the waiver and notifies the applicant and the applicant's legal representative, if applicable, of the approval.
D. No Objection
With the exception of J exchange visitors who came to the United States for the purpose of receiving graduate medical training and those who changed to J-1 status for such purpose, J exchange visitors may request a waiver of the foreign residence requirement based on a statement by the government of the country of the applicant’s nationality or last legal permanent residence that it has no objection if the applicant does not return to the country upon completion of the program.[23] This official statement is commonly known as a “no objection” letter.
A no objection letter is generally insufficient to warrant a favorable recommendation from the DOS-WRD when U.S. government funding was involved in the exchange program.
1. Requirements
Applicants may not submit a no objection letter directly to USCIS. USCIS rejects letters submitted directly to USCIS by the exchange visitor along with instructions on the proper channels for submission.[24] No objection letters must be sent directly from the J-1 exchange visitor’s home country to the DOS-WRD through official diplomatic channels. DOS-WRD then sends its recommendation to USCIS.
2. Evidence
Upon receipt of the no objection letter and the DOS-WRD recommendation, officers should review the case to ensure that documentation is in order and that the waiver is appropriate for the exchange visitor’s circumstances (for example, ensure that the applicant did not come to the United States as an exchange visitor, or later acquire such status, in order to receive graduate medical training or education). If the exchange visitor is eligible for the waiver, USCIS approves the waiver and notifies the applicant and the applicant's legal representative, if applicable, of the approval.[25]
E. Interested Government Agency
Any U.S. IGA may request a waiver if the IGA is able to demonstrate that either the J-1 exchange visitor's departure would be detrimental to one of its programs or the exchange visitor's stay in the United States is vital to one of its programs.[26] The rationale for an IGA waiver is that it is in the public interest to have the exchange visitor remain in the United States. The exchange visitor need not be an employee of the agency unless the agency has internal guidelines requiring that the exchange visitor be employed by it before it may recommend a waiver.
The head of the agency (or their designee) must sign the letter requesting the waiver and submit it to the DOS-WRD.[27] DOS-WRD forwards its recommendation to USCIS.
F. Foreign Medical Graduates – Federal, State, and Conrad 30 Programs
1. General Requirements
Upon completion of the J-1 exchange visitor’s program, a foreign medical graduate (FMG) may obtain a waiver of the foreign residence requirement pursuant to INA 214(l) through a recommendation of a state or federal agency interested in facilitating the FMG’s employment in a federally designated shortage area as an H-1B nonimmigrant.[28] To be eligible for the waiver, the FMG must:
- Agree to be employed full time[29] in H-1B nonimmigrant status at a health care facility located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP).
- Practice medicine at the health care facility named in the waiver application for at least 3 years, and generally in HHS-designated shortage areas.[30]
- An FMG who fails to fulfill the 3-year contract is ineligible for an immigrant visa, lawful permanent resident status, or change of status to another nonimmigrant classification without meeting the 2-year foreign residence requirement unless the failure was due to extenuating circumstances, such as the closure of the facility or hardship to the FMG, and the FMG relocates to another qualifying area for the balance of the 3-year term.[31]
- Obtain a contract from the health care facility located in an area designated by HHS as an HPSA, MUA, or MUP. There are three exceptions to this requirement:
- If the U.S. Department of Veteran's Affairs (VA) requests the waiver so that the FMG could practice medicine with the VA, the FMG must practice medicine with the VA for at least 3 years, but does not need to do so in an HHS-designated shortage area.
- If an interested federal agency requests the waiver so that the agency can employ the FMG full time to practice clinical medicine, the FMG may fulfill the obligation by working for the agency for at least 3 years in that capacity, rather than by practicing medicine in an HHS-designated shortage area.
- If an interested federal or state agency requests the waiver for an FMG who agrees to practice specialty medicine in a facility located in an HHS-designated geographic area, the FMG may fulfill the obligation by practicing specialty medicine in such a facility for at least 3 years.[32] In such a case, the request must demonstrate a shortage of health care professionals able to provide services in the appropriate medical specialty to the patients who will be served by the FMG
- Obtain a no objection letter from the FMG’s home country if the home government funded the FMG’s exchange program.
- Agree to begin employment at the health care facility within 90 days of receipt of the waiver, not the date the FMG’s J-1 visa expires.
- Employment is not required to begin within 90 days of receipt of the waiver. The FMG must agree to begin employment within this 90-day period.[33]
The maximum number of INA 212(e) waivers that may be granted under INA 214(l) at the request of each state is limited to 30 during each fiscal year (the Conrad 30 program). There is no limit to the number of waivers granted to FMGs under the federal program. An FMG who obtains a waiver under INA 214(l) may not obtain permanent residence, whether by an immigrant visa or by adjustment of status, until the FMG has satisfied the statutory service obligation.
To prevent claims that an FMG did not know the obligations that accompany a waiver under INA 214(l), the foreign residence requirement waiver application approval Notice of Action (Form I-797) contains an addendum. This addendum specifies the terms and conditions imposed on the waiver and identifies the appropriate public law number to indicate whether a state department of public health or an IGA made the request for a waiver. In addition, the applicable public law number is listed on the approval notice.
2. Evidence
Before FMGs may engage in employment, the petitioner must submit a Petition for a Nonimmigrant Worker (Form I-129) along with the DOS-WRD favorable recommendation letter, in order to request a change of the FMG’s J-1 nonimmigrant status to H-1B nonimmigrant status.
If a spouse or child of the FMG waiver recipient wishes to change status in the United States from J-2 to H-4, then they must submit an Application to Extend/Change Nonimmigrant Status (Form I-539). The waiver recipient must practice medicine for at least 3 years in an area designated by HHS as a HPSA, MUA, or MUP.
Once the FMG waiver recipient has fulfilled the terms and conditions imposed on the waiver, including the 3-year period of employment with the health care facility, the waiver recipient (and any H-4 dependent family members) becomes eligible to apply for:
- An immigrant visa;
- Lawful permanent residence; or
- An H or L nonimmigrant visa or status.
If the FMG waiver recipient fails to fulfill the terms and conditions imposed on the waiver, the waiver recipient (and any H-4 spouse and child) once again becomes subject to the 2-year foreign residence requirement.
Footnotes
[^ 1] Occasionally, the foreign residence requirement is not correctly annotated on the Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) or on the visa foil or both. The absence or inclusion of such a notation on a DS-2019 or visa foil that the exchange visitor is subject to the requirement is not conclusive. Officers must look to the Exchange Visitor Skills List, funding, or other reasons that may make a J-1 exchange visitor subject to the requirement when making a determination as to whether the J-1 exchange visitor is eligible for change of status to certain classifications, or adjustment of status.
[^ 2] See 8 CFR 212.7(c)(11).
[^ 3] For more information about the DOS recommendation process, see the FAQs: Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement website.
[^ 4] For more information on extreme hardship, see Volume 9, Waivers and Other Forms of Relief, Part B, Extreme Hardship [9 USCIS-PM B].
[^ 5] Compare the INA 212(e) exceptional hardship waiver standard with waivers of criminal grounds of inadmissibility involving violent or dangerous crimes. See 8 CFR 212.7(d), “[t]he Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, 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 under section 212(h)(2) of the Act.”
[^ 6] See 8 CFR 212.7(c)(5). If an applicant erroneously submits the foreign residence requirement waiver application requesting a waiver based on an exceptional hardship claim but submits documentation to establish persecution, or vice versa, officers should issue a request for evidence asking that the applicant either correct the basis for the waiver request indicated on the waiver application or submit documentation supporting the basis indicated.
[^ 7] Applicants should indicate the reason or reasons they are subject to the foreign residence requirement on the waiver application. Applicants may be subject to the requirement for multiple reasons. For example, an applicant whose exchange visitor program was financed by the government of the applicant’s country may also have participated in graduate medical education or training. When applicable, USCIS evaluates whether multiple grounds apply.
[^ 8] See 8 CFR 212.7(c)(6). The foreign residence requirement waiver application contains fields to collect information on the qualifying relative (U.S. citizen or LPR spouse or child). If the application is based on exceptional hardship to the applicant's spouse or child, then the applicant must document the name, date, and place of birth, and the U.S. citizenship or LPR status of the qualifying relative. See information about specific documentation to establish family relationships and U.S. citizenship and LPR status in the instructions to Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended) (Form I-612).
[^ 9] See 8 CFR 212.7(c)(7).
[^ 10] See Keh Tong Chen v. Attorney General of the United States, 546 F. Supp. 1060 (D.D.C. 1982) (“Courts have effectuated Congressional intent by declining to find exceptional hardship unless the degree of hardship expected was greater than the anxiety, loneliness, and altered financial circumstances ordinarily anticipated from a two-year sojourn abroad.”), and Matter of Vicedo (PDF), 13 I&N Dec. 33 (Dist. Dir. 1968). Hardship was found for purposes of an INA 212(e) waiver where evidence showed that the two U.S. citizen children would be deprived of the love and care of their parents, and the father could not pay transportation to the Philippines or maintain the family there.
[^ 11] See Matter of Gupta (PDF), 13 I&N Dec. 477 (Dep. Assoc. Comm. 1970). Exceptional hardship was found where a prior visit of the U.S. citizen child to India resulted in medical disorders due to climatic conditions and the unavailability of foods to which the child was accustomed.
[^ 12] See Matter of Ambe (PDF), 13 I&N Dec. 3 (Dist. Dir. 1968). Exceptional hardship was found where the U.S. citizen child was allergic to the smallpox vaccine, and smallpox was endemic to the home country. Waivers were accordingly granted under INA 212(e). See Matter of Amin (PDF), 13 I&N Dec. 209 (Reg. Comm. 1969). Exceptional hardship was not found where the mother's skin condition did not in the past impair her ability to care for her U.S. citizen children, and treatment for the condition was available in her home country.
[^ 13] See Matter of Lai (PDF), 13 I&N Dec. 188 (Reg. Comm. 1969). Application was denied where the minor U.S. citizen child would suffer only the normal hardship of language difficulty, lesser educational opportunities, and hardship resulting from the parent’s reduced earnings in Taiwan. Exceptional hardship was, therefore, not found for purposes of INA 212(e); Matter of Vicedo (PDF), 13 I&N Dec. 33 (DD 1968) (exceptional hardship found where evidence showed that the two U.S. citizen children would be deprived of the love and care of their parents, and the father could not pay transportation to the Philippines or maintain the family there).
[^ 14] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4]. This means that the applicant has come forward with the facts and evidence which show that, at a minimum, and without any further inquiry, the applicant has proven initial eligibility for the benefit sought.
[^ 15] See INA 291. See Matter of Martinez (PDF), 21 I&N Dec. 1035, 1036 (BIA 1997), Matter of Patel (PDF), 19 I&N Dec. 774 (BIA 1988), and Matter of Soo Hoo (PDF), 11 I&N Dec. 151 (BIA 1965).
[^ 16] This standard is outlined in Keh Tong Chen v. Attorney General of the United States, 546 F. Supp. 1060, 1064 (D.D.C. 1982): “Courts deciding [section] 212(e) cases have consistently emphasized the Congressional determination that it is detrimental to the purposes of the program and to the national interests of the countries concerned to apply a lenient policy in the adjudication of waivers including cases where marriage occurring in the United States, or the birth of a child or children, is used to support the contention that the exchange alien’s departure from this country would cause personal hardship.” H.R. Rep. 87-721 (1961). Courts have declined to find exceptional hardship unless the degree of hardship expected was greater than the anxiety, loneliness, and altered financial circumstances ordinarily anticipated from a 2-year stay abroad. See Mendez v. Major, 340 F.2d 128, 132 (8th Cir. 1965), and Talavera v. Pederson, 334 F.2d 52, 58 (6th Cir. 1964).
[^ 17] See 8 CFR 212.7(c)(8).
[^ 18] See INA 208. See 8 CFR 209.2(b).
[^ 19] See 8 CFR 212.7(c)(5).
[^ 20] If an applicant erroneously submits the foreign residence requirement waiver application requesting a waiver based on an exceptional hardship claim but submits documentation to establish persecution, or vice versa, officers should issue an RFE asking that the applicant either correct the basis for the waiver request indicated on the waiver application or submit documentation supporting the basis indicated.
[^ 21] DOS may not change the type of filing (for example, persecution to exceptional hardship) at this stage.
[^ 22] See INA 291. See Matter of Martinez (PDF), 21 I&N Dec. 1035, 1036 (BIA 1997), Matter of Patel (PDF), 19 I&N Dec. 774 (BIA 1988), and Matter of Soo Hoo (PDF), 11 I&N Dec. 151 (BIA 1965).
[^ 23] See 22 CFR 41.63(a)(3) and 22 CFR 62.27(g)(2). See 9 FAM 302.13-2(D)(1), No Objection Statement from Foreign Government.
[^ 24] To initiate the waiver process, the exchange visitor must follow the instructions provided by DOS to complete the Visa Waiver Recommendation Application. See the Apply for a Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement webpage for more information about the process of requesting a no objection statement. In general, the applicant contacts their country’s embassy in the United States to request the no objection statement. DOS reviews the application and forwards the recommendation to USCIS and sends a copy to the exchange visitor and the J-1 sponsor.
[^ 25] A no objection case is the only situation where USCIS allows the applicant to file an adjustment application concurrently with waiver request.
[^ 26] For information about IGA waiver requests from the U.S. Department of Veterans Affairs (VA) on behalf of an exchange visitor physician to serve in a VA hospital and IGA waiver requests for a foreign physician who agrees to serve in a medically under-served area, see Section 5, Foreign Medical Graduates – Federal, State, and Conrad 30 Programs [2 USCIS-PM D.4(F)].
[^ 27] To initiate the waiver process, the exchange visitor must follow the instructions provided by DOS to complete the Visa Waiver Recommendation Application. For more information about the IGA waiver process, see the Apply for a Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement webpage.
[^ 28] See INA 214(l). See 22 CFR 41.63(e).
[^ 29] Officers may consider non-traditional schedules as full time for the purpose of meeting INA 214(l). Officers should review the totality of the circumstances when determining whether the non-traditional schedule is consistent with the requirement for full-time employment. If the evidence establishes that the physician averages, or will generally average, 40 hours per week, but a minimum of 35 hours per week, over the course of the year (or any iteration of this, for example, 160 hours per month), officers may conclude that the employment is full time.
[^ 30] There is a limited exception: states may fill up to 10 flex slots, where physicians may be selected to work in an area that is not a HPSA or MUA, or MUP, yet still serves patients who reside in underserved areas.
[^ 31] See 8 CFR 212.7(c)(9)(iv).
[^ 32] See 8 CFR 212.7(c)(9).
[^ 33] See INA 214(l)(1)(C)(ii). See 8 CFR 212.7(c)(9)(i)(C).
Chapter 5 - Change of Status, Extensions of Stay, Program Transfers, and Reinstatement
A. General
INA 248 provides a nonimmigrant, lawfully admitted to the United States, who is continuing to maintain the status in which the nonimmigrant was admitted or previously changed to, the opportunity to change from one classification under INA 101(a)(15) to another, with certain restrictions. The applicant must meet all eligibility criteria for the new category.[1]
A J-1 exchange visitor who is subject to the 2-year foreign residence requirement under INA 212(e), and who has not received a waiver of that requirement, can change only to A, G, T, or U status.[2]
B. Change of Status from J-1 to H-1B
Foreign medical graduates (FMGs) granted a waiver of the 2-year foreign residence requirement under either the state or federal program may change status from J-1 to H-1B.[3] To qualify, the FMG must be otherwise eligible to apply for a change of nonimmigrant status.[4] This includes the requirement for timely filing of the Petition for a Nonimmigrant Worker (Form I-129), requesting change of status.
However, FMGs who obtain a waiver based on exceptional hardship or persecution (under INA 212(e) itself, rather than INA 214(l)) are statutorily ineligible for change of status pursuant to INA 248.
If a J-1 exchange visitor applies for a change of status to H-1B and the H-1B cap has been reached, DHS may extend the applicant’s duration of status until the next fiscal year when H-1B status can commence.[5] Additionally, a J-1 exchange visitor who has obtained a waiver based on INA 214(l) is not subject to the H-1B cap.
C. Change of Status from J-1 to J-2
Although an Application to Extend/Change Nonimmigrant Status (Form I-539) and fee are required, changing from J-1 to J-2 is not regarded as a change of status, therefore, it is not prohibited.[6] However, three important items should be noted regarding this type of change:
-
Any nonimmigrant or nonimmigrants subject to the 2-year foreign residence requirement retains that obligation despite the change from J-1 to J-2 status or vice versa;
-
The nonimmigrant or nonimmigrants involved may acquire a foreign residence requirement that they did not have previously (for example, a J-1 exchange visitor not subject to the requirement who becomes a J-2 accompanying spouse of someone who is subject acquires the same obligation as the (new) J-1 principal); and
-
Before approving any such change, the officer should be satisfied that the applicant is requesting the change for legitimate exchange visitor purposes and not merely to extend the stay in the United States by flip-flopping the roles of the principal exchange visitor and the accompanying spouse.
D. Extension of Stay, Program Transfers, and Reinstatement Requests
A request for an extension of stay or a program transfer must be filed with the U.S. Department of State (DOS).[7] An exchange visitor’s request for reinstatement must be filed with the DOS after consultation with the program sponsor.[8]
Footnotes
[^ 1] See Volume 2, Nonimmigrants, Part A, Nonimmigrant Policies and Procedures, Chapter 4, Extension of Stay, Change of Status, and Extension of Petition Validity [2 USCIS-PM A.4].
[^ 2] See INA 248(b). See 8 CFR 248.2(b). Any J nonimmigrant who was admitted (or acquired such status) to pursue graduate medical education or training is ineligible to change status, even if the J nonimmigrant obtains a waiver of INA 212(e).
[^ 3] See INA 214(l)(2)A).
[^ 5] See 8 CFR 214.2(j)(1)(vi).
[^ 6] See 8 CFR 248.2.
[^ 7] See 22 CFR 62.42 and 22 CFR 62.41(a)–(b). For information about J-1 program extensions, transfers, and reinstatements, see DOS’ Adjustments and Extensions webpage.
[^ 8] See 22 CFR 62.45.
Chapter 6 - Family Members of J-1 Exchange Visitor
The J-1 exchange visitor’s accompanying dependent family members may be admitted into the United States in J-2 classifications[1] if each applicant presents a Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019), issued in the applicant’s name by a program approved by the U.S. Department of State for participation by J-1 exchange visitors.
J-2 spouses of J-1 Conrad 30 waiver recipients cannot change status in the United States from J-2 to H-1B temporary worker status until the J-1 Conrad 30 waiver recipients have completed the requisite 3-year term of employment in a designated medically underserved area. Once the J-1 Conrad 30 waiver recipients have fulfilled all of the terms and conditions imposed on the waiver, including the 3-year period of employment with the health care facility, the J-1 Conrad 30 waiver recipients (and dependent family member or members) become eligible to change to another nonimmigrant status or adjust status to a lawful permanent resident.[2]
If the waiver recipients fail to fulfill the terms and conditions imposed on the waiver, they and their dependent family member or members will once again become subject to the 2-year foreign residence requirement under INA 212(e).[3]
J-2 nonimmigrants may be eligible for employment authorization;[4] however, they may not use their income to support the J-1 nonimmigrant. To apply for employment authorization as a J-2 nonimmigrant, the dependent family member must file an Application for Employment Authorization (Form I-765). USCIS may authorize the employment for the length of the J-1 exchange visitor’s stay or 4 years, whichever is shorter.[5]
Footnotes
[^ 1] See INA 101(a)(15)(J).
[^ 2] See INA 214(l)(2)(B).
[^ 3] See 8 CFR 212.7(c)(9) and 8 CFR 248.2(a)(3).
[^ 4] See 8 CFR 274a.12(c)(5).
Part E - Cultural Visitors (Q)
Chapter 1 - Purpose and Background
A. Purpose
The Immigration and Nationality Act (INA) provides a nonimmigrant classification for 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 up to 25 named 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).
Chapter 2 - Eligibility Requirements
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, a lawful permanent resident, or has 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-, 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-, 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-, 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-, 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).
Chapter 3 - Filing and Documentation
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 up to 25 named 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 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).
[^ 9] See 8 CFR 214.2(q)(4)(iii).
[^ 10] See 8 CFR 214.2(q)(4)(ii)(A).
[^ 11] See 8 CFR 214.2(q)(4)(ii)(A).
[^ 12] See 8 CFR 214.2(q)(4)(ii)(B). See 8 CFR 214.2(q)(11)(ii).
[^ 13] See 8 CFR 212.1(a).
Chapter 4 - Adjudication
A. Approvals
If the petitioner properly filed the Petition for a Nonimmigrant Worker (Form I-129) and the officer is satisfied that the petitioner has met the required eligibility standards, the officer should approve the petition. The approval period should not exceed the maximum period of stay allowed, which is the length of the approved program, or 15 months, whichever is shorter.[1] The petitioner must demonstrate that the program will run 15 straight months in order to obtain a validity period of that length.[2]
1. Substitution of Beneficiaries
A petitioner may substitute or replace a participant named on an approved petition for the remainder of the program without filing a new Form I-129.[3] The substituting cultural exchange visitor must meet the qualifications for a participant.[4]
Petitioners seeking to substitute a participant must submit a letter to the consulate at which the participant will apply for the visa or at the port of entry in the case of a visa-exempt alien, along with a copy of the approval notice and the participant’s information.[5]
2. Revocation
The approval of any petition is automatically revoked if the qualifying employer:[6]
- Goes out of business;
- Files a written withdrawal of the petition; or
- Terminates the approved international cultural exchange program before its expiration date.
No further action or notice by USCIS is necessary in the case of automatic revocation.
A Notice of Intent to Revoke (NOIR) is necessary upon a determination that:[7]
- The international cultural exchange visitor is no longer employed by the petitioner in the capacity specified in the petition, or if the international cultural exchange visitor is no longer receiving training as specified in the petition;
- The statement of facts contained in the petition was not true and correct;
- The petitioner violated the terms and conditions of the approved petition; or
- USCIS approved the petition in error.
The Notice of Intent to Revoke should contain a detailed statement of the grounds for the revocation and the period of time allowed for the petitioner’s rebuttal.[8] USCIS must consider all relevant evidence presented in deciding whether to revoke the petition in whole or in part. If the petition is revoked in part, the remainder of the petition remains approved and USCIS sends a revised approval notice to the petitioner with the revocation notice.[9]
The petitioner may appeal the decision to revoke a petition (in whole or in part) to the Administrative Appeals Office (AAO) if USCIS revoked the petition on notice. Petitioners may not appeal an automatic revocation.[10]
B. Denials
If the petitioner does not meet the eligibility requirements, the officer must deny the petition.[11] The officer may deny a petition for multiple participants in whole or in part.[12] If the officer denies the petition, he or she must prepare a final notice of action, which includes information explaining why the petition is denied.[13] Additionally, officers should include information about appeal rights and the opportunity to file a motion to reopen or reconsider in the denial notice. The office that issued the decision has jurisdiction over any motion[14] and the AAO has jurisdiction over any appeal.[15]
Footnotes
[^ 1] See 8 CFR 214.2(q)(7)(iii).
[^ 2] See Matter of R-C-C-S-D-, Adopted Decision 2016-04 (AAO Oct. 24, 2016).
[^ 3] See 8 CFR 214.2(q)(6).
[^ 4] See Chapter 2, Eligibility Requirements, Section C, Participant Requirements [2 USCIS-PM E.2(C)].
[^ 5] See 8 CFR 214.2(q)(6).
[^ 6] See 8 CFR 214.2(q)(9)(ii).
[^ 7] See 8 CFR 214.2(q)(9)(iii).
[^ 8] For more information on timeframes for Notices of Intent to Revoke, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 10, Post-Decision Actions, Section D, Revocation, Rescission, or Termination [1 USCIS-PM E.10(D)].
[^ 9] See 8 CFR 214.2(q)(9)(iv).
[^ 10] See 8 CFR 214.2(q)(9)(v).
[^ 11] See 8 CFR 103.2(b)(8).
[^ 12] See 8 CFR 214.2(q)(8)(ii)
[^ 13] See 8 CFR 103.2(b)(19). See 8 CFR 103.3. See 8 CFR 214.2(q)(8)(i).
[^ 14] See 8 CFR 103.5(a)(1)(ii).
[^ 15] See 8 CFR 103.3(a)(2).
Chapter 5 - Admissions, Extensions of Stay, and Changes of Status
A. Admission and Limits on Extensions of Stay
If approved for nonimmigrant international cultural exchange visitor (Q-1) classification and found otherwise admissible, a beneficiary may be admitted as a Q-1 nonimmigrant for a period of up to 15 months from the date of initial admission.[1]
An officer should not approve petitions for participants who have an aggregate of 15 months in the United States as a Q-1 nonimmigrant, unless the participants have resided and been physically present outside the United States for the immediate prior year.[2]
B. Change of Status
Generally, a beneficiary in a current valid nonimmigrant status who has not violated his or her status is eligible to change status to a Q-1 nonimmigrant in the United States without having to return to his or her home country for a visa interview. USCIS may grant such a beneficiary Q-1 status for up to 15 months.[3]
To change nonimmigrant status, the petitioning employer or agent should file a Petition for a Nonimmigrant Worker (Form I-129) before the beneficiary’s current status expires and indicate the request is for a change of status.[4] The beneficiary cannot work in the new Q-1 nonimmigrant classification until USCIS approves the petition and the change of status request.
If USCIS determines that the beneficiary is eligible for Q-1 classification, but not a change of status, the beneficiary must depart the United States, apply for a Q-1 nonimmigrant visa at a U.S. consular post abroad (unless visa-exempt) and then be readmitted to the United States as a Q-1 nonimmigrant.[5]
C. Change of Employer
Q-1 nonimmigrants may change employers without leaving the United States. A new employer must file a petition with all required evidence establishing the existence of an international cultural exchange program. The total period of stay in the United States, however, remains limited to 15 months.[6] The beneficiary cannot work for the new employer until USCIS approves the petition and the change of status request.
Footnotes
[^ 1] See 8 CFR 214.2(q)(7)(iii).
[^ 2] See 8 CFR 214.2(q)(7)(iv).
[^ 3] See 8 CFR 214.2(q)(7)(iii).
[^ 4] See 8 CFR 248.3(a).
[^ 5] There is no appeal from a change of status denial. See 8 CFR 248.3(g).
Part F - Students (F, M)
Chapter 1 - Purpose and Background
A. Purpose
The F and M nonimmigrant visa categories are for aliens seeking to study in the United States. The nonimmigrant academic student (F-1) classification allows an alien to enter the United States as a full-time student at a U.S. college, university, seminary, conservatory, academic high school, private elementary school, other academic institution, or in a language training program.[1]
The nonimmigrant vocational student (M-1) classification includes students in established vocational or other recognized nonacademic programs, excluding language training programs.[2]
B. Background
The Immigration and Nationality Act (INA) is the primary body of law governing immigration and visa operations and provides for the admission of various classes of nonimmigrants, including foreign students.[3] The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created the requirement for a program to collect information for tracking and monitoring foreign students from approved institutions of higher education, other approved educational institutions, and designated exchange visitor programs in the United States.[4]
IIRIRA led to legacy Immigration and Naturalization Service (INS) initiating a pilot program in 1997 to monitor the academic progress and movement of foreign students and exchange visitors from entry into the United States to departure. This program was known as the Coordinated Interagency Partnership Regulating International Students (CIPRIS).
As part of reforms following September 11, 2001, legacy INS renamed CIPRIS to the Student and Exchange Visitor Information System (SEVIS). Legacy INS also established the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to manage SEVIS.[5]
IIRIRA, as amended by the Enhanced Border Security and Visa Entry Reform Act of 2002, required that legacy INS establish an electronic means to monitor and verify the acceptance of alien students by schools. The amended IIRIRA also mandated that schools notify legacy INS when a foreign student fails to enroll within 30 days after the end of a school’s enrollment period.[6]
The Homeland Security Act of 2002 transferred the authority and functions of legacy INS into the newly created DHS.[7] Those functions relating to SEVIS and SEVP were placed within ICE.
In 2004, DHS published a final rule amending regulations requiring payment of a fee by certain aliens seeking status as F-1, F-3, M-1 or M-3 nonimmigrant students.[8]
In 2008, DHS again amended its regulations and adjusted application fees for that certain aliens who are seeking status as F-1, F-3, M-1, or M-3 nonimmigrant students.[9]
On December 14, 2010, President Obama signed the Accreditation of English Language Training Programs Act, which amended INA 101(a)(15)(F)(i) to state that F-1 nonimmigrant students intending to pursue an English language training course of study must enroll in an English language training program that has been accredited by a regional or national accrediting agency recognized by the Department of Education.[10]
C. Legal Authorities
- INA 101(a)(15)(F) - Academic student definition
- INA 101(a)(15)(M) - Vocational student definition
- INA 214(m) - Nonimmigrant elementary and secondary school students
- INA 248; 8 CFR 248 - Change of nonimmigrant classification
- 8 CFR 214.2(f) - Students in colleges, universities, seminaries, conservatories, academic high schools, elementary schools, other academic institutions, and in language training programs
- 8 CFR 214.2(m) - Students in established vocational or other recognized nonacademic institutions, other than in language training programs
- 8 CFR 214.3 - Approval of schools for enrollment of F and M nonimmigrants
- 8 CFR 214.13 - SEVIS fee for certain F, J, and M nonimmigrants
- 8 CFR 274a.12(c) - Aliens who must apply for employment authorization
- 22 CFR 41.61 - Students - academic and nonacademic
Footnotes
[^ 1] See INA 101(a)(15)(f).
[^ 2] See INA 101(a)(15)(m). See 22 CFR 41.61(b)(1).
[^ 3] According to INA 101(a)(15)(f), an alien is eligible for an F visa if they: have a residence in foreign country which they have no intention of abandoning, are a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with INA 214(l) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program in the United States. INA 101(a)(15)(m) provides that an alien who has a residence in a foreign country which they have no intention of abandoning who seeks to enter the United States temporarily and solely for the purpose of pursuing a full course at an established vocational or other recognized institution (other than in a language training program) in the United States is eligible for an M visa. The INA has been amended several times, including by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Division C, Title III of Pub. L. 104-208 (PDF) (September 30, 1996), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. 107-56 (PDF) (October 26, 2001), the Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. 107-173 (PDF) (May 14, 2002), and the Homeland Security Act of 2002, Pub. L. 107-296 (PDF) (November 25, 2002).
[^ 4] See Section 641 of IIRIRA, Pub. L. 104-208 (PDF), 110 Stat. 3009, 3009–704 (September 30, 1996).
[^ 5] IIRIRA required the creation of a program to collect information relating to nonimmigrant foreign students and exchange visitor program participants during the course of their stay in the United States. See Section 641 of IIRIRA, Pub. L. 104–208 (PDF), 110 Stat. 3009, 3009–704 (September 30, 1996). The program became known as ICE SEVP and its core technology became known as SEVIS. A number of rules outline the requirements and procedures for SEVIS. They include: 67 FR 34862 (PDF) (May 16, 2002) (proposed rule for implementing SEVIS); 67 FR 44344 (PDF) (Jul. 1, 2002) (interim rule for schools to apply for preliminary enrollment in SEVIS); 67 FR 60107 (PDF) (Sept. 25, 2002) (interim rule for certification of schools applying for enrollment in SEVIS); 67 FR 76256 (PDF) (Dec. 11, 2002) (final DHS rule implementing SEVIS); 67 FR 76307 (PDF) (Dec. 12, 2002) (Department of State interim final rule implementing SEVIS); 69 FR 39814 (PDF) (Jul. 1, 2004) (final rule authorizing fee collection for F, J and M nonimmigrant classifications); and 73 FR 55683 (PDF) (Sept. 26, 2008) (final rule adjusting program fees and establishing procedures for out-of-cycle review and recertification of schools certified by the SEVP to enroll F and M nonimmigrant students).
[^ 6] See the Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. 107-173 (PDF) (May 14, 2002).
[^ 7] See the Homeland Security Act of 2002, Pub. L. 107-296 (PDF) (November 25, 2002).
[^ 8] See 69 FR 39814 (PDF) (Jul. 1, 2004) (final rule).
[^ 9] Section 641(e) of IIRIRA, Pub. L. 104–208 (PDF), 110 Stat. 3009, 3009–706 (September 30, 1996), requires that a fee be established and charged to students or exchange visitors tracked in SEVIS to fund the program and further requires that the fee be used only for ICE SEVP related purposes. SEVIS Remittance for Certain F, J and M Visa nonimmigrants (Form I-901) fees are deposited into a sub-account within the Immigration Examination Fee Account and maintained for ICE SEVP use. See 73 FR 55683 (PDF) (Sept. 26, 2008).
[^ 10] See the Accreditation of English Language Training Programs Act, Pub. L. 111-306 (PDF) (December 14, 2010).
Chapter 2 - Eligibility Requirements
A. Applicant Eligibility
To be eligible for F-1 or M-1 status, aliens must meet the following requirements:[1]
- Be bona fide students qualified to pursue a full course of study;
- Seek to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an institution the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) has certified to admit nonimmigrant students;
- Have a foreign residence, which they have no intention of abandoning;[2]
- Have a Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) issued in their name by a Designated School Official (DSO) of a school that SEVP has certified to admit nonimmigrant students;[3]
- Have sufficient funds available for self-support during the entire proposed course of study;[4] and
- Provide proof that the alien has paid the Student and Exchange Visitor Information System (SEVIS) fee on Payment of Fee Remittance for Certain F, J, and M Nonimmigrants (Form I-901), if applicable.[5]
Intent to Depart
In order to be eligible for F-1 or M-1 classification, a student must intend to depart from the United States after their temporary period of stay (for example, upon completion of their program of study and any authorized practical training in this country or upon termination of their nonimmigrant status) and have a foreign residence that they have no intention of abandoning.[6]
The foreign residence requirement should be adjudicated differently for students than for other nonimmigrants.[7] Typically, students lack the strong economic and social ties of more established applicants, and they plan longer stays in the United States. INA 101(a)(15)(F)(i) assumes that the natural circumstances of being a student do not disqualify the student from qualifying for nonimmigrant status. Considerations should include the student’s present intent, not what they might do after a lengthy stay in the United States.[8]
If a student had a foreign residence immediately prior to traveling to the United States, even if such residence was with parents or guardians, they may be considered to be maintaining a residence abroad if they have the present intent to depart the United States at the conclusion of their studies.[9] The fact that this intention may change is not a sufficient reason to deny them F classification. In addition, the present intent to depart does not imply the need to return to the country from which they hold a passport. It means only that they must intend to leave the United States upon completion of their studies. Given that most students are young, they are not expected to have a long-range plan and may not be able to fully explain their plans at the conclusion of their studies. The student must have the present intent to depart at the conclusion of their approved activities.[10]
A student may be the beneficiary of an approved or pending permanent labor certification application or immigrant petition and still be able to demonstrate their intention to depart after a temporary period of stay.[11] USCIS officers generally view the fact that a student is the beneficiary of an approved or pending permanent labor certification or an immigrant visa petition as not necessarily impacting their eligibility for the classification, so long as the student intends to depart at the end of their temporary period of stay. In all cases, the officer must consider all facts presented when determining whether a student is eligible for the F or M classification.
Sufficient Funds
F-1 students must have sufficient funds to successfully study in the United States without resorting to unauthorized U.S. employment for financial support. F-1 students must provide documentary evidence that sufficient funds are, or will be, available to defray all expenses during the entire period of anticipated study.[12]
M-1 students must establish that they have funds immediately available to them or assurances of support necessary to pay all tuition and living costs for the entire period of intended stay.
Evidence of financial ability for prospective F-1 and M-1 students includes, but is not limited to:
- Family bank statements;
- Documentation from a sponsor;
- Financial aid letters;
- Scholarship letters; and
- A letter from an employer showing annual salary.[13]
B. Program Eligibility
1. F-1 Students
The following schools may be approved for attendance by F-1 students:[14]
- A college or university;[15]
- A community college or junior college which provides instruction in the liberal arts or in the professions and which awards recognized associate degrees;[16]
- A seminary;[17]
- A conservatory;[18]
- An academic high school;[19]
- A private elementary school;[20] and
- An institution which provides language training, instruction in liberal arts or fine arts, instruction in the professions, or instruction or training in more than one of these disciplines.[21]
2. M-1 Students
The following schools may be approved for attendance by M-1 students:[22]
- A community college or junior college which provides vocational or technical training and which awards recognized associate degrees;[23]
- A vocational high school;[24] and
- A school which provides vocational or nonacademic training other than language training.[25]
3. Ineligible School Types
The following schools may not be approved for attendance by foreign students:[26]
- A home school;[27]
- A public elementary or middle school;[28] and
- Adult education programs that are funded in whole or in part by a grant under the Adult Education and Family Literacy Act, or by any other federal, state, county, or municipal funding.[29]
4. Designated School Official Responsibilities
One requirement for a school to be ICE SEVP-certified is that the school must have dedicated employees for assisting and overseeing enrolled F and M students. These dedicated employees are referred to as the DSO. Each instructional site location must have at least one DSO who also serves as the main point of contact related to the school’s compliance for ICE SEVP.[30]
DSOs oversee and authorize foreign student activities, such as, but not limited to, reduced course loads, leaves of absence, employment endorsements such as for Curricular Practical Training and Optional Practical Training, and school transfers. DSOs are also responsible for fulfilling reporting requirements related to the activities of the school’s foreign students. Federal law requires DSOs to update and maintain student records in the SEVIS.[31] The failure of a DSO to report student infractions properly and in a timely manner can result in disqualification of the individual as a DSO and withdrawal of the school’s ICE SEVP certification.
C. Border Commuter Students
Nationals of Canada or Mexico who continue to reside in their home country while commuting to the United States to attend an approved F or M school are generally granted F-3 or M-3 nonimmigrant classification.[32] Such border commuter students are specifically permitted to engage in either full-time or part-time studies.[33] Unlike other foreign students who are admitted for duration of status, commuter students are admitted with a fixed period of admission through a specific date.[34]
Footnotes
[^ 1] See INA 101(a)(15)(f) and INA 101(a)(15)(m). See 8 CFR 214.2(f)(1) and 8 CFR 214.2(m)(1).
[^ 2] See 9 FAM 402.5-5(C), Qualifying for a Student Visa (F-1/M-1).
[^ 3] See 8 CFR 214.3(k). For more information about DSO requirements, see DHS’s Designated School Officials webpage.
[^ 4] See 22 CFR 41.61(b)(1)(ii).
[^ 5] See ICE’s I-901 SEVIS Fee webpage for information on the fee requirement and how to pay the fee.
[^ 6] See 9 FAM 402.5-5(E)(1)(b), Residence Abroad Required.
[^ 7] See 9 FAM 402.5-5(E)(1)(b), Residence Abroad Required.
[^ 8] See 9 FAM 402.5-5(E)(1)(b), Residence Abroad Required.
[^ 9] See 9 FAM 402.5-5(E)(1)(b), Residence Abroad Required.
[^ 10] See 9 FAM 402.5-5(E)(1)(b), Residence Abroad Required.
[^ 11] See 64 FR 29208, 29209 (PDF) (Jun. 1, 1999) (“So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits, this, does not bar the alien's continued holding of a nonimmigrant status.”). See Matter of Hosseinpour (PDF), 15 I&N Dec. 191 (BIA 1975) (Filing for adjustment of status “…is not necessarily inconsistent with lawful nonimmigrant status.”).
[^ 12] While this does not mean that the applicant must have cash immediately available to cover the entire period of intended study, which may last several years, it is generally required that that the applicant has enough readily available funds to meet all expenses for the first year of study, or the length of the program, whichever is shorter. Additionally, applicants must demonstrate that, barring unforeseen circumstances, adequate funds will be available for each subsequent year of study from the same source or from one or more other specifically identified and reliable financial sources.
[^ 13] See DHS’s Financial Ability webpage.
[^ 14] See 8 CFR 214.3(a)(2).
[^ 15] See 8 CFR 214.3(a)(2)(i)(A). A college or university is an institution of higher learning which awards recognized bachelors, masters, doctors, or professional degrees.
[^ 16] See 8 CFR 214.3(a)(2)(i)(B).
[^ 17] See 8 CFR 214.3(a)(2)(i)(C).
[^ 18] See 8 CFR 214.3(a)(2)(i)(D).
[^ 19] See 8 CFR 214.3(a)(2)(i)(E).
[^ 20] See 8 CFR 214.3(a)(2)(i)(F).
[^ 21] See 8 CFR 214.3(a)(2)(i)(G).
[^ 22] See 8 CFR 214.3(a)(2)(ii).
[^ 23] See 8 CFR 214.3(a)(2)(ii)(A).
[^ 24] See 8 CFR 214.3(a)(2)(ii)(B).
[^ 25] See 8 CFR 214.3(a)(2)(ii)(C). Also, under Section 113 of the Aviation and Transportation Security Act, Pub. L. 107-71 (PDF), 115 Stat. 597, 622 (November 19, 2001), flight schools are required to provide to the Attorney General the identification of an alien who wishes to be trained on an aircraft with a maximum certified takeoff weight of 12,500 pounds or more so that officials can assess the security risk prior to the training. See 49 CFR 1552.3(a).
[^ 26] See 8 CFR 214.3(a)(2)(v).
[^ 27] See 8 CFR 214.3(a)(2)(v)(A).
[^ 28] See 8 CFR 214.3(a)(2)(v)(B).
[^ 29] See 8 CFR 214.3(a)(2)(v)(C) (excluding adult education programs from certification for attendance for foreign students). Adult education means academic instruction and education services below the post-secondary level that increase an individual’s ability to: read, write, and speak in English and perform mathematics or other activities necessary for the attainment of a secondary school diploma or its recognized equivalent; transition to postsecondary education and training; and obtain employment. See 29 U.S.C. 3272.
[^ 30] See 8 CFR 214.3(l). The school’s president, owner or head of a school or school system must nominate these officials by signing a Record of Designated School Officials (Form I-17A) or successor form.
[^ 31] See 8 CFR 214.2(f)(10)(i)(B). For more information about DSO responsibilities, see ICE’s SEVIS Reporting Requirements for Designated School Officials webpage.
[^ 32] See INA 101(a)(15)(F)(iii) and INA 101(a)(15)(M)(iii).
[^ 33] See INA 101(a)(15)(F)(iii) and INA 101(a)(15)(M)(iii). See 8 CFR 214.2(f)(18)(ii) and 8 CFR 214.2(m)(19).
[^ 34] See 8 CFR 214.2(f)(18)(iii) and 8 CFR 214.2(m)(19)(iii). See Chapter 8, Change of Status, Extension of Stay, Length of Stay, Section E, Duration of Status [2 USCIS-PM F.8(E)].
Chapter 3 - Courses and Enrollment, Full Course of Study, and Reduced Course Load
A. Public High School
While F-1 and M-1 students may not attend a public elementary or middle school or a publicly funded adult education program, they may attend public high school.[1]
If F-1 or M-1 students are admitted for a fixed period of admission (not for duration of status) to attend a public high school and then apply to transfer schools or to attend a U.S. post-secondary school, they need to file an Application to Extend/Change Nonimmigrant Status (Form I-539) to request an extension of stay to remain in the United States beyond their fixed period of admission.
1. F-1 Students
F-1 students are limited to a cumulative period of 12 months to attend a public high school.[2] F-1 high school students are typically admitted for a specific period of time rather than duration of status.[3]
F-1 students must provide proof that they have reimbursed the local educational agency that administers the public high school for the full, unsubsidized per capita cost of providing education at the school for the period of the student’s attendance.
2. M-1 Students
M-1 students are not subject to the same 12-month time limit on public high school attendance. However, M-1 students are admitted for a fixed time period that includes the period necessary to complete the course of study indicated on the Certificate of Eligibility for Nonimmigrant Student Status (Form I-20), plus practical training following completion of the course of study, plus an additional 30 days to depart the United States, but not to exceed a total period of 1 year.[4]
B. Online and Distance Education Courses
1. F-1 Students
An F-1 student enrolled in classes for credit or classroom hours may only count one class or three credits (or the equivalent) per academic session (or the equivalent) toward the full course of study requirement if the class is:
- Taken online; or
- Through distance education not requiring physical attendance for any purpose integral to completion of the class.[5]
If the F-1 student’s course of study is in a language study program, no online or distance education classes count toward a student’s full course of study program.[6] If the F-1 student needs only one course to finish the program of study, it cannot be taken through online or distance education. Courses must have a physical presence requirement.[7]
2. M-1 Students
No online or distance education classes are counted toward an M-1 student’s full course of study requirement if such classes do not require the student’s physical attendance for any purpose integral to completion of the class.[8] For purposes of the M classification, an online or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing.[9]
C. Other Education Programs
1. Adult Education Programs
An F-1 or M-1 student may not enroll in an adult education program if it is funded in whole or in part by the Adult Education and Family Literacy Act or by any other federal, state, county, or municipal funding.[10]
2. English Language Training Programs
F-1 Students
F-1 students intending to pursue an English language training course of study must enroll in an English language training program that has been accredited by a regional or national accrediting agency recognized by the Department of Education.[11] English language training online or distance learning courses do not count towards the full course of study requirement.[12] Time spent in an English language training program also does not count towards the completion of one full academic year as an F-1 student.[13] However, if the student is receiving college credit for the language training at a Student and Exchange Visitor Program (SEVP)-certified college or university, then the time counts towards the one academic year required to participate in a practical training program.[14]
M-1 Students
M-1 students are only permitted to engage in English language training if their primary intent is to pursue vocational or technical training and they are taking English language training at the same school solely for the purpose of being able to understand the vocational or technical course of study.[15]
D. Concurrent Enrollment
An F-1 student may enroll in two different SEVP-certified schools at one time if the combined enrollment amounts to a full course of study.[16] In cases where a student is concurrently enrolled, the school from which the student will earn the student’s degree or certification should issue the Form I-20, and conduct subsequent certifications and updates to the Form I-20.[17] M-1 students may not be enrolled in two different SEVP-certified schools.
E. Full Course of Study
DHS regulations require students to maintain a full course of study and that the successful completion of the full course of study leads to the attainment of a specific educational or professional objective.[18]
Full course of study requirements are different for F and M students.
1. F-1 Students
To qualify as a full course of study, the Designated School Official (DSO) must have previously certified as a full course of study one of the following, as appropriate:[19]
- Postgraduate or postdoctoral study at a college or university;[20]
- Undergraduate or postgraduate study at a conservatory or religious seminary;[21]
- Undergraduate study at a college or university consisting of at least 12 semester or quarter hours of instruction per academic term in those institutions using standard semester, trimester, or quarter hour systems, and where all students enrolled for a minimum of 12 semester or quarter hours are charged full-time tuition or considered full-time for other administrative purposes, or its equivalent (as determined by U.S. Immigration and Customs Enforcement (ICE) SEVP in the school certification process) unless those students will complete their course of study during the current term with fewer semester or quarter hours;[22]
- Postsecondary language, liberal arts, fine arts, or other non-vocational program for which a school must confer recognized associate or other degrees upon its graduates or establish that its credits have been and are accepted unconditionally by at least three institutions of higher learning meeting specific requirements;[23]
- Any other language, liberal arts, fine arts, or other non-vocational training program consisting of at least 18 clock hours of attendance a week if the dominant part of the course of study consists of classroom instruction, or consists of at least 22 clock hours a week if the dominant part of the course of study consists of laboratory work;[24] or
- Curriculum at an approved private elementary or middle school or public or private academic high school consisting of class attendance for not less than the minimum number of hours a week prescribed by the school for normal progress towards graduation.[25]
2. M-1 Students
To qualify as a full course of study, the DSO must have previously certified as a full course of study one of the following, as appropriate:
- Community college or junior college studies consisting of at least 12 semester or quarter hours of instruction per academic term in those institutions using standard semester, trimester, or quarter-hour systems, and where all students enrolled for a minimum of 12 semester or quarter hours are charged full-time tuition or considered full-time for other administrative purposes, or its equivalent (as determined by ICE SEVP in the school certification process) except when the students need a lesser course load to complete the course of study during the current term;[26]
- Postsecondary vocational or business school programs, other than in a language training program,[27] which confer upon their graduates recognized associate or other degrees or have established that their credits have been and are accepted unconditionally by at least three institutions of higher learning which are either: a school (or school system) owned and operated as a public educational institution by the United States or a state or political subdivision; or a school accredited by a nationally recognized accrediting body; and consisting of at least 12 hours of instruction a week, or its equivalent as determined by ICE SEVP in the school certification process;[28]
- Vocational or other nonacademic curriculum studies, other than in a language training program,[29] consisting of at least 18 hours of attendance a week if the main part of the course of study consists of classroom instruction, or at least 22 hours a week if the main part of the course of study consists of shop or laboratory work;[30] or
- Vocational or other nonacademic high school curriculum, consisting of class attendance for not less than the minimum number of hours a week prescribed by the school for normal progress towards graduation.[31]
3. Border Commuter Students
A border commuter student must be enrolled in a full course of study, even though on a part-time basis, leading to the attainment of a specific educational or professional objective. A DSO at the school may authorize an eligible border commuter student to enroll in a reduced course load below the requirements for a full course of study. The reduced course load must be consistent with the border commuter student’s certified course of study.[32]
F. Reduced Course Load
1. F-1 Students
To maintain status while on a reduced course load, the F-1 student must first obtain authorization from the DSO before dropping to a reduced course load. A student who drops below a full course of study without the prior approval of the DSO is considered out of status.[33] A DSO may authorize an F-1 student for a reduced course load for one of the following reasons.
Specified Initial Academic Difficulties
A DSO may authorize a reduced course load due to academic difficulties once while the student is pursuing a course of study at that program level.[34] A student authorized to drop below a full course of study for academic difficulties while pursuing a course of study at a particular program level may still be authorized for a reduced course load due to an illness or medical condition.[35] The student must resume a full course at the start of the next available term or session, excluding a summer session.
An F-1 student taking a reduced course load must still be taking at least 6 semester or quarter hours or half the clock hours required for a full course of study.
Temporary Illness or Medical Condition
A DSO may authorize a reduced course load, or, if necessary, no course load, one or more times for medical reasons, even if the DSO had previously authorized the student to drop below a full course of study for academic difficulties.[36] The period of time cannot exceed an aggregate of 12 months while the student is pursuing a course of study at a particular program level.
The student must provide documentation of the illness or medical condition from a licensed medical doctor, psychiatrist, doctor of osteopathy, licensed psychologist, or clinical psychologist.
Completion of Course of Study
A DSO may authorize a reduced course load when a student needs fewer courses than a full course load in the student’s last term to complete the program of study.[37]
2. M-1 Students
To maintain status while pursuing a reduced course load, an M-1 student must first obtain their DSO’s authorization.[38] A DSO may authorize an M-1 student for a reduced course load only if the student provides documentation of an illness or medical condition from a licensed medical doctor, psychiatrist, doctor of osteopathy, licensed psychologist, or clinical psychologist. A DSO may authorize a reduced course load more than once, but the total period of reduced course load cannot exceed an aggregate of 5 months per course of study.
3. Border Commuter Student
A DSO may authorize a border commuter student to enroll in a reduced course load for the above listed reasons, provided that the reduced course load is consistent with the border commuter student’s certified course of study.[39]
Footnotes
[^ 1] See 8 CFR 214.2(f)(6)(i)(E) (defining a full course of study, in part, for F-1 students as “study in a curriculum at a certified private elementary or middle school or public or private academic high school”) and 8 CFR 214.2(m)(9)(iv) (defining a full course of study, in part, for M-1 students as “study in a vocational or other nonacademic high school curriculum”).
[^ 2] See 8 CFR 214.2(f)(5)(i). There is no such limitation to an F-1’s attendance at a private high school.
[^ 3] See 8 CFR 214.2(f)(5)(i).
[^ 4] See 8 CFR 214.2(m)(5).
[^ 5] See 8 CFR 214.2(f)(6)(i)(G).
[^ 6] See 8 CFR 214.2(f)(6)(i)(G).
[^ 7] See 8 CFR 214.2(f)(6)(i)(G). Beginning in March 2020, U.S. Immigration and Customs Enforcement (ICE) issued guidance related to online or distance learning, full course of study, and other student-related policy changes due to the COVID-19 public health emergency on its COVID-19 Guidelines and Protocols website. On May 11, 2023, ICE announced the termination of this guidance. Active F and M students were able to complete the 2022–23 academic year under the COVID-19 flexibilities through the 2023 summer semester. However, active F and M students will not be permitted to count online classes toward a full course of study in excess of the regulatory limits stated in 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v) for the 2023–24 academic year. Initial or re-entering students must enroll in programs complying with the regulatory limits for distance learning as stated in 8 CFR 214.2(f)(6)(i)(G). Designated School Officials (DSO) should not issue a Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) for students in new or initial status who are outside of the United States and plan to take classes at an educational institution certified by the ICE Student and Exchange Visitor Program (SEVP) for a program of study that contains online components in excess of the regulatory limits. ICE’s website should be consulted for the latest guidance.
[^ 8] See 8 CFR 214.2(m)(9)(v).
[^ 9] See 8 CFR 214.2(m)(9)(v).
[^ 10] See Section 203(1) of the Adult Education and Family Literacy Act, Pub. L. 105-220 (PDF), 112 Stat. 1059, 1060 (August 7, 1998). Adult education program is defined as a service or instruction below the post-secondary level for individuals who have attained 16 years of age; who are not enrolled or required to be enrolled in secondary school under state law; who lack sufficient mastery of basic educational skills to enable the individuals to function effectively in society; do not have a secondary school diploma or its recognized equivalent and have not achieved an equivalent level of education; or are unable to speak, read, or write the English language.
[^ 11] See Accreditation of English Language Training Programs Act, Pub. L. 111-306 (PDF) (December 14, 2010). The Act amended INA 101(a)(15)(F)(i) to state that F-1 nonimmigrant students intending to pursue an English language training course of study must enroll in an English language training program that has been accredited by a regional or national accrediting agency recognized by the Department of Education.
[^ 12] See 8 CFR 214.2(f)(6)(i)(G).
[^ 13] See 8 CFR 214.2(f)(6)(i)(G).
[^ 14] See 8 CFR 214.2(f)(6)(i)(G).
[^ 15] See 8 CFR 214.3(a)(2)(iv).
[^ 16] See 8 CFR 214.2(f)(6)(iv). The concurrent enrollment provision is applicable to those students who will be registered less than full-time at the school that issued their Form I-20, and who are relying on enrollment at another school to meet the requirement that they be enrolled for a full course of study. As long as a student is enrolled full-time at the institution that issued the student’s Form I-20, the student does not need special permission to take an additional class at another school.
[^ 17] See 8 CFR 214.2(f)(6)(iv). The DSO from the school where the F-1 student will earn the student’s degree is responsible for the reporting requirements to DHS. In instances where a student is enrolled in programs with different full course of study requirements (for example, clock hours vs. credit hours), the DSO is permitted to determine what constitutes a full course of study.
[^ 18] See 8 CFR 214.2(f)(6)(i). If the student fails to carry a full-course load unless authorized by DSO in accordance with 8 CFR 214.2(f)(6)(iii), the student has failed to maintain a valid F-1 status. This is not applicable during the student’s summer (or other authorized) break if the student is eligible and intends to register for the next term.
[^ 19] See INA 101(a)(15)(F)(i). Beginning in March 2020, ICE issued guidance related to online or distance learning, full course of study, and other student-related policy changes due to the COVID-19 public health emergency on its COVID-19 Guidelines and Protocols website. On May 11, 2023, ICE announced the termination of this guidance. Active F and M students were able to complete the 2022–23 academic year under the COVID-19 flexibilities through the 2023 summer semester. However, active F and M students will not be permitted to count online classes toward a full course of study in excess of the regulatory limits stated in 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v) for the 2023–24 academic year. Initial or re-entering students must enroll in programs complying with the regulatory limits for distance learning as stated in 8 CFR 214.2(f)(6)(i)(G). DSOs should not issue a Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) for students in new or initial status who are outside of the United States and plan to take classes at an educational institution certified by the ICE SEVP for a program of study that contains online components in excess of the regulatory limits. ICE’s website should be consulted for the latest guidance.
[^ 20] See 8 CFR 214.2(f)(6)(i)(A).
[^ 21] See 8 CFR 214.2(f)(6)(i)(A).
[^ 22] See 8 CFR 214.2(f)(6)(i)(B).
[^ 23] See 8 CFR 214.2(f)(6)(i)(C). The institutions of higher learning must be either: “(1) a school (or school system) owned and operated as a public educational institution by the United States or a State or political subdivision thereof; or (2) a school accredited by a nationally recognized accrediting body and which has been certified by a designated school official to consist of at least 12 clock hours of instruction a week, or its equivalent as determined by SEVP in the school certification process.”
[^ 24] See 8 CFR 214.2(f)(6)(i)(D).
[^ 25] See 8 CFR 214.2(f)(6)(i)(E).
[^ 26] See INA 101(a)(15)(M)(i). See 8 CFR 214.2(m)(9)(i).
[^ 27] Postsecondary vocational or business school and vocational or other nonacademic curriculum exclude language training programs unless the student enrolled in vocational or technical training takes English language training at the same school solely for the purpose of understanding a course of study. See 8 CFR 214.3(a)(2)(iv).
[^ 28]See 8 CFR 214.2(m)(9)(ii).
[^ 29] Postsecondary vocational or business school and vocational or other nonacademic curriculum exclude language training programs unless the student enrolled in vocational or technical training takes English language training at the same school solely for the purpose of understanding a course of study. See 8 CFR 214.3(a)(2)(iv).
[^ 30] See 8 CFR 214.2 (m)(9)(iii).
[^ 31] See 8 CFR 214.2(m)(9)(iv).
[^ 32] See 8 CFR 214.2(f)(18)(ii) and 8 CFR 214.2(m)(19)(ii).
[^ 33] See 8 CFR 214.2(f)(6)(iii).
[^ 34] See 8 CFR 214.2(f)(6)(iii)(A). The DSO may authorize a reduced course load due to a student’s initial difficulty with the English language or reading requirements, unfamiliarity with U.S. teaching methods, or improper course level placement.
[^ 35] See 8 CFR 214.2(f)(6)(iii)(A).
[^ 36] See 8 CFR 214.2(f)(6)(iii)(B) and 8 CFR 214.2(f)(6)(iii)(A).
[^ 37] See 8 CFR 214.2(f)(6)(iii)(C).
[^ 38] See 8 CFR 214.2(m)(9)(vi).
[^ 39] See 8 CFR 214.2(f)(18)(ii) and 8 CFR 214.2(m)(19)(ii).
Chapter 4 - School Transfer
A. F-1 Students
An F-1 student who is maintaining status must notify the Designated School Official (DSO) at the student’s current school of the request to transfer to another school certified by the U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP).[1] The F-1 student may start a transfer during the 60-day grace period following completion of the student’s studies since the student is considered to be maintaining status during this grace period.
An F-1 student who did not pursue a full course of study at the school the student was last authorized to attend is ineligible for school transfer and must apply for reinstatement,[2] or alternatively, may depart the country and return as an initial entry in a new F-1 nonimmigrant status.[3]
The Student and Exchange Visitor Information System (SEVIS) transfer procedures allow an F-1 student to transfer between SEVP-certified schools at the same educational level or move between educational levels, such as progressing from high school to a bachelor’s program or a bachelor’s program to a master’s program.[4]
1. Students Who Are Not Pursuing a Full Course of Study
With the exception of those who are authorized by the DSO to take less than a full load for valid academic, medical, or hardship reasons, DHS considers any student who is not pursuing a full course of study at the school the student is authorized to attend to be out of status. Such a student may not transfer to a different school without first requesting reinstatement.
While the request for reinstatement is pending, and if classes are in session, the student should be enrolled in school as the student will have to abide by the terms of the F-1 status as of the date of reinstatement, including being enrolled on a full time basis.[5] While there is no appeal of a denial of the application for reinstatement, a student may file a motion to reopen or reconsider according to the instructions on the USCIS denial notice. Otherwise, the student must depart the United States upon notification of the denial by USCIS.
2. Five-Month Limit
When transferring between schools or programs, a student may not remain in the United States unless the student is able to resume classes at the transfer school or program within 5 months of transferring out of the current school, or within 5 months of the program completion date as indicated on the Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) issued by the current school, whichever date is earlier. For a student authorized to engage in post-completion Optional Practical Training (OPT), the student must be able to resume classes within 5 months of transferring out of the current school that recommended OPT or by the date the OPT authorization ends, whichever is earlier.
An F-1 student’s authorization to engage in OPT employment is automatically terminated when the student transfers to another school or begins study at another educational level.[6]
B. M-1 Students
1. Eligibility
A nonimmigrant admitted as an M-1 student or who changes status to M-1 may not transfer to another school after 6 months from the date of admission as or change of status to an M-1 student. However, there is an exception if the student was unable to remain at the school which initially admitted the student due to circumstances beyond the student’s control.
An M-1 student may be otherwise eligible to transfer to another school if the student:
- Is a bona fide nonimmigrant;
- Has been pursuing a full course of study at the school the student was last authorized to attend;
- Intends to pursue a full course of study at the school to which the student intends to transfer; and
- Is financially able to attend the school to which the student intends to transfer.
2. Procedure
An M-1 student must apply to USCIS on an Application to Extend/Change Nonimmigrant Status (Form I-539), for permission to transfer between schools. The student must first notify the student’s current school (the transfer-out school) of the intent to transfer and indicate the school to which the student intends to transfer (the transfer-in school).
Upon notification by the student, the transfer-out school must update SEVIS to show the student is transferring out, indicate the transfer-in school, and input the release date for transfer. Once the transfer-out school updates SEVIS, the transfer-in school generates a Form I-20 for transfer. However, the transfer-in school will not gain access to the student’s SEVIS record until the release date. Upon receipt of the Form I-20 from the transfer-in school, the student must submit a Form I-539.[7]
The student may enroll in the transfer-in school at the next available term or session and is required to notify the DSO of the transfer-in school immediately upon beginning attendance. The transfer-in school must update the student’s registration record in SEVIS.[8]
If USCIS approves the application, the program start date listed on the Form I-20 is the approval transfer date, and the student is granted an extension of stay for the lesser of the period of time necessary to complete the new course of study plus 30 days, or for a total period of 1 year. If USCIS denies the Form I-539, the student is out of status.[9] A student who has not been pursuing a full course of study must apply for and be granted reinstatement to student status before being eligible to transfer to a new school.
Footnotes
[^ 1] See 8 CFR 214.2(f)(8)(i).
[^ 2] See 8 CFR 214.2(f)(16).
[^ 3] See 8 CFR 214.2(f)(8)(i).
[^ 4] See 8 CFR 214.2(f)(8).
[^ 5] See the DHS Reinstatement COE (Form I-20) webpage.
[^ 6] See 8 CFR 214.2(f)(10)(ii)(B).
[^ 7] See 8 CFR 214.2(m)(11).
[^ 8] See 8 CFR 214.3(g)(3).
Chapter 5 - Practical Training
A. General
Practical training (PT) is employment that is directly related to a student’s major area of study.[1]
F-1 students may engage in three types of PT:
- Curricular Practical Training (CPT);
- Optional Practical Training (OPT) (pre-completion or post-completion); and
- Science, Technology, Engineering, and Mathematics Optional Practical Training extension (STEM OPT).
PT may be authorized for an F-1 student at a U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP)-certified college, university, conservatory, or seminary, who has been lawfully enrolled, full-time, for one full academic year. Students may count time enrolled in a study abroad program toward the full academic year requirement, if the student spent at least one full academic term (that is, one semester, trimester, or quarter) enrolled in a full course of study in the United States prior to studying abroad.[2]
Students in English language training programs are ineligible for PT.[3]
M-1 students may engage in PT only after they complete their course of study.[4]
B. F-1 Student Curricular Practical Training
CPT is alternative work-study, cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the school.[5] No application to USCIS for employment authorization or an Employment Authorization Document (EAD) (Form I-766) is required, but the student must request authorization for CPT from the student’s Designated School Official (DSO). The CPT must be an integral part of an established curriculum.[6]
CPT occurs before the student’s program end date on the Certificate of Eligibility for Nonimmigrant Student Status (Form I-20). CPT may be part-time or full-time.[7] An F-1 student who has received 1 year or more of full-time CPT is ineligible for post-completion OPT at the same educational level.[8]
To participate in CPT, students must:
- Have completed one full academic year and be lawfully enrolled on a full-time basis at an approved ICE SEVP-certified school;[9]
- Be enrolled in a full course of study;
- Obtain their DSO’s endorsement on their Form I-20 and not begin CPT before the CPT start date indicated on the form;[10]
- Participate in an alternative work/study, internship, cooperative education or any other type of required internship or practicum that is offered by sponsoring employers through cooperative agreements with the students’ respective schools;[11] and
- Not be English language training students.
C. F-1 Student Optional Practical Training
OPT can be authorized either prior to completion of the degree program (pre-completion OPT) or following the completion of the degree program (post-completion OPT). Pre-completion OPT can be completed while school is in session, provided that the training does not exceed 20 hours a week while school is in session. During the student’s annual vacation and at other times when school is not in session, OPT can exceed 20 hours per week if the student is currently enrolled, is eligible for registration, and intends to register for the next term or session.[12]
A student may be authorized for 12 months of OPT and would become eligible for another 12 months of practical training if the student were to change to a higher educational level.[13]
A student who has not used any practical training and changes to a lower education level, where OPT would normally be available, may use the student’s initial 12 months of practical training at the lower education level. Each period of OPT must be recommended by the DSO and authorized by USCIS, as shown by a valid EAD.[14] If an F-1 student applies for post-completion OPT at the same educational level at which the student had pre-completion OPT, the amount of time approved for pre-completion OPT is deducted from the post-completion OPT authorized period.
Overtime and periods of unemployment are not considered when calculating the amount of OPT used. Rather, OPT usage is calculated based on the period of OPT authorized. For example, if an F-1 student had already received 6 months of full-time pre-completion OPT during the same degree program, but with overtime the total number of hours worked was equivalent to 7 months, the total remaining OPT time still available would be reduced by 6 months, half of the previously authorized year.
An F-1 student who has completed an authorized period of post-completion OPT may remain in F-1 status for 60 days beyond the EAD expiration date.[15] This is commonly known as a grace period, during which the F-1 student may contact their DSO to change their education level, transfer to another SEVP-certified school,[16] or file an application or petition with USCIS to change to another nonimmigrant or immigrant status.
OPT, including STEM OPT, is automatically terminated if an F-1 student:
- Transfers to another school;
- Begins a new degree level at the same school;
- Changes to a different nonimmigrant status, such as H-1B;
- Fails to maintain F-1 status; or
- Is enrolled in a school that closes.
The effective termination date is the release date in the Student and Exchange Visitor Information System (SEVIS) for school transfer or change of program at a new degree level; the effective date of the new nonimmigrant status; the date the student violated F-1 status, as appropriate; or the date that ICE SEVP terminates the school in SEVIS upon the school’s closure.
1. Pre-Completion OPT
A student enrolled at an ICE SEVP-certified college, university, conservatory, or seminary may apply to USCIS for authorization for pre-completion OPT by properly filing an Application for Employment Authorization (Form I-765) after obtaining the DSO’s recommendation.
The student may not begin pre-completion OPT until the date indicated on the student’s EAD. A student may submit a Form I-765 to engage in pre-completion OPT up to 90 days prior to being enrolled for one full academic year, provided that the period of employment will not begin until after the completion of the full academic year as indicated by the DSO. Students need an EAD for each period of pre-completion OPT.
Eligibility
Students must:[17]
- Obtain the DSO’s recommendation and have their DSO’s recommendation entered into the student’s SEVIS record and annotated on their Form I-20;
- Be enrolled, on a full-time basis, at an ICE SEVP-certified college, university, conservatory, or seminary;
- Have completed one full-time academic year or be within 90 days of completing one full academic year at the time of filing Form I-765;[18]
- Properly file a Form I-765 with USCIS and receive a valid EAD;
- Not be an English language training student; and
- Maintain a full course of study.
Time Limitations on Pre-Completion OPT
Pre-completion OPT is incremental and cumulative, up to 12 months. It may be granted over the course of the degree program and must take place before the program end date. Any time used for pre-completion OPT impacts the amount of post-completion OPT that USCIS may authorize.
2. Post-Completion OPT
Eligibility
To be eligible to apply to USCIS for post-completion OPT[19] a student must:
- Have completed a course of study or be in an associate’s, bachelor’s, master’s, or doctoral degree program and have completed all course requirements for the degree (excluding thesis or equivalent);
- Not be an English language training student;
- Obtain the DSO’s recommendation and have the DSO’s recommendation entered into the student’s SEVIS record and annotated on their Form I-20;
- Properly file a Form I-765 and receive a valid EAD; and
- Not have completed 1 year or more of full-time CPT.
A student may work as a volunteer or unpaid intern, as long as this practice does not violate any labor laws, and the employment is related to the program of study. The student must work at least 20 hours per week.[20]
Time Limitations on Post-Completion OPT
Post-completion OPT begins on the date USCIS adjudicates the employment authorization request or the date the DSO requests, whichever is later.[21] A student may not request a start date that is more than 60 days after the student’s program end date.[22] A student must complete all practical training within a 14-month period following the completion of study.[23]
An F-1 student may be authorized up to 12 months of practical training, and becomes eligible for another 12 months of practical training when they change to a higher educational level.[24] If an F-1 student applies for post-completion OPT at the same educational level in which the student had pre-completion OPT, the amount of time approved for pre-completion OPT is deducted from the post-completion OPT authorized period.
Overtime and periods of unemployment are not taken into consideration when calculating the amount of OPT used. For example, if an F-1 student had already received 1 year of part-time pre-completion OPT during the same degree program, the total remaining OPT time still available would be reduced by 6 months, half of the previously authorized year.
An F-1 student who has completed an authorized period of post-completion OPT may remain in F-1 status for 60 days beyond the EAD expiration date. During this grace period, an F-1 student may prepare for departure from the United States.[25] The F-1 student and any dependents must depart the United States by the end of the grace period if they do not either change the student’s nonimmigrant status, or transfer to an ICE SEVP-certified school.[26]
An F-1 student may not accrue an aggregate of more than 90 days of unemployment during the period of post-completion OPT.
3. STEM OPT Extension
An F-1 student who meets certain qualifications may qualify for a 24-month STEM OPT extension.[27] An F-1 student approved for STEM OPT may not accrue an aggregate of more than 150 days of unemployment during a total OPT period. This includes the post-completion OPT period and subsequent 24-month STEM OPT extension period.[28]
F-1 students with a bachelor’s degree, master’s degree, or doctorate degree in a field with a Department of Education’s Classification of Instructional Programs (CIP) code that appears on the DHS STEM Designated Degree Program List (PDF)[29] may apply to USCIS for authorization for a 24-month OPT extension (STEM OPT) by properly filing a Form I-765, after obtaining the DSO’s recommendation. This 24-month extension can only be granted once per qualifying degree. If the F-1 students do not fully use the extension, they are ineligible for any subsequent STEM extension.
F-1 students may submit a properly filed Form I-765 up to 90 days before the expiration of the F-1 student’s current post-completion OPT EAD and no more than 60 days after their DSO enters the STEM OPT recommendation into SEVIS.
Students who have timely and properly filed a Form I-765 for the 24-month OPT extension may continue working until the date of the USCIS written decision on the current Form I-765 or for up to 180 days after their current post-completion OPT expires, whichever is earlier.[30]
If USCIS approves the application, the F-1 student may continue working in accordance with the terms and conditions of the new EAD. If the extension is denied, employment authorization is immediately terminated and the F-1 student’s status ends in 60 days from the date of denial. However, if the application was denied because the student failed to maintain their F-1 status, they must immediately depart the United States.
Eligibility Requirements - Student
To be eligible for a STEM OPT extension, an F-1 student must:
- Have been granted OPT and currently be in a valid period of post-completion OPT;
- Have earned a bachelor’s, master’s, or doctoral degree from a school that is accredited by a U.S. Department of Education-recognized accrediting agency and is certified by ICE SEVP when the student submits the STEM OPT extension application;
- Not be in a multiple employer arrangement, or employed by a sole proprietorship, through a temp agency, through a consulting firm arrangement that provides labor for hire, or other similar relationships, if such arrangements are not bona-fide employer-employee relationships;
- Be employed for no less than 20 hours per week by each qualifying STEM OPT employer; and
- Complete an individualized Training Plan for STEM OPT Students (Form I-983) which identifies goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the F-1 student; explains how those goals will be achieved through the work-based learning opportunity with the employer; describes a performance evaluation process; and describes methods of oversight and supervision. The Form I-983 must explain how the training is directly related to the student’s qualifying STEM degree.
Before the student’s DSO at the educational institution of the student’s most recent enrollment may recommend a 24-month OPT extension, the student must follow Form I-983 instructions, have an appropriate individual in the employer's organization sign the form, and submit Form I-983 to the DSO.
Previously Obtained STEM Degrees
To be eligible for a STEM OPT extension based on a previously earned degree, the following requirements at 8 CFR 214.2(f)(10)(ii)(C)(3) and (4) must be met:
- The prior degree must be from a U.S. educational institution that is accredited by a Department of Education-recognized accrediting agency and SEVP-certified at the time of the DSO recommendation;
- The prior degree must be on the DHS STEM Designated Degree List at the time of the DSO recommendation;
- The prior degree must have been conferred within the 10 years preceding the DSO recommendation;
- The prior degree must be directly related to the practical training opportunity; and
- The student may not have previously received a STEM OPT extension based on the prior degree.
For example, if the student is currently participating in OPT based on completion of a non-STEM master’s degree, but previously received a bachelor’s degree in a field that appears on the DHS STEM Designated Degree Program List at the time of the DSO recommendation, the student may be able to apply for a STEM OPT extension based on the bachelor’s degree as long as it is from an accredited U.S. college or university and the OPT employment opportunity is directly related to the bachelor’s STEM degree.
Future STEM Degrees
If, in the future, an F-1 student enrolls in a new academic program and earns another qualifying STEM degree at a higher educational level, the student may be eligible for one additional 24-month STEM OPT extension, for a total of two lifetime STEM OPT extensions.
For example, if the student receives a 24-month STEM OPT extension based on a qualifying bachelor’s degree and the student later earns a qualifying STEM master’s degree, the student may apply for an additional 24-month STEM OPT extension based on the qualifying master’s degree.
Eligibility Requirements-Employer
An employer who wants to provide a practical training opportunity to a STEM OPT F-1 student during the student’s extension must:
- Be enrolled in E-Verify, as evidenced by either a valid E-Verify company identification number or, if the employer is using an employer agent to create its E-Verify cases, a valid E-Verify client company identification number;[31]
- Remain a participant in good standing with E-Verify, as determined by USCIS;[32]
- Have a valid Employer Identification Number issued by the Internal Revenue Service for tax purposes;[33]
- Report material changes of the F-1 student’s employment by submitting a modified Form I-983 to the DSO at the earliest available opportunity;[34]
- Implement a formal training program to augment the F-1 student’s academic learning through practical experience;[35]
- Provide an OPT opportunity that is commensurate with those of similarly situated U.S. workers in duties, hours, and compensation;[36] and
- If applicable, report the F-1 student’s termination of employment or departure to the DSO within 5 business days.[37]
To ensure the integrity of the program and provide safeguards for U.S. workers, any employer wishing to employ a student participating in the STEM OPT extension program must ensure that:
- The employer will maintain a bona fide employer-employee relationship with the F-1 student;[38]
- The employer has sufficient resources and personnel available to provide appropriate training in connection with the specified opportunity at the location or locations specified in the Form I-983;[39]
- The F-1 student will not replace a full or part-time, temporary, or permanent U.S. worker;[40] and
- The training opportunity will assist the F-1 student in attaining the student’s training goals.[41]
To employ a STEM OPT F-1 student, an employer must have and maintain a bona fide employer-employee relationship with the student.[42] The employer must attest to this fact by signing the Form I-983. The employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student.[43]
To establish a bona fide relationship, the employer may not be the F-1 student’s employer in name only, nor may the F-1 student work for the employer on a volunteer basis.[44]
An employer must have sufficient resources and trained or supervisory personnel available to provide appropriate training in connection with the specified training opportunity. These personnel must be located where the F-1 student’s practical training experience will take place, as specified in the Form I-983.
The personnel who may provide and supervise the training experience may be either employees of the employer, or contractors whom the employer has directly retained to provide services to the employer. However, employees or contractors of the employer’s clients or customers may not provide and supervise the training experience of the STEM OPT F-1 student. An F-1 student with OPT or a STEM OPT extension (who is undergoing training in their own right) is never considered qualified to train another F-1 student with a STEM OPT extension.
Employers may rely on their existing training programs or policies to satisfy the performance evaluation, oversight, and supervision requirements, but the F-1 student’s Form I-983 must nevertheless be customized for the individual F-1 student. Every Form I-983 must describe the direct relationship between the STEM OPT opportunity and the F-1 student’s qualifying STEM degree, as well as the relationship between the STEM OPT opportunity and the F-1 student’s goals and objectives for work-based learning.
A STEM OPT employer may not assign, or otherwise delegate its training responsibilities to a non-employer third party (for example, a client or customer of the employer, employees of the client or customer, or contractors of the client or customer).
DHS, at its discretion, may conduct a site visit of any STEM OPT employer to ensure that the employer possesses and maintains the ability, personnel, and resources to provide structured and guided work-based learning experiences consistent with the information provided on Form I-983.[45]
During a site visit, DHS may verify that the employer that signed the Form I-983 is the same entity that is providing the practical training experience to the F-1 student and ensure compliance.
For DHS to effectively conduct these site visits as part of its oversight responsibilities, it is important that employers report any change in an F-1 student’s employment address. As indicated above and further explained below,[46] the employer and F-1 student must report such a material change by submitting a modified Form I-983 to the DSO at the earliest available opportunity.
Staffing and temporary agencies and consulting firms may employ F-1 students under the STEM OPT program if they will be the entity that provides the practical training experience to the F-1 student and have and maintain a bona fide employer-employee relationship with the F-1 student.
F-1 students may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student.
Certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through temp agencies, employment through consulting firm arrangements that provide labor for hire, and other similar relationships may not be able to demonstrate a bona fide employer-employee relationship and, therefore, may not meet the requirements of the STEM OPT extension.
F-1 students seeking STEM OPT extensions may be employed by new start-up businesses so long as all regulatory requirements are met, including that the employer adheres to the training plan requirements, remains in good standing with E-Verify, will provide compensation to the STEM OPT student commensurate to that provided to similarly situated U.S. workers, and has the resources to comply with the proposed training plan.[47] For instance, alternative compensation may be allowed during a STEM OPT extension as long as the F-1 student can show that they are a bona fide employee and that their compensation, including any ownership interest in the employer entity (such as stock options), is commensurate with the compensation provided to other similarly situated U.S. workers.[48]
As part of the STEM OPT extension, employers must complete the appropriate parts of Form I-983. In this form, employers attest that:
- They have enough resources and trained personnel available to appropriately train the F-1 student;
- The F-1 student will not replace a full or part-time, temporary, or permanent U.S. worker; and
- Working for them will help the F-1 student attain their training objectives.
DHS reviews on a case-by-case basis whether the F-1 student will be a bona fide employee of the employer signing the training plan and verify that the employer that signs the training plan is the same entity that employs the F-1 student and provides the practical training experience.[49]
Validity Period
If the F-1 student establishes eligibility, DHS grants the STEM OPT 24-month extension for a fixed and uninterrupted period of 24 consecutive months.
The STEM OPT extension begins the day after the initial post-completion OPT expires, not on the date of adjudication, and ends 24 months thereafter, regardless of the date the actual extension is approved.[50] Filing during the cap-gap extension does not change the STEM OPT extension start date. STEM OPT is not extended by periods of part-time employment or unemployment.
The 14-month limit on completing post-completion OPT does not apply to the STEM OPT extension.[51]
If the Form I-765 for the STEM OPT extension is denied and the student’s post-completion OPT EAD is expired, OPT employment authorization ends on the date of the decision and the student’s F-1 status ends 60 days after the date of denial. If the Form I-765 for the STEM OPT extension is denied and the student’s post-completion OPT EAD is unexpired, the student will remain employment authorized until the expiration date of the EAD.
If the F-1 student’s degree area is changed from a non-STEM degree to a STEM degree during the last semester, the adjudicating officer may, on a case-by-case basis, request evidence to support the basis of the change.
Evaluation Requirement
An F-1 student on a STEM OPT extension must submit a self-evaluation of the student’s progress toward the training goals described in the Form I-983.[52] All required evaluations must be completed prior to the conclusion of a STEM practical training opportunity, and the F-1 student and an appropriate individual in the employer’s organization must sign each evaluation to attest to its accuracy. All STEM practical training opportunities require an initial evaluation within 12 months of the approved starting date on the EAD granted pursuant to the F-1 student’s 24-month OPT extension application, and a concluding evaluation. The F-1 student is responsible for ensuring the DSO receives the F-1 student’s 12-month evaluation and final evaluation no later than 10 days following the conclusion of the reporting period or conclusion of the student’s practical training opportunity, respectively.
Training Plan Modifications
An F-1 student on a STEM OPT extension also must:
- Submit a Form I-983 to the student's DSO within 10 days of beginning a new practical training opportunity with a new employer during the student's 24-month OPT extension and subsequently obtain a new DSO recommendation;
- Sign a modified Form I-983 reflecting any material changes or deviations from the training plan described in the Form I-983; and
- Ensure that that the modified Form I-983 is submitted to the F-1 student’s DSO at the earliest available opportunity.[53]
4. OPT Reporting and Employment Requirements
Under 8 CFR 214.2(f)(12)(i), an F-1 student granted employment authorization by USCIS to engage in OPT must report to the DSO any change of name or address, or interruption of such employment for the duration of the student’s OPT. A DSO who recommends a student for OPT is responsible for updating the student’s record to reflect these reported changes for the duration of the time that practical training is authorized.
To maintain F-1 status, an F-1 student with an approved STEM OPT extension must also adhere to the following reporting requirements at 8 CFR 214.2(f)(10)(ii)(C)(7) and (9) and 8 CFR 214.2(f)(12)(ii):
- Report to the student’s DSO a change of legal name, residential or mailing address, employer name, employer address, and loss of employment within 10 days of the change;[54]
- Complete a validation report every 6 months, confirming that the legal name, residential or mailing address, employer name, employer address, and loss of employment has not changed. (The requirement for validation reporting starts on the date the 24-month STEM OPT extension begins, and ends when the F-1 student’s status expires or the 24-month STEM OPT extension concludes, whichever is first. The validation report is due to the F-1 student’s DSO within 10 business days of each reporting date.[55] The student must report this information to the DSO even if it is unchanged from the prior report. The validation confirms that the required information is still true and accurate.);
- Submit an updated Form I-983 containing their self-evaluation of their progress toward the training goals described in the Form I-983.[56] (All required evaluations must be completed prior to the conclusion of a STEM practical training opportunity, and the F-1 student and an appropriate individual in the employer’s organization must sign each evaluation to attest to its accuracy. All STEM practical training opportunities require an initial evaluation within 12 months of the approved starting date on the employment authorization document granted pursuant to the F-1 student’s 24-month OPT extension application, and a concluding evaluation. The F-1 student is responsible for ensuring the DSO receives the F-1 student’s 12-month evaluation and final evaluation no later than 10 days following the conclusion of the reporting period or conclusion of their practical training opportunity, respectively.);
- Submit a new Form I-983 to the student’s DSO within 10 days of beginning of a new practical training opportunity with a new employer during their 24-month STEM OPT extension, and subsequently obtain a new DSO recommendation;[57] and
- Sign a modified Form I-983 reflecting any material changes or deviations from the training plan described in the Form I-983, and ensure that that the modified Form I-983 is submitted to the F-1 student’s DSO at the earliest available opportunity.[58]
An F-1 student engaging in STEM OPT must complete and submit to the DSO an updated Form I-983 containing their annual self-evaluation describing the progress of the training experience 12 months after the STEM OPT start date, and a final assessment that recaps the training and knowledge acquired during the 24-month training period, signed by the STEM OPT employer. The student’s employer must fill out a new Form I-983 to report to the DSO any material changes to, or material deviations from, the student’s formal training plan.
5. OPT Filing
Eligible students may apply to USCIS for authorization of OPT employment by properly filing a Form I-765. Students need an EAD for each period of practical training.[59]
The student may not begin OPT until the date indicated on the student’s employment authorization document.[60] Employment authorization begins on the date the DSO requests or the date USCIS adjudicates the Form I-765, whichever is later.[61]
Pre-completion OPT
A student may submit an application for pre-completion OPT no earlier than 90 days before being enrolled for one full academic year, provided that the period of employment will not start prior to the completion of the full academic year.[62] The student must file a properly completed Form I-765 after the student’s DSO enters the OPT recommendation into SEVIS.
Post-completion OPT
A student may apply for post-completion OPT no earlier than 90 days prior to the student’s program end date and no later than 60 days after the student’s program end-date. Within this 150-day window, the student must file a properly completed application no more than 30 days after the student’s DSO enters the OPT recommendation into SEVIS.
A student is maintaining lawful nonimmigrant status while they are engaging in post-completion OPT. To resume full-time studies in a new educational program after a period of post-completion OPT, the student has to complete the transfer procedure.[63]
If post-completion OPT is denied, the student’s F-1 status expires 60 days from the date the degree program ends or the date of the denial, whichever is later. However, if the application is denied because the student failed to maintain F-1 status, they must immediately depart the United States.
STEM OPT
A student may apply for a 24-month STEM OPT extension up to 90 days before the expiration of the student’s current post-completion OPT EAD and no more than 60 days after their DSO enters the STEM OPT recommendation into SEVIS.
A student who has timely and properly filed a Form I-765 for the 24-month STEM OPT extension may continue working until the date of the USCIS written decision on the current Form I-765 or for up to 180 days after the student’s current post-completion OPT expires, whichever is earlier.[64]
If USCIS approves the application, the student may continue working in accordance with the terms and conditions of the new EAD. If the extension is denied and the student’s post-completion OPT EAD is expired, employment authorization is immediately terminated and the student’s status ends 60 days from the date of denial. If the extension is denied and the student’s post-completion OPT EAD is unexpired, the student will remain employment authorized until the expiration date of the EAD. However, if the application was denied because the student failed to maintain F-1 status, the student must immediately depart the United States.
D. F-1 “Cap-gap” Extension
1. Automatic “Cap-gap” Extension
An F-1 student who is the beneficiary of an H-1B[65] petition subject to the numerical limitations identified in INA 214(g)(1)(A)[66] and who requests a change of status is automatically granted an extension of F-1 status and employment authorization if:
- The F-1 student is currently authorized for OPT employment;[67]
- The F-1 student has not violated the terms and conditions of the student’s nonimmigrant status;[68]
- The H-1B petition was timely filed;[69] and
- The H-1B petition requested an H-1B employment start date of October 1 of the following fiscal year.[70]
The “cap-gap” period starts when an F-1 student’s status and employment authorization expires and, unless terminated, ends on October 1, the start date of the H-1B cap-subject petition filed on their behalf.
Cap-gap occurs because an employer may not file, and USCIS may not accept, a cap subject H-1B petition submitted more than 6 months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1 for the following fiscal year, which starts October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1, but the beneficiary’s OPT employment authorization may expire before the H-1B start date.
Current regulations allow certain F-1 students with a pending or approved cap-subject H-1B petition to remain in F-1 status during the cap-gap period. The regulations provide a way of filling the gap between the end of F-1 status and the beginning of H-1B status that might otherwise occur when F-1 status is not extended for qualifying students.
Once the listed requirements above are met, the automatic cap-gap extension begins and continues until October 1, or until the H-1B petition is rejected, denied, revoked, or withdrawn, or upon the denial or withdrawal of the request for change of nonimmigrant status, even if USCIS approves the H-1B petition filed on the F-1 student’s behalf for consular processing.[71] The F-2 status of dependents is also extended if the F-1 student’s status is extended. F-2s are not eligible for employment authorization.
F-1 students who do not qualify for a cap-gap extension because they do not meet the requirements noted above, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and seek readmission to the United States in H-1B status for the dates reflected on the approved H-1B petition.
If an H-1B cap-subject petition is filed on the behalf of an F-1 student who has entered the 60-day grace period, the F-1 student will receive the automatic cap-gap extension of the student’s F-1 status, but will not become employment-authorized (since the F-1 student was not employment-authorized at the time H-1B petition was filed, there is no employment authorization to be extended).
Unemployment during the cap-gap automatic extension counts toward the 90-day (post- completion OPT) or 150-day (for STEM OPT extension) cumulative maximum allowed unemployment.
2. Termination of Cap-gap Extension
If the student’s H-1B petition is rejected, denied, withdrawn, or revoked, or if the student’s change of status request is denied or withdrawn, the student has the standard 60-day grace period from the date of the rejection, denial, withdrawal, revocation notice, or the student’s program or OPT end date, whichever is later, to prepare for and depart the United States.[72]
If USCIS denies the H-1B change of status request due to a status violation, misrepresentation, or fraud, the F-1 student is ineligible for the cap-gap extension of status and the 60-day grace period. If USCIS revoked the H-1B petition based on a finding of a status violation, fraud, or misrepresentation discovered following approval, the 60-day grace period and cap-gap extension of status does not apply. In both of these instances, students are required to immediately leave the United States.
3. Travel Outside the United States During the Cap-gap
An F-1 student may generally travel abroad and seek readmission to the United States in F-1 status during a cap-gap period if:
- USCIS has approved the student’s H-1B petition and request for change of status;
- The student seeks readmission before the student’s H-1B employment begins (normally at the beginning of the fiscal year on October 1); and
- The student is otherwise admissible.[73]
If an F-1 student travels abroad while the application for change of status to H-1B is still pending, the change of status portion of the petition is deemed abandoned. If the H-1B petition on behalf of the student is approved, the student may apply for an H-1B visa from abroad.
E. M-1 Practical Training
1. Application
PT is the only type of work authorization available to M-1 students. It allows M-1 students to get on-the-job training that is not available in their home country.[74] PT may only be authorized after the M-1 student completes their course of study. M-1 students must obtain the DSO’s recommendation for PT. Prior to their program end date, but not more than 90 days before the program end date, M-1 students seeking PT must apply for permission to accept employment by filing a Form I-765 and an Application to Extend/Change Nonimmigrant Status (Form I-539), to extend their status to allow sufficient time to complete the PT plus a 30-day departure period.[75]
In some cases, the student finishes the course of study early or U.S. Customs and Border Protection gave the student more time than needed on the student’s Arrival/Departure Record (Form I-94). These students do not need to file a Form I-539 if they have sufficient time left in status to complete their PT and depart. Students must submit a Form I-20 that has been endorsed for PT by the DSO with their Form I-539.
USCIS denies a Form I-765 if the M-1 student departs while the application is pending. An M-1 student may not be admitted to begin PT that was not authorized before the student’s departure from the United States.[76]
2. Duration
USCIS grants 1 month of employment authorization for each 4 months of full-time study that the M-1 student has completed, not to exceed an aggregate of 6 months.[77] USCIS does not grant the student employment authorization if the student cannot complete the requested PT within 6 months. The M-1 student may not begin employment until USCIS has issued them an employment authorization document.
Footnotes
[^ 1] See 8 CFR 274a.12(b)(6)(iv), 8 CFR 214.2(f)(10), 8 CFR 214.2(f)(11), and 8 CFR 214.2(f)(12).
[^ 2] See 8 CFR 214.2(f)(10).
[^ 3] See 8 CFR 214.2(f)(10).
[^ 4] See 8 CFR 274a.12(c)(6) and 8 CFR 214.2(m)(14).
[^ 5] See 8 CFR 214.2(f)(10)(i).
[^ 6] See 8 CFR 214.2(f)(10)(i).
[^ 7] See 8 CFR 214.2(f)(10)(i)(B).
[^ 8] There is no maximum number of hours placed on CPT. Instead, the DSO indicates on the Form I-20 that training is authorized for full-time or part-time. See 8 CFR 214.2(f)(10)(i)(B).
[^ 9] See 8 CFR 214.2(f)(10). Students enrolled in master’s degree or doctorate programs that require immediate participation in CPT are exempt from the one-academic-year eligibility rule. See 8 CFR 214.2(f)(10)(i).
[^ 10] See 8 CFR 214.2(f)(9)(ii)(D).
[^ 11] See 8 CFR 214.2(f)(10)(i).
[^ 12] See 8 CFR 214.2(f)(9).
[^ 13] See 8 CFR 214.2(f)(10).
[^ 14] For information concerning EAD requirements for F students, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures, Chapter 2, Eligibility Requirements [10 USCIS-PM A.2].
[^ 15] See 8 CFR 214.2(f)(10)(ii)(D).
[^ 16] See the DHS Change Education Level webpage.
[^ 17] See 8 CFR 214.2(f)(10).
[^ 18] See 8 CFR 214.2(f)(11)(i)(B)(1). USCIS regulations allow practical training for students enrolled for one full academic year, even if a portion of that qualifying period was in a valid nonimmigrant status other than F-1. The student must be in a valid F-1 nonimmigrant status when the pre-completion OPT application is filed. Students may count time enrolled in a study abroad program toward the full-academic-year requirement, as long as the student spent at least one full academic term (that is, one semester, trimester, or quarter) enrolled in a full course of study in the United States prior to studying abroad.
[^ 19] See 8 CFR 214.2(f)(10)(ii)(A)(3).
[^ 20] See ICE Policy Guidance 1004-03 – Update to Optional Practical Training (PDF), issued April 23, 2010.
[^ 21] See 8 CFR 214.2(f)(11)(i)(D).
[^ 22] See 8 CFR 214.2(f)(11)(i)(D).
[^ 23] See 8 CFR 214.2(f)(10)(ii)(A)(3).
[^ 24] See 8 CFR 214.2(f)(10).
[^ 25] See 8 CFR 214.2(f)(8).
[^ 26] See 8 CFR 214.2(f)(10)(ii)(E).
[^ 27] See 8 CFR 214.2(f)(10)(ii)(C).
[^ 28] See 8 CFR 214.2(f)(10)(ii)(E).
[^ 29] See the DHS Study in the States website.
[^ 30] See 8 CFR 274a.12(b)(6)(iv).
[^ 31] See 8 CFR 214.2(f)(10)(ii)(C)(5).
[^ 32] See 8 CFR 214.2(f)(10)(ii)(C)(5).
[^ 33] See 8 CFR 214.2(f)(10)(ii)(C)(5).
[^ 34] See 8 CFR 214.2(f)(10)(ii)(C)(9)(ii).
[^ 35] See 8 CFR 214.2(f)(10)(ii)(C)(7).
[^ 36] See 8 CFR 214.2(f)(10)(ii)(C)(8).
[^ 37] See 8 CFR 214.2(f)(10)(ii)(C)(6).
[^ 38] See the Students: Determining STEM OPT Extension Eligibility webpage.
[^ 39] See 8 CFR 214.2(f)(10)(ii)(C)(10)(i).
[^ 40] See 8 CFR 214.2(f)(10)(ii)(C)(10)(ii).
[^ 41] See 8 CFR 214.2(f)(10)(ii)(C)(10)(iii).
[^ 42] See the Students: Determining STEM OPT Extension Eligibility webpage.
[^ 43] See the Students: Determining STEM OPT Extension Eligibility webpage.
[^ 44] See the Reporting Volunteer Positions During OPT Employment webpage.
[^ 45] See 8 CFR 214.2(f)(10)(ii)(C)(11).
[^ 46] See Subsection 4, OPT Reporting and Employment Requirements [2 USCIS-PM F.5(C)(4)].
[^ 47] See 81 FR 13040 (PDF), 13079 (Mar. 11, 2016).
[^ 48] See 81 FR 13040 (PDF), 13079 (Mar. 11, 2016).
[^ 49] See the DHS STEM OPT Hub webpage for more information.
[^ 50] See 8 CFR 214.2(f)(11)(iii)(A).
[^ 51] See 8 CFR 214.2(f)(10)(ii)(A)(3).
[^ 52] See 8 CFR 214.2(f)(10)(ii)(C)(9)(i).
[^ 53] See 8 CFR 214.2(f)(10)(ii)(C)(9)(ii) (providing a non-exclusive list of material changes and deviations that would trigger this requirement). Additionally, the educational institution whose DSO is responsible for duties associated with the F-1 student’s latest STEM OPT extension is responsible for ensuring that ICE SEVP has access to each individualized Form I-983 and associated student evaluations (electronic or hard copy), including through SEVIS if technologically available, beginning within 30 days after the document is submitted to the DSO and continuing for a period of 3 years following the completion of each STEM practical training opportunity. See 8 CFR 214.2(f)(10)(ii)(C)(9)(iii).
[^ 54] See 8 CFR 214.2(f)(12)(ii)(A).
[^ 55] See 8 CFR 214.2(f)(12)(ii)(B).
[^ 56] See 8 CFR 214.2(f)(10)(ii)(C)(9)(i).
[^ 57] See 8 CFR 214.2(f)(10)(ii)(C)(7)(iv).
[^ 58] See 8 CFR 214.2(f)(10)(ii)(C)(9)(ii) (providing a non-exclusive list of material changes and deviations that would trigger this requirement). Additionally, the educational institution whose DSO is responsible for duties associated with the F-1 student’s latest STEM OPT extension is responsible for ensuring that ICE SEVP has access to each individualized Form I-983 and associated student evaluations (electronic or hard copy), including through SEVIS if technologically available, beginning within 30 days after the document is submitted to the DSO and continuing for a period of 3 years following the completion of each STEM practical training opportunity. See 8 CFR 214.2(f)(10)(ii)(C)(9)(iii).
[^ 59] See 8 CFR 214.2(f)(11).
[^ 60] See 8 CFR 214.2(f)(11)(i)(D).
[^ 61] See 8 CFR 214.2(f)(11)(i)(D).
[^ 62] See 8 CFR 214.2(f)(11)(i)(B)(1).
[^ 63] See 8 CFR 214.2(f)(8)(ii).
[^ 64] See 8 CFR 274a.12(b)(6)(iv).
[^ 65] See INA 101(a)(15)(H)(i)(b). An H-1B beneficiary is a nonimmigrant worker coming to the United States temporarily to perform services in a specialty occupation.
[^ 66] See 8 CFR 214.2(f)(5)(vi)(A).
[^ 67] See 8 CFR 214.2(f)(5)(vi)(A).
[^ 68] See 8 CFR 214.2(f)(5)(vi)(C).
[^ 69] Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student’s authorized F-1 duration of status admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, any authorized periods of STEM OPT, and the 60-day departure preparation period).
[^ 70] See 8 CFR 214.2(f)(5)(vi).
[^ 71] See 8 CFR 214.2(f)(5)(vi)(B).
[^ 72] See 8 CFR 214.2(f)(5)(vi)(B).
[^ 73] See 81 FR 13040 (PDF) (Mar. 11, 2016) (final rule).
[^ 74] See 8 CFR 214.2(m)(14)(i)(C).
[^ 75] See 8 CFR 214.2(m)(14)(iii).
Chapter 6 - Employment
If authorized, F-1 students may engage in on-campus or off-campus employment. M-1 students may only engage in employment for purposes of practical training.[1]
A. On-Campus Employment
F-1 students may engage in on-campus employment subject to certain conditions and restrictions.[2] F-1 status permits students with Designated School Official (DSO) approval to work at an on-campus job for up to 20 hours per week when school is in session.[3] During vacation periods, students may work on-campus full-time.[4]
Employment may be performed at off-campus locations that are educationally affiliated with the school and the employment must be an integral part of the student’s educational program.[5] Students working on campus may be employed by the school itself or by any independent companies serving the school’s needs, such as the school bookstore or cafeteria suppliers providing food on campus premises. The employment must not displace U.S. residents.[6]
An F-1 student may be employed on-campus for duration of status, but may not begin more than 30 days before the start of classes.[7] F-1 students engaged in on-campus employment are not required to apply for employment authorization with USCIS.
B. Off-Campus Employment
USCIS may authorize an F-1 student to work off campus on a part-time basis after having been in F-1 status for one full academic year if the student is in good academic standing as determined by the DSO.[8]
1. Severe Economic Hardship
USCIS may authorize an eligible F-1 student to work off campus on a part-time basis if on-campus employment opportunities are not available or are otherwise insufficient. USCIS may also authorize an eligible F-1 student to work off campus on a part-time basis due to severe economic hardship caused by unforeseen circumstances beyond the student’s control.[9]
Severe economic hardship may include a loss of financial aid or on-campus employment through no fault of the student; substantial fluctuations in the value of currency or exchange rate; inordinate increases in tuition or living costs; or unexpected changes in the financial condition of the student’s source of support, medical bills, or other substantial and unexpected expenses.[10]
The DSO must recommend the F-1 student for off-campus employment on the Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) and the student must properly file an Application for Employment Authorization (Form I-765), and receive an employment authorization document (EAD, Form I-766) from USCIS before starting off-campus employment.
USCIS may grant severe economic hardship EADs in 1-year intervals, not to extend past the expected date of completion of the student’s current course of study.[11] Severe economic hardship EADs may be renewed while the student continues to maintain status and is in good academic standing.[12] Severe economic hardship employment authorization terminates when the student transfers from one school to another or when the need for employment ceases. If the student is maintaining status, beginning a new educational program at the same school does not terminate the student’s employment authorization.
2. Severe Economic Hardship due to Emergent Circumstances (Special Student Relief)
DHS may suspend certain regulatory requirements for F-1 students experiencing severe economic hardship as a direct result of emergent circumstances.[13] This suspension, also known as special student relief (SSR), first appeared in the Code of Federal Regulations in 1998.[14]
Emergent circumstances are events that affect F-1 students from a particular region and create severe economic hardship. These events may include, but are not limited to, natural disasters, financial crises, and military conflicts.
The Secretary of Homeland Security may suspend duration of status, full course of study, and on-campus and off-campus employment regulatory requirements due to emergent circumstances. DHS designates SSR by publication of a Federal Register notice, which provides the start and end dates of the suspension of those requirements.
Lawful Status
Generally, DHS considers an F-1 student to be in lawful status if the student is pursuing a full course of study at an approved educational institution.[15] However, when DHS designates SSR by publication of a Federal Register notice, eligible students may reduce their full course of study as a result of accepting employment authorized by the Federal Register notice.
DHS considers an F-1 student to be in lawful status during the period of authorized employment, subject to any other conditions specified in the notice, provided that for the duration of the authorized employment, the student is:
- Registered for at least the minimum number of semester or quarter hours of instruction per academic term as specified in the Federal Register notice; and
- Is continuing to make normal progress toward completing the student’s course of study.
When DHS designates SSR by publication of a Federal Register notice, the number of semester or quarter hours of instruction per academic term cannot be less than 6 semester or quarter hours if the student is at the undergraduate level or one half of the credit hours normally required under a full course of study if an undergraduate student is enrolled in a term of different duration. A student at the graduate level must remain registered in a minimum of 3 semester or quarter hours of instruction.[16]
Students enrolled in kindergarten through grade 12 at a private school or grades 9 through 12 at a public high school must maintain the minimum number of hours of class attendance per week prescribed by the academic institution for making normal progress toward graduation.[17]
Eligibility Criteria
For an F-1 student to be eligible for SSR, the DSO must certify in the Student and Exchange Visitor Information System (SEVIS) that the student:
- Is a citizen of a country specified in the Federal Register notice or, if such eligibility is specified in the SSR notice, a person having no nationality who last habitually resided in the specified country;
- Was lawfully present in the United States in F-1 status on the date of publication of the Federal Register notice;
- Is enrolled in a school certified by U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP);
- Is currently maintaining F-1 status; and
- Is experiencing severe economic hardship as a direct result of the emergent circumstances specified in the Federal Register notice.
The DSO should note any specifics, as ICE SEVP recommends, in the remarks section of the F-1 student’s Certificate of Eligibility for Nonimmigrant Student Status (Form I-20).[18]
C. Documentation
1. On-Campus Employment
An F-1 nonimmigrant student authorized by the student’s DSO to engage in on-campus employment by means of the Federal Register notice does not need to file an Application for Employment Authorization (Form I-765) with USCIS.[19]
To engage in on-campus employment more than 20 hours per week, consistent with a designation of SSR, the F-1 student must demonstrate to the DSO that the employment is necessary to avoid severe economic hardship resulting from the emergent circumstances, and the DSO must notate the student’s Form I-20 in accordance with the Federal Register notice.[20]
2. Off-Campus Employment
An F-1 nonimmigrant student authorized by the student’s DSO to engage in off-campus employment must file a Form I-765 with USCIS and include a copy of a properly endorsed Form I-20 with the filing. An F-1 student must receive employment authorization and an EAD from USCIS before engaging in off-campus employment.[21]
To engage in off-campus employment more than 20 hours per week consistent with a designation of SSR, the F-1 student must demonstrate to the DSO that the employment is necessary to avoid severe economic hardship resulting from the emergent circumstances, and the DSO must notate the student’s Form I-20 in accordance with the Federal Register notice.[22]
USCIS may only grant off-campus employment authorization due to severe economic hardship for up to 1 year,[23] unless the Secretary of Homeland Security suspends the applicability of this requirement through publication of a Federal Register notice. If the 1-year limitation is suspended, USCIS may grant SSR employment authorization for the duration of the Federal Register notice validity period, but the period of authorization may not exceed the F-1 student’s academic program end date.
3. Existing Employment Authorization
If an F-1 student already has off-campus employment authorization, they may benefit from SSR without applying for a new EAD. To benefit from SSR in this context, the F-1 student must request that the student’s DSO update the remarks field of the F-1 student’s Form I-20, in accordance with the Federal Register notice.
An F-1 student authorized by a DSO for on-campus employment does not need to apply for an EAD solely because of publication of a Federal Register notice if the F-1 student does not seek to engage in off-campus employment. If consistent with the Federal Register notice, the F-1 student may drop below what would otherwise be the minimum course load. In such a case, the F-1 student must request that the DSO update the remarks field of the F-1 student’s Form I-20, in accordance with the Federal Register notice.
D. F-1 Student Sponsored by an International Organization
An F-1 student who has been offered employment by a recognized international organization[24] must apply for employment authorization from USCIS.
A student seeking employment authorization under this provision is required to present a written certification from the international organization that the proposed employment is within the scope of the organization’s sponsorship; a Form I-20 with the employment page completed by the DSO certifying eligibility for employment; and a completed Form I-765 with the required fee.
An F-1 student must receive employment authorization and an EAD from USCIS before engaging in off-campus employment.
Footnotes
[^ 1] See Chapter 5, Practical Training, Section E, M-1 Practical Training [2 USCIS-PM F.5(E)]. See 8 CFR 214.2(m)(13) and 8 CFR 214.2(m)(14).
[^ 2] See 8 CFR 214.2(f)(9)(ii)(A).
[^ 3] See 8 CFR 214.2(f)(9)(i).
[^ 4] See 8 CFR 214.2(f)(9)(i).
[^ 5] See 8 CFR 214.2(f)(9)(i).
[^ 6] See 8 CFR 214.2(f)(9)(i).
[^ 7] See 8 CFR 214.2(f)(9)(i).
[^ 8] See 8 CFR 214.2(f)(9)(ii)(A).
[^ 9] See 8 CFR 214.2(f)(9)(ii)(C). See Volume 1, General Policies and Procedures, Part H, Emergencies or Unforeseen Circumstances, Chapter 2, Emergencies or Unforeseen Circumstances-Related Flexibilities, Section A, Immigration Policy Flexibilities, Subsection 5, Employment Authorization for F-1 Students [1 USCIS-PM H.2(A)(5)].
[^ 10] See 8 CFR 214.2(f)(9)(ii)(C).
[^ 11] See 8 CFR 214.2(f)(9)(ii)(D).
[^ 12] See 8 CFR 214.2(f)(9)(ii)(F)(1).
[^ 13] See 8 CFR 214.2(f)(5)(v) and 8 CFR 214.2(f)(9).
[^ 14] See 63 FR 31872 (PDF) (June 10, 1998). For more information on special student relief (SSR), see DHS’ Special Student Relief webpage.
[^ 15] See 8 CFR 214.2(f)(5)(i).
[^ 16] See 8 CFR 214.2(f)(5)(v).
[^ 17] As required under 8 CFR 214.2(f)(6)(i)(E).
[^ 18] For more information, see the DHS Special Student Relief webpage.
[^ 19] For more information regarding on-campus employment, including locations where it must be performed and application procedures, see 8 CFR 214.2(f)(9)(i).
[^ 20] See 8 CFR 214.2(f)(9)(i).
[^ 21] For general guidance on the adjudication of the Application for Employment Authorization (Form I-765), see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures, Chapter 4, Adjudication [10 USCIS-PM A.4].
[^ 22] See 8 CFR 214.2(f)(9)(ii).
[^ 23] See 8 CFR 214.2(f)(9)(ii)(D). Employment authorization is automatically terminated whenever the student fails to maintain status. See 8 CFR 214.2(f)(9)(ii)(F)(2).
[^ 24] See 8 CFR 214.2(f)(9)(iii). The international organization must be recognized according to the International Organizations Immunities Act, Pub. L. 79-291, 59 Stat. 669 (December 29, 1945).
Chapter 7 - Absences From the United States
A. F-1 Students
An F-1 student returning to the United States from a temporary absence of 5 months or less may be readmitted for attendance at an educational institution certified by U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) if the F-1 student presents:
- A current Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) properly endorsed by the Designated School Official (DSO) for reentry if there has been no substantive change to the most recent Form I-20 information;[1] or
- An updated Form I-20 if there has been a substantive change in the information on the F-1 student’s most recent Form I-20, such as in the case of an F-1 student who has changed the major area of study, who intends to transfer to another SEVP-certified institution, or who has advanced to a higher level of study;[2] and
- A valid F nonimmigrant visa, unless otherwise exempt.[3]
If an F-1 student leaves the United States for more than 5 months and is not able to remain enrolled at the student’s ICE SEVP-certified school, the student will not be able to maintain student status.[4] To resume the program of study in the United States, the student will need to seek readmission in initial status, which includes obtaining a new Form I-20.[5]
For information about requirements for F-1 student participation in study abroad programs, see DHS’s Study in the States webpage.
Time spent outside of the United States does not extend the period of authorized Optional Practical Training (OPT). Time spent overseas counts towards the F-1 student’s aggregate maximum allowed period of unemployment.[6] An F-1 student currently approved for OPT may re-enter the United States to engage in OPT if the student has a current visa (if applicable), a Form I-20 endorsed for travel by the student’s DSO within the last 6 months, and an unexpired Employment Authorization Document (Form I-765).
B. M-1 Students
An M-1 student returning to the United States from a temporary absence to attend the school that the student was previously authorized to attend must present:[7]
- A properly endorsed Form I-20 if there has been no substantive change in the information on the student’s most recent Form I-20 since the form was initially issued; or
- A new Form I-20 if there has been any substantive change in the information on the student’s most recent Form I-20 since the form was initially issued; and
- A valid M nonimmigrant visa, unless otherwise exempt.[8]
If USCIS has authorized an M-1 student to transfer between schools and the student is returning to the United States from a temporary absence to attend the school to which the transfer was authorized as indicated on the student’s Form I-20, the name of the transfer-in school does not need to be specified in the student’s visa.[9]
If USCIS has authorized an M-1 student to engage in practical training and the student is returning to the United States from a temporary absence, the M-1 student may be readmitted for the remainder of the authorized period indicated on the student's Form I–20. The student must be returning to the United States to perform the authorized practical training.
An M-1 student may not be admitted to begin practical training that was not authorized before the student’s departure.[10] As a result, if an M-1 student departs the United States while an Application for Employment Authorization (Form I-765) is pending, USCIS denies the Form I-765.
Footnotes
[^ 1] See 8 CFR 214.2(f)(4).
[^ 2] See 8 CFR 214.2(f)(4).
[^ 3] See 8 CFR 212.1.
[^ 4] See 8 CFR 214.2(f)(4).
[^ 5] See 8 CFR 214.2(f)(4).
[^ 6] See 8 CFR 214.2(f)(10)(ii)(E).
[^ 7] See 8 CFR 214.2(m)(4)(i).
[^ 8] See 8 CFR 212.1.
Chapter 8 - Change of Status, Extension of Stay, and Length of Stay
A. General Eligibility for Change of Status to F-1
1. Eligible Nonimmigrants
In general, nonimmigrants who have been lawfully admitted to the United States and maintain the status in which they were admitted (or previously changed to) may seek to change from one visa classification under INA 101(a)(15) to another, with certain restrictions.[1] The applicant must meet all eligibility criteria for the new visa classification.[2]
Generally, a nonimmigrant may apply to change to F-1 status while remaining in the United States if:
- The applicant was lawfully admitted to the United States in a nonimmigrant status;
- The applicant’s nonimmigrant status remains valid; and
- The applicant has not violated the conditions of their nonimmigrant status.[3]
2. Timing and Effective Date
Academic Program Start Date
In general, upon approval of a change of status (COS) to F-1, F-1 students may not engage in any student activities (with certain exceptions)[4] until 30 days before their academic program start date.
Officers grant the COS with an effective date of the applicant’s F-1 status as the day of final adjudication (approval), regardless of whether it falls within 30 days of the academic program start date.
If a COS to F-1 application is approved more than 30 days before the program start date, the nonimmigrant must ensure that they do not violate their F-1 status during that period of time. The student must ensure they maintain status by not engaging in impermissible activities.
For example, engaging in any employment, including on-campus employment and practical training more than 30 days before the program start date, is a violation of F-1 status.[5] In general, F-1 students admitted for duration of status who violate the terms of their status, begin to accrue unlawful presence on the day after USCIS or an immigration judge determines that they have violated their nonimmigrant status.[6]
In all cases, the student must fully comply with all applicable requirements of the Student and Exchange Visitor Program (SEVP).
Duration of Status
Regulations define the nonimmigrant student’s “duration of status” as the time during which an F-1 nonimmigrant is “pursuing a full course of study” at the approved educational institution.[7] USCIS considers the period of time between the approval of the COS to F-1 classification and the F-1 program start date as falling within the provision of “pursuing a full course of study.” This applies if the F-1 student continues to intend to pursue that course of study and does not otherwise violate their F-1 nonimmigrant status.
USCIS considers this period of time between the date of approval and the program start date as similar to the period of time and purpose a student is in the United States during summer vacation in F-1 status (such a break in classes does not interrupt status).
Deferring Program Start Date
If a COS to F-1 application is not approved before the program start date reflected on the initial “Certificate of Eligibility for Nonimmigrant Student Status” (Form I-20), the applicant must request that their Designated School Official (DSO) defer the program start date in the Student and Exchange Visitor Information System (SEVIS) before the current program start date has been reached.
The applicant can monitor the status of their pending COS application and, in accordance with instructions provided on the SEVP website, may contact the DSO if it appears that the program start date may need to be deferred. The applicant and the DSO are responsible for ensuring that the SEVIS record is not terminated while the COS is pending.
Background
USCIS historically only granted applications to change to F-1 status within 30 days of the program start date listed on the applicant’s Form I-20. USCIS required nonimmigrants applying for COS to F-1 classification to continuously obtain nonimmigrant status up to 30 days before the start date of the program of study listed on the Form I-20, even if that required filing an initial extension and later a subsequent extension or extensions, or filing a COS and subsequent extension or extensions. This policy prevented students from incurring a “gap” in status prior to 30 days before the program’s start date, but resulted in the potential filing and adjudication of multiple, duplicative COS or extension of stay (sometimes referred to as “bridging”) applications.
In order to limit costs to applicants and the government, especially during periods of high volume and extended adjudication times, USCIS no longer requires the applicant to submit subsequent applications for extension or change of nonimmigrant status while the COS to F-1 application is pending with USCIS, provided that the applicant’s nonimmigrant status is unexpired at the time of filing the initial COS to F-1 application, and the applicant otherwise remains eligible for a COS.
To avoid a “gap” in status in cases that are adjudicated more than 30 days prior to the academic program start date but are otherwise approvable, USCIS grants the COS to F-1 effective the day USCIS makes a final decision on the COS application, which may in some cases result in a student being granted F-1 status more than 30 days prior to the program start date.
3. Nonimmigrants Unable to Enroll in a Full Course of Study Seeking Change of Status to F-1 Classification
Certain nonimmigrants, including visitors for business or pleasure (B-1 or B-2), are prohibited from enrolling in a full course of study.[8] Nonimmigrants who wish to enroll in a full course of study but are unable to do so in their current nonimmigrant status must first submit a COS application and request nonimmigrant student (F-1) status. These nonimmigrants must do so while they are still in lawful status.
4. Other Nonimmigrants Seeking Change of Status to F-1 Classification
Some nonimmigrant classifications (PDF) permit applicants to enroll in a full course of study incidental to their primary purpose for being in the United States, while other classifications do not. COS applicants in nonimmigrant classifications that permit such enrollment and who enroll in a full course of study may continue their studies, even if their COS to F-1 is approved more than 30 days before their program start date as listed on their Form I-20.[9]
Nonimmigrants whose classifications do not permit enrolling in a course of study must first acquire F-1 status and may only enroll in a full course of study upon the program start date listed on Form I-20.
When an applicant applies for a COS to F-1 status, the applicant must wait until the COS is approved as well as 30 days before the new program start date before engaging in F status-specific activities (such as on-campus employment and practical training).[10]
5. Travel Abroad and Consular Processing
A nonimmigrant who obtains an F-1 nonimmigrant visa through consular processing may not be admitted more than 30 days before the report date or program start date listed on the Form I-20.[11] If a nonimmigrant travels abroad while their COS application is pending, USCIS considers that COS application abandoned.
If a nonimmigrant student travels abroad after USCIS has approved their F-1 COS application, regulations prohibit re-admission to the United States in F-1 status more than 30 days before the report date or program start date listed on the Form I-20.[12]
B. Vocational Student (M-1) [Reserved]
[Reserved]
C. Extension of Stay
1. F-1 Students
An F-1 student who is admitted for duration of status is not required to apply for an extension of stay with USCIS as long as the student is maintaining status and making normal progress toward completion of the student’s educational objective.[13] An F-2 dependent is not required to seek an extension of stay as long as the principal maintains F-1 student status.
An F-1 student who continues from one educational level to another is considered to be maintaining status, provided that the transition to the new educational level is completed according to the transfer procedures.[14] F-1 students continuing their studies at another educational level must request that the DSO change the students’ educational level within 60 days of their program end date.
An F-1 student who is maintaining status and making normal progress toward completing their educational objective, but is unable to complete their course of study by the program end date on the Form I-20, must request a program extension from their DSO before the program end date.
The F-1 student may be granted an extension if the DSO certifies that the student has continually maintained status and that the delay is caused by compelling academic or medical reasons, such as a change of major or research topics, unexpected research problems, or documented illnesses. Delays due to academic probation or suspension are not acceptable reasons for program extensions.
An F-2 dependent of an F-1 student unable to complete their course of study by the program end date on the Form I-20 does not need to apply separately for an extension of stay. If the DSO grants a program extension for the F-1 student, the DSO updates SEVIS for both the F-1 student and F-2 dependent.[15]
Failure to receive timely authorization for extension of stay results in the loss of student status.[16] An F-1 student who is unable to complete the educational program within the time listed on the Form I-20 and who is ineligible for a program extension is considered out of status as of the program end date.[17] In either case, the student must request to be reinstated to student status to continue studies.[18]
Reinstatement to F-1 Student Status
Generally, USCIS may reinstate a student’s F-1 status if the student makes a request on an Application to Extend/Change Nonimmigrant Status (Form I-539).[19] The request must be accompanied by a properly completed Form I-20 indicating the DSO’s recommendation for reinstatement from the school the student is attending.[20]
The student’s application must show:
- The student filed the application no more than 5 months after being out of status, or exceptional circumstances resulted in the student’s failure to file within 5 months and the request for reinstatement was filed as soon as possible under the circumstances;[21]
- The student does not have a record of repeated or willful violations of DHS regulations;[22]
- The student is currently pursuing or intending to pursue a full course of study in the immediate future at the school that issued the Form I‑20;[23]
- The student has not engaged in unauthorized unemployment;[24] and
- The student is not deportable on any ground other than as an alien whose nonimmigrant status has been revoked or an alien who has failed to maintain nonimmigrant status.[25]
The student’s application must also show:
- The violation of status resulted from circumstances beyond the student’s control;[26] or
- The violation relates to a reduction in the student’s course load that would have been within a DSO’s power to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.[27]
Violations due to the student’s actions, such as criminal activity, are not considered circumstances beyond the student’s control.
2. M-1 Students
The cumulative time of extensions, including extensions for practical training, that can be granted to an M-1 student is limited to a period of 3 years from the M-1 student’s original start date, plus 30 days.
No extension can be granted to an M-1 student if the student is unable to complete the course of study within 3 years of the original program start date. This limit includes extensions that have been granted due to a drop below a full course of study, a transfer of schools, or reinstatement. M-1 students may be granted an extension of stay if they establish:
- They are currently maintaining M-1 status;
- Compelling educational or medical reasons have resulted in a delay to their course of study (delays caused by academic probation or suspension are not acceptable reasons for program extension); and
- They are able to, and in good faith intend to, continue to maintain that status for the period for which the extension is granted.[28]
Application
An M-1 student must apply to USCIS for an extension on Form I-539. The student must submit the application at least 15 days, but not more than 60 days, before the program end date on the student’s Form I-20. A student’s M-2 spouse and unmarried children under the age of 21 seeking an extension of stay may be included in the application. The application must also be accompanied by the student’s Form I-20 and the Form I-94 of the student’s spouse and unmarried children, if applicable.
Period of Stay
If USCIS grants an application for extension, the M-1 student and their spouse and unmarried children under the age of 21 are given an extension of stay for the period of time necessary to complete the course of study, plus 30 days within which to depart from the United States, or for a total period of 1 year, whichever is less.[29]
A student’s M-2 spouse and unmarred children under the age of 21 are not eligible for an extension unless USCIS grants the M-1 student an extension of stay, and USCIS does not grant them a longer period than USCIS grants the M-1 student.[30]
Reinstatement to M-1 Student Status
USCIS may consider reinstating a student who makes a request for reinstatement on a Form I-539, accompanied by a properly completed Form I-20 indicating the DSO’s recommendation for reinstatement. USCIS may consider granting the request only if the student:[31]
- Has not been out of status for more than 5 months at the time of filing the request for reinstatement (or demonstrates that the failure to file within the 5-month period was the result of exceptional circumstances and that the student filed the request for reinstatement as promptly as possible under these exceptional circumstances);
- Does not have a record of repeated or willful violations of DHS regulations;
- Is currently pursuing, or intends to pursue, a full course of study at the school that issued the Form I-20;
- Has not engaged in unlawful employment;
- Is not deportable on any ground other than INA 237(a)(1)(B) or INA 237(a)(1)(C)(i); and
- Provides evidence that the violation of status resulted from circumstances beyond the student’s control[32] or the violation relates to a reduction in the student’s course load that would have been within a DSO’s power to authorize, and that failure to approve reinstatement would result in extreme hardship to the student.
D. Length of Stay
F-1 students may be admitted for a period of up to 30 days before the indicated report date or program start date listed on the Form I-20.[33] F-1 students are maintaining status if they are making normal progress toward completing a course of study. Admission, except for students enrolled in public high schools, is for duration of status.[34]
M-1 students may be admitted for a period of up to 30 days before the report date or start date of the course of study listed on the Form I-20.
M-1 students are admitted for a fixed time period, which is the period necessary to complete the course of study indicated on the Form I-20, plus any authorized practical training following completion of the course of study, plus an additional 30 days to depart the United States. However, the total time period may not exceed 1 year.[35]
M-1 students are maintaining status if they are making normal progress toward completing a course of study.
E. Duration of Status
F nonimmigrants[36] are admitted into the United States for an unspecified period of time to engage in activities authorized under this nonimmigrant classification. This unspecified period of time is referred to as duration of status.[37] This means that an F nonimmigrant may remain in the United States while maintaining their student status, including any authorized practical training following completion of studies, without being required to apply for an extension of stay with USCIS, or to depart and re-enter the United States in F-1 status.[38]
F. Departure Periods
1. F-1 Students
F-1 students who have completed their course of study and any authorized practical training following completion of studies are allowed an additional 60-day grace period to prepare for departure from the United States or to transfer to another SEVP-certified school.[39] During the grace period, the F-1 student is deemed to be maintaining nonimmigrant status and may apply for a change to another nonimmigrant or immigrant status.
F-1 students authorized by the DSO to withdraw from classes are allowed a 15-day period for departure from the United States.[40] However, F-1 students who fail to maintain a full course of study without the approval of the DSO or otherwise fail to maintain status are not eligible for an additional period for departure.[41]
2. M-1 Students
M-1 students who have completed their course of study and any authorized practical training following completion of their studies are allowed an additional 30-day grace period to prepare for departure from the United States.[42] During the grace period, the M-1 student is deemed to be maintaining nonimmigrant status and may apply for an extension of their stay or change to another nonimmigrant or immigrant status. M-1 students who fail to maintain a full course of study or otherwise fail to maintain status are not eligible for the additional 30-day period of stay.[43]
Footnotes
[^ 2] According to INA 101(a)(15)(f), an alien is eligible for F nonimmigrant classification if the alien: has a residence in a foreign country which they have no intention of abandoning, is a bona fide student qualified to pursue a full course of study, and seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with INA 214(m) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program in the United States.
[^ 3] Violations of status include, among others, engaging in unauthorized employment and certain criminal activity. See 8 CFR 214.1.
[^ 4] See Subsection 4, Other Nonimmigrants Seeking Change of Status to F-1 Classification [2 USCIS-PM F.8(A)(4)].
[^ 5] See 8 CFR 214.2(f)(9(i).
[^ 6] See Adjudicator's Field Manual Chapter 40.9.2. Students may be subject to 3-year or 10-year bars on their readmission to the country, respectively, if they accrue more than 180 days or 1 year of unlawful presence. See INA 212(a)(9)(B).
[^ 7] See 8 CFR 214.2(f)(5).
[^ 8] See 8 CFR 214.2(b)(7).
[^ 9] Under 8 CFR 214.2(f)(15)(ii), an F-2 is permitted to enroll in post-secondary or vocational study at an SEVP-certified school so long as any study remains less than a full course of study.
[^ 10] See 8 CFR 214.2(f)(9(i).
[^ 11] See 8 CFR 214.2(f)(5)(i).
[^ 12] See 8 CFR 214.2(f)(5)(i).
[^ 13] For a discussion of the extension of stay available to certain F-1 beneficiaries of an H-1B petition, under the “cap gap” provisions, see Chapter 5, Practical Training, Section D, F-1 “Cap-gap” Extension [2 USCIS-PM F.5(D)].
^ [14] See 8 CFR 214.2(f)(8).
[^ 15] See 9 FAM 403.9-4(E), Maximum Initial Periods of Admission and Extension of Stay.
[^ 16] See 8 CFR 214.2(f)(7)(iii).
[^ 17] See 8 CFR 214.2(f)(7)(iii).
[^ 18] See 8 CFR 214.2(f)(7)(iii) (directing that the application for reinstatement would be under the provisions of 8 CFR 214.2(f)(16)).
[^ 19] See 8 CFR 214.2(f)(16).
[^ 20] See 8 CFR 214.2(f)(16)(i).
[^ 21] See 8 CFR 214.2(f)(16)(i)(A).
[^ 22] See 8 CFR 214.2(f)(16)(i)(B).
[^ 23] See 8 CFR 214.2(f)(16)(i)(C).
[^ 24] See 8 CFR 214.2(f)(16)(i)(D).
[^ 25] See 8 CFR 214.2(f)(16)(i)(E).
[^ 26] For example, serious injury or illness; closure of the institution; a natural disaster; or inadvertence, oversight, or neglect on the part of the school’s DSO. Situations caused by the student’s willful failure or by a pattern of repeated violations do not qualify. See 8 CFR 214.2(f)(16)(i)(F)(1).
[^ 27] See 8 CFR 214.2(f)(16)(i)(F)(2).
[^ 28] See 8 CFR 214.2(m)(10).
[^ 29] See 8 CFR 214.2(m)(10)(iii).
[^ 30] See 8 CFR 214.2(m)(10)(iii).
[^ 31] See 8 CFR 214.2(m)(16).
[^ 32] Circumstances beyond the student’s control might include serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the DSO. They do not include instances where a pattern of repeated violations or a willful failure on the part of the student resulted in the need for reinstatement.
[^ 33] See 8 CFR 214.2(f)(5)(i).
[^ 34] An F-1 student who is admitted to attend a public high school is restricted to an aggregate of 12 months of study at any public high school. See 8 CFR 214.2(f)(5)(i).
[^ 35] See 8 CFR 214.2(m)(5).
[^ 36] Students traveling on M visas (students in vocational or other nonacademic institutions) generally are admitted for a fixed time period, rather than for duration of status, although extensions are possible. See 8 CFR 214.2(m)(5) and 8 CFR 214.2(m)(10).
[^ 37] See 8 CFR 214.2(f)(5)(i). Duration of status is defined as the time during which an F-1 student is pursuing a full course of study at an educational institution certified by U.S. Immigration and Customs Enforcement Student and Exchange Visitor Program for attendance by foreign students or engaging in authorized practical training following completion of studies. The student is considered to be maintaining status if the student is making normal progress toward completing a course of study.
[^ 38] See INA 214(m). See 8 CFR 214.2(f)(5)(i). Statutory and regulatory requirements restrict the duration of study for F-1 students to attend a public high school to an aggregate of 12 months of study at any public high school.
[^ 39] See 8 CFR 214.2(f)(5)(iv).
[^ 40] See 8 CFR 214.2(f)(5)(iv).
[^ 41] See 8 CFR 214.2(f)(5)(iv).
[^ 42] See 8 CFR 214.2(m)(5) and 8 CFR 214.2(m)(10).
[^ 43] See 8 CFR 214.2(m)(5).
Chapter 9 - Dependents
A. Accompanying the Student
An F-1 student’s spouse and unmarried children under the age of 21 who are accompanying the F-1 student in the United States are eligible for admission in F-2 status as dependent family members.[1] An M-1 student’s spouse and unmarried children under the age of 21 who are accompanying are eligible for admission in M-2 status.
At the time they seek admission, the dependent family members of a student with a Certificate of Eligibility for Nonimmigrant Student Status (Form I-20) must each present an original Form I-20 issued in the name of each F-2 or M-2 dependent and issued by a school certified by U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to admit F or M students.
B. Following to Join the Student
An F-1 student’s spouse and unmarried children under the age of 21 who are following to join the F-1 student in the United States are eligible for admission in F-2 status as dependent family members if they are able to demonstrate that the F-1 student has been admitted and is, or will be within 30 days, enrolled in a full course of study, or is engaged in approved practical training following completion of studies.
At the time they seek admission, the dependent family members of an F-1 student must individually present an original Form I-20 issued in the name of each F-2 dependent and issued by a school certified by ICE SEVP for attendance by F-1 students. A new Form I-20 is required for a dependent family member where there has been any substantive change in the F-1 student’s current information.
An M-1 student’s spouse and unmarried children under the age of 21 who are following to join the M-1 student in the United States are eligible for admission in M-2 status if they are able to demonstrate that the M-1 student has been admitted and is, or will be within 30 days, enrolled in a full course of study, or is engaged in approved practical training following completion of studies.
At the time they seek admission, the dependent family members of an M-1 student must individually present an original Form I-20 issued in the name of each M-2 dependent and issued by a school certified by ICE SEVP for attendance by M-1 students. A new Form I-20 is required for a dependent where there has been any substantive change in the M-1 student’s current information.
C. Employment and Study
F-2 and M-2 dependents are not authorized to work in the United States. F-2 and M-2 nonimmigrants are permitted to attend elementary, middle, and high school on a full-time basis. F-2 and M-2 nonimmigrants are also permitted to engage in study that is avocational or recreational in nature, or less than full-time.[2] If a dependent wants to pursue a full course of study beyond the elementary, middle, or high school level, or beyond what is avocational or recreational, the dependent has the option to request a change of status to that of an F-1 or M-1 nonimmigrant.
D. Period of Stay
1. F-2 Dependents
F-2 dependents are generally admitted concurrently with the duration of status of the F-1 student. F-2 dependents are not required to seek an extension of stay as long as they were admitted for duration of status and the F-1 student maintains their student status.
F-2 dependents of an F-1 student who is unable to complete the student’s course of study by the program end date on the Form I-20 do not need to apply for an extension of stay if they were admitted for duration of status. If the Designated School Official (DSO) grants an extension of stay for the F-1 student, the DSO updates the Student and Exchange Visitor Information System (SEVIS) for both the F-1 student and their F-2 dependents.
2. M-2 Dependents
M-2 dependents are admitted for the fixed period of stay for which M-1 students are admitted.[3] If USCIS grants an extension to members of a family group, all members are granted the same period of time, with the shortest period of time granted to any member applying to all.
If USCIS grants an application for an extension, the M-1 student and the student’s M-2 dependent family members, if applicable, are given an extension of stay for the period of time necessary to complete the course of study, plus 30 days within which to depart from the United States. The period of stay may not exceed a total period of 1 year, or the date a dependent loses eligibility for M-2 status (for example, the date an M-2 child turns 21), whichever is less.
E. Change of Status
Any spouse and minor children of the student who wish to change their status to F-2 dependent status must file their change of status (COS) application on Form I-539 while their current nonimmigrant status is valid and unexpired. Officers must review the expiration date of the applicant’s nonimmigrant status as indicated on the applicant’s Arrival/Departure Record (Form I-94) or other relevant documents to make this determination.
If USCIS denies the principal nonimmigrant’s COS application, officers must deny any dependent’s COS application.
Footnotes
[^ 1] See 8 CFR 214.2(f)(3) and 8 CFR 214.2(m)(3).
[^ 2] See 8 CFR 214.2(f)(15)(ii)(A)(1) (“[S]tudy at an undergraduate college or university or at a community college or junior college is not a full course of study solely because the F-2 nonimmigrant is engaging in a lesser course load to complete a course of study during the current term. An F-2 spouse or F-2 child enrolled in less than a full course of study is not eligible to engage in employment.”). See 8 CFR 214.2(m)(17)(ii)(A)(1) (“[S]tudy at an undergraduate college or university or at a community college or junior college is not a full course of study solely because the M-2 nonimmigrant is engaging in a lesser course load to complete a course of study during the current term. An M-2 spouse or M-2 child enrolled in less than a full course of study is not eligible to engage in employment.”).
Part G - Treaty Traders and Treaty Investors (E-1, E-2)
Part H - Specialty Occupation Workers (H-1B, E-3)
Part I - Temporary Agricultural and Nonagricultural Workers (H-2)
Chapter 1 - Purpose and Background
A. Purpose
The temporary agricultural worker (H-2A) nonimmigrant visa classification applies to an alien seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States.[1]
The temporary nonagricultural worker (H-2B) nonimmigrant visa classification applies to an alien seeking to perform temporary nonagricultural labor or services in the United States if U.S. workers are not available.[2]
B. Background [Reserved]
[Reserved]
C. Legal Authorities
- INA 101(a)(15)(H) – Aliens coming temporarily to the United States to perform services
- 8 CFR 214.2(h) – Temporary employees
Footnotes
[^ 1] USCIS defers to the U.S. Department of Labor’s determination on the temporary labor certification for H-2A employment as to whether the position qualifies as agricultural.
[^ 2] The H-2B nonimmigrant visa classification does not apply to graduates of medical schools coming to the United States to perform services as members of the medical profession.
Chapter 2 - Eligibility for Temporary Agricultural Worker (H-2A) Classification [Reserved]
Chapter 3 - Documentation and Evidence for Temporary Agricultural Worker (H-2A) Classification [Reserved]
Chapter 4 - Adjudication of Temporary Agricultural Worker (H-2A) Petitions [Reserved]
Chapter 5 - Post-Adjudication Issues related to Temporary Agricultural Worker (H-2A) Petitions [Reserved]
Chapter 6 - Temporary Agricultural Worker (H-2A) Petitions Requiring Special Handling [Reserved]
Chapter 7 - Eligibility for Temporary Nonagricultural Worker (H-2B) Classification [Reserved]
Chapter 8 - Documentation and Evidence for Temporary Nonagricultural Worker (H-2B) Classification [Reserved]
Chapter 9 - Adjudication of Temporary Nonagricultural Worker (H-2B) Petitions [Reserved]
Chapter 10 - Post-Adjudication Issues related to Temporary Nonagricultural Worker (H-2B) Petitions [Reserved]
Chapter 11 - Temporary Nonagricultural Worker (H-2B) Petitions Requiring Special Handling
A. Temporary Workers on Guam and in the Commonwealth of the Northern Mariana Islands
1. General Eligibility Requirements
Exemption from Statutory Numerical Limitations[1]
The Consolidated Natural Resources Act of 2008 (CNRA)[2] includes a provision exempting H-2B workers performing labor or services on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) from the H-2B numerical limitation (H-2B cap) from November 28, 2009 to December 31, 2014.[3] In 2014, Congress amended the CNRA to extend the transition period until December 31, 2019.[4] In 2018, Congress further extended the Guam and CNMI H-2B and H-1B visa cap exemptions from 2019 to 2029.[5]
The H-2B cap exemption does not apply to any employment to be performed outside of Guam or the CNMI. As such, to qualify for this cap exemption, the petition must include an approved temporary labor certification (TLC) for work locations on Guam or in the CNMI only. An H-2B worker granted H-2B status under this Guam or CNMI cap exemption who ceases to be employed in H-2B classification solely on Guam or in the CNMI is subject to the H-2B cap.
A subsequent petition filed for such an H-2B worker (for example, a change of employer petition with a request for an extension of stay) requesting employment located outside of Guam or the CNMI is also subject to the H-2B cap.
Exemption from H-2B Temporary Need Requirement Under the NDAA
The National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA) created an exemption from the temporary need requirement for certain H-2B workers directly connected to or associated with the military realignment on Guam through September 30, 2023.[6] The FY 2019 NDAA amended and extended this exemption.[7] The FY 2021 NDAA provided further expansion of the services or labor eligible under the temporary need exemption, and these standards for the temporary need exemption still apply today. Most recently, the FY 2024 NDAA extended its effectiveness through December 30, 2029.[8]
Eligible Services or Labor under the NDAA
Since the FY 2021 NDAA (effective as of January 1, 2021), the following services or labor are eligible for the temporary need exemption:[9]
- Services or labor provided under any agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contract or subcontract for construction, repairs, renovations, or facility services that are directly connected to, supporting, associated with, or adversely affected by, the military realignment occurring on Guam and the CNMI, with priority given to federally funded military projects; or
- Services or labor provided as a health care worker at a facility that jointly serves members of the U.S. armed forces, dependents, and civilians on Guam or in the CNMI.[10]
An employer who qualifies under any one of the above parameters is not required to demonstrate that the service or labor is temporary in nature if the employment start date is before December 31, 2029. Petitions with employment start dates on or after December 31, 2029, are subject to adjudication under the law and regulations that apply to the H-2B program at that time.
For H-2B petitions for employment on Guam and in the CNMI that do not qualify under the NDAA exemption, USCIS adjudicates the petitions according to existing DHS regulations and policy concerning the H-2B classification.
2. NDAA Exemption Eligibility Involving Military Realignment
H-2B Petition Eligibility Directly Connected to, Supporting, Associated with, or Adversely Affected by the Military Realignment on Guam or in the CNMI
With the exception of health care workers (discussed below), consistent with the FY 2021 NDAA, USCIS requires petitioners requesting the NDAA temporary need exemption to demonstrate that all services or labor to be performed by H-2B nonimmigrants on Guam or in the CNMI are:
- Performed as a result of an agreement entered into by a prime contractor or subcontractor;
- For services or labor required for performance of a contract or subcontract that is:
- For construction, repairs, renovations, or facility services; and
- Directly connected to, supporting, associated with, or adversely affected by the military realignment on Guam and in the CNMI.
As required by the FY 2021 NDAA, USCIS gives priority to services or labor performed under a contract or subcontract for federally funded military projects.[11]
The agreement may be a contract or subcontract. To qualify for the NDAA exemption, any contract or subcontract for labor or services for construction, repairs, renovations, or facility services must be supporting, associated with, directly connected to, or adversely affected by the military realignment. It cannot be only incidentally or tangentially related to the realignment. The claimed relationship to the military realignment, whether directly connected to, associated with, supporting, or adversely affected by, cannot be based on assertions with no documentation to support the claim, that is, it cannot be purely speculative. The claimed relationship must be demonstrated by a preponderance of the evidence.
If the petition includes multiple agreements or otherwise applies to multiple service or labor projects, all such agreements and projects must have at least one of the above-described relationships to the military realignment. If any of the included agreements or projects lack a required relationship to the military realignment, the petition does not qualify under the NDAA exemption and USCIS adjudicates the petition according to existing DHS regulations and policy concerning the H-2B classification. After filing a petition, a petitioner may not request to remove or add agreements and projects to cure a deficient filing.[12]
As stated above, while the H-2B temporary need exemption remains limited to contracts or subcontracts for labor or services for construction, repairs, renovations, or facility services, the FY 2021 NDAA language extends the previous exemption found in the FY 2019 NDAA to include those that are supporting or adversely affected by the military realignment, in addition to those that are directly connected to or associated with the realignment.
Eligibility for NDAA Exemption Must Relate to Military Realignment Occurring on Guam and CNMI
Under the FY 2021 NDAA, to qualify for the NDAA exemption, the direct connection, support, association, or adverse effect cannot relate to just any military activity on Guam or in the CNMI; rather, it must relate to the military realignment occurring on Guam and the [CNMI].[13]
Military realignment refers generally to the planned realignment of U.S. Marines from Okinawa, Japan to Guam, as well as other U.S. Department of Defense (DOD) force structure realignment in the Indo-Pacific region involving Guam and the CNMI stemming from DOD Records of Decision occurring in 2010 and 2015.
Guam has a long-established U.S. military presence (including U.S. Air Force and U.S. Navy bases) that predates this military realignment, including ongoing activities that are not related to the military realignment, and therefore would not be covered by the NDAA.
While some military activity on Guam or in the CNMI that is not specifically related to the U.S. Marines may come under the military realignment, distinguishing U.S. military activity that is the realignment as compared to other military activity on Guam or in the CNMI may be complex for USCIS officers.
The distinction essentially requires a determination of general military function, and the broader strategic goal supported by a particular contract or subcontract is unlikely to be evident from the contract documents themselves. As such, input from the DOD is particularly important to support petitions claiming eligibility as supporting, associated with, or directly connected to the military realignment, as further described below.[14]
Furthermore, it is unlikely to be evident from the contract documents themselves how the military realignment negatively impacted a particular contract or subcontract. Therefore, input from the Guam Department of Labor (Guam DOL) describing the adverse effect is important, though not in itself determinative, to support petitions that claim that a contract or subcontract was negatively impacted, and that the adverse effect was due to the ongoing military realignment, as further described below.[15] In all cases, USCIS determines whether there is an adverse impact based on the totality of the facts and circumstances of the case, under the preponderance of the evidence standard.
Exemption for Contracts or Subcontracts Supporting, Associated with, or Directly Connected to the Military Realignment
The FY 2021 NDAA’s addition of the term “supporting” to the terms “associated with” and “directly connected to” clarifies and emphasizes that the exemption may be granted with respect to agreements covering certain projects for construction, repairs, renovations, or facility services that do not have a specific contract or agreement with the military provided they support, are associated with, or are directly connected to the military realignment, as supported by documentation.
The FY 2021 NDAA’s H-2B provision may apply, for example, to H-2B workers performing construction, repairs, renovations, or facility services or labor at a civilian parking garage, where evidence is presented that the garage was built near a U.S. military base specifically to accommodate increased parking demands related to military realignment projects, even though it is not likely directly connected to or associated with the military realignment. In such an instance, the performance of such services or labor may be considered to support the military realignment.
Conversely, a petitioner for labor or services performed at a civilian parking garage built to accommodate customers at local retail establishments may not be able to show a supporting relationship to the military realignment based solely on a claim that some of those retail customers could include military personnel. In this case, the claimed relationship between the labor or services and the military realignment could be considered merely incidental or tangential, even if there is a likelihood that some persons engaged in the military realignment project would, on a small island like Guam, use the parking garage on occasion.
Infrastructure improvements, such as utility or transportation systems, are likely to qualify for employment of H-2B workers under the NDAA exemption. In such cases, the petitioner must establish through presentation of facts and submission of supporting documentation that the contract or subcontract for such labor or services supports the military realignment on Guam or in the CNMI, given the small geographic areas of Guam and the CNMI and the inherent need for integrated utility and transportation system on the islands. This is the case even if the contract or subcontract for such improvements is not directly with the U.S. military.
Housing development projects are also likely to qualify for employment of H-2B workers under the NDAA exemption, given an inherent need for additional housing capacity to support the military realignment.[16]
Accordingly, a petitioner should obtain a letter from the DOD that provides the DOD’s view regarding whether the contract or subcontract is supporting, directly connected to, or associated with the military realignment, as well as any other documentation the petitioner believes appropriate to support its claim.[17]
Exemption for Contracts or Subcontracts Adversely Affected by the Military Realignment
Contracts or subcontracts that are adversely affected by the military realignment might include, but are not limited to, projects for which the military realignment has caused a delay or cancellation of a contract or a negative impact on the availability of necessary labor or resources that are not based on assertions with no documentation to support the claim.
For projects occurring on Guam, a petitioner may obtain a letter from the Guam Department of Labor (Guam DOL)[18] that provides Guam DOL’s description of the adverse effect and submit such letter together with any other documentation the petitioner believes will support its claim.[19]
There is significant evidence that the military realignment has had an impact on the availability of necessary construction labor on Guam.[20] If the petitioner submits the following evidence, USCIS would generally consider such evidence sufficient to demonstrate an adverse effect, by a preponderance of the evidence, in the absence of facts indicating otherwise:
- A signed letter from a Guam DOL official describing the adverse effect of the military realignment;[21] and
- A detailed explanation or other evidence that credibly demonstrates how unavailability of construction workers has resulted in:
- The petitioner’s contracts or subcontracts having been, or being likely to be, delayed, cancelled, or substantially scaled back; or
- The petitioner’s inability to pursue additional contracts.
On the other hand, if a petitioner generally asserts that its inability to find workers necessary to undertake its current contracts or fulfill new contracts relates to the military realignment and provides only its TLC with no independent supporting documentation (such as a statement from Guam DOL and a more detailed explanation of the adverse effect relevant to the petition), USCIS would not consider such assertion to be sufficient to demonstrate an adverse effect caused by the military realignment.
While an approved TLC is sufficient to show a general shortage of available and qualified U.S. workers on Guam or in the CNMI, it does not address the effect of the military realignment occurring on Guam and in the CNMI.
3. NDAA Exemption Eligibility for Health Care Workers
For health care workers, consistent with the FY 2021 NDAA, USCIS requires petitioners requesting the NDAA temporary need exemption to demonstrate that all services or labor to be performed by H-2B nonimmigrants on Guam or in the CNMI are:
- As a health care worker (such as a nurse, physician assistant, or allied health professional), but excluding graduates of medical schools coming to Guam or the CNMI to perform service or labor as members of the medical profession;[22] and
- At a facility that jointly serves members of the U.S. armed forces, dependents, and civilians on Guam or in the CNMI.
4. Documentation and Evidence
All petitioners that request their cases to be considered for eligibility under the NDAA H-2B temporary need exemption should submit a cover sheet indicating “NDAA Eligible” in large, bold letters along with their H-2B petition to facilitate efficient adjudication.
In addition, USCIS suggests petitioners submit the following documentation, if applicable.
If claiming eligibility directly connected to, supporting, or associated with the military realignment, petitioners should submit:
- A copy of any applicable agreement, contract, or subcontract for services or labor for construction, repairs, renovations, or facility services or other probative evidence that each requested H-2B position meets the requirement that the worker will perform services or labor on Guam or in the CNMI;[23]
- A signed statement from an official within the DOD (including a branch of the U.S. armed forces) providing the DOD view regarding whether the applicable agreement, contract, or subcontract is directly connected to, supporting, or associated with the military realignment. The DOD statement may also explain that the services or labor are performed under a federally funded agreement, if applicable. If this DOD statement is not provided, the petitioner should establish why it could not be obtained; and
- Any other relevant documentation demonstrating that services or labor will be performed under a federally funded agreement to support priority consideration of NDAA eligibility, if applicable, if that information is not included in the DOD statement.
If claiming eligibility due to an adverse effect related to the military realignment on Guam and in the CNMI, the petitioner should submit:
- A copy of any applicable agreement, contract, or subcontract for services or labor for construction, repairs, renovations, or facility services, as well as other probative evidence that each requested H-2B position meets the requirement that the worker will perform services or labor on Guam or in the CNMI;
- A detailed explanation, accompanied by any relevant supporting evidence, explaining how and why the project has been adversely affected by the military realignment;[24] and
- For services or labor on Guam, if a petitioner wishes to provide Guam DOL input on the adverse effect, a signed statement from an official with Guam DOL describing the adverse effect of the military realignment to the applicable agreement, contract, or subcontract.
If claiming eligibility directly connected to, supporting, or associated with, or due to an adverse effect related to, the military realignment, and the petition includes multiple agreements or otherwise applies to multiple projects, the petitioner must submit evidence demonstrating that all such agreements and projects are either directly connected to, supporting, associated with, or adversely affected by, the military realignment occurring on Guam or in the CNMI.
If claiming eligibility for healthcare workers, the petitioner should submit:
- A signed statement on company letterhead from a corporate officer or facility administrator having authority to speak on behalf of the company or facility providing its TRICARE or other applicable provider number and attesting to the fact that it jointly serves members of the U.S. armed forces, dependents, and civilians. The statement should, to the extent possible, also include the number of members of the U.S. armed forces, dependents, and civilians on Guam or in the CNMI that the petitioning facility has served in the preceding 12 months. USCIS uses this information to evaluate the use of the NDAA provision.
USCIS recognizes the limitations imposed upon health care facilities by patient confidentiality restrictions. Accordingly, USCIS does not expect and does not generally request that a petitioner submit facility records that would support that it is jointly serving members of the U.S. armed forces, dependents, and civilians on Guam or in the CNMI.
5. Adjudication
Petitioners bear the burden of establishing eligibility for the NDAA exemption.[25] USCIS officers determine whether the petitioner has met its burden of demonstrating eligibility under the NDAA based on the totality of the evidence. When applicable, officers should give appropriate weight to the signed statement from the DOD, particularly with respect to determining the relationship between the services or labor and the military realignment, as opposed to other U.S. military activity. Similarly, when applicable, officers should review the contents of the signed letter from Guam DOL and give it appropriate weight. However, statements from the DOD and Guam DOL are not determinative. Again, the determination whether the NDAA exemption applies in a given case will be based on all of the facts presented, based on the preponderance of the evidence standard.
Under the FY 2021 NDAA, priority is given to contracts or subcontracts for services or labor for federally funded projects directly connected to, supporting, or associated with the military realignment on Guam and in the CNMI.[26]
Accordingly, a petition demonstrating that the applicable services or labor are performed under a federally funded agreement, contract, or subcontract has made a prima facie case that it qualifies for the NDAA exemption. This means that USCIS may accept, without any further evidence or inquiry, that the petitioner has established eligibility under the NDAA and is exempted from showing temporary need.
USCIS officers, however, still must determine whether the petition meets other H-2B requirements, such as an H-2B worker’s eligibility for H-2B status, and in their discretion, may request additional evidence that the petition qualifies for the NDAA exemption.
If the USCIS officer determines that the case does not meet the NDAA exemption, then he or she should adjudicate the petition under existing H-2B policy and regulations, including the requirement that the petitioner establish temporary need.
For cases meeting the NDAA exemption regarding H-2B petitions for workers on Guam or in the CNMI, USCIS officers do not perform an analysis of whether the need for the H-2B position is temporary under otherwise applicable law and regulations.
USCIS officers, however, continue routine case processing, including reviewing whether the petition includes an approved TLC issued by the U.S. Department of Labor (DOL) or Guam DOL, as appropriate.[27] As provided by DHS regulations, DOL or Guam DOL may approve a TLC for a period of up to 1 year, with the possibility for extension, for H-2B employment on Guam or in the CNMI, respectively.[28]
6. Decision
If the officer determines that the petitioner has provided sufficient evidence to show that the beneficiary meets the applicable eligibility requirements, the officer should approve the petition. Otherwise, the officer should request additional evidence or deny the petition.[29] If USCIS denies a petition, the petitioner may appeal the decision to the USCIS Administrative Appeals Office.
Period of Admission for H-2B Workers on Guam or in the CNMI Under the NDAA
Before December 31, 2029,[30] an H-2B worker whose services or labor meets the NDAA exemption may be admitted for a consecutive period of up to 3 years, depending on the specific need stated in the H-2B petition.[31] Thereafter, the worker may again apply for admission under the NDAA exemption or as an H-2B worker in general after residing and being physically present outside the United States for the immediately preceding 3 months.[32]
Because the provisions of the NDAA end on December 30, 2029, petitions with employment start dates on or after December 31, 2029, are subject to adjudication under the law and regulations that apply to the H-2B program at that time.
B. Reserved
[Reserved]
Footnotes
[^ 1] The general statutory numerical limitations that apply to other H-2B workers are not applicable to special handling situations discussed in this section.
[^ 2] See Pub. L. 110-229 (PDF) (May 8, 2008).
[^ 3] See INA 214(g)(1)(B). See Section 702 of CNRA, Pub. L. 110-229 (PDF), 122 Stat. 754, 854 (May 8, 2008) (codified at 48 U.S.C. 1806(b)).
[^ 4] See Section 10 of the Consolidated and Further Continuing Appropriations Act of 2015, Pub. L. 113-235 (PDF), 128 Stat. 2130, 2134 (December 16, 2014) (codified at 48 U.S.C. 1806(d)).
[^ 5] See Section 3 of the Northern Mariana Islands U.S. Workforce Act of 2018, Pub. L. 115-218 (PDF), 132 Stat. 1547, 1547 (July 24, 2018).
[^ 6] See Section 1049 of the FY 2018 NDAA, Pub. L. 115-91 (PDF), 131 Stat. 1283, 1558 (December 12, 2017) (amending 48 U.S.C. 1806(b)). To qualify for H-2B classification, the petitioner generally must establish its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.
[^ 7] The FY 2019 NDAA took immediate effect on August 13, 2018, and made amendments to the H-2B workers provision as it relates to temporary need exemption eligibility for H-2B workers on Guam and in the CNMI, including in part: extending its effectiveness through December 30, 2023; eliminating a previous numerical limitation established by the FY 2018 NDAA by which not more than 4,000 H-2B workers could be admitted annually under the NDAA; and providing an initial expansion of the eligible services or labor on Guam or in the CNMI. See Section 1045 of the FY 2019 NDAA, Pub. L. 115-232 (PDF), 132 Stat. 1636, 1959 (August 13, 2018) (amending Section 6(b) of Pub. L. 94-241 (PDF)(March 24, 1976), as amended and codified at 48 U.S.C. 1806(b)).
[^ 8] See Section 1807 of the FY 2024 NDAA, Pub L. 118-31 (PDF), 137 Stat. 136, 688 (December 22, 2023) (amending Section 6(b)(1)(B) of Pub. L. 94-241 (PDF) (March 24, 1976), as amended and codified at 48 U.S.C. 1806(b)).
[^ 9] See Section 9502 of the FY 2021 NDAA, Pub. L. 116-283 (PDF) (January 1, 2021) (amending Section 6(b) of Pub. L. 94-241 (PDF) (March 24, 1976), as amended and codified at 48 U.S.C. 1806(b)).
[^ 10] The FY 2021 NDAA did not amend the exemption eligibility for health care workers, which was initially provided in the FY 2019 NDAA. Eligibility for the health care worker temporary need exemption does not extend to members of the medical profession, as outlined in the prohibition under INA 101(a)(15)(H)(ii)(b). USCIS interprets this prohibition to include physicians.
[^ 11] See Section 9502 of the FY 2021 NDAA, Pub. L. 116-283 (PDF) (January 1, 2021) (amending Section 6(b) of Pub. L. 94-241 (PDF) (March 24, 1976), as amended and codified at 48 U.S.C. 1806(b)). For more information about the priority given to services or labor performed under a contract or subcontract for federally funded military projects, see Subsection 4, Documentation and Evidence [2 USCIS-PM I.11(A)(4)] and Subsection 5, Adjudication [2 USCIS-PM I.11(A)(5)].
[^ 12] The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp. (PDF), 17 I&N Dec. 248 (Reg’l Comm’r 1978). See 8 CFR 103.2(b)(1).
[^ 13] See Section 9502 of the FY 2021 NDAA, Pub. L. 116-283 (PDF) (January 1, 2021) (amending Section 6(b) of Pub. L. 94-241 (PDF) (March 24, 1976), as amended and codified at 48 U.S.C. 1806(b)).
[^ 14] See Subsection 4, Documentation and Evidence [2 USCIS-PM I.11(A)(4)].
[^ 15] See Subsection 4, Documentation and Evidence [2 USCIS-PM I.11(A)(4)].
[^ 16] See Guam Construction Capacity Assessment - 2019 (PDF), prepared for the U.S. Department of the Navy (noting that the main workforce challenge in meeting anticipated construction industry growth is workforce housing.).
[^ 17] See Subsection 4, Documentation and Evidence [2 USCIS-PM I.11(A)(4)].
[^ 18] Guam DOL provides information for obtaining a Request for the DOD letter on directly connected, associated or supporting projects on its Alien Labor Processing and Certification Division webpage. Guam DOL intends to provide a similar process to request a letter describing the adverse effect of the military realignment to the applicable agreement, contract, or subcontract on its website.
[^ 19] See Subsection 4, Documentation and Evidence [2 USCIS-PM I.11(A)(4)].
[^ 20] See Guam DOL Bureau of Labor Statistics’ Economic Outlook for Guam Fiscal Year 2022 (stating “[t]he effect of the ongoing Marine Corps Relocation projects on Guam's economy in FY 2022 will primarily be associated with substantial construction activity increases”). See Guam Construction Capacity Assessment - 2019 (PDF), prepared for the U.S. Department of the Navy (noting that DoD planned construction activities from 2018–2030 are expected to peak at $939M (in FY12 $s) in 2022 and that this report re-affirms that Guam lacks an adequate organic labor pool to support the construction effort.).
[^ 21] A letter from Guam DOL is only relevant for projects occurring on Guam, but the NDAA applies to services or labor on either Guam or in the CNMI. Petitioners may therefore submit other relevant documentation to establish, by a preponderance of the evidence, a claimed adverse effect on a project occurring in the CNMI.
[^ 22] USCIS interprets the NDAA limitation regarding the exclusion of graduates of medical schools coming to Guam or the Commonwealth to perform service or labor as members of the medical profession consistently with its long-standing interpretation of the general statutory limitation on the classification, to include physicians. See INA 101(a)(15)(H)(ii)(b) (explaining that this clause shall not apply to graduates of medical schools coming to the United States to perform services as members of the medical profession).
[^ 23] The contract or subcontract must be directly connected to, supporting, or associated with the military realignment occurring on Guam or in the CNMI. This must be under an agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contract or subcontract for construction, repairs, renovations, or facility services that is directly connected to, supporting, or associated with the military realignment occurring on Guam or in the CNMI. Contracts or subcontracts showing that the labor or services are performed under a federally funded agreement may qualify for priority treatment under the NDAA. For more information, see Subsection 2, NDAA Exemption Eligibility Involving Military Realignment [2 USCIS-PM I.11(A)(2)] and Subsection 5, Adjudication [2 USCIS-PM I.11(A)(5)].
[^ 24] An adverse effect may include, but is not limited to, a delay or cancellation of a contract or a negative impact on the availability of necessary labor or resources. Supporting documentation may include, but is not limited to, studies that specifically find the military realignment has had an adverse impact on availability of labor within the industry or occupation relevant to the petition, or evidence that workers have left the project to take work related to the military realignment.
[^ 26] For eligibility information, see Subsection 2, NDAA Exemption Eligibility Involving Military Realignment [2 USCIS-PM I.11(A)(2)]. For information regarding documentation and evidence as it relates to the priority given to services or labor performed under a contract or subcontract for federally funded military projects, see Subsection 4, Documentation and Evidence [2 USCIS-PM I.11(A)(4)].
[^ 27] Routine case processing also includes adjudication of H-2B petitions filed on behalf of beneficiaries who are nationals of a country not listed on the H-2A or H-2B Eligible Countries List. See 8 CFR 214.2(h)(6)(i)(E)(2).
[^ 28] See 8 CFR 214.2(h)(6)(v).
[^ 29] For more information, see Chapter 9, Adjudication of Temporary Nonagricultural Worker (H-2B) Petitions [2 USCIS-PM I.9].
[^ 30] Because the NDAA exemption from the H-2B temporary need requirement expires on December 31, 2029, the last eligible requested employment start date is December 30, 2029.
[^ 31] Any single grant of a period of admission is limited to the validity period of the TLC, which may not exceed 1 year. If eligible, the worker may obtain extensions of stay for a total period of admission of up to 3 years.
Part J - Trainees (H-3)
Chapter 1 - Purpose and Background
A. Purpose
The H-3 nonimmigrant visa category allows aliens to come temporarily to the United States as either a:
- Trainee who seeks to enter the United States at the invitation of an organization or person to receive training in any field of endeavor, other than graduate medical education or training;[1] or
- Special Education Exchange Visitor who seeks to participate in a structured special education exchange visitor training program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.[2]
The H-3 nonimmigrant classification is not intended for productive employment. Rather, the H-3 program is designed to provide a person with job-related training that is not available in their country for work that will ultimately be performed outside the United States.
H-3 trainees generally cannot participate in training provided primarily at or by an academic or vocational institution.[3] However, so long as other H-3 requirements are met, training which happens to take place on the physical property of an academic or vocational institution may qualify if the training program is primarily created, offered, and sponsored by a government agency or other non-academic or non-vocational entity.
B. Background
The Immigration and Nationality Act (INA) of 1952 contained the precursor to today’s H-3 nonimmigrant classification: “an alien having a residence in a foreign country which he has no intention of abandoning . . . who is coming temporarily to the United States as an industrial trainee[.]”[4]
In 1970, Congress expanded the class of aliens eligible for nonimmigrant classification by deleting the word “industrial” as a modifier of “trainee” in the statute.[5] However, Congress narrowed the H-3 classification in 1976 by inserting the following language into the statute: “other than to receive graduate medical education or training[.]”[6]
Finally, the Immigration Act of 1990[7] both limited and expanded the H-3 classification. Congress limited the H-3 nonimmigrant classification by adding the following language to the statute: “in a training program that is not designed primarily to provide productive employment[.]”[8] However, Congress indirectly expanded the classification by creating the Special Education Exchange Visitor Program,[9] which the legacy Immigration and Naturalization Service placed within the H-3 category.[10] Congress has not amended the statute since 1990.[11]
C. Legal Authorities
- INA 101(a)(15)(H)(iii) – H-3 definition
- 8 CFR 214.2(h)(1)(ii)(E) – H-3 definition
- 8 CFR 214.2(h)(7) – H-3 regulations
- 8 CFR 214.2(h)(8)(i)(D) – H-3 numerical limitations on special education exchange visitors
- 8 CFR 214.2(h)(9)(iii)(C) and 8 CFR 214.2(h)(9)(iv) – Validity of approved H-3 petitions and H-4 spouse and dependent(s)
- 8 CFR 214.2(h)(10) – Denial of petitions
- 8 CFR 214.2(h)(11) – Revocation of an approved H petition
- 8 CFR 214.2(h)(12) – Appeal of a denial or a revocation of a petition
- 8 CFR 214.2(h)(13) – Admission of H beneficiaries
- 8 CFR 214.2(h)(14) – Extension of H visa petition validity
- 8 CFR 214.2(h)(15)(ii)(D) – Extension of H-3 stay
- 8 CFR 214.2(h)(16)(ii) – Effect of approval of a permanent labor certification or filing of a preference petition on H classification
- 8 CFR 214.2(h)(17) – Effect of a strike
Footnotes
[^ 1] See INA 101(a)(15)(H)(iii). See 8 CFR 214.2(h)(7)(i).
[^ 2] See 8 CFR 214.2(h)(7)(iv).
[^ 3] See 8 CFR 214.2(h)(1)(ii)(E)(1).
[^ 4] See Section 101(a)(15)(H)(iii) of the INA, Pub. L. 82-414 (PDF), 66 Stat. 163, 168 (June 27, 1952).
[^ 5] See INA of April 7, 1970, Pub. L. 91-225, 84 Stat. 116, amending INA 101(a)(15)(H)(iii).
[^ 6] See Section 601(b)(3) of the Health Professions Educational Assistance Act of 1976, Pub. L. 94-484 (PDF), 90 Stat. 2243, 2301 (October 12, 1976).
[^ 7] See Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649 (PDF), 104 Stat. 4978 (November 29, 1990).
[^ 8] See IMMACT 90, Pub. L. 101-649 (PDF), 104 Stat. 5022 (November 29, 1990).
[^ 9] See IMMACT 90, Pub. L. 101-649 (PDF), 104 Stat. 5028 (November 29, 1990).
[^ 10] See 56 FR 31553, 31554 (PDF) (Jul. 11, 1991) (proposed rule). See 56 FR 61111, 61119-61120 (PDF) (Dec. 2, 1991) (final rule).
Chapter 2 - H-3 Categories
A. Trainees[1]
H-3 trainees are aliens who have been invited to participate in a training program in the United States by a person, a business, or an organization. The training must be unavailable in the person’s home country. There are no numerical limits on the number of people who can be granted H-3 visas as trainees each year.
An H-3 trainee cannot engage in productive employment in the United States unless such work is incidental and necessary to the training and must not be placed in a position which is in the petitioning entity’s normal operation and in which citizens and resident workers are regularly employed. Finally, the training must benefit the person pursuing a career outside the United States.
An H-3 trainee must be invited by a person or organization for the purpose of receiving training (except as a physician), in any field including:
- A purely industrial establishment
- Agriculture
- Commerce
- Communications
- Finance
- Government
- Transportation
- Other professions[2]
1. Externs[3]
A hospital approved by the American Medical Association (AMA) or the American Osteopathic Association (AOA) for either an internship or residency program may petition to classify a medical student attending a medical school abroad as an H-3 trainee if the student’s training will be done as an extern during his or her medical school vacation. The hospital must also satisfy the H-3 trainee petition requirements.
2. Nurses[4]
A petitioner may seek H-3 classification for a nurse if:
- The nurse-beneficiary does not have H-1 status;
- Such training is designed to benefit both the nurse-beneficiary and the overseas employer upon the nurse’s return to his or her country of origin; and
- The petitioner establishes that there is a genuine need for the nurse-beneficiary to receive a brief period of training that is unavailable in his or her native country.
Additionally, the petitioner must:[5]
- Satisfy the H-3 trainee requirements;
- Establish that the nurse-beneficiary has a full and unrestricted license to practice professional nursing in the country where the beneficiary obtained a nursing education[6] or that such education was obtained in the United States or Canada;[7] and
- Include a statement certifying that the nurse-beneficiary is fully qualified under the laws governing the place where the training will be received and that under those laws the petitioner is authorized to give the beneficiary the desired training.[8]
B. Special Education Exchange Visitors[9]
H-3 special education exchange visitors are participants in a structured special education program that provides practical training and experience in the education of physically, mentally, or emotionally disabled children. This category is limited to an 18-month period of stay and to 50 visas per fiscal year.[10]
Footnotes
[^ 1] The H-3 nonimmigrant classification is defined in INA 101(a)(15)(H)(iii) as, “an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States as a trainee, other than to receive graduate medical education or training, in a training program that is not designated primarily to provide productive employment … ” The regulations impose additional requirements on the extern and nurse subcategories that do not apply to the general trainee category. See 8 CFR 214.2(h)(7)(i).
[^ 2] See 8 CFR 214.2(h)(7).
[^ 3] See 8 CFR 214.2(h)(7)(i)(A).
[^ 4] See 8 CFR 214.2(h)(7)(i)(B).
[^ 5] See 8 CFR 214.2(h)(7)(i)(B)(1).
[^ 6] See 8 CFR 214.2(h)(7)(i)(B)(1).
[^ 7] See 8 CFR 214.2(h)(7)(i)(B)(1).
[^ 8] See 8 CFR 214.2(h)(7)(i)(B)(2).
[^ 9] See 8 CFR 214.2(h)(7)(iv).
[^ 10] See Section 223 of the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649 (PDF), 104 Stat. 4978, 5028 (November 29, 1990). See 8 CFR 214.2(h)(7)(iv) and 8 CFR 214.2(h)(8)(D). See 55 FR 2606, 2628 (PDF) (Jan. 26, 1990).
Chapter 3 - Trainee Program Requirements
A. Training Program Conditions
An H-3 petitioner is required to submit evidence demonstrating that:[1]
- The proposed training is not available in the trainee’s own country;
- The trainee will not be placed in a position that is in the normal operation of the business and in which United States citizen and resident workers are regularly employed;
- The trainee will not engage in productive employment unless it is incidental and necessary to the training; and
- The training will benefit the trainee in pursuing a career outside the United States.[2]
B. Training Program Description
Each petition for a trainee must include a statement which:[3]
- Describes the type of training and supervision to be given, and the structure of the training program;
- Sets forth the proportion of time that will be devoted to productive employment;
- Shows the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training;
- Describes the career abroad for which the training will prepare the nonimmigrant;
- Indicates the reasons why such training cannot be obtained in the trainee’s country and why it is necessary for the person to be trained in the United States; and
- Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training.[4]
C. Training Program Restrictions
A training program for a trainee may not be approved if it: [5]
- Deals in generalities with no fixed schedule, objectives, or means of evaluation;
- Is incompatible with the nature of the petitioner’s business or enterprise;
- Is on behalf of a trainee who already possesses substantial training and expertise in the proposed field of training;[6]
- Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;
- Will result in productive employment beyond that which is incidental and necessary to the training;
- Is designed to recruit and train nonimmigrants for the ultimate staffing of domestic operations in the United States;
- Does not establish that the petitioner has the physical plant and sufficiently trained workforce to provide the training specified; or
- Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.[7]
D. Filing
The petitioner files the H-3 petition on the Petition for a Nonimmigrant Worker (Form I-129). Up to 25 named trainees may be requested on a single petition if the trainees will be receiving the same training for the same period of time and in the same location.[8]
Officers will review each piece of evidence for relevance, probative value, and credibility to determine whether the petitioner submitted sufficient evidence establishing that the petition is approvable.[9] The table below serves as a quick, non-exhaustive reference guide listing the forms and evidence required when filing a petition for an H-3 trainee.
Trainee (H-3) Petition Forms and Documentation |
---|
Petition for a Nonimmigrant Worker (Form I-129), Including H supplement |
If the beneficiary is outside the United States, a copy of his or her passport |
Application To Extend/Change Nonimmigrant Status (Form I-539) for dependents of an H-3 who are also in the U.S. dependents should fill out and sign this form, not the petitioner for the H-3 beneficiary (one Form I-539 and fee covers all dependents) |
Copies of each dependent’s I-94 or other proof of lawful immigration status and proof of the family relationship with the primary H-3 beneficiary (such as marriage and birth certificates) |
Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) (if applicable) |
All Trainees Except Special Education Exchange Visitors Must Provide: |
A detailed written statement from the petitioner containing:
|
Evidence that the beneficiary will not be placed in a position which, in the normal operation of the business, U.S. citizen and resident workers are regularly employed. |
Proof that the petitioner has the physical facility and sufficiently trained staff to provide the training described in the petition. |
An explanation from the petitioner regarding benefits it will obtain by providing the training, including why it is willing to incur the cost of the training. |
An explanation as to why the training must take place in the United States, instead of in the beneficiary’s country along with evidence that similar training is not available in beneficiary’s home country. |
A summary of the beneficiary’s prior relevant training and experience, such as diplomas and letters from past employers. |
If the beneficiary is a nonimmigrant student, evidence that the proposed training was not designed to extend the total allowable period of practical training. |
Petitioners seeking H-3 status for a nurse must also provide proof:
In addition, petitioners seeking H-3 status for a nurse must also include a statement certifying:
|
Hospitals petitioning for externs must also:
|
If Requesting Premium Processing: |
Request for Premium Processing Service (Form I-907) (see USCIS website for current fees) |
Footnotes
[^ 1] See 8 CFR 214.2(h)(7)(ii)(A).
[^ 2] H-3 beneficiaries must also establish that they intend to return to their foreign residence upon the termination of their H-3 status. See INA 214(b) and INA 101(a)(15)(H)(iii).
[^ 3] See 8 CFR 214.2(h)(7)(ii)(B). See 55 FR 2628-29 (PDF) (Jan. 26, 1990).
[^ 4] See 8 CFR 214.2(h)(7)(ii)(B).
[^ 5] See 8 CFR 214.2(h)(7)(iii). Additionally, externs and nurses have further requirements. A hospital petitioning for an H-3 extern must also demonstrate that: It has been approved by either the American Medical Association (AMA) or the American Osteopathic Association (AOA) for either an internship or residency program; the beneficiary is currently attending medical school abroad; and that the beneficiary will engage in employment as an extern for the petitioner during his or her medical school vacation. See 8 CFR 214.2(h)(7)(i)(A). A petitioner seeking H-3 classification for a nurse must also provide a statement certifying that the beneficiary is fully qualified under the laws governing the place where the training will be received to engage in such training, and that under those laws the petitioner is authorized to give the beneficiary the desired training. See 8 CFR 214.2(h)(7)(i).
[^ 6] A trainee may already be a professional in his or her own right and possess substantial knowledge in a field; however, such person may be using a training to further his or her skills or career through company-specific training that is only available in the United States. As always, the totality of the evidence must be examined and all other requirements must be met.
[^ 7] For additional information about the training program and factors to consider during adjudications, see Chapter 6, Factors to Consider [2 USCIS-PM J.6(B)].
[^ 8] See 8 CFR 214.2(h)(2)(ii).
[^ 9] The standard of proof applied in most USCIS adjudications, including H-3 petitions, and administrative immigration proceedings is the “preponderance of the evidence” standard. Therefore, if the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See INS v. Cardoza-Fonesca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). If the officer can articulate a material doubt, it is appropriate for the officer to either request additional evidence or, if that doubt leads the officer to believe that the claim is probably not true, deny the application or petition. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M, 20 I&N Dec. 77, 79-80 (Comm. 1989)).
Chapter 4 - Special Education Exchange Visitor Program Requirements
There are requirements for H-3 petitions involving special education exchange visitors that are distinct from H-3 trainees. [1] An H-3 beneficiary in a special education training program must be coming to the United States to participate in a structured program which provides for practical training and experience in the education of children with physical, mental, or emotional disabilities. No more than 50 visas may be approved in a fiscal year, [2] and participants may remain in the United States for no more than 18 months. [3]
The petition must be filed by a facility which has: a professionally trained staff; and a structured program for providing:
- Education to children with disabilities; and
- Training and hands-on experience to participants in the special education exchange visitor program. [4]
The petition should include a description of:
- The training the applicant will receive;
- The facility’s professional staff; and
- The beneficiary’s participation in the training program. [5]
In addition, the petition must show that the special education exchange visitor:
- Is nearing the completion of a baccalaureate or higher degree program in special education;
- Has already earned a baccalaureate or higher degree in special education; or
- Has extensive prior training and experience teaching children with physical, mental, or emotional disabilities. [6]
Any custodial care of children must be incidental to the beneficiary’s training.
Officers review each piece of evidence for relevance, probative value, and credibility to determine whether the petitioner submitted sufficient evidence establishing that the petition is approvable. [7] The table below serves as a quick, non-exhaustive, reference guide listing the forms and evidence required when filing a petition for an H-3 special education exchange visitor.
Special Education Exchange Visitor H-3 Petition Forms and Documentation |
---|
If Requesting Premium Processing: |
Petition for a Nonimmigrant Worker (Form I-129), Including H supplement |
If the beneficiary is in the United States, a copy of the I-94 or other proof of current lawful, unexpired immigration status (Note that Canadians who enter as a B-1 or a B-2 will not typically have an I-94) |
Filing fee; see USCIS’ website for current fees |
Application To Extend/Change Nonimmigrant Status (Form I-539) for dependents of an H-3 who are also in the U.S. dependents should fill out and sign this form, not the petitioner for the H-3 beneficiary (one Form I-539 and fee covers all dependents) |
Copies of each dependent’s I-94 or other proof of lawful immigration status and proof of the family relationship with the primary H-3 beneficiary (such as marriage and birth certificates) |
Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) (if applicable) |
A copy of his or her passport, if the beneficiary is outside the United States |
A description of the structured training program for providing education to children with disabilities and for providing hands-on experience to participants in the special education program, including noting the professionally trained staff, facilities, and how the exchange visitor will participate in the program |
Evidence that any custodial care of children will be incidental to the training program |
Evidence that participant has nearly completed a baccalaureate or higher degree in special education, already has a baccalaureate degree or higher degree in special education, or has extensive prior training and experience in teaching children with disabilities |
Request for Premium Processing Service (Form I-907) (see USCIS’ website for current fees) |
Footnotes
[^ 1] Requirements for trainee petitions are not applicable to petitions for special education exchange visitors. See 8 CFR 214.2(h)(7)(ii) and 8 CFR 214.2(h)(7)(iii). See 8 CFR 214.2(h)(7)(iv)(A)(3).
[^ 2] See 8 CFR 214.2(h)(8)(i)(D).
[^ 3] See 8 CFR 214.2(h)(13)(iv).
[^ 4] See 8 CFR 214.2(h)(7)(iv)(A)(2).
[^ 5] See 8 CFR 214.2(h)(7)(iv)(B)(1).
[^ 6] See 8 CFR 214.2(h)(7)(iv)(B)(2).
[^ 7] The standard of proof applied in most USCIS adjudications, including H-3 petitions, and administrative immigration proceedings is the “preponderance of the evidence” standard.
Chapter 5 - Family Members of H-3 Beneficiaries
An H-3 nonimmigrant’s spouse and unmarried minor children may accompany the H-3 nonimmigrant to the United States as H-4 nonimmigrants. H-4 dependents of H-3 nonimmigrants are not permitted to work in the United States. [1]
Footnote
Chapter 6 - Adjudication
A. Adjudicative Issues
Officers must carefully review each petition for an H-3 trainee to ensure compliance with the intent of the H-3 category to train those who will return to their home countries. Unless specifically provided otherwise, officers should apply a “preponderance of the evidence” standard when evaluating eligibility for the benefit sought.[1] The burden of proving eligibility for the benefit sought rests entirely with the petitioner.[2]
B. Factors to Consider
1. Career Abroad
The description of the training program should include a specific explanation of the position and duties for which the training will prepare the trainee.[3] The trainee must demonstrate that the proposed training will prepare the beneficiary for an existing career outside the United States.
Trainings can be to prepare the trainee for something that is new and unavailable anywhere in the trainee’s country. For instance, a trainee may already be a professional in his or her own right and possess knowledge in the field of proposed training, but will be using the training to further his or her skills or career through company-specific training that a corporate organization makes available in the United States. This could include cases of mid-level and senior-level employees who possess knowledge in their field, but seek to further develop their skills in the proposed field of training.[4] As always, the totality of the evidence is evaluated for each case and all other requirements must be met.[5]
Example: A U.S. company develops a new product for which training is unavailable in another country. The U.S. company may petition to train people to use that product, which will enable the trainees to train others to use the new product in their home country.
2. Instruction
Classroom-based Instruction
In cases where the program is entirely classroom-based, officers should review the evidence to ensure that the petitioner establishes by a preponderance of the evidence that the training cannot be made available in the beneficiary’s home country.[6]
If a petitioner claims that the classroom training portion of their proposed training programs will take place online, the petition must provide an explanation as to why the training cannot take place in the beneficiary’s own country. Officers should also investigate whether the online training would be provided by an academic or vocational institution.[7]
Online Instruction
In cases where the program is entirely online, officers must review each case and ensure that the petitioner has met their burden of proof (preponderance of the evidence) demonstrating that the training cannot be made available in the beneficiary’s home country.[8]
3. Description of the Training Program
The petitioner must specify the type of training, the level of supervision, and the structure of the training program.[9] The petitioner should provide the officer with sufficient information to establish what the beneficiary will actually be doing, and should link the various tasks to specific skills that the beneficiary will gain by performing them.
On-The-Job Training Hours
The petitioner must specify the number of hours both supervised and unsupervised.[10] The unsupervised work should be minimal and the supervised work should always be oriented toward training.
Shadowing
There are limited circumstances where a proposed training program that consists largely or entirely of on-the-job training may be approved. Officers should carefully evaluate the totality of the evidence against a preponderance of the evidence standard, including whether a U.S. worker is being displaced and if the on-the-job training would allow the trainee to be placed into a position which is in the normal operation of the business and in which U.S. citizens and legal residents are regularly employed.[11]
4. Remuneration
The petitioner must indicate the source of remuneration received by the trainee, and explain any training program benefits accrued by the petitioning company.[12] Remuneration may come from any source, domestic or international. When assessing remuneration, the officer may consider whether the salary is in proportion to the training position.[13]
5. Placement into Normal Operation of Business[14]
Officers should consider whether the beneficiary will be placed in a position which is in the normal operations of the business, and U.S. citizens and residents are regularly employed. Factors to consider include:
- Whether training that familiarizes the beneficiary with the individual operations of the petitioning company is similar to the training that would be expected of any new employee,
- Indications that the beneficiary may remain in the United States working with the petitioner, and
- Training where the beneficiary is trained alongside U.S. workers.[15]
6. Practical Training
Petitioners frequently assert that beneficiaries will spend a certain amount of time in “practical training.” This assertion needs to be supported with a clear explanation of the type and degree of supervision that the beneficiary will receive during such periods.[16] If the officer determines that the “practical training” would actually be productive employment, then the petitioner must establish that it would be incidental to and necessary to the training.[17]
7. Productive Employment
The proportion of time that will be devoted to productive employment must be specified.[18] Productive employment should be minimal because the beneficiary should be training and not performing productive work that displaces U.S. citizens or legal residents.[19] A training program which devotes a significant percentage of time to productive employment should be closely scrutinized.[20]
8. Substantial Training and Expertise in Field of Training
In order to establish that the beneficiary does not already possess substantial training and expertise in the proposed field of training,[21] the petitioner should submit as much information regarding the beneficiary’s credentials as possible. If related to the proposed H-3 training program, copies of the beneficiary’s diplomas and transcripts should be submitted, including any training and education received in the United States, copies of any relevant forms (for example, Certificate of Eligibility for Nonimmigrant (F-1) Student Status-For Academic and Language Students (Form I-20), Certificate of Eligibility for Exchange Visitor (J-1) Status(Form DS-2019)). If possible, letters from prior employers detailing the beneficiary’s work experience should also be submitted.
9. Sufficiently Trained Staff
In order to establish that it has sufficiently trained staff to provide the training specified in the petition,[22] the petitioner should provide the names and credentials of the persons who will provide the training. The petitioner should specify the amount of time each trainer will spend training the beneficiary. The petitioner should also explain how the trainers’ normal responsibilities will be performed while they are training the beneficiary (this is especially important in cases involving relatively small entities, as larger percentages of their workforces will presumably be diverted in order to provide the training).[23]
10. Unavailability of the Training in Beneficiary’s Country
The petitioner must establish that the trainee cannot obtain the training in his or her country and demonstrate why it is necessary for the trainee to be trained in the United States.[24]
C. Approvals
If all documentary requirements have been met and the petition appears approvable, officers should endorse the action block on the petition. The approval period should coincide with the period of training requested by the petitioner, but only up to 2 years for trainees and up to 18 months for special education training program participants.[25]
When approving a special education training program participant, officers need to enter H-3B in CLAIMS and annotate H-3B on the petition. Because of the numerical limitations applicable to the H-3 Special Education Exchange Visitor category, officers must contact the USCIS Service Center Operations office to obtain authorization before approving an H-3 Special Education Exchange Visitor petition. The number assigned should be recorded on the front of the petition in the "Remarks" section. The approved petition should also be annotated "Approved Pursuant to Sec. 223 of Pub. L. 101-649.”
D. Denials
If documentary requirements have not been met and the petition is not approvable, officers should prepare and issue a notice of denial and advise the petitioner of the right of appeal to the Administrative Appeals Office.
E. Transmittal of Petitions
USCIS sends all approved petitions to the Kentucky Consular Center (KCC). The KCC scans and uploads the documentation into the Consular Consolidated Database (CCD).[26] Consular officers and Customs and Border Protection officers have access to the CCD to verify and review documents.
Footnotes
[^ 1] See INS v. Cardoza-Fonseca (PDF), 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M, 20 I&N Dec. 77, 79-80 (Comm. 1989)).
[^ 2] See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966).
[^ 3] Generalized assertions that the proposed training will expand the trainee’s skill set or make him or her more desirable to prospective employers are usually not sufficient to demonstrate the proposed training will prepare the beneficiary for an existing career abroad. See 8 CFR 214.2(h)(7)(iii).
[^ 4] Even if a new employee or current employee possesses knowledge in the proposed field of training, he or she could be considered a trainee if the company or organization decides he or she needs the training, so long as all other requirements are met (for example, so long as beneficiary does not possess substantial training and expertise in the proposed field of training).
[^ 5] Although 8 CFR 214.2(h)(7)(iii)(C) states that a training program may not be approved if it is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training, this provision does not automatically prohibit professionals from participating in a training program. It remains the petitioner’s burden to demonstrate by a preponderance of the evidence that the training program is approvable.
[^ 6] See 8 CFR 214.2(h)(7)(ii)(A)(1).
[^ 7] See 8 CFR 214.2(h)(1)(ii)(E)(1).
[^ 8] If the petitioner does not meet the burden of demonstrating that the online training cannot be made available in the beneficiary’s home country, officers may consider issuing a Request for Evidence (RFE).
[^ 9] See 8 CFR 214.2(h)(7)(ii)(B)(1). See Matter of Miyazaki Travel Agency, Inc., 10 I&N Dec. 644 (Reg. Comm. 1964) (denying petition for a trainee where the training program was deemed “unrealistic”). See Matter of Masauyama, 11 I&N Dec. 157 (Reg. Comm. 1965) (noting that the statute contemplates the training of an person rather than giving him further experience by day-to-day application of his skills).
[^ 10] See 8 CFR 214.2(h)(7)(ii)(B)(3). See Matter of Frigon, 18 I&N Dec. 164, 166 (court noting that the number of hours devoted to on-the-job training without supervision is one of the factors to be considered).
[^ 11] See Matter of St. Pierre, 18 I&N Dec. 308 (Reg. Comm. 1982) (holding that even though training will consist primarily of on-the-job training, the subject matter by its very nature can only be learned in that setting and since the beneficiary will not receive any payment from the petitioner, and will merely be observing field tests and not actively conducting them, he will not be engaging in productive employment which would displace a resident worker).
[^ 12] See 8 CFR 214.2(h)(7)(ii)(B)(6). See Matter of International Transportation Company, 12 I&N Dec. 389 (Reg. Comm. 1967) (even though training will be 75% on-the-job training, any “productive gain” received by the company from such work will be “offset by the time spent by employees in the training of the beneficiary”).
[^ 13] See Matter of Kraus Periodicals, Inc., 11 I&N Dec. 63 (Reg. Comm. 1964) (H-3 petition was denied where the petitioner failed to set forth a training program, the specific position, duties, or skills in which the beneficiary is to be trained, and where the substantial salary the beneficiary would have received suggested that the training position was productive employment which may displace a U.S. citizen). See 8 CFR 214.2(h)(7)(ii)(B)(6).
[^ 14] See 8 CFR 214.2(h)(7)(ii)(A)(3) and 8 CFR 214.2(h)(7)(iii)(F).
[^ 15] See Matter of Glencoe Press, 11 I&N Dec. 764, 766 (Reg. Comm. 1966).
[^ 16] See 8 CFR 214.2(h)(7)(ii)(B)(1) and 8 CFR 214.2(h)(7)(ii)(B)(2).
[^ 17] See 8 CFR 214.2(h)(7)(ii)(A)(3) and 8 CFR 214.2(h)(7)(iii)(E).
[^ 18] If the job description and the proffered wage seem suspect, the officer may request more specific information from the petitioner as described in 8 CFR 214.2(h)(7)(ii)(B).
[^ 19] See 8 CFR 214.2(h)(7)(ii)(B)(2) and 8 CFR 214.2(h)(7)(iii)(E).
[^ 20] The regulations prohibit the approval of a petition involving a training program that will result in productive employment beyond that which is incidental and necessary to the training. See 8 CFR 214.2(h)(7)(iii)(E). Further, a significant percentage of time devoted to productive employment indicates that the beneficiary may be placed in a position which is in the normal operation of the business and in which U.S. workers are regularly employed. See 8 CFR 214.2(h)(7)(ii)(A)(3), 8 CFR 214.2(h)(7)(iii)(E), and 8 CFR 214.2(h)(7)(ii)(F). See Matter of Miyazaki Travel Agency, Inc., 11 I&N Dec. 424, 425 (Reg. Comm. 1964) (“An industrial trainee shall not be permitted to engage in productive employment if such employment will displace a United States resident”). See Matter of Sasano, 11 I&N Dec. 363, 364 (Reg. Comm. 1965) (“[I]t is concluded [that] the beneficiary would be involved in full-time productive employment and that any training received would be incidental thereto”). See Matter of St. Pierre, 18 I&N Dec. 308, 310 (Reg. Comm. 1982) (“The petitioner has established that the beneficiary will not be engaged in productive employment that might displace a resident worker”).
[^ 21] See 8 CFR 214.2(h)(7)(iii)(C). See Matter of Masauyama, 11 I&N Dec. 157, 158 (Reg. Comm. 1965) (“It is conceded that practical day-to-day experience will increase proficiency in any line of endeavor. However, the statute involved here is one that contemplates the training of a person rather than giving him further experience by day-to-day application of his skills”). See Matter of Koyama, 11 I&N Dec. 424, 425 (Reg. Comm. 1965) (“While it is conceded that practical experience will increase a person’s efficiency in any line of endeavor, the intent of the statute involved here is to train rather than to gain experience”).
[^ 22] See 8 CFR 214.2(h)(7)(iii)(G).
[^ 23] There are, of course, situations where allocation of a significant percentage of the company’s resources to train a single person would be reasonable and credible. As noted above, the regulation at 8 CFR 214.2(h)(7)(ii)(B)(6) requires the petitioner to describe “any benefit that will accrue to [it] for providing the training.”
[^ 24] See 8 CFR 214.2(h)(7)(ii)(B)(5). See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972) (rejecting petitioner’s argument that he only needs to go on record as stating that training is not available outside the United States).
[^ 25] See 8 CFR 214.2(h)(9)(iii)(C) and 8 CFR 214.2(h)(13)(v).
[^ 26] See 9 FAM 402.10-9(A), Evidence Forming Basis for H Visa Issuance.
Chapter 7 - Admissions, Extensions of Stay, and Change of Status
A. Admissions
H-3 trainees and externs should be admitted for the length of the training program, but for no longer than 2 years.[1] H-3 visa special education exchange visitors should be admitted for the length of the training program, but for no longer than 18 months.
H-3 trainees and special education exchange visitors who respectively, have spent 2 years or 18 months in the United States, in either H-visa or L-visa classifications may not seek extension of, change of status to, or be readmitted in, either H-visa or L-visa status unless they have resided outside the United States for the previous six months.[2]
There are limited exceptions to this rule. For example, the limitation does not apply to an H-3 nonimmigrant whose H or L status was seasonal, intermittent, or lasted for an aggregate of 6 months or less per year.[3]
Additionally, time spent as an H-4 dependent does not count against the maximum allowable periods of stay available to principals in H-3 status (or vice-versa). Thus, a person who was previously granted H-4 dependent status and subsequently is granted H-3 classification, or a person who was previously granted H-3 classification and subsequently is granted H-4 dependent status, may be eligible to remain in the United States for the maximum period of stay applicable to the classification.
For example, a husband and wife who come to the United States as a principal H-3 and dependent H-4 spouse may maintain status for one year, and then change status to H-4 and H-3 respectively, as long as the change of status application is properly filed before the principal H-3 has spent the maximum allowable period of stay in the United States.[4]
B. Extensions of Stay
H-3 trainees and externs can only extend their stay if their original stay was less than 2 years, and the total period of stay, together with the extension period, does not exceed 2 years. H-3 special education exchange visitors can extend their stay in the United States only if their total period of stay does not exceed 18 months.[5]
To file for an extension, the petitioner must file another Petition for a Nonimmigrant Worker (Form I-129) and H Classification Supplement to Form I-129, fully documented in the same manner as the first petition, and also include:
- A letter from the petitioner requesting an extension of status for the trainee, with an explanation of why the training has not yet been completed;
- A copy of the beneficiary’s Arrival/Departure Record (Form I-94); and
- A copy of the beneficiary’s first Notice of Action (Form I-797).
If the H-3 beneficiary has a dependent (a spouse, or unmarried child under the age of 21) in the United States, those dependents will need to submit an Application To Extend/Change Nonimmigrant Status (Form I-539).
C. Change of Status
Certain categories of nonimmigrants are eligible to change status to that of an H-3 nonimmigrant, including certain students and other temporary visa holders.[6] Such change of status requests must establish that:
- The beneficiaries entered the United States legally;
- The beneficiaries have never worked in the United States illegally, or otherwise violated the terms of their visa; and
- The expiration date on the beneficiary’s I-94 has not passed.[7]
Footnotes
[^ 1] See 8 CFR 214.2(h)(9)(iii)(C)(1).
[^ 2] See 8 CFR 214.2(h)(13)(iv).
[^ 3] See 8 CFR 214.2(h)(13)(v).
[^ 4] Maintenance of H-4 status continues to be tied to the principal’s maintenance of H status. Thus, H-4 dependents may only maintain such status as long as the principal maintains the relevant principal H status.
[^ 5] See 8 CFR 214.2(h)(15)(ii)(D).
[^ 6] Certain categories generally cannot change status if they are in the United States, including nonimmigrants who entered the United States with the following visas: C, Travel without a Visa, D, K-1 or K-2, J-1, or M-1. Other nonimmigrants, such as B-1 and B-2, may change status to H-3.
[^ 7] See 8 CFR 248.1(b) for information on timely filing and maintenance of status, and circumstances when failure to file timely may be excused in the discretion of USCIS.
Part K - Media Representatives (I)
Chapter 1 - Purpose and Background
A. Purpose
The foreign information media representative nonimmigrant visa classification, commonly known as the “I” visa category, is intended to be used by representatives of the foreign media, including members of the following industries:
- Press;
- Radio;
- Film; and
- Print.
In addition, certain employees of independent production companies may also be eligible for a foreign information media representative visa classification under certain conditions.
B. Background
The foreign information media representative visa classification was created by the Immigration and Nationality Act (INA) of 1952[1] in order to facilitate the exchange of information among nations. Foreign information media representatives do not require a visa petition approved by USCIS. Consular officers with the U.S. Department of State primarily adjudicate benefit requests for foreign information media representatives during the nonimmigrant visa application process. USCIS generally only receives a request for this visa classification when a nonimmigrant applies for a change of status or an extension of stay as a foreign information media representative.
C. Legal Authorities
- INA 101(a)(15)(I) – Representatives of foreign media
- 8 CFR 214.2(i) – Representatives of information media
Footnote
[^ 1] See Pub. L. 82-414 (PDF), 66 Stat. 163, 168-169 (June 27, 1952).
Chapter 2 - Eligibility
A foreign media representative is an alien who:
- Is a bona fide representative of the foreign press, radio, film, or other foreign information media;
- Has a home office in a foreign country whose government grants reciprocity for similar privileges to representatives with home offices in the United States; and
- Seeks to enter or remain in the United States solely to engage in such a vocation.[1]
Aliens who meet the above definition may be eligible for classification as a foreign information media representative. Foreign information media representative nonimmigrants are admitted for the duration of their employment with the same foreign media organization in the same information medium. Foreign information media representatives must obtain authorization from USCIS to change employers or work in a different medium.[2]
Independent Production Companies[3]
Employees of independent production companies may also be eligible for foreign information media representative nonimmigrant status if, in addition to the above:
- The employee holds a credential issued by a professional journalistic association;
- The film or video footage produced will be used by a foreign-based television station or other media to disseminate information or news to a foreign audience; and
- The film or video footage will not be used primarily for a commercial entertainment or advertising purpose.
Footnotes
[^ 1] See 9 FAM 402.11, Information Media Representatives - I Visas. See Department of State’s website, indicating that “[a]ctivities in the United States must be informational in nature and generally associated with the news gathering process and reporting on current events.” See Chapter 3, Distinction between News and Entertainment [2 USCIS-PM K.3].
[^ 2] See 8 CFR 214.2(i).
[^ 3] See 9 FAM 402.11-6, Film/Video Work, for information on employees of independent production companies.
Chapter 3 - Distinction between News and Entertainment
A. Entertainment and Advertising
Camera persons and other workers engaged in producing films for entertainment or advertising purposes do not qualify under the foreign information media representative visa classification and should seek another visa classification for which they may qualify. For example, an alien intending to work on entertainment-oriented materials may be better suited to apply for nonimmigrant status on the basis of extraordinary ability or achievement; as an entertainer; or, if applicable, on the basis of providing essential support to certain O or P nonimmigrants.[1]
Even if a camera person or other workers receive no payment from sources in the United States and the film or video footage produced is solely for foreign distribution as entertainment or advertisement, applicants under such circumstances may not qualify under the foreign information media representative visa classification.
B. Nonfiction Documentaries
Increasingly, because of the growing popularity of documentary-type biographies and similar nonfiction film productions, the distinction between commercial filmmaking for entertainment and genuine news gathering is less clear. For example, filmed biographies may be regarded as documentary filmmaking or as news gathering. In adjudicating such cases, the officer should consider whether the intended use is journalistic, informational, or educational, as opposed to entertainment. The officer should also consider the foreign distribution of the film or video footage in addition to other factors, including the timeliness of the project relative to the subject event.
C. Intended Use
An officer should examine the type of organization that employs the foreign information media representative and the proposed foreign distribution of the film or other produced material. Applicants should not use the foreign information media representative visa classification as a way of avoiding mandatory consultation required to obtain visa classification on the basis of extraordinary ability or achievement or as an entertainer.[2]
Footnotes
[^ 1] See INA 101(a)(15)(O) for visa classification based on extraordinary ability or achievement (O visa category). See INA 101(a)(15)(P) for visa classification based on being an entertainer (P visa category).
[^ 2] See 8 CFR 214.2(o)(5). See 8 CFR 214.2(p)(7).
Chapter 4 - Family Members
A foreign information media representative’s spouse and unmarried children (under age 21) may accompany the foreign media representative and be admitted under the “I” nonimmigrant visa classification.[1] If approved, such dependents may attend school in the United States without changing to F-1 nonimmigrant student status. However, the dependents are not authorized to work in the United States while in the foreign information media representative dependent status.
Footnote
[^ 1] Note that there is no separate classification for dependents of foreign media representative nonimmigrants (for example, there is no I-2 classification). See codes of admission in Chapter 5, Adjudication, Section B, Approvals [2 USCIS-PM K.5(B)].
Chapter 5 - Adjudication
A. Extension of Stay or Change of Status
USCIS officers may receive an application for a change of status to that of a foreign information media representative nonimmigrant, or a request from a foreign information media representative nonimmigrant to change employers or information medium.
The applicant applies for a change of status or extension of stay by filing an Application To Extend/Change Nonimmigrant Status (Form I-539) together with evidence of current status and evidence from the employing media organization describing the employment and establishing that the applicant is a bona fide representative of that foreign media organization.
When reviewing a Form I-539 application involving a foreign information media representative, the officer must ensure the applicant:
- Meets or continues to meet all the eligibility requirements for the foreign information media representative visa classification;
- Is admissible to the United States;[1] and
- Has not violated any terms or conditions of his or her current nonimmigrant status.[2]
B. Approvals
If the applicant properly filed the Form I-539 application, meets all the eligibility requirements, and satisfies all the admission requirements, the officer may approve the application.
The table below provides a list of the classifications for foreign information media representatives. The code of admission is “I-1” for all eligible classes of applicants.
Applicant | Code of Admission |
---|---|
Foreign Information Media Representative (Principal) | I-1 |
Spouse of a Principal Foreign Information Media Representative | I-1 |
Child of a Principal Foreign Information Media Representative | I-1 |
C. Denials, Motions to Reopen, and Motions to Reconsider
If the applicant does not provide sufficient evidence to establish eligibility for status as a foreign information media representative, the officer prepares a denial notice explaining the specific reasons for the denial. If USCIS denies an application, the applicant may file a Motion to Reopen and/or Reconsider (Form I-290B).
There is no appeal from a denial of an application to change status or extend stay as a foreign information media representative.[3] In certain situations, USCIS may certify the matter to the Administrative Appeals Office.[4]
Footnotes
[^ 1] See INA 248(a). See 8 CFR 214.1(a)(3)(i). See Volume 8, Admissibility [8 USCIS-PM].
[^ 2] See 8 CFR 214.2(i). See 8 CFR 214.1(c)(4) and 8 CFR 248.1(b).
[^ 3] See 8 CFR 214.1(c)(5). See 8 CFR 248.3(g).
[^ 4] See 8 CFR 103.4.
Part L - Intracompany Transferees (L)
Chapter 1 - Purpose and Background
A. Purpose
The L-1 nonimmigrant visa classification enables a U.S. employer that is part of an international organization to temporarily transfer employees from one of its related foreign offices to locations in the United States.[1] Specifically, the L-1A classification applies to intracompany transfers of managers and executives, while the L-1B classification applies to intracompany transfers of employees with specialized knowledge relating to the organization’s interests.
B. Background
1. 1970 Amendments to the Immigration and Nationality Act
In 1970, Congress created the L-1 program after concluding that existing immigration laws had restricted the transfer and development of personnel from abroad who were vital to the interests of U.S. businesses.[2] Congress created the L-1 visa classification for aliens who:
“Immediately preceding the time of [their] application for admission into the United States, [had] been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who [seek] to enter the United States temporarily in order to continue to render [their] services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge…”[3]
Congress believed that the L-1 classification would enable companies to freely transfer managerial, executive, and specialized knowledge personnel within their organizations (intracompany transferees), but the legislative history indicates that Congress intended for the class of eligible persons to be narrowly drawn and carefully regulated. Congress anticipated that the L-1 petition process would be administered speedily and efficiently, so that while the review would be thorough, it would not hinder international companies with undue delays.[4]
2. Immigration Act of 1990
The Immigration Act of 1990 (IMMACT 90) created the L-1 visa classification as it substantially exists today.[5] It increased the maximum period of admission for executives and managers from 6 to 7 years, while limiting persons possessing specialized knowledge to a maximum period of 5 years. IMMACT 90 also allowed aliens to qualify for L-1 classification by serving the organization abroad for 1 of the 3 years preceding admission. The 1970 amendments had required that the employment abroad occur within the year immediately preceding admission.
IMMACT 90 also codified the blanket petition process first created by legacy Immigration and Naturalization Service regulation in 1983[6] meant to streamline the admission of L-1 beneficiaries.[7] Further, it eliminated the presumption of immigrant intent within the L classification.[8] IMMACT 90 also provided definitions of managerial capacity, executive capacity, and specialized knowledge, and expanded the definition of affiliate to include the international partnership agreements used by international accounting firms.[9]
3. Nursing Relief for Disadvantaged Areas Act of 1999
The Nursing Relief for Disadvantaged Areas Act of 1999 expanded the definition of affiliate to include the international partnership agreements used by international management consulting firms.[10]
4. L-1 Visa Reform Act of 2004
Congress established further requirements for the adjudication of L-1B petitions when it enacted the L-1 Visa and H-1B Visa Reform Act of 2004 (VRA).[11] This legislation addressed the outsourcing of L-1B beneficiaries to third-party work sites as labor for hire. The VRA requires that any beneficiary with specialized knowledge who will be primarily located offsite must be controlled and supervised by the petitioning company. Additionally, the beneficiary must be working at the offsite location in connection with an exchange of products or services between the petitioning company and the unaffiliated company for which specialized knowledge specific to the petitioning company is required.
In addition, the VRA requires petitioners to pay a fraud prevention and detection fee of $500 for certain L-1 petitions, in addition to the filing fee required for all L-1 petitions.[12] The L-1 petitioner must pay this fee when petitioning for an initial L-1 grant for the beneficiary or when the beneficiary is already an L-1 nonimmigrant and is changing employers.
5. Emergency Supplemental Appropriations for Border Security for Fiscal Year 2010
The Emergency Supplemental Appropriations for Border Security for the Fiscal Year Ending September 30, 2010 required certain L-1 petitioners to pay a fee of $2,250 in addition to the filing fee for all L-1 petitions and the fraud prevention and detection fee.[13] This fee only applied to petitioners who employed at least 50 employees in the United States, and more than 50 percent of these U.S. employees were L-1 or H-1B nonimmigrants. If the petitioner met these criteria, then it was required to pay this fee when petitioning for an initial L-1 grant for the beneficiary or when the beneficiary already was an L-1 nonimmigrant and was changing employers. Initially due to sunset on October 1, 2014, Congress extended collection of this fee through September 30, 2015.[14]
6. The Consolidated Appropriations Act of 2016
The Consolidated Appropriations Act of 2016[15] increases fees for certain H-1B and L-1 petitioners. These petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015. The additional fees apply to petitioners who employ 50 or more employees in the United States, with more than 50 percent of those employees in H-1B or L-1 (including L-1A and L-1B) nonimmigrant status. These petitioners must submit the additional fees with an H-1B or L-1 petition filed:
- Initially to grant status to a nonimmigrant described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration and Nationality Act; or
- To obtain authorization for a nonimmigrant in such status to change employers.
The Consolidated Appropriations Act of 2016 fee increases are in addition to the base processing fee, fraud prevention and detection fee, and the premium processing fee, if applicable. The Consolidated Appropriations Act of 2016 fees remain effective through September 30, 2027.[16]
C. Legal Authorities
- INA 101(a)(15)(L) – Definition of L nonimmigrant classification
- INA 101(a)(44) – Definition of managerial capacity and executive capacity
- INA 214(c)(2) – Petition of importing employer for L nonimmigrant
- INA 214(c)(12) – Fraud prevention and detection fee
- 8 CFR 214.2(l) – Intracompany transferees
Footnotes
[^ 1] The term L-1 is used for visa issuance and admission purposes. USCIS uses the "A" and "B" distinctions internally for statistical and other purposes.
[^ 2] See H.R. Rep. 91-851 (1970).
[^ 3] See Pub. L. 91-225 (PDF), 84 Stat. 116 (April 7, 1970), amending INA 101(a)(15)(L).
[^ 4] See H.R. Rep. 91-851 (1970).
[^ 5] See Pub. L. 101-649 (PDF), 104 Stat. 4978 (November 29, 1990).
[^ 6] See 48 FR 41142 (PDF) (Sept. 14, 1983).
[^ 7] See INA 214(c)(2)(A).
[^ 8] This allowed aliens to seek temporary classification as an L nonimmigrant while also intending to reside permanently in the United States. Therefore, the approval of a permanent labor certification or the filing of an immigrant visa petition on behalf of an alien beneficiary cannot be the basis for denying an L-1 petition or the beneficiary’s application for admission as an L nonimmigrant. See 8 CFR 214.2(l)(16).
[^ 9] See 8 CFR 214.2(l)(1)(ii)(L)(3).
[^ 10] See Pub. L. 106-95 (PDF), 113 Stat. 1312 (November 12, 1999).
[^ 11] See Division J, Title IV of the Consolidated Appropriations Act of 2005, Pub. L. 108-447 (PDF), 118 Stat. 2813, 3351 (December 8, 2004).
[^ 12] For more information on the current L-1 filing fee, see the H and L Filing Fees for Form I-129, Petition for a Nonimmigrant Worker webpage.
[^ 13] See Title IV of Pub. L. 111-230 (PDF), 124 Stat. 2485, 2487 (August 13, 2010).
[^ 14] See James Zadroga 9/11 Health and Compensation Act of 2010, Pub. L. 111-347 (PDF), 124 Stat. 3623 (January 2, 2011).
[^ 15] See the Consolidated Appropriations Act of 2016, Pub. L. 114-113 (PDF), 129 Stat. 2242 (December 18, 2015).
[^ 16] For comprehensive information on relevant fees, see the Filing Fees webpage.
Chapter 2 - General Eligibility
An alien may qualify as an L-1 intracompany transferee if:
- He or she was employed abroad continuously for 1 of the 3 years preceding the application for admission to the United States;
- The 1 year of continuous employment abroad was in a managerial or executive capacity or in a position that involved specialized knowledge;
- He or she is seeking to enter the United States temporarily to render their services to the same employer (which includes a branch of the foreign employer) or its parent, affiliate, or subsidiary; and
- The position in the United States will be in a managerial or executive capacity or will involve specialized knowledge.[1]
In addition, the qualifying employer who intends to temporarily transfer an employee to work in the United States must demonstrate that:
- There is a qualifying relationship between the entity in the United States and the foreign operation that employs the beneficiary abroad;
- The petitioning employer will continue to do business both in the United States and in at least one other country, either directly or through a parent, branch, subsidiary, or affiliate for the duration of the beneficiary’s stay in the United States;
- The beneficiary has been employed abroad continuously by the foreign office for at least 1 of the last 3 years;[2] and
- The beneficiary’s prior year of employment abroad was in a managerial, executive, or specialized knowledge capacity[3] and that the prospective employment in the United States will be in a managerial, executive, or specialized knowledge capacity.[4]
In addition, the petitioner must establish that the beneficiary’s duties in the U.S meet the criteria for either specialized knowledge or managerial or executive capacity and the beneficiary engaged in either specialized knowledge or managerial or executive duties for at least 1 year. However, the beneficiary does not have to be transferred to the United States in the same capacity in which they were employed abroad. For example, a manager abroad could be transferred to the United States in a specialized knowledge capacity or vice versa.[5]
If the beneficiary will be in a specialized knowledge capacity and primarily be working at a location other than the petitioner’s, then the beneficiary must be:
- Under the primary control and supervision of the petitioner; and
- Providing a product or service for which specialized knowledge specific to the petitioner is necessary.
A. L-1 Blanket Petitions
The blanket petition program allows a petitioner to seek continuing approval of itself, its parent, and its branches, subsidiaries, and affiliates as qualifying organizations and, later, classify under the L nonimmigrant category any number of beneficiaries employed by itself, its parent, or some of its branches, subsidiaries, and affiliates. USCIS adjudicates blanket L petitions based on the same general principles used in adjudicating the qualifying relationship of individual L-1 petitions. However, some differences exist.
Who May File Blanket Petition
The blanket L-1 procedure is intended for larger international organizations. Only entities involved in commercial trade or services may use the blanket petition.[6] Therefore, noncommercial organizations, like churches, may not use the blanket petition.
A U.S. petitioner may file a blanket petition to receive continuing approval of itself and its parent, branches, specified subsidiaries, and affiliates as qualifying organizations.
B. Blanket Petitioner Requirements
The petitioner must show that:
- The petitioner and each of the entities included are engaged in commercial trade or services;
- The petitioner has an office in the United States that has been doing business for 1 year or more;
- The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and
- The petitioner and the other qualifying organizations have obtained approval of petitions for at least 10 “L” managers, executives, or specialized knowledge workers during the previous 12 months; or have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a U.S. work force of at least 1,000 employees.[7]
C. Qualifying Organizations Under the Blanket Petition
The petitioner must list all the foreign entities and all the U.S. entities that it wants to have approved and establish who has ownership and control of all the entities. USCIS can only approve those entities meeting the definition of a qualifying organization.[8]
If there is a question about ownership or control for any of the petitioned entities (or both), officers should issue a Request for Evidence to make a determination. USCIS names all approvable entities on a list included with the approval notice of the blanket petition.
D. Beneficiaries of L-1 Blanket Petitions
Once a blanket petition is approved, individual beneficiaries may receive L-1 classification under the approved blanket petition. The focus of the adjudication is the individual beneficiary’s qualifications and eligibility, as the approved blanket petition will have already resolved issues relating to the organization’s qualifications. Petitioners seeking to classify the individual beneficiary under the approved blanket petition must establish that the beneficiary was employed abroad for 1 of the 3 years prior to the individual petition filing in a qualifying capacity and must establish that the beneficiary will be employed in a qualifying capacity in the United States. For blanket L-1 purposes, a qualifying capacity is:
- Managerial;
- Executive; or
- Specialized knowledge professional.
E. Family Members of L-1 Beneficiaries
The spouse and unmarried dependent children (under the age of 21) of an L-1 beneficiary may, if eligible, be granted L-2 classification and be given the same validity dates as the L-1 principal.[9] L-2 dependents are not included on the L-1 petition. Although a separate petition is not required of L-2 dependents, such persons must apply for an L-2 visa at the U.S. consulate based on the L-1 principal’s petition, or they can file an Application to Extend/Change Nonimmigrant Status (Form I-539).
As of November 12, 2021, USCIS considers certain L-2 nonimmigrant dependent spouses employment authorized incident to status[10] who are no longer required to obtain employment authorization before engaging in employment.[11] Notwithstanding this change, L-2 spouses may continue to apply for an Employment Authorization Document to obtain evidence of identity and employment authorization by properly filing an Application for Employment Authorization (Form I-765), with the appropriate fee, if applicable. L-2 dependent children may be given the same validity dates as the L-1 principal until the day they marry or reach the age of 21, whichever comes first. L-2 dependent children may not accept employment in the United States but may attend school.[12]
The continued validity of the L-1 principal’s status and the L-2 dependent’s status depends on the L-1 principal’s qualifying employment with the petitioning employer. When the employer-employee relationship is terminated, or the nature of the employment no longer qualifies for L-1 purposes, the L status is no longer valid.
Footnotes
[^ 1] See INA 101(a)(15)(L). See 8 CFR 214.2(l)(1)(ii)(A).
[^ 2] See Matter of Kloeti (PDF), 18 I&N Dec. 295 (Reg. Comm. 1982).
[^ 3] A beneficiary need not have worked exclusively in one of these three types of positions during the entire qualifying period of employment. As long as the beneficiary was primarily employed in an executive, managerial, or specialized knowledge capacity, USCIS considers the petitioner to have sufficiently met the regulatory requirement at 8 CFR 214.2(l)(3)(iv).
[^ 4] In the case of an L-1A beneficiary who is coming to the United States to set up a new office, the 1 year of experience abroad must have been in an executive or managerial capacity. See Chapter 8, Documentation and Evidence, Section B, Evidence for Beneficiary (New Office) [2 USCIS-PM L.8(B)].
[^ 5] See Matter of Vaillancourt (PDF), 13 I&N Dec. 654 (Reg. Comm. 1970).
[^ 6] See 8 CFR 214.2(l)(4)(i)(A).
[^ 7] See 8 CFR 214.2(l)(4)(i).
[^ 8] See 8 CFR 214.2(l)(4)(iv)(B) and 8 CFR 214.2(l)(1)(ii)(G).
[^ 9] See 8 CFR 214.2(l)(17)(v).
[^ 10] See Volume 10, Employment Authorization, Part B, Specific Categories, Chapter 2, Employment-Based Nonimmigrants [10 USCIS-PM B.2].
[^ 11] USCIS issues an Employment Authorization Document (Form I-766) as evidence of employment authorization.
[^ 12] See 8 CFR 214.2(l)(17)(v) and 8 CFR 248.3(e).
Chapter 3 - Managers and Executives (L-1A)
The L-1A classification is reserved for certain managers and executives.[1] Executive or managerial capacity requires a certain level of authority and can consist of a mix of job duties.[2] There are two main types of managers, function managers and personnel managers.[3] Managers and executives plan, organize, direct, and control an organization’s major functions and work through other employees to achieve the organization’s goals. First-line supervisors, such as those who plan, schedule, and supervise the day-to-day work of nonprofessional employees, are not employed in an executive or managerial capacity, even though they may be referred to as managers in their organization.
In addition, persons who primarily perform the tasks necessary to produce the product or provide the service of an organization are not employed in an executive or managerial capacity.[4]
The same managerial and executive capacity definitions apply to the nature of the beneficiary’s position abroad and in the United States. However, the beneficiary need not perform the same work in the United States that they performed abroad.[5] In addition, the work abroad may have been in more than one capacity.
A. Determining Managerial or Executive Job Duties
To determine managerial or executive capacity, officers must look first to the petitioner’s description of the job duties to determine that the duties are primarily of an executive or a managerial nature. This standard ensures that a beneficiary not only has the requisite authority, but that a majority of their duties relate to operational or policy management, not to the supervision of nonprofessional employees, performance of the duties of another type of position, or other involvement in the operational activities of the company.
This does not mean that the executive or manager cannot apply their technical or professional expertise to a particular problem. Certain positions necessarily require a manager to apply their technical or professional expertise on an incidental basis from time to time, and that is permissible. That said, the regulations specifically require that the beneficiary be engaged primarily in a managerial or executive capacity. Accordingly, officers should focus on the primary duties of the beneficiary in determining whether the beneficiary qualifies as a manager or executive.
To determine whether a beneficiary’s job duties will be primarily managerial or executive, an officer must consider the totality of the evidence in the record and weigh all relevant factors. Such factors may include:
- The nature and scope of the petitioner’s business;
- The petitioner’s organizational structure, staffing levels, and the beneficiary’s position within the petitioner’s organization;
- The scope of the beneficiary’s authority;
- The work performed by other staff within the petitioner’s organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and
- Any other factors that contribute to understanding a beneficiary’s actual duties and role in the business.[6]
B. Determining Whether Job Duties are Primarily Managerial or Executive
USCIS does not consider a beneficiary to be acting in a managerial or executive capacity (as previously defined) merely based on the number of employees that they:
- Supervise or have supervised; or
- Direct or have directed.
If staffing levels are used as a factor in determining whether a beneficiary is acting in a managerial or executive capacity, officers should consider the reasonable needs of the:
- Organization;
- Component; or
- Function.
L-1 Beneficiary May Own the Organization
The beneficiary may own the foreign or U.S. organization in whole or in part. However, maintaining a ceremonial title and position, such as Director or President, without being primarily engaged in the management of the organization, is not qualifying for L-1 purposes.[7]
Footnotes
[^ 1] For the definitions of L-1 executives and managers, see INA 101(a)(44), 8 CFR 214.2(l)(1)(ii)(B), and 8 CFR 214.2(l)(1)(ii)(C). Notably, in the legal construction of the L-1A regulations, there is no clause of “and” or “in addition to” or any other qualifier between 8 CFR 214.2(l)(1)(ii)(B) governing L-1A managerial beneficiaries and 8 CFR 214.2(l)(1)(ii)(C) governing L-1A executive beneficiaries that requires beneficiaries to meet the regulatory criteria of both discreet subcategories for L-1A beneficiaries. Therefore, a beneficiary is either an L-1A manager under 8 CFR 214.2(l)(1)(ii)(B) or an L-1A executive under 8 CFR 214.2(l)(1)(ii)(C), meeting either one criteria or the other. A beneficiary does not have to meet both.
[^ 2] For definitions of executive and managerial capacity, see Chapter 6, Key Concepts [2 USCIS-PM L.6].
[^ 3] For more information on function managers, see Chapter 6, Key Concepts, Section C, Managerial Capacity, Subsection 2, Function Manager [2 USCIS-PM L.6(C)(2)].
[^ 4] See Matter of Church Scientology Int’l (PDF), 19 I&N Dec. 593 (Comm. 1988).
[^ 5] For example, someone who had specialized knowledge abroad could enter the United States as a manager or executive. See 9 FAM 402.12-12(F), Beneficiary Need Not Perform Same Work in the United States as Abroad.
[^ 6] See Matter of Z-A-, Inc. (PDF), Adopted Decision 2016-02 (AAO Apr. 14, 2016). While the case does not address whether a beneficiary will be working primarily as a manager of personnel or as an executive, and the analysis should not be used in those cases, officers should continue to analyze L-1A petitions where the position is for a personnel manager or an executive as they were doing before Matter of Z-A-, Inc. was designated as an adopted decision.
[^ 7] See Matter of Aphrodite Investments (PDF), 17 I&N Dec. 530 (Comm. 1980).
Chapter 4 - Specialized Knowledge Beneficiaries (L-1B)
The L-1B classification is reserved for certain aliens having specialized knowledge and, in the case of aliens seeking L-1B classification under an approved blanket petition specialized knowledge professionals.[1]
A. Specialized Knowledge Capacity
To establish eligibility for approval, the L-1B petitioner must show that:
- The beneficiary possesses specialized knowledge;
- The position offered involves the specialized knowledge held by the beneficiary; and
- The beneficiary has at least 1 continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning employer or any qualifying organization (collectively referred to as the petitioning organization) within the preceding 3 years. If the beneficiary will be located primarily at the workplace of an unaffiliated company, the petitioner also must establish that the beneficiary is eligible for L-1B classification under the requirements of the Visa Reform Act.[2]
B. Application of Specialized Knowledge
1. Special or Advanced Knowledge
A beneficiary may establish specialized knowledge by possessing either special or advanced knowledge, or both. Determining whether a beneficiary has special knowledge requires review of the beneficiary’s knowledge of how the petitioning organization manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests (or in brief, its products or services).
Determinations concerning advanced knowledge, on the other hand, require review of the beneficiary’s knowledge of the specific petitioning organization’s processes and procedures. With respect to either special or advanced knowledge, the petitioner ordinarily must demonstrate that the beneficiary’s knowledge is not commonly held throughout the industry. As discussed in detail below, however, a beneficiary’s knowledge need not be proprietary in nature, unique, or narrowly held within the petitioning organization to be considered specialized.
Determining whether knowledge is special or advanced inherently requires a comparison of the beneficiary’s knowledge against that of others. The petitioner bears the burden of establishing such a favorable comparison. Because special knowledge concerns knowledge of the petitioning organization’s products or services and its application in international markets, the petitioner may meet its burden through evidence that the beneficiary has knowledge that is distinct or uncommon in comparison to the knowledge of other similarly employed workers in the particular industry.
Alternatively, because advanced knowledge concerns knowledge of a petitioning organization’s processes and procedures that is not commonly found in the relevant industry, the petitioner may meet its burden through evidence that the beneficiary has knowledge of or expertise in the petitioning organization’s processes and procedures that is greatly developed or further along in progress, complexity, and understanding in comparison to other workers in the employer’s operations.
2. Factors to Consider
It is not sufficient to demonstrate that the beneficiary has general knowledge of processes and procedures common to the industry; the focus here is primarily on whether the beneficiary’s knowledge of the processes and procedures used specifically by the petitioning organization is advanced. Evidence must support that such knowledge is apart from the elementary or basic knowledge possessed by others in the petitioning organization and the relevant industry.
The following is a non-exhaustive list of factors that officers may consider when determining whether a beneficiary’s knowledge is specialized:
- The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations;
- The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position;
- The beneficiary’s claimed specialized knowledge is normally gained only through prior experience with the petitioning organization;
- The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another person without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education);[3]
- The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization; or
- The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.
The presence of one or more of these (or similar) factors, when assessed in the totality of the circumstances, may be sufficient to establish, by a preponderance of the evidence, that a beneficiary has specialized knowledge. As noted above, this list of factors is meant to be illustrative, not exhaustive, and it does not impose requirements that a petitioner must meet.
Specialized Knowledge Generally Cannot Be Commonly Held, Lacking in Complexity, or Easily Imparted to Others
One of the several factors that may be considered in determining whether knowledge is specialized is the amount and type of training, work experience, or education required to develop that knowledge.[4] Knowledge generally may not be considered special or advanced if it is commonly held, lacks some complexity, or can be easily imparted from one person to another.
On the other hand, knowledge generally may be considered specialized if a petitioner can demonstrate through credible and relevant evidence that the knowledge possessed by the beneficiary would be difficult to impart to another person without significant economic cost or inconvenience to the petitioning organization.[5]
Depending on the totality of the circumstances, significant economic cost or inconvenience may be a relevant factor. However, USCIS does not require a petitioner to establish significant economic cost or inconvenience if it can otherwise establish specialized knowledge.
Specialized Knowledge Need Not Be Proprietary or Unique
Although specialized knowledge ordinarily cannot be knowledge generally possessed or easily transferrable, it need not be proprietary or unique to the petitioning organization. A petitioner is not required to demonstrate that it is the only company where the beneficiary could have acquired the knowledge, or that it is the only company that trades in the technologies, techniques, products, services, or processes that are the subject of the beneficiary’s knowledge.
Although a petitioner may provide evidence that knowledge is proprietary or unique in support of its claim that the knowledge is also special or advanced, and therefore specialized, the L-1B classification does not require such a finding.
L-1B Classification Does Not Involve Test of U.S. Labor Market
The petitioner must ordinarily demonstrate that the beneficiary’s knowledge is not generally or commonly held in the relevant industry. Such a determination, however, does not involve a test of the U.S. labor market. A petitioner is not required to demonstrate the lack of readily available workers to perform the relevant duties in the United States.[6]
The relevant inquiry is not whether U.S. workers with the beneficiary’s knowledge are available to the employer; rather, it is whether there are so many such workers that the knowledge is generally or commonly held in the relevant industry, and therefore not specialized. If there are numerous workers in the United States who possess knowledge that is generally like the beneficiary’s, it is the petitioner’s burden to establish that the beneficiary’s knowledge nevertheless is truly specialized.
Specialized Knowledge Need Not Be Narrowly Held Within Petitioning Organization
Although comparisons with other employees of the petitioning organization may be useful in determining whether the beneficiary’s knowledge is special or advanced, such knowledge need not be narrowly held within the petitioning organization. Multiple employees within a company may have obtained the experience, training, or education necessary to possess the same type of specialized knowledge. Some companies may use technologies or techniques that are so advanced or complex that nearly all employees working on the relevant products or services possess specialized knowledge.
The mere existence of other employees with similar knowledge should not, in and of itself, be a ground for denial. Depending on the facts of the case, where there are already a significant number of employees in the U.S. organization with the same claimed specialized knowledge as that of the beneficiary, a question may arise as to whether the relevant position needs to be filled by a person having specialized knowledge. Accordingly, officers should consider, as in other L-1B cases, whether the evidence of record demonstrates the organization’s need to transfer the beneficiary to the United States. Further factors to consider may include:
- Whether the petitioner has shown the need for another person with similar knowledge in the organization’s U.S. operations and the difficulty in transferring or teaching the relevant knowledge to a person other than the beneficiary;
- How the duties to be performed by the beneficiary that require their claimed specialized knowledge may or may not differ from those already employed in the organization’s U.S. operations;
- The extent to which the petitioning organization would suffer economic inconvenience or disruption to its U.S. or foreign-based operations if it were unable to transfer the beneficiary;[7]
- Whether and to what degree the beneficiary’s claimed specialized knowledge would be beneficial to the successful conduct of the petitioner’s operations; and
- Whether the total compensation[8] provided to the beneficiary is comparable in dollar value to similarly situated peers in such U.S. operations.[9]
Specialized Knowledge Workers Need Not Occupy Managerial or Similar Positions or Command Higher Compensation
Unlike the L-1A nonimmigrant classification, the L-1B nonimmigrant classification does not require that the beneficiary be a manager or executive. Nor does the L-1B classification require that the beneficiary be an officer or supervisor or hold any other similar position within the petitioning organization. Although rank and compensation are factors that may be considered when analyzing whether a beneficiary possesses specialized knowledge, there is no requirement that the beneficiary be of a certain rank within the organization or that the beneficiary’s compensation be elevated compared to their peers within the organization or the particular industry.
There may be valid business reasons that one employee may be earning more or less than their peers. A company in its early development, for example, may not yet have generated sufficient income to pay the beneficiary a greater salary. In creating the L-1B classification, Congress focused on the beneficiary’s knowledge, not their position on a company’s organizational chart or pay scale.
Beneficiaries Must Have Required Specialized Knowledge at Time of Filing
As with all eligibility criteria, the petitioner must show that the beneficiary meets the requisite criteria and is eligible for the benefit at the time of filing.
The beneficiary may have acquired specialized knowledge while working for the foreign organization either in a specialized knowledge, executive, or managerial capacity. The petitioner bears the burden to show that the beneficiary has the required specialized knowledge at the time of filing.
Eligibility for Another Nonimmigrant Classification is Not a Bar to Eligibility for L-1B Classification
The requirements for L-1B classification are distinct from other visa classifications. Eligibility for one classification does not preclude eligibility for another. A beneficiary may possess characteristics that make him or her potentially qualified for two or more distinct nonimmigrant classifications, but may only hold one classification at a time while in the United States.
For example, the beneficiary may have characteristics that make him or her eligible as a nonimmigrant specialized knowledge worker (L-1B) and a nonimmigrant specialty occupation worker (H-1B). Similarly, a beneficiary may qualify for L-1B nonimmigrant status while at the same time possessing the extraordinary ability or achievement necessary for O-1 nonimmigrant status. Possession of such dual qualifications does not render the beneficiary ineligible for either classification. Officers should only consider the requirements for the classification sought in the petition, without considering eligibility requirements for other classifications.
Beneficiaries Working at a Worksite Outside the Petitioning Organization – The Visa Reform Act
L-1B status is not permitted if the beneficiary will be stationed primarily at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and will be principally under the control and supervision of the unaffiliated employer.[10] The officer must conduct the Visa Reform Act analysis if the beneficiary will be stationed offsite as described above.
If a beneficiary’s work-related activities will be physically performed at the petitioner’s or its affiliates’ locations, to the extent that such time can be considered to be down time rather than time actually performing the services described in the petition, a beneficiary might be subject to the bar (since, in this example, the majority of the beneficiary’s actual work time is spent at an unaffiliated company or companies’ work site).
The number of non-affiliated worksite locations where the beneficiary might be stationed, by itself, is not relevant; what is relevant is the location where the beneficiary will be employed as specified in the underlying petition. To remain eligible for L-1B classification, any beneficiary with specialized knowledge who will be stationed primarily at the worksite of another employer must:
- Be controlled and supervised by the petitioning employer; and
- Be provided in connection with an exchange of products or services between the petitioning employer and the unaffiliated employer for which specialized knowledge specific to the petitioning employer is necessary, as opposed to an arrangement that is essentially to provide labor for hire to the unaffiliated employer.[11]
Even if the beneficiary is to be stationed primarily outside the petitioning organization, that fact alone does not establish ineligibility for L classification. For the ground of ineligibility to apply, control and supervision of the beneficiary at the non-affiliated worksite must be principally by the unaffiliated employer. Officers should use the common dictionary meaning of the term principally. The adjective principal means "most important, consequential, or influential."[12]
Therefore, even if the non-affiliated entity exercises some control or supervision over the work performed, if such control and supervision lie first and foremost within the petitioning organization, and the petitioning organization retains ultimate authority over the worker, the ground of ineligibility does not apply.
The unaffiliated employer may provide input, feedback, or guidance as to their needs and goals, and may even direct specific tasks and activities. So long as the ultimate authority over the L-1 worker’s daily duties remains within the petitioning organization, however, the fact that there may be some intervening third-party supervision or input between the worker and the petitioning organization does not render the worker ineligible for L-1B classification.
A beneficiary is ineligible for L classification if the placement at the unaffiliated worksite is essentially an arrangement to provide labor for hire for the unaffiliated employer rather than a placement in connection with the provision of a product or service for which specialized knowledge specific to the petitioning employer is necessary.
Whether an arrangement is essentially to provide labor for hire is inherently a factual inquiry. Officers therefore must look at all aspects of the activity or activities in which the beneficiary will be engaged away from the petitioner’s worksite. In general, if the off-site activity or activities require specialized knowledge of the petitioner’s product or services, if such knowledge bears a reasonable relationship to the performance of the off-site activities, the activities are not prohibited.
For example, a beneficiary would be ineligible for L classification if a petitioner is essentially in the business of placing beneficiaries with various unaffiliated companies, irrespective of the beneficiary’s specialized knowledge of the petitioner’s particular product or service, where the off-site activities to be performed do not require specialized knowledge specific to the worker placement industry.
On the other hand, if the petitioner is primarily engaged in providing a specialized service, and typically sends its specialized knowledge personnel on projects located on the work site of its unaffiliated clients to perform such services, then, assuming the beneficiary remains under the principal control and supervision of the petitioning employer, and otherwise meets the basic requirements for L classification, the beneficiary would not be subject to the bar. In such cases, the petitioning employer must show they retain ultimate authority over the L-1B beneficiary, and the L-1B beneficiary must provide a product or service to the offsite employer for which specialized knowledge specific to the petitioner is necessary.
Footnotes
[^ 1] For the definition of L-1 specialized knowledge professional, see INA 214(c)(2)(B), 8 CFR 214.2(l)(1)(ii)(D), and 8 CFR 214.2(l)(1)(ii)(E). For the definition of specialized knowledge, see Chapter 6, Key Concepts, Section E, Specialized Knowledge [2 USCIS-PM L.6(E)].
[^ 2] See Division J, Title IV of the Consolidated Appropriations Act of 2005, Pub. L. 108-447 (PDF), 118 Stat. 2813, 3351 (December 8, 2004).
[^ 3] One factor that may be relevant in weighing economic inconvenience is the time-sensitivity of the petitioning organization’s need in its U.S. operations for an employee with the particular type of specialized knowledge, and the harm the organization would suffer if it could not fulfill its time-sensitive personnel need through transfer of the beneficiary. See Fogo de Chao (Holdings) Inc. v. DHS, 769 F.3d 1127, 1142 (D.C. Cir. 2014) (observing that a “natural prox[y] for economic inconvenience” is “the amount of in-house training a company’s employees would have to receive to acquire the knowledge in question”).
[^ 4] See 8 CFR 214.2(l)(3)(v) (requiring petitioner to submit evidence of the beneficiary’s prior education, training, and employment).
[^ 5] See Fogo de Chao (Holdings) Inc. v. DHS, 769 F.3d 1127, 1142 (D.C. Cir. 2014).
[^ 6] In Fogo de Chao (Holdings) Inc. v. DHS, 769 F.3d 1127, 1145 (D.C. Cir 2014), the D.C. Circuit noted that the Immigration Act of 1990 precludes USCIS from requiring evidence establishing that the specialized knowledge in question is not readily available in the U.S. labor market. An inquiry into whether knowledge is generally or commonly held in a given industry—and therefore not special, as that term is naturally understood—is separate from an inquiry into whether there are U.S. workers available to perform a given job.
[^ 7] See Fogo de Chao (Holdings) v. DHS, 769 F.3d 1127, 1142-43 (D.C. Cir 2014).
[^ 8] For this limited purpose, what constitutes total compensation is fact-dependent, but may include, besides wages or salary, other guaranteed forms of payment made to an employee for services rendered for the petitioner. The petitioner may pay such compensation in the form of money, a commodity, a service, or a privilege, including food, transportation, and housing allowances, as well as guaranteed bonuses. Any such payment, however, must principally be for the convenience or benefit of the employee and agreed upon by the petitioner and beneficiary before filing the petition. The petitioner bears the burden of establishing the actual value of any claimed compensation.
[^ 9] Evidence that a significant number of employees within the petitioning organization’s U.S. operations share the beneficiary’s knowledge, yet the petitioner will pay the beneficiary substantially less than those similarly situated employees, may indicate that the beneficiary lacks the requisite specialized knowledge. As described, however, there may be valid business reasons for the wage discrepancy. Officers should generally evaluate justification for the variance in consideration of the skills, experience, and other factors pertinent to the entire spectrum of employees in the U.S. operations who possess the requisite specialized knowledge.
[^ 10] The L-1 Visa and H-1B Visa Reform Act added anti-job shopping provisions. See Section 412(a) of Division J, Title IV of the Consolidated Appropriations Act of 2005, Pub. L. 108-447 (PDF), 118 Stat. 2813, 2905 (December 8, 2004). See INA 214(c)(2)(F).
[^ 11] See Division J, Title IV of the Consolidated Appropriations Act of 2005, Pub. L. 108-447 (PDF), 118 Stat. 2813, 3351 (December 8, 2004).
[^ 12] See Merriam-Webster Dictionary’s definition of “principal.” See Oxford English Dictionary’s definition of “principal.”
Chapter 5 - Ownership and Control
The petitioner for an intracompany transferee must be a qualifying organization seeking to transfer a foreign employee to the United States temporarily from one of its operations outside the United States. Accordingly, to be eligible for L-1 nonimmigrant classification, there must be a qualifying relationship between the foreign and U.S. entities. In the United States, business entities usually take the form of a sole proprietorship, partnership, corporation, or limited liability company (LLC). State law generally governs the formation, operation, and dissolution of such business entities. Since each state has its own rules for business entities, officers should refer to the relevant state authority’s website if there is a specific question about a business entity.
An organization cannot transfer someone to work in the United States as an L-1 nonimmigrant, unless the organization has a qualifying U.S. entity to employ the L-1 beneficiary.[1] The source of the beneficiary’s salary and benefits while in the United States (for example, whether the beneficiary will be paid by the United States or foreign affiliate of the petitioning company) is generally not controlling in determining eligibility for L status.[2]
The Business Structures overview provides more information on the most common business forms or structures, including information on formation, fundamental characteristics, and the tax forms submitted to the Internal Revenue Service.
Evidence of Ownership and Control, Generally
Depending on the nature of the petitioner, USCIS may require different types of evidence to demonstrate ownership and control for purposes of establishing the qualifying L-1 relationship. USCIS considers ownership of more than 50 percent of an organization as evidence of control. Control based on ownership of more than 50 percent is called de jure control.[3] However, it is possible for an owner of 50 percent or less of a company to exercise de facto control over the organization.[4]
Large, established organizations may submit a statement by the entity’s president, corporate attorney, corporate secretary, or other authorized official describing the ownership and control of each qualifying organization, accompanied by other evidence such as a copy of its most recent annual report, U.S. Securities and Exchange Commission filings, or other documentation that lists the parent and its subsidiaries.
In addition to a statement of an authorized official regarding ownership and control of each qualifying organization, organizations should submit other evidence of ownership and control, which may include but is not limited to: records of stock ownership, partnership agreements, operating or LLC agreements, member certificates, audited financial statements, profit and loss statements or other accountant’s reports, tax returns, or articles of incorporation, by-laws, and minutes of board meetings.
Not-for-profit Entities – Ownership and Control and Doing Business
Not-for-profit or nonprofit entities are eligible to use the L classification if all requirements are met.[5] These entities sometimes have difficulty demonstrating ownership and control, because their ownership and organizational structure does not perfectly align with the for-profit entities that are more commonly seen in the L context. Often a non-profit will indicate that they have a branch relationship in which they demonstrate that the employing entity is the same organization operating in another location. However, there may be some regional or country-specific requirement that the entity register as a separate entity.
In these cases, or any other claims of a qualifying relationship, ownership and control must be established. In the case of a nonprofit, there may be no traditional evidence of ownership such as equity certificates. Accordingly, to establish the existence of a qualifying relationship involving a nonprofit organization, a petitioner must demonstrate that the relevant person, group, or entity owns or manages sufficient assets to directly or indirectly control both the U.S. and foreign entities involved. Factors considered may include a person, entity, or group’s obligation to fund capital needs of the nonprofit, any rights to receive distribution of assets on liquidation, or any rights to direct how the assets of the nonprofit may be used, purchased, or sold. Control of a nonprofit entity means the direct or indirect legal right and authority to direct the establishment, management, and operation of the nonprofit organization. In determining what constitutes ‘control’ with respect to nonprofit organizations, USCIS takes into consideration the structure of the organization’s management and governance including the authority of the organization’s senior officers, board members and trustees.
Generally, to demonstrate a qualifying relationship, non-profit petitioners may submit, as applicable, Internal Revenue Service (IRS) filings, state filings, annual reports, and audited financial statements to demonstrate the relevant relationship between entities. As applicable, petitioners may also submit proof of a qualifying relationship by the submission of articles of incorporation or similar organizational documents, bylaws or similar operating documents, meeting minutes, or other appropriate documentation. These examples are illustrative and not exhaustive.
In addition, demonstrating that a non-profit entity is doing business may look different in comparison to a for-profit entity. USCIS considers an entity may also qualify if it is providing such goods or services in a regular, systematic, and continuous way to others within its organization, if the record demonstrates how that activity generates revenue or otherwise facilitates the organization’s purpose. USCIS recognizes that many non-profit organizations do not generate revenue by providing goods or services. In these cases, doing business refers to performing the activities that serve to advance the underlying goals and purpose of the organization.
Opening New Office in United States
If the beneficiary is coming to the United States to open a new office, USCIS requires proof of ownership and control, in addition to financial viability. The petitioners’ statement of ownership and control should therefore be accompanied by appropriate evidence such as evidence of capitalization of the company or evidence of financial resources committed by the foreign company, operating or LLC agreements, partnership agreements, articles of incorporation, by-laws, and minutes of board of directors’ meetings, corporate bank statements, profit and loss statements, accountant’s reports, or tax returns.[6]
The following sections discuss some aspects of different business structures as they relate to L adjudications.
A. Sole Proprietorships
A sole proprietorship is a business in which an individual owns all the assets, owes all the liabilities, and operates the business in the individual’s personal capacity.[7] Unlike a corporation or other separate and distinct legal entity that may have a single owner or shareholder, a sole proprietorship does not exist as a distinct legal entity separate from the individual owner.
By statute, an L-1 beneficiary must have been “employed continuously… by a firm or corporation or other legal entity or an affiliate or subsidiary thereof...”[8] This means that there must be separation between the employing entity and the beneficiary. A sole proprietorship therefore may not file an L-1 petition on behalf of the owner, as it is not a distinct legal entity separate from the owner.[9]
Such a petition where the sole-proprietor owner and beneficiary are the same would be considered an impermissible self-petition.
While an L-1 petition filed by a sole proprietorship on behalf of its sole owner is not approvable, because a sole proprietorship may have employees, USCIS may approve an L-1 petition filed by a sole proprietorship on behalf of an otherwise eligible employee, depending on the facts presented. A qualifying L-1 relationship can exist between a sole proprietorship and a related entity if the common ownership and control of both legal entities can be established.[10] For instance, a person may be the sole proprietor of an entity abroad and also of one in the United States, and may, depending on the facts presented, transfer an otherwise eligible employee to the United States entity.
Generally, no special documents are executed when a sole proprietorship is created and commences doing business. In the United States, a sole proprietorship is not required to execute or file any documents of creation and may use the owner’s own social security number as its Employer’s Identification Number.
The most common document provided as evidence of the ownership and control of a sole proprietorship is the owner’s individual federal tax return. In addition, the petitioner may submit contracts, such as leases, employment contracts, or sales agreements that the owner executed on behalf of the sole proprietorship.
In cases where the business is not a separate legal entity from the owner, the petitioner must also provide other evidence that identifies the owner of the business. This evidence may include, but is not limited to, a license to do business, record of registration as an employer with the IRS, business tax returns, or other evidence that identifies the owner of the business.
There is a difference between a sole proprietorship and a self-incorporated petitioner (such as a corporation or a limited liability company with a single owner). Although a self-incorporated or self-organized petitioner may only have one owner, the corporation or the single member limited liability company is a separate and distinct legal entity from its owners, stockholders or members and therefore may petition for that owner.[11]
B. Joint Venture
A joint venture is a business relationship wherein two or more parties agree to share funds, resources, and skills to undertake a particular business project. There are two general types of joint venture business enterprises: equity joint ventures and non-equity joint ventures.
An equity joint venture is created under corporate law and exists when two or more companies create a separate entity and contribute capital to that entity in furtherance of the joint venture. A qualifying L-1 relationship can exist between a contributing company and the resulting venture if the contributing company owns at least 50 percent of the venture and exercises control over the venture.
A non-equity joint venture, on the other hand, is typically a contractual arrangement in which no separate entity is formed. In a non-equity joint venture, cooperative agreements are entered into between the contributing companies to provide noncapital resources (such as manufacturing processes, patents, trademarks, managerial know-how, or other essential services). A non-equity joint venture does not establish a qualifying L-1 relationship, because no separate entity is formed. Therefore, the requisite common ownership and control will not be present in a non-equity joint venture, as the joint venture stands alone outside the two parties that entered into the contractual arrangement.[12]
C. Partnerships
A partnership is the shared ownership of a business, that is, a relationship existing between two or more persons who join to carry on a trade or business.[13] A partnership may meet the requirements for a qualifying organization if it meets one of the regulatory definitions of a parent, branch, subsidiary, or affiliate.[14] When submitting evidence of ownership and control of a partnership, the petitioner must submit a copy of the partnership agreement. To establish what the partnership owns and controls, other evidence may be necessary. For example, petitioners generally provide partnership agreements and the partnership’s IRS Form 1065 to establish who owns and controls a partnership.
By law, international partnerships that provide accounting services or management consulting services may meet the criteria as qualifying organizations for L-1 purposes. USCIS does not require extensive documentation in such cases.
D. Corporations
A corporation is a separate legal entity, owned by its shareholders. It is an association of individual natural persons or organizations created by state law that exists as an entity with powers and liabilities that are independent of its owners.[15] Corporations may meet the requirements for a qualifying organization if it meets one of the regulatory definitions of a parent, branch, subsidiary, or affiliate.[16] A corporation may file an L-1 on behalf of an alien stockholder, as the corporation is a distinct legal entity.
E. Limited Liability Companies
An LLC is a hybrid entity. Earnings and losses pass through to the owners, who include those earning and losses on their personal tax returns. An LLC may file an L-1 petition on behalf of a member (owner), as an LLC is deemed to be a distinct legal entity.
F. Franchises
In order to establish a qualifying relationship in an L-1 visa petition that involves franchises, the petitioner must show that the required relationship exists between the foreign entity and the petitioner, not the franchise owned and operated by the petitioner.
USCIS regulations indicate that a petitioner can establish a qualifying relationship by showing ownership and control of the entities.[17] If a franchise agreement only outlines how two independently owned companies can use or license a name or a product, then such agreement does not generally create a qualifying relationship between franchisor and franchisee. A contractual agreement of this nature can be terminated, as opposed to the more permanent association that is created through common ownership.[18]
Claims made by the foreign entity’s shareholder and franchisor statements alone are not sufficient to establish the beneficiary’s claimed employee status. A petitioner’s unsupported statements are of very limited weight and are normally insufficient to carry its burden of proof, particularly when supporting documentary evidence would reasonably be available.[19] The petitioner must support its assertions with relevant, probative, and credible evidence.[20]
Footnotes
[^ 1] See Matter of Penner (PDF), 18 I&N Dec. 49 (Comm. 1982). Penner also discusses the obsolete proprietary knowledge requirement not contained in the current regulations; that portion of the Penner decision therefore is therefore not binding on officers.
[^ 2] See 9 FAM 402.12-12(b), Intracompany Transferees - L Visas.
[^ 3] De jure means by law and is a straightforward form of control.
[^ 4] De facto means in fact. See Matter of Hughes (PDF), 18 I&N Dec. 289 (Comm. 1982).
[^ 5] See Matter of Church Scientology Int’l (PDF), 19 I&N Dec. 593 (Comm. 1988).
[^ 6] See documentary requirements for new office cases in 8 CFR 214.2(l)(3)(v) and the discussion in Matter of Leblanc (PDF), 13 I&N Dec. 816 (Reg. Comm. 1971).
[^ 7] See Black's Law Dictionary (11th Ed. 2019).
[^ 8] See INA 101(a)(15)(L).
[^ 9] See Matter of Aphrodite Investments Limited (PDF), 17 I&N Dec. 530 (Comm. 1980).
[^ 10] See 8 CFR 214.2(l)(1)(ii)(G). See the Business Structures overview.
[^ 11] See Matter of M- (PDF), 8 I&N Dec. 24, 50 (BIA 1958, AG 1958). See Matter of Tessel (PDF), 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).
[^ 12] See Matter of Siemens Medical Systems, Inc. (PDF), 19 I&N Dec. 362, 364 (BIA 1986).
[^ 13] See the U.S. Small Business Administration’s Choose a business structure webpage.
[^ 14] See 8 CFR 214.2(l)(1)(ii).
[^ 15] See Internal Revenue Service’s (IRS) Forming a Corporation webpage. See IRS’s Definition of a Corporation webpage.
[^ 16] See 8 CFR 214.2(l)(1)(ii).
[^ 17] See 8 CFR 214.2(l)(1)(ii)(I)-(L).
[^ 18] See Matter of Schick (PDF), 13 I&N Dec. 647, 649 (Reg. Comm. 1970).
[^ 19] See Matter of Soffici (PDF), 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California (PDF), 14 I&N Dec. 190 (Reg. Comm. 1972)). See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010).
[^ 20] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010).
Chapter 6 - Key Concepts
A. Qualifying Organization
A qualifying organization for L-1 purposes is a U.S. or foreign firm, corporation, or other legal entity which:
- Meets exactly one of the qualifying relationships specified in the definitions of parent, branch, affiliate, or subsidiary;
- Is or will be doing business[1] as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the L-1 beneficiary’s stay in the United States as an intracompany transferee; and
- Otherwise meets the statutory definition of a nonimmigrant intracompany transferee.[2]
1. Qualifying Relationship
A qualifying relationship exists when the U.S. employer is a branch, affiliate, parent or a subsidiary of the foreign firm, corporation, or other legal entity. To establish a qualifying relationship, the petitioner must show that the beneficiary’s foreign employer and the proposed U.S. employer are either the same employer (for example, a U.S. entity with a foreign branch office) or related as a parent and subsidiary or as affiliates.
In situations where the petitioner has submitted documentation of a qualifying relationship through possession of proxy votes, the petitioner must show that the proxy votes are irrevocable from the time of filing through the time of adjudication.
Further, any approval is conditioned on evidence demonstrating that the qualifying relationship will continue to exist during the approval period requested. Any changes of ownership and control of the organization post-adjudication require the petitioner to file an amended petition, as such changes may constitute a material change in circumstances or represent new, material information.[3]
Stock certificates or other evidence of ownership interests, standing alone, generally are not sufficient to establish that a qualifying relationship exists. For instance, in the case of a corporation, documents such as the corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings when appropriate, should also be examined to determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control.
When appropriate, officers should ask a petitioning company to provide all agreements relating to the voting rights of owners, the distribution of profits, the management and direction of the petitioning company, and any other factor affecting actual control of the entity. Without full disclosure of all relevant documents, officers may be unable to determine the elements of ownership and control.[4] Officers may require evidence of the acquisition of the actual ownership interest (such as capital investment, wire transfers, stock purchase agreements, or others) as additional supporting evidence.[5]
The most common types of business relationships that are not qualifying under the L category are those based on contractual, licensing, and franchise agreements. Additional non-qualifying relationships include arrangements such as less than 50-50 joint ventures and charter membership arrangements.[6]
Publicly traded companies regulated by the U.S. Securities and Exchange Commission (SEC) may submit copies of annual reports, where probative, as evidence of their affiliates and subsidiaries. Most annual reports list the company’s foreign affiliates and subsidiaries, along with the company’s ownership interest (for example, controlling, not controlling, and joint venture). Annual reports are frequently prepared by major accounting firms and include audited financial statements. Evidence may also include copies of SEC Forms 10K and 10Q.
Where one or both of the qualifying entities has undergone or will undergo a corporate reorganization (such as merger, spin-off, or acquisition), officers must determine whether the qualifying relationship between the entities will exist following the reorganization. Officers should therefore review standard documents from the merger, including but not limited to: the letter of intent, minutes from shareholder meetings, the Hart-Scott-Rodino antitrust filings (if applicable), as well as the ultimate merger agreement. Unless the company is publicly traded, officers may encounter privacy concerns regarding proprietary or confidential transactional and financial information. In such a case, if a petitioner is unable or unwilling to provide information, adjudicators should determine whether the existing record leads to a finding that the petitioner’s burden has been met.
2. Parent and Subsidiary
A parent is a firm, corporation, or other legal entity that owns another firm, corporation, or other legal entity that qualifies as its subsidiary.[7] A parent owns a subsidiary when it:
- Owns more than 50 percent (directly or indirectly) of the entity and controls the entity;
- Owns 50 percent (directly or indirectly) of the entity and controls the entity;
- Owns 50 percent (directly or indirectly) of the entity that is a 50-50 joint venture and has equal control and veto power over the entity; or
- Owns less than 50 percent (directly or indirectly) of the entity but in fact controls the entity.[8]
Therefore, ownership and control are two of the factors that officers must examine in determining whether a qualifying L-1 relationship exists between the foreign employer and the U.S. employer.
Ownership means the legal right of possession with full power and authority to control. Control means the right and authority to direct the management and operations of the business entity.[9]
3. Affiliate
An affiliate meets one of the following:
- One of two or more subsidiaries, all of which are owned and controlled[10] by the same parent;
- One of two or more legal entities owned and controlled by the same person;
- One of two or more legal entities owned and controlled by the same group of persons, each person owning and controlling approximately the same share or proportion of each entity;[11] or
- In the case of a partnership organized to provide accounting or management consulting services, an entity inside the United States is an affiliate of an entity outside the United States if:
- The entities market their accounting or management consulting services (directly or indirectly) using the same internationally recognized name, under an agreement with the same worldwide coordinating organization; and
- The worldwide coordinating organization is collectively owned and controlled by the member accounting or management consulting entities or by their elected members (that is, partners, shareholders, members, employees).
Once these entities meet this definition of affiliate, they continue to be affiliates even if they subsequently enter a plan of association with a successor worldwide coordinating organization that is not collectively owned and controlled by its member entities or their elected members.
4. Branch
Branch means an operating division or office of the same organization housed in a different location.[12] Probative evidence that the U.S. employer is a branch office may include but is not limited to one or more of the following:[13]
- A state or territorial business license establishing that the foreign corporation is authorized to engage in business activities in the United States;
- Copies of the U.S. Income Tax Return of a Foreign Corporation (IRS Form 1120-F);
- Copies of the Employer’s Quarterly Federal Tax Return (IRS Form 941) listing the branch office as the employer;
- Copies of the Wage and Tax Statement (IRS Form W-2) listing the branch office as the employer; or
- Copies of a lease for office space in the United States.
If the petitioner seeks to transfer the beneficiary from a foreign branch office, the petition should include comparable evidence to establish that the foreign employer is a branch office of a qualifying entity.
B. Doing Business
Doing business is the regular, systematic, and continuous provision of goods or services by a qualifying organization. Therefore, the mere presence of an organization’s office or agent in the United States does not, in and of itself, constitute doing business.[14] Both the U.S. employer and at least one qualifying organization abroad must be doing business for the entire duration of the beneficiary’s stay in the United States as an intracompany transferee.[15] Doing business requires activity, not just registration of the business or office or presence of an agent.[16]
An exception exists for petitioners filing for an L-1 beneficiary coming to be employed by a U.S. organization that has been doing business for less than 1 year. Such a petitioner does not have to be actively engaged in doing business at the time of filing the petition. Instead, the petitioner must submit evidence that it has secured sufficient physical premises to house the new office, and the intended U.S. operation, within 1 year of the approval of the petition, will support an executive, managerial, or specialized knowledge position.[17]
1. Foreign Employer Must Continue to Do Business
There must be a qualifying organization abroad that continues to engage in the regular, systematic, and continuous provision of goods and services for the entire duration of the L-1 beneficiary’s stay for a qualifying relationship to exist.[18]
The presence of a dormant corporation, an agent, or a holding company abroad is not sufficient to establish a qualifying relationship for L-1 purposes. However, the organization does not have to be the same organization that employed the beneficiary abroad.
2. Determination of Doing Business
While the petitioner must show the organization is involved in the continuous provision of goods or services, there is no statutory or regulatory minimum level of business activity that must be conducted for the U.S. and the foreign organizations to meet this eligibility requirement.
However, the organization must be conducting business in a manner that would require the services of a person primarily engaged in a managerial, executive, or specialized knowledge capacity.[19]
In order to make a determination that the organization is conducting sufficient business to require the services of a managerial capacity, executive capacity, or specialized knowledge employee, the organization’s personnel structure and the beneficiary’s stated duties must be placed in the context of the level of business that is being conducted by the organization.
C. Managerial Capacity
Managerial capacity means an assignment within an organization in which the employee primarily:[20]
- Manages the organization, or a department, subdivision, function, or component of the organization;
- Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization or a department or subdivision of the organization;
- If another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organization hierarchy or with respect to the function managed; and
- Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.[21]
This means that the definition of managerial capacity has two parts:
- The petitioner must show that the beneficiary will perform certain high-level responsibilities;[22] and
- The petitioner must prove that the beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational activities alongside the petitioner’s other employees.[23]
The statutory definition of managerial capacity allows for both personnel managers and function managers.[24]
1. Personnel Manager
Personnel managers must primarily supervise and control the work of other supervisory, professional, or managerial employees. A first line supervisor is not acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.[25]
If a beneficiary directly supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those actions for HR personnel to take, and take other personnel actions.[26]
If staffing levels are to be used as a factor in determining whether the beneficiary has acted or will be acting in a managerial capacity, officers must consider the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function.[27]
Officers should evaluate a position that is primarily supervisory in nature as a personnel manager.[28]
2. Function Manager
As noted above, an L-1 beneficiary may qualify for L-1A classification as a manager based upon their management of an essential function or a core activity.[29] This is known as a function manager.
If a petitioner claims that a beneficiary will manage an essential function, the petitioner must clearly describe the duties to be performed in managing the essential function. That includes identifying the function with specificity, articulating the essential nature of the function, and establishing the proportion of a beneficiary’s daily duties dedicated to managing the essential function.[30]
In addition, the petitioner’s description of a beneficiary’s daily duties must demonstrate that the beneficiary will manage the function rather than perform the duties related to the function.
To qualify as a function manager, the petitioner must demonstrate that:[31]
- The function is a clearly defined activity;
- The function is essential (that is, core to the organization);
- The beneficiary will primarily manage, as opposed to perform, the function;
- The beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and
- The beneficiary will exercise discretion over the function’s day-to-day operations.
D. Executive Capacity
Executive capacity means an assignment within an organization in which the employee primarily:
- Directs the management of the organization or a major component or function of the organization;
- Establishes the goal and policies of the organization, component, or function;
- Exercises wide latitude in discretionary decision; and
- Receives only general supervision or direction from higher level executives, the board of directors, or stockholder of the organization.[32]
All four criteria must be met to qualify as an executive.[33]
An L-1 beneficiary is not acting in an executive capacity merely based on the number of employees that the beneficiary directs or has directed. However, if staffing levels are used as a factor in determining whether an L-1 beneficiary has acted or will be acting in an executive capacity, officers must consider the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function.[34]
An executive directs the management of the organization, major component, or essential function of a given organization by controlling the work of managerial or lower-level executive employees. This control could either take the form of direct supervision of those managers or executives or could be more indirect under some circumstances. For example, a chief financial officer may not have managerial or executive subordinates, but still may have authority over the company’s financial function that is binding on managers elsewhere in the company and affects their work.
Like managerial capacity, the definition of executive capacity has two parts. To demonstrate executive capacity, the petitioner must:
- Show that the beneficiary will perform certain high-level responsibilities;[35] and
- Prove that the beneficiary will be primarily engaged in executive duties, as opposed to ordinary operational activities alongside the petitioner’s other employees.[36]
Reciting the beneficiary’s vague job responsibilities or broadly-cast business objectives is not sufficient – the petitioner must provide a detailed description of the beneficiary’s daily job duties. The actual duties themselves will reveal the true nature of the employment.[37]
E. Specialized Knowledge
Specialized knowledge means:
- Special knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets; or
- An advanced level of knowledge or expertise in the organization’s processes and procedures.[38]
The corresponding regulation similarly defines specialized knowledge in terms of special or advanced knowledge: “[S]pecial knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”[39]
Because the statute and regulations do not define the terms special or advanced, USCIS refers to their common dictionary definitions, as well as the agency’s practice and experience in this context. The term special is defined in leading dictionaries as “surpassing the usual,” “distinct among others of a kind,” “distinguished by some unusual quality,” “uncommon,” or “noteworthy.”[40]
The term advanced is defined in various dictionaries as “greatly developed beyond an initial stage,” or “ahead or far or further along in progress, complexity, knowledge, skill, etc.”[41]
Applying these definitions to the statutory and regulatory text, a beneficiary seeking L-1B classification for certain specialized knowledge persons and professionals[42] should, as a threshold matter, possess:
- Special knowledge, which is knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the industry; or
- Advanced knowledge, which is knowledge of or expertise in the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity, and understanding than that generally found within the employer.
F. New Office
A new office is an organization that has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than 1 year.[43]
Because the term organization in the definition of new office is not separately defined, it can be either a U.S. or foreign corporation or other legal entity.[44] The requisite less than 1 year limitation applies to the new offices that meet any of the four individual entity types – parent, branch, subsidiary, or affiliate.[45] Among the factors to be considered are the amount of investment, intended personnel structure, product or service to be provided, physical premises, and viability of the foreign operation.
G. One-Year Foreign Employment Requirement
To qualify for L-1 nonimmigrant classification, among other requirements, the L-1 beneficiary must have been employed abroad by the qualifying organization for 1 continuous year out of the preceding 3 years.
1. Qualifying Employment Must Occur Outside the United States
The 1-year foreign employment requirement is only satisfied by the time a beneficiary spends physically outside the United States working full-time for the petitioner or a qualifying organization.[46] A petitioner cannot use any time that the beneficiary spent in the United States to meet the 1-year foreign employment requirement, even if the qualifying foreign entity paid the beneficiary and continued to employ the beneficiary while the beneficiary was in the United States. Furthermore, the continuous year of foreign employment must be qualifying; that is, the petitioner must demonstrate that the beneficiary worked abroad during that period in a managerial, executive, or specialized knowledge capacity.
2. Requirement Must be Satisfied When Petitioner Files L-1 Petition
The beneficiary must meet the 1-year foreign employment requirement at the time that the petitioner files the L-1 petition.
The 1-year foreign employment requirement ensures the continuity of a beneficiary’s lawful employment with the same international qualifying organization, consistent with the purpose of the intracompany transferee nonimmigrant classification. Therefore, the proper reference point for determining the 1-year foreign employment requirement is the date the petitioner files the initial L-1 petition on the beneficiary’s behalf, the starting point in the alien’s application for admission in L-1 status.
When the petitioner requests an extension of L-1 status (including a change from L-1A to L-1B status, or a change from L-1B to L-1A status), the 1-year requirement must have been met at the time of the filing of the initial L-1 petition.
3. Brief Visits to United States and Tolling of 1-Year Period
Brief visits for business or pleasure in B-1 or B-2 status do not interrupt the 1-year foreign employment requirement. While a qualifying foreign entity employs a beneficiary abroad, brief trips to the United States for business or pleasure in B-1 or B-2 status toll[47] the one continuous year of employment abroad. Therefore, in such cases, officers should subtract the number of days the beneficiary spent in the United States from the time the qualifying foreign entity employed the beneficiary abroad.
For example, if the qualifying foreign entity began employing the beneficiary on January 1, 2016, and the beneficiary made brief trips to the United States that year for a total of 60 days, the beneficiary would need to accrue at least an additional 60 days of qualifying employment abroad after January 1, 2017 to meet the 1-year foreign employment requirement.
4. Working in United States for Qualifying Organization Results in Adjustment of 3-Year Period
Time a beneficiary spent working in the United States for a qualifying organization does not count towards the 1-year foreign employment requirement; however, this time does result in an adjustment of the 3-year period, in that the running of the 3-year period is tolled during that period.
USCIS considers a nonimmigrant in the United States to have come to this country to work for the qualifying organization if the nonimmigrant is employed by that organization as a principal beneficiary of an employment-based nonimmigrant petition or application, such as H-1B or E-2 executive, supervisory, or essential employee. If the beneficiary was admitted to work for the qualifying organization, their U.S. employment for the qualifying organization need not be in a managerial, executive, or specialized knowledge capacity to affect the dates of the relevant 3-year period used to determine whether the 1-year foreign employment requirement has been satisfied.
For example, if a beneficiary worked in the United States in valid H-1B status for a qualifying organization from January 2, 2017 through January 2, 2018, and the petitioner filed for L-1 nonimmigrant status for the employee on January 2, 2018, the relevant 3-year period is from January 1, 2014 to January 1, 2017.
On the other hand, the time a beneficiary spent working while in a dependent status does not result in an adjustment of the 3-year period. For example, time spent by a beneficiary in L-2 status does not result in an adjustment of the 3-year period, because the beneficiary was admitted as an L-2 to join the L-1 principal and not to work for a qualifying organization.
Likewise, if a beneficiary was admitted as an F-1 nonimmigrant and later applies for optional practical training (OPT) employment with the qualifying organization, the time spent in F-1 nonimmigrant status does not result in an adjustment to the 3-year period, because the purpose of admission was for study and not to work for the qualifying organization.
The time a beneficiary spent in the United States working for an unrelated employer, or not working at all, also does not result in an adjustment of the 3-year period. A break longer than 2 years in employment with the qualifying organization during the 3 years preceding the filing of the L-1 petition renders the beneficiary unable to meet the 1-year foreign employment requirement.
Periods the beneficiary spent in the United States without working (except for brief visits for business or pleasure in B-1 or B-2 status), or while working for an unrelated employer, interrupt the 1-year continuous foreign employment requirement, and officers should not adjust the 3-year period.
An otherwise eligible beneficiary may again qualify for the L-1 classification following a new 1-year period during which the beneficiary is employed by the qualifying organization abroad in a managerial, executive, or specialized knowledge capacity.
The relevant point in time for an officer to determine whether a beneficiary satisfies the 1-year foreign employment requirement is the date on which the petitioner filed the initial L-1 petition, regardless of when the beneficiary was, or will be, admitted to the United States.
5. Calculating 1-Year Period
Officers should take the following steps when determining whether the petitioner has established the 1-year foreign employment requirement. Officers should always look back 3 years from the date the initial L-1 petition was filed and then follow the steps listed in the table below.
Determining Whether Petitioner Established 1-Year Foreign Employment Requirement |
---|
Step 1: Determine the dates the beneficiary worked for the qualifying organization abroad. |
Step 2: Determine lengths of any breaks in the beneficiary’s qualifying employment during the 3-year period immediately before petitioner filed the L-1 petition. If the beneficiary has lawfully worked for a qualifying organization in the United States as a principal beneficiary of an employment-based nonimmigrant petition or application, adjust the 3-year period accordingly. |
Step 3: Subtract the total length of all the breaks identified in Step 2 from the relevant 3-year period. If the result is a continuous 1-year period within the relevant 3-year period, then the petitioner has met the 1-year foreign employment requirement. |
Footnotes
[^ 1] For more information about doing business, see Section B, Doing Business [2 USCIS-PM L.6(B)].
[^ 2] See INA 101(a)(15)(L). See 8 CFR 214.2(l)(1)(ii)(G).
[^ 3] See 8 CFR 214.2(l)(7)(i)(C).
[^ 4] See Matter of Siemens Medical Systems, Inc. (PDF), 19 I&N Dec. 362 (Comm. 1986).
[^ 5] See 8 CFR 214.2(l)(3)(viii).
[^ 6] See discussions of various qualifying and non-qualifying relationships in Matter of Schick (PDF), 13 I&N Dec. 647 (Reg. Comm. 1970); Matter of Del Mar Ben, Inc. (PDF), 15 I&N Dec. 5 (Reg. Comm. 1974); Matter of Aphrodite Investments, Ltd. (PDF), 17 I&N Dec. 530 (Comm. 1980); Matter of Tessel, Inc. (PDF), 17 I&N Dec. 631 (Acting Assoc. Comm. 1981); Matter of Barsai (PDF), 18 I&N Dec. 13 (Reg. Comm. 1981); Matter of Hughes (PDF), 18 I&N Dec. 289 (Comm. 1982); and Matter of Siemens Medical Systems, Inc. (PDF), 19 I&N Dec. 362 (Comm. 1986).
[^ 7] See 8 CFR 214.2(l)(1)(ii)(I).
[^ 8] See 8 CFR 214.2(l)(1)(ii)(K).
[^ 9] See Matter of Church Scientology International (PDF), 19 I&N Dec. 593 (Comm. 1988). See Matter of Siemens Medical Systems, Inc. (PDF), 19 I&N Dec. 362 (Comm. 1986). See Matter of Hughes (PDF), 18 I&N Dec. 289 (Comm. 1982).
[^ 10] Ownership and control are two of the factors that officers must examine in determining whether an affiliated relationship exists.
[^ 11] See 8 CFR 214.2(l)(1)(ii)(L).
[^ 12] See 8 CFR 214.2(l)(1)(ii)(J).
[^ 13] No single piece of evidence listed, or lack thereof, necessarily establishes the existence or non-existence of a branch office in all cases. Accordingly, the probative value of the evidence submitted varies on a case-by-case basis.
[^ 14] See 8 CFR 214.2(l)(1)(ii)(H).
[^ 15] See 8 CFR 214.2(l)(1)(ii)(G). See Matter of Chartier (PDF), 16 I&N Dec. 284 (BIA 1977).
[^ 16] See 8 CFR 214.2(l)(1)(ii)(H).
[^ 17] See 8 CFR 214.2(l)(3)(v). See Chapter 8, Documentation and Evidence, Section B, Evidence for Beneficiary (New Office) [2 USCIS-PM L.8(B)].
[^ 18] See 8 CFR 214.2(l)(1)(ii)(G). See Matter of Chartier (PDF), 16 I&N Dec. 284 (BIA 1977).
[^ 19] See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). See Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision).
[^ 20] See Chapter 3, Managers and Executives (L-1A) [2 USCIS-PM L.3].
[^ 21] See INA 101(a)(44)(A). See 8 CFR 214.2(l)(1)(ii)(B).
[^ 22] See Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision).
[^ 23] See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). See Champion World, 940.F.2d 1533 (9th Cir. 1991) (unpublished table decision).
[^ 24] See INA 101(a)(44)(A)(i) and INA 101(a)(44)(A)(ii).
[^ 25] See INA 101(a)(44)(A)(iv). See 8 CFR 214.2(l)(1)(ii)(B)(4).
[^ 26] See 8 CFR 214.2(l)(1)(ii)(B)(3).
[^ 27] See INA 101(a)(44)(C).
[^ 28] See INA 101(a)(44)(A)(ii).
[^ 29] An organization may have more than one core activity.
[^ 30] See 8 CFR 214.2(l)(3)(ii).
[^ 31] See Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017).
[^ 32] See INA 101 (a)(44)(B). See 8 CFR 214.2(l)(1)(ii)(C).
[^ 33] See INA 101 (a)(44)(B). See 8 CFR 214.2(l)(1)(ii)(C).
[^ 35] See Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision).
[^ 36] See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). See Champion World, Inc. v. INS, 940.F.2d 1533 (9th Cir. 1991) (unpublished table decision).
[^ 37] See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2nd Cir. 1990).
[^ 38] See INA 214(c)(2)(B). See 8 CFR 214.2(l)(1)(ii)(D).
[^ 39] See 8 CFR 214.2(l)(1)(ii)(D).
[^ 40] See Merriam-Webster Dictionary’s definition of “special.” See Oxford English Dictionary’s definition of “special."
[^ 41] See Merriam-Webster Dictionary’s definition of “advanced.” See Oxford English Dictionary’s definition of “advanced.”
[^ 42] See Chapter 4, Specialized Knowledge Professionals (L-1B) [2 USCIS-PM L.4].
[^ 43] See 8 CFR 214.2(l)(1)(ii)(F). See Chapter 8, Documentation and Evidence, Section B, Evidence for Beneficiary (New Office) [2 USCIS-PM L.8(B)].
[^ 44] For the definition of qualifying organization, see Section A, Qualifying Organization [2 USCIS-PM L.6(A)].
[^ 45] The regulations separately define parent, branch, subsidiary, and affiliate in 8 CFR 214.2(l)(1)(ii) (8 CFR 214.2(l)(1)(ii)(I), (J), (K), and (L), respectively). The regulations define a branch as “an operating division or office of the same organization housed in a different location,” illustrating that the organization is not limited to only one location in the United States.
[^ 46] For the definition of qualifying organization, see Subsection 1, Qualifying Organization [2 USCIS-PM L.7(D)(1)].
[^ 47] The term toll means that the beneficiary’s time in the United States will count neither towards nor against the 1-year foreign employment requirement.
Chapter 7 - Filing
A. General
USCIS requires a petitioning employer to file a Petition for a Nonimmigrant Worker (Form I-129) with the required fee in order to classify a beneficiary as an L-1 nonimmigrant.[1] Form I-129 must be filed in accordance with DHS regulations and the Form I-129 instructions.[2] To properly submit an L-1 petition on Form I-129, the petitioner should designate the filing as either a:
- Petition for a nonimmigrant worker; or
- Nonimmigrant petition based on blanket petition.
When petitioning USCIS to classify the beneficiary as an L-1 nonimmigrant either individually or under an approved blanket petition, the petitioner must file Form I-129 with USCIS at the proper filing location, with the correct fee and signature.[3] This petition must be filed with the service center that has jurisdiction over L-1 petitions in the geographic area of intended employment.[4]
Nonimmigrant Petition Based on Blanket Petition
If a currently valid L-1 blanket approval is in place,[5] a petitioner may seek to classify the beneficiary as an L-1 nonimmigrant under the approved L-1 blanket petition (but may also file a regular individual L petition for the beneficiary). This is done by filing the Nonimmigrant Petition Based on Blanket L Petition (Form I-129S) either with USCIS at the service center that approved the L-1 blanket petition, with the U.S. Department of State (DOS) at a U.S. embassy or consulate abroad, or with U.S. Customs and Border Protection (CBP) at a port-of-entry.
In most cases, the L-1 beneficiary submits the Form I-129S to DOS when applying for an L-1 visa at a U.S. embassy or consulate. If the beneficiary is exempt from the visa requirement, the petitioner may file the Form I-129S with USCIS at the proper filing location.[6]
When the temporary employment will be in different locations, the state or territory where the petitioning company or organization’s primary office is located determines the appropriate service center to send the Form I-129S package, regardless of where in the United States the various worksites are located.[7]
The filing location for a petition seeking an extension of stay may be different from the location for a petition requesting original classification.
Time of Filing
A petitioner may not file the L-1 petition with USCIS more than 6 months before the beneficiary’s start date. The petitioner indicates the start date on the Form I-129. In general, USCIS should process L petitions within 30 days of receipt.[8] The petitioner must fulfill all eligibility requirements as of the filing date of the petition.[9]
B. Fees
The appropriate filing fees must accompany an L-1 petition. In addition to the base filing fee, there are additional fees imposed by statute.
Base Filing Fee
There is a base filing fee for petitions filed on a Form I-129. There is no base filing fee for a Form I-129S. USCIS posts current fee information on the Filing Fees webpage.
Fraud Prevention and Detection Fee
In addition to the base filing fee, the L-1 petitioner must pay a Fraud Prevention and Detection Fee of $500 when:
- The petition is for an initial grant of L-1 classification for the beneficiary;
- The petition is for a change of status to L-1 classification; or
- The petition is to obtain authorization for an L-1 beneficiary to change employers.[10]
If one of the above scenarios applies, the petitioner must pay the fee regardless of the type of petition filed or where or with which agency it is filed.
If the beneficiary is changing status from H-1B with the same employer, the $500 fraud fee is required because such a change is considered an initial grant of L-1 classification.
Consolidated Appropriations Act of 2016
On December 18, 2015, the Consolidated Appropriations Act of 2016 (referred to as Public Law 114-113) became law.[11] Public Law 114-113 imposes an additional fee of $4,500 for certain L-1A and L-1B petitions beyond the base fee, Fraud Prevention and Detection Fee, as well as any premium processing fee, if applicable. This Public Law 114-113 fee is in effect until September 30, 2027.
A nonimmigrant petition for L-1 status postmarked on or after December 18, 2015, through September 30, 2027, must include this fee if the petition requests:
- An initial grant of L-1A or L-1B status or authorization to change employers; and
- The petitioner employs 50 or more employees in the United States, and more than 50 percent of those employees are in H-1B or L-1 status.
USCIS requires this fee when the petitioner requests a change of status from H-1B to an initial grant of L-1 for the same beneficiary to perform essentially the same job.
All the petitioner’s employees in the United States should be counted when determining whether it is subject to the Public Law 114-113 fee. If a petitioner claims exemption from this fee based on a combination of employees within a controlled group of corporations, a Request for Evidence may be appropriate to request clarification about the number of the petitioner’s employees in the United States.
When determining the total number of employees in the United States for the purpose of the Public Law 114-113 fee, petitioners should not include:
- Employees from partnerships, proprietorships (or others), which are under common control;
- Employees from affiliated service groups; and
- Leased employees.
Footnotes
[^ 1] See 8 CFR 103.2(a)(1).
[^ 2] See 8 CFR 103.2(a)(1). In addition, see the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker webpage.
[^ 3] See 8 CFR 103.2.
[^ 4] See the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker webpage. Canadian L-1 beneficiaries seeking admission under the blanket petition L process have the option of applying for L-1 classification in conjunction with their application for L-1 admission to the United States. In these cases, the beneficiary presents the signed petition, fees, and supporting documentation to a CBP officer at certain ports-of-entry (POEs) on the United States-Canada land border or at a U.S. pre-clearance or pre-flight inspection station in Canada (pre-flight station).
[^ 5] Once a petitioner meets the filing requirements for L-1 blanket petitions and USCIS determines there are qualifying entities, USCIS prepares a list of all qualifying entities. USCIS sends the list with the approval notice for the petition. The approval notice means that it is permissible for any of the qualifying entities to petition to transfer an employee from any approved foreign entity to any approved U.S. entity.
[^ 6] Canadian L-1 beneficiaries have the option of applying for L-1 classification under the approved blanket in conjunction with an application for L-1 admission to the United States. In these cases, the beneficiary presents the signed Form I-129, applicable fees, and supporting documentation to a CBP officer at certain POEs or certain pre-flight inspection stations.
[^ 7] For example, if the beneficiary will work in Arizona and Texas, and the petitioning company’s primary office is in New York, then USCIS treats New York as the workplace for filing location purposes. If the beneficiary will work in Florida and Georgia, and the petitioning company’s primary office is in California, then USCIS treats California as the workplace for filing purposes. USCIS requires the petitioner to provide certain evidence if an L-1B beneficiary is to be stationed in the United States primarily at a worksite outside that of the petitioner (or its parent, branches, affiliates, or subsidiaries). The offsite placement must be in connection with an exchange of products or services between the petitioning company and the unaffiliated company for which specialized knowledge specific to the petitioning company is required.
[^ 8] See INA 214(c)(2)(C). See 8 CFR 214.2(l)(7)(i).
[^ 9] See 8 CFR 103.2(b)(1) and 8 CFR 103.2(b)(12).
[^ 10] See INA 214(c)(12)(A).
[^ 11] See Pub. L. 114-113 (PDF) (December 18, 2015).
Chapter 8 - Documentation and Evidence
Eligibility at Time of Filing
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit sought at the time the petitioner files the petition.[1] A petition may not be approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts.[2]
Named Beneficiary
The petitioner must name the beneficiary of an L-1 petition on the petition.
Multiple Beneficiaries on a Petition Not Permitted
A petitioner may not file for multiple beneficiaries on an L-1 petition. USCIS permits only one beneficiary on an L-1 petition.
Signature
An authorized signatory of the petitioner must sign the petition.[3] USCIS may deny an L-1 petition for failing to establish eligibility for the benefit sought if the petition was accepted as signed, but it was not signed by an authorized signatory.
Burden of Proof[4]
It is the petitioner’s burden to provide the documentation required to establish eligibility for L classification. The regulations do not require submission of extensive evidence of business relationships or of the beneficiary’s prior and proposed employment. In some cases, completion of the items on the petition and supplementary explanations by an authorized official of the petitioning company may be sufficient. In doubtful or marginal cases, officers may require other appropriate evidence which they deem necessary to establish eligibility in a particular case.
Amended Petition
An amended petition requires the same base filing fee, if applicable, as a new petition. USCIS may not require certain additional fees. Because the amended petition supplements the original petition, USCIS does not require duplicate documents submitted with the original filing. However, a petitioner must provide evidence addressing the change that led to the filing of the amended petition. Changes requiring amended petitions include:
-
Changes in approved relationships;
-
Additional qualifying organizations under a blanket petition;
-
Change in capacity of employment (for example, from specialized knowledge position to a managerial or executive position); or
-
Any information that would affect the beneficiary’s eligibility under INA 101(a)(15)(L).[5]
A. Evidence for Beneficiary (Non-New Office)
When seeking L-1 classification on behalf of a beneficiary, the petitioner must submit the following:
-
Evidence that the petitioner is a qualifying organization. If the petitioner is included on an L-1 blanket approval, then the petitioner must submit evidence that the approved blanket petition included this evidence and meets this requirement. If there is no L-1 blanket approval, the petitioner must provide the following evidence to demonstrate that it is a qualifying organization:
-
Evidence that the petitioner is a U.S. or foreign firm, corporation, or other legal entity;
-
Evidence that the petitioner is a parent, branch, affiliate, or subsidiary;
-
Evidence that the petitioner is doing business as an employer in the United States and at least one other country directly or through a parent, branch, affiliate, or subsidiary and will be doing such business for the duration of the beneficiary’s stay in the United States as an L-1 nonimmigrant;
-
Evidence that the beneficiary’s prospective L-1 employment in the United States will be primarily in a managerial or executive capacity, or will involve specialized knowledge; and
-
Evidence that the beneficiary was employed abroad by the petitioner, or its parent, branch, affiliate, or subsidiary, on a full-time basis for at least 1 of the last 3 years in a managerial, executive, or specialized knowledge capacity.[6] The company does not have to transfer the beneficiary to the United States in the same capacity in which the beneficiary was employed abroad. For example, a company may transfer a manager abroad to the United States as an L-1 beneficiary to work in a position that primarily involves specialized knowledge.[7]
-
Evidence of Doing Business
Primary documentary evidence of an organization’s business activities includes, but is not limited to:
-
Annual reports, containing audited or reviewed financial statements;
-
Audited financial statements;
-
Reviewed financial statements; and
-
Federal tax returns.
However, the petitioner may submit a variety of documents to establish that the U.S. and foreign organizations are doing business. For example, a petitioner may submit a letter that describes the nature and level of business activity conducted by the organization. If requesting a beneficiary to perform duties that are primarily managerial or executive in nature, the petitioner may provide a statement that clearly describes the organization’s manner of doing business, such as:
-
The business activities in which the employing organization engages.
-
How the beneficiary’s position is, or was, related to the organization’s strategic or operational goals.
-
The records may also contain various documents as evidence of the organizations’ business activities. The documentary evidence the petitioner submitted should corroborate the petitioner’s statements. Depending on the totality of the evidence, a descriptive letter may meet the petitioner’s burden of proof.
Annual Reports
All publicly traded corporations in the United States publish annual reports. Many foreign organizations also publish annual reports. Annual reports provide information describing the organization’s:
-
Products and services;
-
Management and personnel structure;
-
Ownership and control;
-
Subsidiaries, affiliates, joint ventures, and branch offices; and
-
Current and long-term objectives.
In addition, annual reports should include audited or reviewed financial statements for the past year.
Federal Tax Returns
In general, organizations conducting business in the United States must file federal tax returns each year. Federal tax returns are designed to present information in a manner that is similar to the income statement and balance sheet format.
If organization is a… |
Tax return is Form… |
Tax return provides a modified income statement |
Tax return provides a modified balance sheet |
---|---|---|---|
Corporation |
1120 or 1120EZ |
X |
X |
S Corporation |
1120S or 1120EZ |
X |
X |
Partnership |
1065 |
X |
X |
Sole Proprietorship |
1040, with Schedule C |
X |
|
Non-Profit |
990 or 990EZ |
X |
X |
Limited Liability Company (LLC) |
1120 or 1065 (may be 1040 with Schedule C for a single member LLC owned by a person) |
X |
|
Foreign Tax Documentation
Officers should consider the following regarding foreign tax documentation:
-
The petitioner may provide copies of foreign tax returns as evidence of the business activities of the foreign entity;
-
Canada and most Western European countries require tax returns that are very similar to the United States’ tax returns and are usually credible; and
-
Many other countries rely on hand-written tax returns and receipts that are less reliable.
Calendar or Fiscal Year
Organizations publish annual reports and financial statements, and file tax returns based on either a calendar or fiscal year.
If reporting year is a… |
Then the year starts on… |
And ends on… |
---|---|---|
Calendar year |
January 1st |
December 31st |
Fiscal Year |
The 1st day of any month other than January |
The last day of any month other than December |
Change of Year for Tax Purposes
An organization cannot change its year for tax purposes (for example, from a fiscal year to a calendar year) without permission from the IRS. Tax returns for consecutive years that have different reporting years may be an indication that the documents are fraudulent. In addition, the ending balances on the balance sheet for 1 year should match the beginning balances for the next year.
B. Evidence for Beneficiary (New Office)
Officers may grant an otherwise eligible petitioner a request for classification as a new office in cases where an established company opens a new office in a new location in the United States, provided it meets the definition of a new office.[8] The petition must clearly indicate that the petitioner is requesting adjudication under the new office provisions and explain how the new office meets the applicable requirements discussed below.[9] A petition submitted for what would otherwise appear to be a new office, but that does not contain this request, may be adjudicated under the same standards and requirements applicable to a typical (non-new office) petition.
Special Consideration: L-1A New Office Petitions
The L-1A new office petitioner must establish that the intended operation, within 1 year of petition approval, will support an executive or managerial position.[10] Therefore, the petitioner must provide information regarding:
-
The proposed nature of the office describing the scope of the entity as well as its organizational structure and financial goals;
-
The size of the U.S. investment and the financial ability of the foreign entity to remunerate the beneficiary; and
-
The organizational structure of the foreign entity.
If coming to the United States to fill a managerial or executive capacity role, the beneficiary’s qualifying experience abroad must have been in a managerial or executive capacity.[11] Unlike other L-1 petitions, eligibility for L-1A new office approval may not be established through qualifying experience involving specialized knowledge.[12]
A manager or executive who is required to open a new business or office may be more actively involved in day-to-day operations during the initial phases of the business, but the manager or executive must also have authority and intent to hire staff and have wide latitude in making decisions about the goals and management of the organization.
In addition, the petitioner must demonstrate that sufficient physical premises to house the new office have been secured.[13]
Special Consideration: L-1B New Office Petitions
If the U.S. entity has been doing business for 1 year or less, the beneficiary, as is the case of other L-1B beneficiaries, must have specialized knowledge. Additionally, the petitioner must demonstrate that sufficient physical premises to house the new office have been secured and that it has the financial ability to remunerate the beneficiary and to commence doing business in the United States.[14]
Extension of L-1 New Office Petitions
The initial approval of a new office individual petition is limited to a period not to exceed 1 year.[15] After the first year, the validity of the new office petition may be extended for the same beneficiary for a period of up to 2 years. Extension of the new office petition requires that the petitioner provide the following:[16]
-
Evidence that the United States and foreign entities are still qualifying organizations;[17]
-
Evidence that the United States entity has been doing business;[18]
-
A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition;
-
A statement describing the staffing of the new operation, including the number of employees and types of positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a managerial or executive capacity; and
-
Evidence of the financial status of the U.S. operation. As an example, evidence may include, but is not limited to, evidence of capitalization of the company or evidence of financial resources committed by the foreign company, articles of incorporation, by-laws, minutes of board of directors’ meetings, corporate bank statements, profit and loss statements or other accountant’s reports, or tax returns.
Following approval of the initial extension of a new office petition, the petitioner is no longer subject to the new office extension provisions; any future extension filing is treated as a regular individual L extension.[19]
C. Special Considerations
Attestations for L-1A Petitions
An attestation that foreign staff will support a position in the United States without supporting evidence generally is not enough to demonstrate eligibility. It is the petitioner’s burden to meet the preponderance of the evidence standard. Types of evidence submitted include, but are not limited to:
-
Organizational charts (U.S. and foreign);
-
A roster of employees;
-
Position descriptions;
-
Payroll records with job titles of the staff supporting the U.S. entity; and
-
Invoices for services provided by the foreign entity to U.S. entity, other accounting records between the entities (or both).
A petitioner may submit any evidence it believes will prove its case, and officers must consider the totality of all the evidence submitted.[20]
Evidence Related to Managerial or Executive Positions for L-1A Petitions
The employing organization must be doing business in a manner that would require the beneficiary to perform duties that are primarily managerial or executive in nature. The petitioner may provide a statement that clearly describes:
-
The business activities in which the employing organization engages; and
-
How the beneficiary’s position relates to organization’s strategic or operational goals.
The record may also contain various documents as evidence of the organizations’ business activities. The documentary evidence submitted should corroborate the petitioner’s statements.
To make an accurate determination of the eligibility of the beneficiary’s position, either in or outside the United States, the petitioner must provide a description of the beneficiary’s duties placed in the context of:
-
The personnel structure of the organization; and
-
The nature and scope of the business that it conducts.
Where an organization employs only a few people yet claims that the majority of its employees are primarily engaged as managers or executives, officers may request complete position descriptions and hourly breakdowns for the duties performed by all of the people employed by the organization, including one for the beneficiary, as well as copies of corroborative payroll documentation.
Officers may use the position descriptions and payroll documentation to determine who is performing the non-qualifying, operational duties of the business. The entity may be substantial in size, but the department or division where the beneficiary is, or will be, employed may be top-heavy with managers and executives. If the employer is a large organization, officers should limit detailed staffing inquiries to the department or division where the beneficiary has been or will be employed.
On the other hand, the evidence may indicate that the business employs only one or two people, including the beneficiary. In such cases, officers may find it helpful to try to determine who is performing the non-managerial operational duties of the business. The business may not directly employ people to perform the non-managerial services of the business. Instead, the business may contract out some of its functions such as accounting, sales, warehousing, and personnel.
When evaluating the nature of a claimed managerial or executive position, the officer must review the petition and supporting evidence to establish that the beneficiary’s employment qualifies for L-1 purposes.
The evidence must demonstrate the employer’s business activities in a manner that allows for a clear understanding of the products and services that it provides, and how the beneficiary’s position fits into its organizational hierarchy.
A petitioner may not claim to employ a beneficiary as a hybrid executive-manager and rely on partial sections of the two statutory definitions. If the petitioner chooses to represent the beneficiary as both an executive and a manager, it must still establish that the beneficiary is engaged in duties that are primarily either managerial or executive and that the beneficiary meets all four criteria of that definition.
L-1B Petitions
Officers can perform their adjudicatory function most effectively when the petitioner explains in detail the specific nature of the industry or field involved, the nature of the petitioning organization’s products or services, the nature of the specialized knowledge required to perform the beneficiary’s duties, and the need for the beneficiary’s specialized knowledge. To show that the offered position in the United States involves specialized knowledge, the petitioner must submit a detailed description of the services to be performed.[21]
A petitioner’s statement may be persuasive evidence if detailed, specific, and credible. Officers may, in appropriate cases, however, request further evidence to support a petitioner’s statement, bearing in mind that there may be cases involving circumstances that may be difficult to document other than through a petitioner’s own statement.
The petitioner must also submit evidence that the beneficiary’s prior education, training, and employment qualifies the beneficiary to perform the intended services in the United States.[22] While the petitioner is required in all cases to compare the beneficiary’s knowledge to that of others, the petitioner may also be able to demonstrate the nature of the claimed specialized knowledge by, among other things, indicating how and when the beneficiary gained such knowledge or explaining the difficulty of imparting such knowledge to others without significant cost or disruption to its business.
Other evidence that a petitioner may submit to demonstrate that a person’s knowledge is special or advanced, includes, but is not limited to:
-
Documentation of training, work experience, or education establishing the number of years the beneficiary has been using or developing the claimed specialized knowledge as an employee of the petitioning organization or in the industry;
-
Evidence of the impact, if any, the transfer of the beneficiary would have on the petitioning organization’s U.S. operations;
-
Evidence that the beneficiary is qualified to contribute significantly to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the petitioning organization’s U.S. operations;
-
Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace;
-
Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the petitioning organization’s productivity, competitiveness, image, or financial position;
-
Personnel or in-house training records that establish that the beneficiary gained the claimed specialized knowledge through prior experience or training with the petitioning organization;
-
Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that the organization cannot transfer or teach to another person without significant economic cost or inconvenience;
-
Evidence of patents, trademarks, licenses, or contracts awarded to the petitioning organization based on the beneficiary’s work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization; and
-
Payroll documents, federal, state, or other governmental wage statements, documentation of other forms of compensation, resumés, organizational charts, or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning organization.
Knowledge that is commonly held, lacking in complexity, or easily imparted to others is not specialized knowledge. A petitioner may submit any other evidence it chooses. In all cases, USCIS reviews the entire record to determine whether the petitioner has established, by a preponderance of the evidence, that the beneficiary has specialized knowledge under the totality of the circumstances, in accordance with the standards set forth in the relevant statutes and regulations.
Merely stating that a beneficiary’s knowledge is somehow different from others or greatly developed does not, in and of itself, establish that the beneficiary possesses specialized knowledge. Ultimately, it is the weight and type of evidence that establishes whether the beneficiary possesses specialized knowledge.
L-1 Blanket Petitions
A petitioner may seek continuing approval of itself and some or all its parent, branches, subsidiaries, and affiliates as qualifying organizations by filing an L-1 blanket petition. A blanket petition is not filed on behalf of a beneficiary, but, rather, to obtain preapproval of related entities. In support of a blanket petition, the petitioner must submit evidence:
-
That each of the entities included in the requested list of entities are engaged in commercial trade or services;
-
That the petitioning organization has an office in the United States that has been doing business for 1 year or more;
-
That the petitioning organization has three or more domestic and foreign branches, subsidiaries, or affiliates;
-
That the petitioner and the other qualifying organizations have:
-
Obtained approval of petitions for at least 10 “L” managers, executives, or specialized knowledge workers during the previous 12 months;
-
U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or
-
A U.S. workforce of at least 1,000 employees;[23]
-
-
That each entity is doing business; and
-
Of the ownership and control of all the entities as USCIS can only approve those entities meeting the definition of a qualifying organization.
The petitioner should list all the foreign entities and all the U.S. entities for which it seeks blanket preapproval.[24]
Footnotes
[^ 1] See 8 CFR 103.2(b)(1).
[^ 2] See Matter of Michelin Tire Corp. (PDF), 17 I&N Dec. 248 (Reg. Comm. 1978). See Matter of Katigbak (PDF), 14 I&N Dec. 45, 49 (Reg. Comm. 1971).
[^ 3] See 8 CFR 103.2(a)(2). See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2].
[^ 4] The burden of evidence is a preponderance, which means it is more likely than not. See INS v. Cardoza-Fonseca (PDF), 480 U.S. 421 (1987) (defining more likely than not as a greater than 50 percent probability of something occurring). See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M (PDF)-, 20 I&N Dec. 77, 79-80 (Comm. 1989)). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 5] See 8 CFR 214.2(l)(7)(i)(C).
[^ 6] For more information on the 1-year foreign employment requirement, see Chapter 6, Key Concepts, Section G, One-Year Foreign Employment Requirement [2 USCIS-PM L.6(G)].
[^ 7] See Matter of Vaillancourt (PDF), 13 I&N Dec. 654 (Reg. Comm. 1970).
[^ 8] See 8 CFR 214.2(l)(1)(ii)(F). For the definition of new office, see Chapter 6, Key Concepts, Section F, New Office [2 USCIS-PM L.6(F)].
[^ 9] Ideally, this should include an affirmative response to the corresponding question on the Petition for Nonimmigrant Worker (Form I-129). However, if no response is given, but it is clear to the officer based on the materials submitted that the petitioner seeks approval for a new office, the officer may proceed accordingly.
[^ 10] See 8 CFR 214.2(l)(3)(v)(C).
[^ 11] See 8 CFR 214.2(l)(3)(v)(B).
[^ 12] In contrast to the L-1A new office beneficiary, a beneficiary of an L-1B new office petition may qualify for such classification through employment in a managerial, executive, or specialized knowledge capacity.
[^ 13] See 8 CFR 214.2(l)(3)(v)(A).
[^ 14] See 8 CFR 214.2(l)(3)(vi).
[^ 15] See 8 CFR 214.2(l)(7)(i)(A)(3).
[^ 16] See 8 CFR 214.2(l)(14)(ii).
[^ 17] See 8 CFR 214.2(l)(1)(ii)(G).
[^ 18] See 8 CFR 214.2(l)(1)(ii)(H).
[^ 19] See 8 CFR 214.2(l)(14)(i).
[^ 20] Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016), does not change the fact that it is the petitioner’s burden to demonstrate by a preponderance of evidence standard that the duties of the beneficiary’s position will be primarily managerial in nature.
[^ 21] See 8 CFR 214.2(l)(3)(ii).
[^ 22] See 8 CFR 214.2(l)(3)(iv).
[^ 23] See 8 CFR 214.2(l)(4)(i).
[^ 24] See 8 CFR 214.2(l)(4)(iv)(B) and 8 CFR 214.2(l)(1)(ii)(G).
Chapter 9 - Adjudication
A. General Issues
Officers must carefully review each petition for an L-1 intracompany transferee to ensure compliance with the intent of the L-1 category to allow foreign businesses to transfer certain employees to their U.S. operations. Unless specifically provided otherwise, officers should apply a preponderance of the evidence standard when evaluating eligibility for the benefit sought.[1] It is the petitioner’s burden to prove eligibility for the benefit sought.[2]
B. Evaluating Primary Evidence
There are various categories of evidence routinely submitted to document an organization’s business activities. The submission of what USCIS considers to be credible evidence is not equivalent to meeting the eligibility criteria. In other words, the petitioner may submit a tax return and it may be considered credible evidence, but the information provided on the tax return may fail to establish that the eligibility requirement has been met.
Primary evidence of an organization’s business activities should corroborate the statements made in the petitioner’s letter. In the instance where documentation conflicts with the petitioner’s statements, the officer should request further clarification, along with corroborative documentary evidence.
Requests for Evidence
A Request for Evidence (RFE) may be appropriate when the initial review of the record does not establish that the petitioner has met all the eligibility requirements.[3] In addition, an RFE[4] should be sent where:
- The record contains evidence of material fraud or misrepresentation; or
- The officer has knowledge of previous mala fide petitions from the same petitioner.
The RFE should:
- Identify each of the areas of eligibility the petitioner has not met;
- Discuss what is deficient with any evidence already provided; and
- Provide examples of evidence that the petitioner could provide to meet the area of eligibility.
C. Special Adjudicative Issues
1. Iran Sanctions
Executive Order 12959[5] imposed economic sanctions against Iran that prohibit, among other things, the importation of Iranian services where the alien is performing such service as an agent, employee, or contractor of the Iranian government or a business or other organization in Iran. However, a Petition for a Nonimmigrant Worker (Form I-129) for an Iranian citizen may be approved if the Iranian is:
- Not normally a resident of Iran; and
- Not working in a way connected to:
- The Iranian government (excluding diplomatic and consular services);
- An Iranian business;
- An Iranian organization; or
- Any person located in Iran.[6]
2. USMCA (formerly NAFTA) Petitions
Petitions filed pursuant to the North American Free Trade Agreement (NAFTA) were forwarded, and U.S.-Mexico-Canada Agreement (USMCA) L-1 petitions from ports of entry (POEs) continue to be forwarded, from U.S. Customs and Border Protection (CBP) to USCIS.[7] These petitions have already been adjudicated, all the information on the petitions (including the approval stamp) has been completed, and the beneficiaries have already entered the country.[8]
The U.S.-Mexico-Canada Agreement
USMCA is a trade agreement between the three countries named in the agreement and replaces NAFTA. The USMCA entered into force on July 1, 2020.[9] The USMCA does not make any changes to the immigration chapter of NAFTA. Even though the USMCA replaces NAFTA, the USMCA retains all substantive elements of the former NAFTA, as well as all other classifications.[10]
D. Decision
1. Approvals
An approval is appropriate if the necessary supporting documents are present, and the petition appears to be approvable in all respects. The initial approval period is up to 3 years, except that, if the petitioner is a new office, the approval period is limited to 1 year.[11]
A blanket petition may be approved for an initial period of 3 years and may be extended indefinitely afterwards if the qualifying organizations have complied with the program requirements.[12]
Extensions of stay are granted in 2-year increments. The dates of employment (admission and extension periods), however, must be within the statutory limits for the L nonimmigrant classification: 7 years for executive and managerial employment (L-1A nonimmigrants), and 5 years for specialized knowledge (L-1B nonimmigrants).
2. Revocations
USCIS may revoke a petition at any time, even after the expiration of a petition.[13] USCIS must send the petitioner a notice of intent to revoke the petition based on one or more of the following grounds of revocation:
- One or more entities are no longer qualifying organizations;
- The beneficiary is no longer eligible under INA 101(a)(15)(L);
- A qualifying organization violated the requirements of INA 101(a)(15)(L) and 8 CFR 214.2(l);
- The statement of facts contained in the petition was not true and correct;
- Approval of the petition involved gross error;[14] or
- None of the qualifying organizations in a blanket petition have used the blanket petition procedure for 3 consecutive years.[15]
USCIS must consider all relevant evidence in deciding whether to revoke the petition.[16]
3. Denials
Notice of Intent to Deny
When an adverse decision is proposed based on the evidence submitted by the petitioner, USCIS may notify the petitioner of the intent to deny the petition and the basis for the denial.[17] In that situation, the Notice of Intent to Deny (NOID) specifies the basis for the proposed denial sufficient to give the petitioner adequate notice and sufficient information to respond.[18]
When an adverse decision is based on derogatory information considered by USCIS and of which the petitioner is unaware, USCIS must notify the petitioner of the intent to deny the petition and the basis for the denial.[19]
USCIS provides exactly 30 days from the date of the NOID for the petitioner to inspect and rebut the derogatory evidence.[20] Any explanation, rebuttal, or information presented by or on behalf of the petitioner shall be included in the record of proceeding.[21]
The NOID should contain:
- A statement that identifies the specific areas of eligibility that the petitioner does not appear to have met;
- A description of the specific reasons for the determination that the areas of eligibility have not been met; and
- A discussion of the most persuasive evidence the petitioner could submit to overcome the reasons for denial.
Denial Notices
If USCIS denies the petition, USCIS provides a notice that includes the reasons for denial and any rights to appeal the denial.[22]
The denial order should discuss all areas of eligibility not met by the petitioner and include a description of the reason or reasons for the determination.
In cases involving an extension of stay or change of status request, USCIS may find the nonimmigrant petition warrants approval, but the evidence of record reveals that the beneficiary is ineligible to extend or change their nonimmigrant status. In these instances, a separate denial notice must be prepared that addresses the ineligibility of the beneficiary for the requested change or extension of stay.[23]
Footnotes
[^ 1] See INS v. Cardoza-Fonseca (PDF), 480 U.S. 421 (1987) (defining more likely than not as a greater than 50 percent probability of something occurring). See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M- (PDF), 20 I&N Dec. 77, 79-80 (Comm. 1989)).
[^ 2] See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966).
[^ 3] For a full discussion on RFEs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 4] Officers may issue a Notice of Intent to Deny (NOID) consistent with USCIS guidance.
[^ 5] See Prohibiting Certain Transactions with Respect to Iran (PDF), 60 FR 24757 (May 6, 1995).
[^ 6] See 31 CFR 560.306(d).
[^ 7] Filing of L-1 petitions for Canadian citizens under NAFTA may be made at a class A POE located on the United States-Canada land border or United States pre-flight station in Canada. See 8 CFR 214.2(l)(17)(ii).
[^ 8] From April 30, 2018 to April 30, 2020, the California Service Center and the CBP Blaine, Washington POE participated in a joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under NAFTA.
[^ 9] See the United States-Mexico-Canada Agreement Implementation Act, Pub. L. 116-113 (PDF) (January 29, 2020).
[^ 10] For example, the TN designation continues to be used for NAFTA-USMCA professionals. TN admissions under NAFTA were governed by the list of professionals in Appendix 1603.D.1 to Annex 1603 of NAFTA. Under the USMCA, TN admissions are governed by the (identical) list of professionals in USMCA, Chapter 16, Appendix 2.
[^ 11] See 8 CFR 214.2(l)(7)(i)(A).
[^ 12] See 8 CFR 214.2(l)(7)(i)(B).
[^ 13] See 8 CFR 214.2(l)(9)(i).
[^ 14] See 8 CFR 214.2(l)(9)(iii)(A).
[^ 15] See 8 CFR 214.2(l)(9)(iii)(A).
[^ 16] See 8 CFR 214.2(l)(9)(iii)(B).
[^ 17] See 8 CFR 103.2(b)(8)(iii) (explaining that USCIS may deny the petition, issue an RFE, or notify the petitioner of the intent to deny). For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 9, Rendering a Decision, Section B, Denials [1 USCIS-PM E.9(B)].
[^ 18] See 8 CFR 103.2(b)(8)(iv).
[^ 19] See 8 CFR 103.2(b)(16)(i).
[^ 20] The applicant has up to 3 more days after the 30-day period for responding to a NOID in cases where USCIS has mailed the request. See 8 CFR 103.8(b). For more information on timeframes and responses to Requests for Evidence and Notices of Intent to Deny, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 21] See 8 CFR 214.2(l)(9)(iii)(B).
[^ 22] See 8 CFR 214.2(l)(8)(ii).
[^ 23] There is no appeal from the denial of an application for extension of stay. See 8 CFR 214.1(c)(5).
Chapter 10 - Period of Stay
A. Limitations on Periods of Stay
A beneficiary who has spent the maximum period of 5 years in the United States in a specialized knowledge capacity or 7 years in the United States in a managerial or executive capacity, or as a temporary worker (H nonimmigrant) or intracompany transferee (L nonimmigrant),[1] may not be readmitted to the United States as a temporary worker or intracompany transferee, and USCIS may not approve a new individual petition for such classification, unless and until the beneficiary has resided and been physically present outside the United States for the immediate prior year.[2] Brief trips to the United States for business or pleasure do not interrupt the required 1 year outside the United States, but do not count towards fulfillment of that requirement.[3]
The limitations on periods of stay do not apply to beneficiaries:
-
Who do not reside continually in the United States; and
-
Whose employment in the United States is seasonal, intermittent, or consists of an aggregate of 6 months or less per year.[4]
In addition, the limitations do not apply to beneficiaries who reside abroad and regularly commute to the United States to engage in part-time employment. The burden is on the petitioner and the beneficiary to establish that the beneficiary qualifies for an exception.[5]
If Classification is ... |
The Maximum Period of Stay is ... |
---|---|
Manager or executive (L-1A nonimmigrant) |
7 years |
Specialized knowledge (L-1B nonimmigrant) |
5 years |
L-1 blanket petition |
3 years for initial petition, with an extension for an indefinite period possible |
B. Extensions of Stay
Extensions can be granted in up to 2-year increments until the maximum period of stay is reached.[6] Officers should combine periods of stay in the H and L categories in determining whether the beneficiary has reached the 5- or 7-year limitation, including periods of H or L stay for previous employers and not just the current employer.[7]
An initial blanket petition is approvable for 3 years.[8] Approving an amended blanket petition during this validity period does not affect a beneficiary’s period of stay; the validity period end date of the amended petition remains the same as the end date of the original approval. Requests to extend a blanket petition on a Petition for a Nonimmigrant Worker (Form I-129) may be filed up to 6 months before the expiration of the initial 3-year validity period, and the petitioner may request that such validity be extended indefinitely.[9] If USCIS approves the blanket petition extension, the validity period begins the day after the expiration of the initial approval and continues indefinitely. If USCIS denies the extension request, the petitioner and its qualifying organizations must wait 3 years to file another blanket petition. In the interim, organizations must file individual petitions for beneficiaries.[10]
The expiration of the blanket petition does not adversely affect an L-1 beneficiary’s status if the U.S. entity continues to have at least one foreign qualifying organization. If the petitioner fails to timely file a blanket petition extension, it may not transfer new employees or file a request to extend a beneficiary’s expiring L-1 status under the expired blanket petition. In that case the petitioner must file an individual petition. If the blanket extension is later approved, then the organization may resume transferring individuals under the blanket petition.[11]
If a petitioner is requesting an extension of the L-1 blanket petition, the petitioner must provide the following evidence:[12]
-
A list of the beneficiaries admitted under the blanket petition during the preceding 3 years, with the following information for each beneficiary:
-
Positions held during that period;
-
The employing entity; and
-
The dates of initial admission and final departure, if applicable, of each beneficiary;
-
-
A statement from the petitioner indicating whether it still meets the blanket petition criteria; and
-
Documentation to support any changes in approved relationships and additional qualifying organizations.
C. Change from Specialized Knowledge Capacity to Manager or Executive (or vice versa)
When a beneficiary is initially admitted to the United States in a specialized knowledge capacity and is later promoted to a managerial or executive position, the beneficiary must have been employed in the managerial or executive position for at least 6 months to be eligible for the total period of stay of 7 years.[13]
If the 6-month rule is met, and the beneficiary qualifies as a manager or executive, then USCIS may approve the extension of stay request. However, if the beneficiary travels outside the United States and seeks readmission, the beneficiary must consular process and obtain the appropriate visa to be readmitted to the United States.
Extensions for managers or executives where the prior approval was limited to a short period could be an indicator that the beneficiary was not eligible to extend beyond the 5-year mark due to the regulatory requirement. The beneficiary must qualify to be classified as a manager or executive at the time of filing.[14]
The change to managerial or executive capacity must have been approved by USCIS in an amended, new, or extended petition at the time that the change occurred.[15]
D. Change of Status
In addition to all the requirements governing the L classification, change of status requests to the L classification from another nonimmigrant classification must establish that:
-
The beneficiary entered the United States legally;
-
The beneficiary has never worked in the United States illegally, or otherwise violated the terms of their visa or nonimmigrant status; and
-
The expiration date on the beneficiary’s I-94 has not passed.[16]
Footnotes
[^ 1] Under INA 101(a)(15)(H) or INA 101(a)(15)(L).
[^ 2] See 8 CFR 214.2(l)(12)(i).
[^ 3] See 8 CFR 214.2(l)(12)(i).
[^ 4] See 8 CFR 214.2(l)(12)(ii).
[^ 5] See 8 CFR 214.2(l)(12)(ii).
[^ 6] See 8 CFR 214.2(l)(15).
[^ 7] For example, a beneficiary is present in the United States in L-1B nonimmigrant status for 3 years; the beneficiary was in H-1B nonimmigrant status for the 2-year period immediately preceding the change to L-1B status. The beneficiary is subject to the 5-year limit because the combined H and L stay in the United States is 5 years. As a result, the beneficiary cannot obtain an extension of L status.
[^ 8] See 8 CFR 214.2(l)(11).
[^ 9] See 8 CFR 214.2(l)(7)(i)(B)(2).
[^ 10] See 8 CFR 214.2(l)(14)(iii)(B).
[^ 11] See 8 CFR 214.2(l)(7)(i)(B)(2).
[^ 12] See 8 CFR 214.2(l)(4)(iii)(A).
[^ 13] See 8 CFR 214.2(l)(15)(ii).
[^ 14] See 8 CFR 214.2(l)(15)(ii).
[^ 15] See 8 CFR 214.2(l)(15)(ii).
[^ 16] See 8 CFR 248.1(b) for information on timely filing and maintenance of status, and circumstances when failure to file timely may be excused in the discretion of USCIS.
Part M - Nonimmigrants of Extraordinary Ability or Achievement (O)
Chapter 1 - Purpose and Background
A. Purpose
The Immigration and Nationality Act (INA) and implementing regulations provide that certain employers or agents may petition in the O-1 visa category for nonimmigrants who have extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim.[1] The O-1 visa category may also include those who have a demonstrated a record of extraordinary achievement in the motion picture and television industry.[2]
The INA and implementing regulations also provide that certain employers or agents may petition for accompanying aliens (O-2 classification) who seek to enter the United States temporarily and solely for the purpose of accompanying and assisting in the artistic or athletic performance by the O-1 artist or athlete.[3]
B. Background
The Immigration Act of 1990 added the O nonimmigrant classification, providing for the admission of aliens of extraordinary ability.[4] However, because of the passage of the Armed Forces Immigration Adjustment Act, implementation of certain O classification provisions were delayed until April 1, 1992.[5] Before Congress enacted these laws, artists, athletes, and other performers were admitted under the H-1 (distinguished merit and ability), H-2, or B-1 visa categories.
C. Legal Authorities
- INA 101(a)(15)(O) - Definition of O nonimmigrant classification
- INA 101(a)(46) - Definition of extraordinary ability in the arts
- INA 214 - Admission of nonimmigrants
- 8 CFR 214.2(o) - Special requirements for admission, extension, and maintenance of status ("Aliens of extraordinary ability or achievement")
Footnotes
[^ 1] See INA 101(a)(15)(O)(i).
[^ 2] See INA 101(a)(15)(O)(i).
[^ 3] See INA 101(a)(15)(O)(ii).
[^ 4] See Pub. L. 101-649 (PDF), 104 Stat. 4978 (November 29, 1990).
[^ 5] See Pub. L. 102-110 (PDF), 105 Stat. 555 (October 1, 1991).
Chapter 2 - Eligibility for O Classification
A. General
The O nonimmigrant classification allows the following aliens to enter the United States or change status from another nonimmigrant category:
- Nonimmigrants of extraordinary ability in the sciences, arts, education, business, or athletics (O-1 nonimmigrants);
- Nonimmigrants of extraordinary achievement in the motion picture or television industry (O-1 nonimmigrants); and
- Certain nonimmigrants accompanying and assisting an O-1 nonimmigrant (O-2 nonimmigrants).
B. Eligibility Requirements
In general, the beneficiary of a petition for O nonimmigrant classification must meet certain eligibility requirements, among others, as applicable:
O-1 Extraordinary Ability in Sciences, Education, Business, or Athletics (commonly referred to as O-1A)
- The beneficiary has extraordinary ability in the sciences, education, business, or athletics, which has been demonstrated by sustained national or international acclaim; and
- The beneficiary seeks to enter the United States to continue work in the area of extraordinary ability.[1]
O-1 Extraordinary Ability in Arts (commonly referred to as O-1B (Arts))
- The beneficiary has extraordinary ability in the arts, which has been demonstrated by sustained national or international acclaim; and
- The beneficiary seeks to enter the United States to continue work in the area of extraordinary ability.[2]
O-1 Extraordinary Achievement in Motion Picture or Television Industry (commonly referred to as O-1B (MPTV))
- The beneficiary has a demonstrated record of extraordinary achievement in motion picture or television productions; and
- The beneficiary seeks to enter the United States to continue work in the area of extraordinary achievement.[3]
O-2 Accompanying Principal O-1 Beneficiary (Essential Support Personnel)
- The O-2 beneficiary seeks to enter the United States temporarily and solely for the purpose of accompanying and assisting in the artistic or athletic performance by an O-1 beneficiary who is admitted for a specific event or events;
- Is an integral part of such actual performance(s) or event(s);
- Has critical skills and experience with the O-1 beneficiary, which are not of a general nature and are not possessed by a U.S. worker; and
- Has a foreign residence which the O-2 has no intention of abandoning.
In cases involving a motion picture or television production, the O-2 beneficiary must also have skills and experience with the O-1 beneficiary that are not of a general nature and are critical either:
- Based on a pre-existing longstanding working relationship; or
- With respect to a specific production because significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the O-2 beneficiary is essential to the successful completion of the production.[4]
Footnotes
[^ 1] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(1)(ii)(A)(1).
[^ 2] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(1)(ii)(A)(1).
[^ 3] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(1)(ii)(A)(2).
[^ 4] See INA 101(a)(15)(O)(ii). See 8 CFR 214.2(o)(1)(ii)(B).
Chapter 3 - Petitioners
A. Eligible Petitioners
A U.S. employer may file an O-1 or O-2 Petition for a Nonimmigrant Worker (Form I-129). A U.S. agent may also file such a petition when it involves workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in its behalf. A U.S. agent may be:
- The actual employer of the beneficiary;
- The representative of both the employer and the beneficiary; or
- A person or entity authorized by the employer to act for, or in place of, the employer as its agent.[1]
O beneficiaries may not petition for themselves.[2] However, a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file the petition on their behalf.
B. Petitioner Obligations
In the case of an O-1 or O-2 beneficiary whose employment terminates for reasons other than voluntary resignation, the employer whose offer of employment formed the basis of such nonimmigrant status and the petitioner (if different from the employer) are jointly and severally liable for the reasonable cost of return transportation of the beneficiary to his or her last place of residence prior to his or her entry into the United States.[3]
A petitioner must immediately notify USCIS of any changes in the terms and conditions of employment of a beneficiary that may affect eligibility under INA 101(a)(15)(O) and 8 CFR 214.2(o). The petitioner should file an amended petition when the petitioner continues to employ the beneficiary. If the petitioner no longer employs the beneficiary, the petitioner must send a letter explaining the change(s) to the USCIS office that approved the petition.[4]
C. Agents
A U.S. agent[5] may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act in its behalf. A U.S. agent may be:
- The actual employer of the beneficiary;
- The representative of both the employer and the beneficiary; or
- A person or entity authorized by the employer to act for, or in place of, the employer as its agent.[6]
A petition filed by an agent is subject to several conditions. A petition involving multiple employers may be filed by a person or company in business as an agent that acts as an agent for both the employers and the beneficiary, if:
- The supporting documentation includes a complete itinerary of the event or events;
- The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed;
- The contracts between the employers and the beneficiary are submitted; and
- The agent explains the terms and conditions of the employment and provides any required documentation.[7]
An agent may be the actual employer of the beneficiary. In order to be eligible to file a petition on behalf of the beneficiary as his or her agent and on behalf of other (multiple) employers of the beneficiary, the petitioner must meet the conditions described above and establish that it is "in business as an agent" (as described below).
The regulations do not specify the evidence for establishing that the petitioner of multiple employers is "in business as an agent." Officers consider evidence that shows that it is more likely than not that the petitioner is in business as an agent for the series of events, services, or engagements that are the subject of the petition. The focus is on whether the petitioner can establish that it is authorized to act as an agent for the other employers for purposes of filing the petition. This means that the petitioner does not have to demonstrate that it normally serves as an agent outside the context of the petition.
The petitioner seeking to serve as an agent for the beneficiary or for other employers must establish that it is duly authorized to act as their agent. An officer may determine that this requirement has been satisfied if, for example, the petitioner presents a document signed by the beneficiary's other employer(s) that states that the petitioner is authorized to act in that employer's place as an agent for the limited purpose of filing the petition with USCIS.[8]
Other examples of probative evidence that may demonstrate that the petitioner "is in business as an agent" may include:
- A statement confirming the relevant information (itinerary, names and addresses of the series of employers) signed by the petitioner and the series of employers;
- Other types of agency representation contracts;
- Fee arrangements; or
- Statements from the other employers regarding the nature of the petitioner's representation of the employers and beneficiary.
While evidence of compensation could help establish that the petitioner is in business as an agent, compensation is not a requirement to establish an agency. Again, the officer must evaluate each case based on the facts presented.
Assuming that the petition is approvable and the petitioner has established that it is authorized to act as an agent in order to file the petition on behalf of the other employers, the validity period should last for the duration of the qualifying events, not to exceed the maximum allowable validity period for the classification being sought.[9] If the petition is approvable but the petitioner has not established that it is authorized by the other employers to file the petition on behalf of the other employers (including after responding to a Request for Evidence), the validity period should be limited to the qualifying events for which the petitioner will be directly employing the beneficiary. The validity period cannot exceed the maximum allowable validity period for the classification being sought.
Footnotes
[^ 1] See 8 CFR 214.2(o)(2)(iv)(E).
[^ 2] See 8 CFR 214.2(o)(2)(i).
[^ 3] See 8 CFR 214.2(o)(16).
[^ 4] See 8 CFR 214.2(o)(8)(i)(A).
[^ 5] Much of the USCIS policy relating to agents derives from USCIS Memorandum, PM HQ 70/6.2.18, HQ 70/6.2.19, “Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications,” issued on November 20, 2009.
[^ 6] See 8 CFR 214.2(o)(2)(iv)(E). For more information on agents, see the O Nonimmigrant Classifications: Question and Answers webpage.
[^ 7] See 8 CFR 214.2(o)(2)(iv)(B) and 8 CFR 214.2(o)(2)(iv)(E)(2). All O petitions must include contracts between the employers and the beneficiary. See 8 CFR 214.2(o)(2)(iv)(E)(2).
[^ 8] No particular form or specific language is required to be submitted with a petition to establish agency. Officers should not issue Requests for Evidence requiring a particular form or specific language in the agency agreement, but should focus on whether the petitioning agent has shown that it has obtained authorization from the other employer(s) to file a petition on their behalf.
[^ 9] See 8 CFR 214.2(o)(6)(iii) and 8 CFR 214.2(o)(12)(ii). See Chapter 9, Admission, Extension of Stay, Change of Status, and Change of Employer [2 USCIS-PM M.9].
Chapter 4 - O-1 Beneficiaries
A. Standard for Classification
In order to qualify as an alien of “extraordinary ability” in the sciences, education, business, or athletics (commonly referred to as O-1A), or in arts (commonly referred to as O-1B (Arts)), a beneficiary must have “sustained national or international acclaim.”[1] With regard to classification to work in motion picture and television productions (commonly referred to as O-1B (MPTV)), a beneficiary must have a demonstrated record of extraordinary achievement.[2] In all cases, an O-1 beneficiary’s achievements must have been recognized in the field through extensive documentation.[3]
The regulations define “extraordinary ability” as applied to the O-1 classification as follows:
- In the field of science, education, business, or athletics: a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.[4]
- In the field of arts: distinction, defined as a high level of achievement in the field of arts, as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.[5]
“Extraordinary achievement” in reference to aliens in the motion picture or television industry (including both performers and others) means a very high level of accomplishment in the motion picture or television industry, as evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.[6]
Determining the Relevant Standard for Artists with Some Connection to MPTV
Some petitions may have elements of both O-1B (Arts) and O-1B (MPTV) classifications and it may not be clear which O-1B classification and definitional standard an officer should apply. For instance, if the beneficiary would be coming to the United States to work as an artist, but some of the artist’s work will be in the motion picture or television industry, it might be unclear whether an officer should apply the requirements for O-1B (Arts) or O-1B (MPTV).[7] In addition, as new forms of media productions, including various types of internet content, emerge, it can be more difficult for officers to determine which productions constitute motion picture or television productions.
Analysis of whether a production is within the motion picture or television industry is not limited to whether it will air on a television screen or in a movie theater, as the industry has grown to encompass some online content. While static web materials and self-produced video blogs and social media content generally do not fall into the MPTV category, USCIS considers streaming movies, web series, commercials, and other programs with formats that correspond to more traditional motion picture and television productions to generally fall within the MPTV industry’s purview. This interpretation of whether a beneficiary is working on a motion picture or television production, and is therefore subject to the O-1B MPTV requirements, generally aligns with that of industry organizations.[8] Accordingly, USCIS may properly consider work on such productions to fall under the O-1B (MPTV) classification.
USCIS interprets the eligibility requirements for O-1B (MPTV) to apply if the beneficiary will perform services for motion picture or television productions while in the United States regardless of other prospective services outside the MPTV industry.[9] If, however, an artist’s work or appearance on an MPTV production is incidental to their non-MPTV work as an artist, the O-1B (MPTV) classification may not be appropriate, and the person may instead seek classification under O-1B (Arts). For example, USCIS does not necessarily consider artists who will be interviewed or will otherwise appear discussing, demonstrating, or promoting their work as an artist in an MPTV production to be working in the MPTV industry.[10] This interpretation reflects USCIS’ longstanding practice, and is consistent with the statute, which includes more stringent consultation requirements for aliens “seeking entry for a motion picture or television production,” and describes eligibility for aliens in this industry separately from those in the “arts,” notwithstanding the artistic nature of their work.[11]
USCIS generally does consider the people employed by the production company to conduct the interview, film the broadcasts, or otherwise perform as paid professionals, to be working in the MPTV industry. Similarly, USCIS considers persons such as hosts or judges cast in a reality-based production to be working in the MPTV industry whereas USCIS does not consider the contestants to be working in the MPTV industry.
B. Determining Eligibility for O-1 Classification
For an O-1 Petition for a Nonimmigrant Worker (Form I-129), the officer must determine whether the beneficiary meets the relevant standard outlined in the statute and regulations.”[12] The regulations describe the various types of evidence the petitioner must submit in support of a petition for each type of O-1 beneficiary. In general, the petition must be accompanied by either evidence of receipt of (or in some categories nomination for) a qualifying award, or at least three alternate forms of evidence. However, an officer cannot make a favorable determination simply because the petitioner has submitted the forms of documentation described in the regulations.
As explained in the preamble to the final rule, the evidentiary requirements are not the standard for the classification, but are instead the mechanism for establishing whether the standard is met.[13] Accordingly, the fact that the petitioner has produced evidence satisfying at least three evidentiary criteria does not necessarily establish that the beneficiary is eligible for the O-1 classification.[14] Rather, USCIS must determine eligibility based on whether the totality of the evidence submitted demonstrates that the beneficiary meets the relevant standard.
More specifically, an officer first determines whether the petitioner has submitted evidence meeting the minimum number of criteria or submitted evidence that the beneficiary received a qualifying award (or nomination, if applicable). If the petitioner meets the evidentiary requirements, the officer must then consider all the evidence in the record in its totality to determine if the beneficiary is an alien of extraordinary ability or achievement as defined in INA 101(a)(15)(O)(i) and 8 CFR 214.2(o).
Satisfying the Evidentiary Requirements
The analysis in this step is limited to determining whether the evidence submitted is comprised of either a qualifying award (or nomination, if applicable), or at least three of the applicable alternate criteria. In determining whether an evidentiary criterion is met, an officer should evaluate the evidence to determine if it falls within the parameters of the applicable regulation. While an officer should consider whether the submitted evidence meets the language of the regulations to determine whether a particular regulatory criterion has been met, no determination is made during this step as to whether or not the evidence is indicative that the beneficiary meets the applicable definitional standard for the classification.[15]
Totality Determination
Providing required evidence does not, in itself, establish that the beneficiary meets the standard for classification as an alien of extraordinary ability or extraordinary achievement. Accordingly, when the evidentiary requirements specified above are satisfied, an officer proceeds to evaluate the totality of all the evidence in the record to determine whether it establishes that the:
- O-1A beneficiary has sustained national or international acclaim and is one of the small percentage who have arisen to the very top of his or her field;[16]
- O-1B (Arts) beneficiary has sustained national or international acclaim and has achieved distinction in the field of arts;[17] or
- O-1B (MPTV) beneficiary has a record of extraordinary achievement in the motion picture and television industry such that he or she has a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the field.[18]
If the officer determines that the petitioner has failed to meet these standards, the officer should articulate the specific reasons as to why the petitioner, by a preponderance of the evidence, has not demonstrated that the beneficiary is a person of extraordinary ability or achievement based on the relevant statutory and regulatory language.
C. O-1A Beneficiaries in Sciences, Education, Business, or Athletics
1. Establishing Eligibility
In support of an O-1A Petition for a Nonimmigrant Worker (Form I-129), the petitioner must establish that the beneficiary:
- Has extraordinary ability in the sciences, education, business, or athletics, which has been demonstrated by sustained national or international acclaim;
- Has achievements that have been recognized in the field through extensive documentation; and
- Is coming to continue work in the area of extraordinary ability (but not necessarily that the particular duties to be performed require someone of such extraordinary ability).[19]
2. Supporting Documentation
The supporting documentation for an O-1A petition must include evidence that the beneficiary has received a major internationally recognized award (such as the Nobel Prize)[20] or satisfies at least three[21] of the following evidentiary criteria:
Criterion 1: Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.[22] |
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First, USCIS determines whether the person was the recipient of prizes or awards in the field of endeavor.[23] A person may rely on a team award, provided the person is one of the recipients of the award.[24] Second, USCIS determines whether the award is a lesser nationally or internationally recognized prize or award which the beneficiary received for excellence in the field of endeavor. This criterion does not require an award or prize to have the same level of recognition and prestige associated with the Nobel Prize or another award that would qualify as a one-time achievement, nor does it require an award or prize to be received at an advanced stage of the beneficiary’s career. Examples of relevant evidence may include, but are not limited to:
Considerations: Relevant considerations include, but are not limited to:
While many scholastic awards do not demonstrate the requisite level of recognition, there may be some that are nationally or internationally recognized as awards for excellence such that they may satisfy the requirements of this criterion. For example, an award available only to persons within a single locality, employer, or school may have little national or international recognition, while an award open to members of a well-known national institution (including an R1 or R2 doctoral university)[25] or professional organization may be nationally recognized. |
Criterion 2: Documentation of the beneficiary’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields.[26] |
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USCIS determines if the association for which the person claims present or past membership requires that members have outstanding achievements in the field as judged by recognized experts in that field. Examples of relevant evidence may include, but are not limited to:
Considerations: The petitioner must show that membership in the association requires outstanding achievements in the field for which classification is sought, as judged by recognized national or international experts. Associations may have multiple levels of membership. The petitioner must show that in order to obtain the level of membership afforded to the beneficiary, the beneficiary was judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. As a possible example, membership in the Institute of Electrical and Electronics Engineers (IEEE) at the IEEE fellow level requires, in part, that a nominee have “accomplishments that have contributed importantly to the advancement or application of engineering, science and technology, bringing the realization of significant value to society,” and nominations are judged by an IEEE council of experts and a committee of current IEEE fellows.[27] As another possible example, membership as a fellow in the Association for the Advancement of Artificial Intelligence (AAAI) is based on recognition of a nominee’s “significant, sustained contributions” to the field of artificial intelligence, and is judged by a panel of current AAAI fellows.[28] Relevant factors that may lead an officer to a conclusion that the person's membership in one or more associations was not based on outstanding achievements in the field include, but are not limited to, instances where the person's membership was based:
|
Criterion 3: Published material in professional or major trade publications or major media about the beneficiary, relating to the beneficiary's work in the field for which classification is sought. This evidence must include the title, date, and author of such published material and any necessary translation.[29] |
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First, USCIS determines whether the published material was related to the person and the person's specific work in the field for which classification is sought. Examples of relevant evidence may include, but are not limited to:
Considerations: Published material that includes only a brief citation or passing reference to the beneficiary’s work is not “about” the beneficiary, relating to the beneficiary’s work in the field, as required under this criterion. However, the beneficiary and the beneficiary’s work need not be the only subject of the material; published material that covers a broader topic but includes a substantial discussion of the beneficiary’s work in the field and mentions the beneficiary in connection to the work may be considered material “about” the beneficiary relating to their work. Moreover, officers may consider material that focuses solely or primarily on work or research being undertaken by the beneficiary or by a team of which the beneficiary is a member, provided that the material mentions the beneficiary in connection with the work, or other evidence in the record documents the beneficiary’s significant role in the work or research. Second, USCIS determines whether the publication qualifies as a professional publication, major trade publication, or major media publication. In evaluating whether a submitted publication is a professional publication, major trade publication, or major media, relevant factors include the intended audience (for professional and major trade publications) and the relative circulation, readership, or viewership (for major trade publications and other major media). |
Criterion 4: Evidence of the beneficiary's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization for which classification is sought.[30] |
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USCIS determines whether the person has acted as the judge of the work of others in the same or an allied field of specialization. Examples of relevant evidence may include, but are not limited to:
Considerations: The petitioner must show that the beneficiary has not only been invited to judge the work of others, but also that the beneficiary actually participated in the judging of the work of others in the same or allied field of specialization. For example, a petitioner might document a beneficiary’s peer review work by submitting a copy of a request from a journal to the beneficiary to do the review, accompanied by evidence confirming that the beneficiary actually completed the review. |
Criterion 5: Evidence of the beneficiary's original scientific, scholarly, or business-related contributions of major significance in the field.[31] |
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First, USCIS determines whether the person has made original contributions in the field. Second, USCIS determines whether the original contributions are of major significance to the field. Examples of relevant evidence may include, but are not limited to:
Considerations: Analysis under this criterion focuses on whether the beneficiary’s original work constitutes major, significant contributions to the field. Evidence that the beneficiary’s work was funded, patented, or published, while potentially demonstrating the work’s originality, will not necessarily establish, on its own, that the work is of major significance to the field. However, published research that has provoked widespread commentary on its importance from others working in the field, and documentation that it has been highly cited relative to other works in that field, may be probative of the significance of the beneficiary’s contributions to the field of endeavor. Similarly, evidence that the beneficiary developed a patented technology that has attracted significant attention or commercialization may establish the significance of the beneficiary’s original contribution to the field. If a patent remains pending, USCIS will likely require additional supporting evidence to document the originality of the beneficiary’s contribution. Detailed letters from experts in the field explaining the nature and significance of the beneficiary’s contribution(s) may also provide valuable context for evaluating the claimed original contributions of major significance, particularly when the record includes documentation corroborating the claimed significance. Submitted letters should specifically describe the beneficiary’s contribution and its significance to the field and should also set forth the basis of the writer’s knowledge and expertise. |
Criterion 6: Evidence of the beneficiary's authorship of scholarly articles in the field, in professional journals, or other major media.[32] |
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First, USCIS determines whether the person has authored scholarly articles in the field. Examples of relevant evidence may include, but are not limited to:
Considerations: In order to meet this criterion, the beneficiary must be a listed author of the submitted article or articles but need not be the sole or first author. A petitioner need not provide evidence that the beneficiary’s published work has been cited to meet this criterion.[34] In addition, the articles must be scholarly. In the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college, university, or research institution. The article is normally peer-reviewed. In general, it should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. In non-academic arenas, a scholarly article should be written for learned persons in that field. Second, USCIS determines whether the publication qualifies as a professional publication, major trade publication, or major media publication. In evaluating whether a submitted publication is a professional publication, major trade publication, or major media, relevant factors include the intended audience (for professional and major trade publications)[35] and the relative circulation, readership, or viewership (for major trade publications and other major media). |
Criterion 7: Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation.[36] |
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First, USCIS determines whether the person has performed in a leading or critical role for an organization, establishment, or a division or department of an organization or establishment. Examples of relevant evidence may include, but are not limited to:
Considerations: To show a critical role, the evidence should establish that the beneficiary has contributed in a way that is of significant importance to the organization or establishment’s activities. To show an essential role, the evidence should establish that the beneficiary’s role is (or was) integral to the entity. A leadership role in an organization often qualifies as critical or essential. For a supporting role to be considered critical or essential, USCIS considers other factors, such as whether the beneficiary’s performance in the role is (or was) integral or important to the organization or establishment’s goals or activities, especially in relation to others in similar positions within the organization. It is not the title of the beneficiary’s role, but rather the beneficiary’s duties and performance in the role that determines whether the role is (or was) critical or essential. Detailed letters from persons with personal knowledge of the significance of the beneficiary’s role can be particularly helpful in analyzing this criterion. The organization need not have directly employed the beneficiary. Similarly, a letter or other documentation from an interested government agency, including a quasi-governmental entity, can serve as relevant evidence if it demonstrates that the agency or entity either funds the beneficiary or funds work in which the beneficiary has a critical or essential role, and explains this role in the funded work. Second, USCIS determines whether the organization or establishment, or the department or division for which the person holds or held a leading or critical role, has a distinguished reputation. Relevant factors for evaluating the reputation of an organization or establishment can include the scale of its customer base, longevity, or relevant media coverage. For academic departments, programs, and institutions, officers may also consider national rankings and receipt of government research grants as positive factors in some cases. For a startup business, officers may consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders commensurate with funding rounds generally achieved for that startup’s stage and industry, as a positive factor regarding its distinguished reputation. |
Criterion 8: Evidence that the beneficiary has either commanded a high salary or will command a high salary or other remuneration for services as evidenced by contracts or other reliable evidence.[38] |
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USCIS determines whether the person has commanded or will command a high salary or other remuneration. Examples of relevant evidence may include, but are not limited to:
Considerations: If the petitioner is claiming to meet this criterion, then the burden is on the petitioner to provide appropriate evidence establishing that the beneficiary’s compensation is high. Such evidence may include documentation demonstrating the beneficiary is highly compensated in relation to others in the field. Evidence regarding whether the person's compensation is high relative to that of others working in the field may take many forms. Examples may include, but are not limited to, geographical or position-appropriate compensation surveys and organizational justifications to pay above the compensation data. The following webpages, among others, may be helpful in evaluating the relative compensation for a given field:
Officers should evaluate persons working outside of the United States based on the wage statistics or comparable evidence for that locality, rather than by simply converting the salary to U.S. dollars and then viewing whether that salary would be considered high in the United States. For entrepreneurs or founders of startup businesses, officers consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders in evaluating the credibility of submitted contracts, job offer letters, or other evidence of prospective salary or remuneration for services. |
3. Comparable Evidence
If the listed criteria are not readily applicable to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.[39]
When a Petitioner May Use Comparable Evidence
Petitioners should submit evidence outlined in the evidentiary criteria if the criteria readily apply to the beneficiary’s occupation.[40] However, if the petitioner establishes that a particular criterion is not readily applicable to the beneficiary’s occupation, the petitioner may then submit evidence that is not specifically described in that criterion but is comparable to that criterion.[41]
A petitioner is not required to show that all or a majority of the criteria do not readily apply to the beneficiary’s occupation before USCIS will accept comparable evidence. Instead, for comparable evidence to be considered, the petitioner must explain why a particular evidentiary criterion listed in the regulations is not readily applicable to the beneficiary’s occupation, as well as why the submitted evidence is “comparable” to that criterion. A general unsupported assertion that the listed criterion does not readily apply to the beneficiary’s occupation is not probative. However, a statement alone can be sufficient if it is detailed, specific, and credible.
Although officers do not consider comparable evidence if the petitioner submits evidence in lieu of a particular criterion that is readily applicable to the beneficiary’s occupation simply because the beneficiary cannot satisfy that criterion, a criterion need not be entirely inapplicable to the beneficiary’s occupation. Rather, comparable evidence is allowed if the petitioner shows that a criterion is not easily applicable to the beneficiary’s job or profession.[42]
As with all O-1A petitions, officers may consider comparable evidence in support of petitions for beneficiaries working in STEM fields. Specifically, if a petitioner demonstrates that a particular criterion does not readily apply to the beneficiary’s occupation, the petitioner may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition.
For instance, if the publication of scholarly articles is not readily applicable to a beneficiary whose occupation is in an industry rather than academia, a petitioner might demonstrate that the beneficiary’s presentation of work at a major trade show is of comparable significance to that criterion. As another example, if the petitioner demonstrates that receipt of a high salary is not readily applicable to the beneficiary’s position as an entrepreneur, the petitioner might present evidence that the beneficiary’s highly valued equity holdings in the startup are of comparable significance to the high salary criterion.
Establishing Eligibility with Comparable Evidence
A petitioner relying on evidence that is comparable to one or more of the criteria listed at 8 CFR 214.2(o)(3)(iii)(B) must still meet at least three separate evidentiary criteria to satisfy the evidence requirements, even if one or more of those criteria are met through evidence that is not specifically described in the regulation but is comparable.[43] While a petitioner relying on comparable evidence is not limited to the kinds of evidence listed in the criteria, the use of comparable evidence does not change the standard for the classification. It remains the petitioner’s burden to establish that the beneficiary has extraordinary ability in the beneficiary's field of endeavor.
4. Evaluating the Totality of the Evidence
When the evidentiary requirements specified above are satisfied, an officer proceeds to evaluate the totality of all the evidence in the record to determine whether the beneficiary has extraordinary ability with sustained national or international acclaim, as described in the O statute and regulations.[44]
At this step, officers may consider any potentially relevant evidence, even if such evidence does not fit one of the above regulatory criteria or was not presented as comparable evidence.
The following are examples of situations where evidence might not directly correspond to the above regulatory criteria or might not be presented as comparable evidence, but would nonetheless be potentially relevant towards demonstrating, in the totality of the evidence, that an O-1A beneficiary is among the small percentage at the top of the field and that the beneficiary has sustained national or international acclaim:[45]
- The record demonstrates that the beneficiary has published articles in particularly highly-ranked journals relative to other journals in the field, as demonstrated by, for example, evidence the petitioner provides regarding the journal’s impact factor.[46] Depending on the level of recognition of the journals in question, as demonstrated by evidence in the record, there may be particular prestige or acclaim associated with publication in such journals, especially if the beneficiary is the most significant contributor to the publication, a senior author, or the sole author of the article or articles.
- The petitioner provides evidence demonstrating that the total rate of citations to the beneficiary’s body of published work is high relative to others in the field, or the beneficiary has a high h-index[47] for the field. Depending on the field and the comparative data the petitioner provides, such evidence may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary is among the small percentage at the top of the field.[48]
- The petitioner documents the beneficiary’s employment or research experience is with leading institutions in the field (such as U.S. universities that have been recognized as having high or very high research activity by the Carnegie Classification of Institutions of Higher Education,[49] foreign universities with comparably high research activity, or a university that is highly regarded according to a widely recognized metric such as the QS World University Rankings[50]). Such employment or experience can be a positive factor toward demonstrating that the beneficiary is among the small percentage at the top of the field.
- The record establishes that the beneficiary has received unsolicited invitations to speak or present research at nationally or internationally recognized conferences in the field. Although such a role for the conference may not rise to the level of a critical or essential capacity, this type of invitation is generally indicative of a person’s high standing and recognition for achievements in the field.
- The record establishes that the beneficiary is named as an investigator, scientist, or researcher on a peer-reviewed and competitively funded U.S. government grant or stipend for STEM research. This type of evidence can be a positive factor indicating a beneficiary is among the small percentage at the top of the beneficiary’s field.
- The record includes a letter or other documentation from an interested government agency, including a quasi-governmental entity, that attests in detail to the beneficiary’s sustained national or international acclaim.
In all cases, the petitioner has the burden of providing sufficient context regarding the above evidence and considerations to demonstrate that the evidence meets the relevant criteria and to establish the beneficiary’s extraordinary ability in the totality of the circumstances.
D. O-1B Beneficiaries in the Arts
1. Establishing Eligibility
In support of an O-1B (Arts) Petition for a Nonimmigrant Worker (Form I-129), the petitioner must establish that the beneficiary:
- Has extraordinary ability in the arts which has been demonstrated by sustained national or international acclaim;
- Has achievements that have been recognized in the field through extensive documentation; and
- Is coming to work in the area of extraordinary ability (but not necessarily that the particular duties to be performed require someone of such extraordinary ability).[51]
2. Supporting Documentation
The supporting documentation for an O-1B (Arts) petition must include evidence that the beneficiary has received, or been nominated for, a significant national or international award or prize in the particular field (such as an Academy Award, Emmy, Grammy, or Director’s Guild Award)[52] or at least three[53] of the following evidentiary criteria:
Criterion 1: Evidence that the beneficiary has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements.[54] |
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This criterion differs from the third criterion, which is specific to organizations and establishments.[55] This criterion requires evidence of:
Evidence may demonstrate a lead role by establishing that the person has a principal role in the event or production. A starring role means a position of great prominence relative to others in the event or production.[56] In evaluating the distinguished reputation of a past production or event, officers may consider factors such as favorable critical reception, high attendance levels, commercial success, or another indicator that the petitioner establishes would tend to distinguish the reputation of an event or production in the relevant field. With regard to demonstrating the distinguished reputation of a prospective event, a petitioner may submit documentation such as advance publicity, endorsements, or other evidence regarding the level of anticipation of the relevant event or production. However, as the available evidence relating to the reputation of a prospective production or event will often be limited, officers may also consider factors such as the reputation of similar past events or productions by the same individuals or entities. In evaluating whether the beneficiary’s participation in a past or future event or production qualifies as lead or starring, officers may consider, for example, whether the beneficiary’s role is highlighted or featured in advertisements, publicity releases, critical reviews, or other materials. The contractual terms offered to the beneficiary may also be relevant to establishing the lead or starring nature of the beneficiary’s participation, especially with regard to a prospective event or production. This criterion does not require that the beneficiary will have a lead or starring role in the specific U.S. events or productions for which O-1 classification is sought, or that such events or productions have a distinguished reputation. It is sufficient for the petitioner to otherwise demonstrate that the beneficiary has performed and will perform a qualifying role in a qualifying production within or outside of the United States. To meet this criterion, the petitioner must submit evidence in the form of critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. Advertisements, publicity releases, and endorsements are promotional materials. Endorsements are public facing and serve a marketing purpose. This exhaustive list does not include unpublished testimonial or recommendation letters. |
Criterion 2: Evidence that the beneficiary has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publication.[57] |
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To meet this criterion, the petitioner must provide evidence that demonstrates the beneficiary is recognized for achievements nationally or internationally, in the form of:
The beneficiary and the beneficiary’s achievements need not be the only subject of the material in order to qualify as published material about the individual as described in this criterion. For example, published material that covers a broader production, exhibition, or topic, but includes a discussion of the beneficiary, or includes a discussion of the beneficiary’s work or achievement and mentions the beneficiary in connection to the work, may be considered material about the beneficiary. Material may be considered by the beneficiary even if the beneficiary is one of multiple authors. In determining whether the submitted evidence demonstrates that the beneficiary has achieved national or international recognition for achievements, officers consider both the content of the published material and the level of recognition enjoyed by the publication in which it appears. For example, favorable coverage or publication of the beneficiary’s work in major media, as demonstrated by high relative circulation, readership, or viewership figures, could establish national or international recognition of the beneficiary’s achievements. |
Criterion 3: Evidence that the beneficiary has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials.[58] |
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This criterion differs from the first criterion, which is specific to productions or events.[59] This criterion requires evidence of:
Evidence may demonstrate a lead role by establishing that the person has a principal role in the organization or establishment. A starring role means a position of great prominence relative to others in the organization.[60] To show a critical role, the evidence should establish that the beneficiary has contributed or will contribute in a way that is of significant importance to the organization or establishment’s activities. Officers consider factors such as whether the beneficiary’s performance in the role has been or will be integral or important to the organization or establishment’s goals or activities, especially in relation to others in similar positions within the organization. Detailed letters from persons with personal knowledge of the significance of the beneficiary’s role can be particularly helpful in addressing this criterion. Letters and testimonials should provide as much detail as possible about the beneficiary’s role and the reputation of the organization or establishment and give the credentials of the author, including the basis of the author’s knowledge of the beneficiary’s role. In addition, the organization or establishment, or the relevant division or department within the entity, must be recognized as having a distinguished reputation. Relevant factors for evaluating the reputation of an entity or its department or division include, but are not limited to, the scale of its customer base, longevity, or relevant media coverage. The organization need not have directly employed the beneficiary. |
Criterion 4: Evidence that the beneficiary has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications.[61] |
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This criterion requires evidence in the form of publications establishing the beneficiary’s record of major commercial or critically acclaimed success. The publications may include print or online publications or transcripts of radio or video coverage. A submitted publication does not have to be primarily about the beneficiary and may be about a production in which the beneficiary performed. However, the record should demonstrate how the production’s major commercial or critically acclaimed success represents the beneficiary’s success. For instance, a petitioner might establish that a production’s success is in some way attributable to the beneficiary based on the significance of the beneficiary’s contributions. A publication reporting the commercial success of the beneficiary or the beneficiary’s work should reflect that the ratings, receipts, sales, revenue, standing, or other occupational achievement represent major successes in the relevant field. If demonstrating critically acclaimed success, the evidence should demonstrate that the beneficiary’s work has received public-facing praise or positive reviews in the relevant field, such as from professional art, television, or film critics. |
Criterion 5: Evidence that the beneficiary has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the beneficiary is engaged. Such testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the beneficiary's achievements.[62] |
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To meet this criterion, the evidence must establish the beneficiary has received significant recognition for one or more achievements from an organization, critic, government agency, or other recognized expert in the field. The word significant in this criterion modifies recognition rather than achievements. Accordingly, although the beneficiary must have one or more achievements, the significance of the recognition is based on who is recognizing the achievements. A testimonial written on behalf of an organization or government agency should explain the basis for the author’s knowledge including the author’s connection to the organization or agency, and the significance of the organization or agency within the relevant field. Likewise, a testimonial from a critic or a recognized expert should explain the basis of the author’s knowledge and describe the author’s credentials including the author’s expertise in the relevant field.[63] The author should also describe and explain the significance of the achievements the author is recognizing. In all cases, a submitted testimonial should detail any achievements that are being recognized by the organization, agency, or individual. However, the testimonial need not describe other types of recognition that the beneficiary has received for a noted achievement. Instead, the testimonial itself may qualify as significant recognition under this criterion when the significance of the recognizing organization, agency, or individual is established. |
Criterion 6: Evidence that the beneficiary has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.[64] |
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To demonstrate that the petitioner meets this criterion, the petitioner should provide appropriate evidence establishing that the beneficiary’s past or future compensation is or will be high relative to others working in the field. When evaluating assertions regarding future compensation, officers may consider the credibility of submitted contracts, job offer letters, or other evidence of prospective salary or remuneration for services. Petitioners often submit wage surveys to show a comparison. Wage survey data, including but not limited to government wage survey data such as the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics, may be helpful in evaluating the relative compensation for a given field. When evaluating whether an accurate comparison is being made between the beneficiary’s documented remuneration and the remuneration in the survey, the following considerations, among others, may be relevant:
Salary rate being measured. Officers consider whether the comparison data measures an hourly rate or an annual salary. Another consideration is how that information compares to the beneficiary’s pay. Many artists (including MPTV) are not paid an hourly rate but instead are paid a daily rate (which may not be equivalent to 8 hours) or are paid a certain amount for a project (involving an unknown number of hours). However, hourly wage data may still be probative if the petitioner submits documentation regarding the number of hours worked. Such documentation can include, but is not limited to, pay statements, personnel records, or testimonial evidence from the relevant employer. |
3. Comparable Evidence
If the criteria are not readily applicable to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.[65]
When a Petitioner May Use Comparable Evidence
Petitioners should submit evidence outlined in the evidentiary criteria if the criteria readily apply to the beneficiary’s occupation.[66] However, if the petitioner establishes that a particular criterion is not readily applicable to the beneficiary’s occupation, the petitioner may then use the comparable evidence provision to submit additional evidence that is not specifically described in that criterion but is comparable to that criterion.
A petitioner is not required to show that all or a majority of the criteria do not readily apply to the beneficiary’s occupation before USCIS will accept comparable evidence. Instead, for comparable evidence to be considered, the petitioner must explain why a particular evidentiary criterion listed in the regulations is not readily applicable to the beneficiary’s occupation as well as why the submitted evidence is “comparable” to that criterion. A general unsupported assertion that the listed criterion does not readily apply to the beneficiary’s occupation is not probative. However, a statement alone can be sufficient if it is detailed, specific, and credible.
Although officers do not consider comparable evidence if the petitioner submits evidence in lieu of a particular criterion that is readily applicable to the beneficiary’s occupation simply because the beneficiary cannot satisfy that criterion, a criterion need not be entirely inapplicable to the beneficiary’s occupation. Rather, comparable evidence is allowed if the petitioner shows that a criterion is not easily applicable to the beneficiary’s job or profession.[67]
Establishing Eligibility with Comparable Evidence
A petitioner relying on evidence that is comparable to one or more of the criteria listed at 8 CFR 214.2(o)(3)(iv)(B) must still meet at least three separate evidentiary criteria to satisfy the evidence requirements, even if one or more of those criteria are met through evidence that is not specifically described in the regulation but is comparable.[68] While a petitioner relying on comparable evidence is not limited to the kinds of evidence listed in the criteria, the use of comparable evidence does not change the standard for the classification. It remains the petitioner’s burden to establish that the beneficiary has extraordinary ability in the beneficiary's field of endeavor.
4. Evaluating the Totality of the Evidence
When the evidentiary requirements specified above are satisfied, an officer proceeds to evaluate the totality of all the evidence in the record to determine whether the beneficiary has extraordinary ability with sustained national or international acclaim, as described in the O statute and regulations.[69]
At this step, officers may consider any potentially relevant evidence, even if such evidence does not fit one of the above regulatory criteria or was not presented as comparable evidence.
E. O-1B Beneficiaries in Motion Picture or Television
1. Establishing Eligibility
In support of an O-1B (MPTV) Petition for a Nonimmigrant Worker (Form I-129), the petitioner must establish that the beneficiary has demonstrated a record of extraordinary achievement in motion picture or television productions and is coming to continue to work in such productions.[70] However, the productions need not require someone with a record of extraordinary achievement.
2. Supporting Documentation
The supporting documentation for an O-1B (MPTV) petition must include evidence that the beneficiary has received, or been nominated for, a significant national or international award or prize in the particular field (such as an Academy Award, Emmy, Grammy, or Director’s Guild Award)[71] or at least three[72] of the evidentiary criteria described above.[73]
Petitioners for beneficiaries working in motion picture or television productions must submit evidence that applies evidentiary criteria described above; they may not rely on comparable evidence.[74]
3. Evaluating the Totality of the Evidence
When the evidentiary requirements mentioned above are satisfied, an officer proceeds to evaluate the totality of all the evidence in the record in order to determine whether the beneficiary has extraordinary achievement in the motion picture and television industry as described in the O statute and regulations.[75]
At this step, officers may consider any potentially relevant evidence, even if such evidence does not fit one of the above regulatory criteria.
F. Continuing to Work in the Area of Extraordinary Ability or Achievement
1. O-1A Beneficiaries in Sciences, Education, Business, or Athletics and O-1B Beneficiaries in the Arts
In addition to demonstrating the beneficiary’s extraordinary ability and recognition in the field, a petitioner must demonstrate that an O-1A or O-1B (Arts) beneficiary is coming to the United States to continue work in the “area of extraordinary ability.”[76]
When considering a petition for a beneficiary who is transitioning to a new occupation (for instance, an acclaimed athlete coming to be a coach, a renowned STEM professor or academic researcher coming to work for a private company, an engineer coming to start a technology company, or an acclaimed dancer coming to be a dance teacher or choreographer), it can be unclear whether the proposed work in the United States is within the “area of extraordinary ability,” as required.
There is no statutory or regulatory definition of the term “field” or the phrase “area of extraordinary ability.” For purposes of evaluating an O-1A or O-1B (Arts) beneficiary’s extraordinary ability in the field, USCIS interprets the term “field” to allow consideration of acclaim and recognition for achievements in multiple related occupations (that is, those involving shared skillsets, knowledge, or expertise). Similarly, in the O-1A or O-1B (Arts) context, USCIS interprets the phrase “area of extraordinary ability” broadly to include not only the specific occupation(s) in which the beneficiary has garnered acclaim, but also other occupations that involve shared skillsets, knowledge, or expertise.[77]
Accordingly, when determining whether the beneficiary is coming to work in the beneficiary’s “area of extraordinary ability,” officers focus on whether the prospective work or services involve skillsets, knowledge, or expertise shared with the occupation(s) in which the beneficiary has garnered acclaim. In evaluating whether occupations involve shared skillsets, knowledge, or expertise to an extent that they may be considered within the same area of extraordinary ability, officers evaluate the totality of information and evidence presented. Relevant factors include, but are not limited to:
- Whether the past and prospective occupations are in the same industry or are otherwise related based on shared duties or expertise;
- Whether the prospective occupation is a supervisory, management, or other leadership position that oversees the beneficiary’s previous position or otherwise requires shared knowledge, skills, or expertise; and
- Whether it is common for persons in one occupation to transition to the other occupation(s) based upon their experience and knowledge.
2. O-1B Beneficiaries in Motion Picture or Television
In addition to demonstrating the beneficiary’s extraordinary achievement in MPTV productions and recognition in the field, a petitioner must demonstrate that an O-1B (MPTV) beneficiary is coming to the United States to continue work in the “area of extraordinary achievement.”[78]
For a beneficiary with a record of extraordinary achievement in motion picture or television (MPTV) productions, USCIS interprets the beneficiary’s “area of extraordinary achievement” to include any proposed work within the MPTV industry.[79] In addition to being consistent with longstanding agency practice, USCIS believes this industry-focused interpretation for the O-1B (MPTV) classification is consistent with statute and regulations, which discuss MPTV petitions separately from other types of O petitions and specifically focus on achievement in MPTV “productions” and the “industry.”[80]
Footnotes
[^ 1] See INA 101(a)(15)(O)(i). “Sustained” national or international acclaim means that a beneficiary’s acclaim must be maintained. (According to Black’s Law Dictionary (11th ed. 2019), the definition of sustain is “(1) to support or maintain, especially over a long period of time; … (6) To persist in making (an effort) over a long period.”) However, the word “sustained” does not imply an age limit on the beneficiary. A beneficiary may be very young in his or her career and still be able to show sustained acclaim. There is also no definitive time frame on what constitutes “sustained.” If a person was recognized for a particular achievement, the officer should determine whether the person continues to maintain a comparable level of acclaim in the field of expertise since the person was originally afforded that recognition. A person may have achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim thereafter.
[^ 2] See INA 101(a)(15)(O)(i).
[^ 3] See INA 101(a)(15)(O)(i).
[^ 4] See 8 CFR 214.2(o)(3)(ii).
[^ 5] See INA 101(a)(46). See 8 CFR 214.2(o)(3)(ii).
[^ 6] See 8 CFR 214.2(o)(3)(ii).
[^ 7] Other non-exhaustive examples include actors, writers, composers, or set designers seeking to come to the United States to do some work within the MPTV industry while also seeking to work in live theater or perform other work as an artist outside the MPTV industry.
[^ 8] This is consistent with the Academy of Television Arts & Sciences’ consideration of series, commercials, and other programs that air by “broadband” to be among the productions eligible for Primetime Emmy Awards. See 73rd Primetime Emmy Awards 2020-2021 Rules and Procedures (PDF) (accessed on January 5, 2022). In addition, the Alliance of Motion Picture and Television Producers discusses beneficiaries working on a “web series/program” and a “web commercial” among those for whom it provides opinions, but lists “static web content” as an example of a project that is “not part of motion picture and television production.” See AMPTP Guidelines for O-1 Visa Advisory Opinion Letter Requests (PDF) (accessed on January 5, 2022).
[^ 9] USCIS provided this interpretation in its policy guidance on January 13, 2022, to provide increased clarity for officers, to promote consistent adjudications, and to increase transparency for prospective petitioners.
[^ 10] Other non-exhaustive examples of artists whose MPTV work is incidental to their artistic work include musicians or other artists performing live on television or filmed for television “specials,” persons appearing as themselves in documentaries, and composers or musicians who license their music to films or television. In contrast, composers who are engaged to score MPTV productions are directly working in the MPTV industry.
[^ 11] See INA 101(a)(15)(O)(i). See INA 214(c)(3).
[^ 12] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(3)(ii).
[^ 13] See 59 FR 41818 (PDF), 41820 (Aug. 15, 1994).
[^ 14] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality. Therefore, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true”).
[^ 15] For example, authorship of scholarly articles in the field in professional journals or other major media, alone, regardless of caliber, would satisfy the criterion at 8 CFR 214.2(o)(3)(iii)(B)(6). Analysis of whether those publications are consistent with a finding that the beneficiary has sustained acclaim and is among the small percentage at the top of the field would be addressed and articulated in the totality determination.
[^ 16] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(3)(ii).
[^ 17] See INA 101(a)(15)(O)(i) and INA 101(a)(46). See 8 CFR 214.2(o)(3)(ii) (“Distinction means a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts”).
[^ 18] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(3)(ii).
[^ 19] See INA 101(a)(15)(O)(i). See Section F, Continuing to Work in the Area of Extraordinary Ability or Achievement [2 USCIS-PM M.4(F)] for more information.
[^ 20] See 8 CFR 214.2(o)(3)(iii)(A).
[^ 21] See 8 CFR 214.2(o)(3)(iii)(B).
[^ 22] See 8 CFR 214.2(o)(3)(iii)(B)(1).
[^ 23] USCIS does not interpret the phrase "field of endeavor" to mean that the work being recognized by the prize or award must correspond precisely to the type of prospective work that the person will undertake. Rather, USCIS considers whether the prize or award relates to the individual's asserted area of extraordinary ability. For information about how USCIS determines whether a person will "continue to work in the area of extraordinary ability,” see Section F, Continuing to Work in the Area of Extraordinary Ability or Achievement [2 USCIS-PM M.4(F)].
[^ 24] In general, qualifying awards include team awards where each member receives a trophy, certification, or medal; appears on the podium or stage; or is specifically named in the awarding organization’s announcement of the award selection. Examples include members of a musical group who receive an award and relay team members who appear together on the medal podium. Mere acknowledgment from the award recipient does not constitute receiving the award from the awarding authority.
[^ 25] The Carnegie Classification of Institutions of Higher Education recognizes R1 and R2 doctoral universities as having “very high” or “high” research activity, respectively, based on publicly available federal government data regarding the number of doctoral degrees awarded and the amount of total research expenditures. See the Carnegie Classification of Institutions of Higher Education’s Basic Classification Description webpage.
[^ 26] See 8 CFR 214.2(o)(3)(iii)(B)(2).
[^ 27] See the IEEE’s Steps to Become an IEEE Fellow webpage.
[^ 28] See the AAAI Fellows Program webpage.
[^ 29] See 8 CFR 214.2(o)(3)(iii)(B)(3).
[^ 30] See 8 CFR 214.2(o)(3)(iii)(B)(4).
[^ 31] See 8 CFR 214.2(o)(3)(iii)(B)(5).
[^ 32] See 8 CFR 214.2(o)(3)(iii)(B)(6).
[^ 33] While many articles accepted for presentation at conferences do not result in publication, there are conferences that peer review and publish accepted presentations in professional journals (sometimes called proceedings), such that they may qualify as scholarly articles under this criterion.
[^ 34] Instead, officers may consider citation evidence relating to the published work as part of the totality analysis to evaluate whether the record establishes that the beneficiary has sustained national or international acclaim and is among the small percentage at the top of the field. For instance, documentation regarding the total rate of citations to the beneficiary’s body of published work relative to others in the field may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary is among the small percentage at the top of the field.
[^ 35] Evidence of a publication’s reputation in the field is not required to satisfy this criterion. However, such evidence may be relevant in ultimately determining whether the totality of the evidence in the record establishes that the beneficiary has sustained national or international acclaim and is among the small percentage at the top of the field. Relevant evidence of a publication’s reputation may include rankings, impact factors, and selectivity. For example, publishing an article in a journal which allows any contributor to pay a fee for the service of peer review or publishing an individual’s work may meet the plain requirements of the criterion, but would not necessarily contribute to a finding of sustained acclaim. However, some authors who publish in competitive or otherwise highly-ranked journals may pay a fee to provide open access to their work for the public upon publication, and such a fee would not detract from a finding of sustained acclaim.
[^ 36] See 8 CFR 214.2(o)(3)(iii)(B)(7).
[^ 37] See SBIR America’s Seed Fund webpage.
[^ 38] See 8 CFR 214.2(o)(3)(iii)(B)(8).
[^ 39] See 8 CFR 214.2(o)(3)(iii)(C).
[^ 40] See 8 CFR 214.2(o)(3)(iii).
[^ 41] The comparable evidence provision was intended as a “catch-all” to allow for additional evidence to be considered when the other enumerated criteria do not readily apply, in whole or in part, when evaluating whether the beneficiary has extraordinary ability. See 59 FR 41818 (PDF), 41820 (August 15, 1994). While alternative interpretations of the regulation are possible, USCIS believes that the best interpretation as a matter of policy is to allow for consideration of comparable evidence on a criterion-by-criterion basis. This interpretation is supported by the fact that the O regulations do not explicitly mandate a showing that a certain number of criteria do not apply before a petitioner may submit comparable evidence. These provisions do not include a qualifier such as “all” or “the majority of” before “criteria.” It is unclear if the use of the term “criteria” was intended to require a showing that all or a majority of the criteria do not readily apply, or if the use of the word “criteria” was merely a reference to the multiple evidentiary options listed in the regulations. This interpretive policy resolves that ambiguity.
[^ 42] Consistent with a plain language reading, “readily” means “easily” or “without much difficulty.” See Merriam-Webster Dictionary’s definition of “readily." The term “occupation” is defined as “the principal business of one’s life.”
[^ 43] For example, a petitioner who establishes that 8 CFR 214.2(o)(3)(iii)(B)(2) is not readily applicable to the beneficiary’s occupation may submit evidence showing that two other criteria under 8 CFR 214.2(o)(3)(iii)(B) have been met, along with an additional form of evidence of comparable significance to that in 8 CFR 214.2(o)(3)(iii)(B)(2), to establish sustained acclaim and recognition.
[^ 44] See Section B, Determining Eligibility for O-1 Classification [2 USCIS-PM M.4(B)]. The same totality analysis described in Section B applies regardless of whether comparable evidence was relied upon to satisfy the evidentiary requirements.
[^ 45] Not all cases have such evidence, nor does a case need such evidence for the petitioner to demonstrate eligibility. Additionally, the list in this subsection is a non-exhaustive list of examples, and while the listed factors may be especially relevant to beneficiaries in STEM fields, the guidance applies to all O-1A petitions.
[^ 46] Impact factor is commonly used as a measure of a journal’s influence; it represents the average number of citations received per article published in that journal during the 2 preceding years. See Garfield, E, The History and Meaning of the Journal Impact Factor, Journal of the American Medical Association, Vol. 295, Iss. 1, p. 90 (2006).
[^ 47] The h-index is a tool for measuring a researcher’s output and impact. It is based on the highest number of the researcher’s publications that have been cited at least that same number of times. For example, if a researcher has an h-index of 10, it means the researcher has 10 publications that have 10 or more citations each (but not 11 publications with at least 11 citations each). See Hirsch, J, An Index to Quantify an Individual’s Scientific Research Output (PDF), Proceedings of the National Academy of Sciences of the United States of America, Vol. 102, Iss. 46, p. 16569 (2005). Other indices for measuring output and impact are also used. When relying on any of these tools, a petitioner should explain its methodology and significance with supporting documentation because the sources for the data and the duration of time involved in the calculation can impact the actual h-index value.
[^ 48] This factor is less relevant for beneficiaries early in their career, as such persons have had less time to accumulate citations but may nevertheless have garnered acclaim and risen to the small percentage at the top of the field as demonstrated by other evidence in the record. As stated above, none of the listed factors are required to demonstrate eligibility.
[^ 49] The Carnegie Classification of Institutions of Higher Education uses the R1 and R2 doctoral university designations to recognize institutions as having “very high” or “high” research activity, respectively, based on publicly available federal government data regarding the number of doctoral degrees awarded and the amount of total research expenditures. See the Carnegie Classification of Institutions of Higher Education’s Basic Classification Description webpage. While the designations to recognize an institution’s research activity may be based on doctoral degrees, the beneficiary is not required to have a doctoral degree.
[^ 50] The QS World University Rankings annually evaluate universities according to a methodology based on six consistent and empirical metrics: academic reputation (40 percent), employer reputation (10 percent), faculty to student ratio (20 percent), citations per faculty (20 percent), international faculty ratio (5 percent), and international student ratio (5 percent). These metrics are used to rank universities, as well as capture and assess university performance. See the QS World University Rankings Methodology webpage.
[^ 51] See INA 101(a)(15)(O)(i). For more information, see Section F, Continuing to Work in the Area of Extraordinary Ability or Achievement [2 USCIS-PM M.4(F)]. For information about determining whether an O-1B beneficiary falls under the arts or MPTV classification, see Section A, Standard for Classification [2 USCIS-PM M.4(A)].
[^ 52] See 8 CFR 214.2(o)(3)(iv)(A).
[^ 53] See 8 CFR 214.2(o)(3)(iv)(B).
[^ 54] See 8 CFR 214.2(o)(3)(iv)(B)(1) and 8 CFR 214.2(o)(3)(v)(B)(1).
[^ 55] See 8 CFR 214.2(o)(3)(iv)(B)(3) and 8 CFR 214.2(o)(3)(v)(B)(3). A production or event includes examples such as: an art show or exhibit, concert, or theatrical production (for O-1B (arts)); or a film or television show (for O-1B (MPTV)). In contrast, an organization or establishment includes examples such as: a company, collective, or other entity, including but not limited to entities that produce artistic productions or events (for O-1B (arts)); or the production company or studio producing the film or television show (for O-1B (MPTV)).
[^ 56] Consistent with a plain language reading, a “lead” role generally refers to a principal role, while to “star” means to feature in the most prominent or important role. See Merriam-Webster Dictionary’s definition of “lead" and definition of “starring.”
[^ 57] See 8 CFR 214.2(o)(3)(iv)(B)(2) and 8 CFR 214.2(o)(3)(v)(B)(2).
[^ 58] See 8 CFR 214.2(o)(3)(iv)(B)(3) and 8 CFR 214.2(o)(3)(v)(B)(3).
[^ 59] See 8 CFR 214.2(o)(3)(iv)(B)(1) and 8 CFR 214.2(o)(3)(v)(B)(1). A production or event includes examples such as: an art show or exhibit, concert, or theatrical production (for O-1B (arts)); or a film or television show (for O-1B (MPTV)). In contrast, an organization or establishment includes examples such as: a company, collective, or other entity, including but not limited to entities that produce artistic productions or events (for O-1B (arts)); or the production company or studio producing the film or television show (for O-1B (MPTV)).
[^ 60] Consistent with a plain language reading, a “lead” role generally refers to a principal role, while to “star” means to feature in the most prominent or important role. See Merriam-Webster Dictionary’s definition of “lead" and definition of “starring.”
[^ 61] See 8 CFR 214.2(o)(3)(iv)(B)(4) and 8 CFR 214.2(o)(3)(v)(B)(4).
[^ 62] See 8 CFR 214.2(o)(3)(iv)(B)(5) and 8 CFR 214.2(o)(3)(v)(B)(5).
[^ 63] The regulation at 8 CFR 214.2(o)(2)(iii)(B) provides that affidavits written by recognized experts certifying to the recognition and extraordinary ability or extraordinary achievement of the beneficiary shall specifically describe the beneficiary’s recognition and ability or achievement in factual terms and set forth the expertise of the affiant and the manner in which the affiant acquired such information.
[^ 64] See 8 CFR 214.2(o)(3)(iv)(B)(6) and 8 CFR 214.2(o)(3)(v)(B)(6).
[^ 65] See 8 CFR 214.2(o)(3)(iv)(C). See the discussion of comparable evidence in Section C, O-1A Beneficiaries in Sciences, Education, Business, or Athletics [2 USCIS-PM M.4(C)] for more information.
[^ 66] See 8 CFR 214.2(o)(3)(iv).
[^ 67] Consistent with a plain language reading, “readily” means “easily” or “without much difficulty.” See Merriam-Webster Dictionary’s definition of “readily." The term “occupation” is defined as “the principal business of one’s life.”
[^ 68] For example, a petitioner who establishes that 8 CFR 214.2(o)(3)(iv)(B)(2) is not readily applicable to the beneficiary’s occupation may submit evidence showing that two other criteria under 8 CFR 214.2(o)(3)(iv)(B) have been met, along with an additional form of evidence of comparable significance to that in 8 CFR 214.2(o)(3)(iv)(B)(2), to establish sustained acclaim and recognition.
[^ 69] See Section B, Determining Eligibility for O-1 Classification [2 USCIS-PM M.4(B)]. The same totality analysis described in Section B applies regardless of whether comparable evidence was relied upon to satisfy the enumerated evidentiary requirements.
[^ 70] See INA 101(a)(15)(O)(i). See Section F, Continuing to Work in the Area of Extraordinary Ability or Achievement [2 USCIS-PM M.4(F)] for more information. For information about determining whether an O-1B beneficiary falls under the arts or MPTV classification, see Section A, Standard for Classification [2 USCIS-PM M.4(A)].
[^ 71] See 8 CFR 214.2(o)(3)(v)(A).
[^ 72] See 8 CFR 214.2(o)(3)(v)(B).
[^ 73] See Section D, O-1B Beneficiaries in the Arts, Subsection 2, Supporting Documentation [2 USCIS-PM M.4(D)(2)].
[^ 74] See 8 CFR 214.2(o)(3)(v).
[^ 75] See Section B, Determining Eligibility for O-1 Classification [2 USCIS-PM M.4(B)].
[^ 76] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(1)(ii)(A)(1).
[^ 77] USCIS updated its policy guidance to provide this interpretation on January 21, 2022, to promote clarity, consistency, and transparency in O-1 adjudications. USCIS notes that this policy guidance relates only to the adjudication of O-1 nonimmigrant petitions. For policy guidance on eligibility determinations in E11 (immigrant of extraordinary ability) petitions, which, while similar to O-1, require that the beneficiary’s entry will “substantially benefit prospectively the United States,” see Volume 6, Immigrants, Part F, Employment-Based Classifications, Chapter 2, Extraordinary Ability [6 USCIS-PM F.2].
[^ 78] See 8 CFR 214.2(o)(1)(ii)(A)(2).
[^ 79] USCIS updated its policy guidance to provide this interpretation on January 21, 2022, to promote clarity, consistency, and transparency in O-1 adjudications. USCIS notes that this policy guidance relates only to the adjudication of O‑1B (MPTV) petitions.
[^ 80] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(1), 8 CFR 214.2(2)(iii)(B), and 8 CFR 214.2(3).
Chapter 5 - O-2 Beneficiaries
A. General
USCIS may classify beneficiaries who are essential to an O-1 beneficiary’s artistic or athletic performance and are coming solely to assist in that performance as O-2 accompanying beneficiaries.[1] The O-2 beneficiary must be an integral part of the actual performance or event and possess critical skills and experience with the O-1 that are not of a general nature and that U.S. workers do not possess.[2]
If the O-2 beneficiary is accompanying an O-1 beneficiary in the television or motion picture industry, he or she must have skills and experience with the O-1 beneficiary that are not of a general nature and skills that are critical, due to a pre-existing or long-standing working relationship with the O-1 beneficiary. If he or she is accompanying the O-1 beneficiary for a specific production only, the person may be eligible for an O-2 classification because significant production (including pre- and post-production work) will take place both inside and outside the United States and the continuing participation of the O-2 beneficiary is essential to the successful completion of the production.
USCIS may not grant O-2 classification for beneficiaries to support O-1 beneficiaries with extraordinary ability in fields of business, education, or science.[3]
The O-2 beneficiaries may not work separate or apart from the O-1 beneficiaries they support and may change employers only in conjunction with a change of employer by the O-1 beneficiary. Although multiple beneficiaries may be included on a single O-2 Petition for a Nonimmigrant Worker (Form I-129), they cannot be included on the O-1 beneficiary’s petition.
B. Documentation and Evidence
A petition for an O-2 beneficiary who will accompany an O-1A (athlete) or O-1B (artist) of extraordinary ability must be supported by evidence that the O-2 beneficiary is coming to the United States to assist in the performance of the O-1 beneficiary. The O-2 beneficiary must be an integral part of the actual performance and have critical skills and experience with the O-1 beneficiary that are not of a general nature and not possessed by a U.S. worker.[4]
A petition for an O-2 beneficiary who will accompany an O-1B (MPTV) beneficiary of extraordinary achievement must be supported by:
- Evidence of the current essentiality, critical skills, and experience of the O-2 beneficiary with the O-1 beneficiary and evidence that the O-2 beneficiary has substantial experience performing the critical skills and essential support services for the O-1 beneficiary; or
- In the case of a specific motion picture or television production, evidence that significant production has taken place outside the United States and will take place inside the United States, and that the continuing participation of the O-2 beneficiary is essential to the successful completion of the production.[5]
Footnotes
[^ 1] See INA 101(a)(15)(O)(1)(ii).
[^ 2] See 8 CFR 214.2(o)(4)(ii).
[^ 3] See 8 CFR 214.2(o)(4).
Chapter 6 - Family Members
The spouse and unmarried children under 21 years old of a principal O-1 or O-2 nonimmigrant may qualify for dependent O-3 nonimmigrant status if they are accompanying or following to join the O-1 or O-2 in the United States.[1] The O-3 spouse and unmarried children under 21 receive nonimmigrant status for the same period of time and subject to the same conditions as the O-1 or O-2 principal.[2] An O-3 dependent may not accept employment in the United States pursuant to such status.[3]
Footnotes
[^ 1] See 8 CFR 214.2(o)(6)(iv).
Chapter 7 - Documentation and Evidence
A. General
USCIS requires a petitioning employer or agent to file the Petition for a Nonimmigrant Worker (Form I-129) and required fee for all beneficiaries seeking classification as an O-1 or O-2 nonimmigrant.[1] The petition must be filed in accordance with DHS regulations and the form instructions, and with the required fees.[2] The petitioner may not file the petition more than 1 year before the actual need for the beneficiary's services.[3]
An O-1 or O-2 beneficiary may work for more than one employer at the same time.[4] When the beneficiary works for more than one employer, each employer must properly file a separate petition along with the required documentation and fees unless an established agent files the petition.[5]
Up to 25 O-2 accompanying beneficiaries may be included on a petition if they are assisting the same O-1 beneficiary for the same events or performances, during the same period of time, and in the same location.[6] An employer or agent may not include multiple O-1 beneficiaries on the same petition.[7]
B. Documentation and Evidence
1. Required Evidence
A petitioner must include the following with the petition:
- Evidence specific to the particular classification sought;[8]
- Copies of any written contracts between the petitioner and the beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the beneficiary will be employed;
- An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities;[9] and
- A written advisory opinion(s) from the appropriate consulting entity or entities.[10]
2. Form of Evidence
The evidence submitted with the petition must conform to the following:
- Affidavits, contracts, awards, and similar documentation must reflect the nature of the beneficiary's achievement and be executed by an officer or responsible person employed by the institution, firm, establishment, or organization where the work was performed.
- Affidavits written by present or former employers or recognized experts certifying to the recognition and extraordinary ability or extraordinary achievement of the beneficiary must specifically describe the beneficiary's recognition and ability or achievement in factual terms and set forth the expertise of the affiant and the manner in which the affiant acquired such information.
- The petitioner may submit a legible photocopy of a document in support of the petition in lieu of the original. However, the original document must be submitted if requested by USCIS.[11]
3. Contracts
The regulation requires the submission of any written contracts between the petitioner and the beneficiary but allows for the submission of a summary of the terms of an oral agreement where there is no written contract.[12] Evidence of an oral agreement may include, but is not limited to, emails between the contractual parties, a written summation of the terms of the agreement, or any other evidence that demonstrates that an oral agreement was created.
The summary of the oral agreement must contain:
- The terms offered by the petitioner (employer); and
- The terms accepted by the beneficiary (employee).
The summary does not have to be signed by both parties to establish the oral agreement.[13]
4. Consultations
A statutorily mandated consultation process exists for all O nonimmigrant petitions.[14] The source and contents of the consultation vary, depending upon the type of O petition.
Petition Type | Source and Contents of Consultations |
---|---|
O-1A and O-1B (Arts) | The petitioner must provide a consultation in the form of an advisory opinion from a U.S. “peer group” in the area of the beneficiary’s ability (which may include a labor organization) or a person or persons with expertise in the area of the beneficiary’s ability. The contents should, if favorable, describe the beneficiary's ability and achievements in the field of endeavor, describe the nature of the duties to be performed, and state whether the position requires the services of an alien of extraordinary ability, or may state “no objection.” If the advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If an advisory opinion is submitted from a group other than a labor organization, USCIS must submit a copy of the petition and supporting documents to the national office of the appropriate union (if any exists). If the labor organization does not respond, USCIS renders a decision on the evidence of record.[15] If the petitioner establishes that no appropriate peer group exists, including a labor organization, USCIS renders a decision on the evidence of record.[16] |
O-1B (MPTV) | The petitioner must provide consultations in the form of advisory opinions from both the union representing the beneficiary’s occupational peers and a management organization in the area of the beneficiary’s ability. The contents may include statements describing the beneficiary’s achievements in motion picture or television productions and whether the proposed position requires the services of an alien of extraordinary achievement, or may state “no objection.” If an advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. If the petitioner establishes that no appropriate group exists, including a labor organization, USCIS renders a decision on the evidence of record.[17] |
O-2 | The petitioner must provide a consultation in the form of an advisory opinion from the labor organization having expertise in the skill area. If the O-2 is sought for employment in the motion picture or television industry, opinions must be provided from both a labor union and a management organization.[18] The opinion may include information regarding the beneficiary’s particular skills, his or her experience working with the O-1 beneficiary, and whether the project involves a situation that includes work both inside and outside the United States (if applicable), or may state “no objection.” If an advisory opinion is not favorable to the petitioner, the advisory opinion must set forth a specific statement of facts which supports the conclusion reached in the opinion. Generally, if the petitioner establishes that an appropriate labor organization does not exist, USCIS renders a decision on the evidence of record.[19] |
USCIS maintains a list of organizations that provide advisory opinions on O-1 and O-2 beneficiaries.
The O regulations specify mandatory response times for advisory opinions requested by USCIS in routine and expedited cases and prescribe action to be taken when a requested opinion is not received.[20] The consultations are advisory in nature only and are not binding on USCIS. A negative advisory opinion does not automatically result in the denial of the petition, as decisions must be based on the totality of the evidence. Accordingly, USCIS may favorably consider evidence submitted by the petitioner to overcome a negative advisory opinion.
Use of Prior Consultation
USCIS may waive the consultation requirement for aliens of extraordinary ability in the field of arts if the beneficiary seeks readmission to the United States to perform similar services within 2 years of the date of a previous advisory opinion. After USCIS grants the waiver, USCIS forwards a copy of the petition and documentation to the national office of an appropriate labor organization within 5 days.[21] Petitioners desiring to avail themselves of the waiver should submit a copy of the prior consultation with the petition.
Footnotes
[^ 1] See 8 CFR 103.2(a)(1). See Chapter 3, Petitioners [2 USCIS-PM M.3].
[^ 2] See 8 CFR 103.2(a)(1). For information on filing, see the USCIS website.
[^ 3] See 8 CFR 214.2(o)(2)(i).
[^ 4] See 8 CFR 214.2(o)(2)(iv)(B).
[^ 5] See 8 CFR 214.2(o)(2)(iv)(B). For information on fees, see Fee Schedule (Form G-1055).
[^ 6] See 8 CFR 214.2(o)(2)(iv)(F). Although multiple beneficiaries may be included on a single O-2 petition, they cannot be included on the O-1 beneficiary’s petition.
[^ 7] See 8 CFR 214.2(o)(2)(i).
[^ 8] See Chapter 4, O-1 Beneficiaries, Section C, O-1A Beneficiaries in Sciences, Education, Business, or Athletics [2 USCIS-PM M.4(C)]; Section D, O-1B Beneficiaries in the Arts [2 USCIS-PM M.4(D)]; and Section E, O-1B Beneficiaries in Motion Picture or Television [2 USCIS-PM M.4(E)]; and Chapter 5, O-2 Beneficiaries [2 USCIS-PM M.5].
[^ 9] A petition which requires the beneficiary to work in more than one location must include an itinerary with the dates and locations of work. See 8 CFR 214.2(o)(2)(iv)(A). There are no exceptions to the itinerary requirement when the petition is filed by an agent performing the function of an employer. However, USCIS does give some flexibility to how detailed the itinerary must be and does take into account industry standards when determining whether the itinerary requirement has been met. As such, the itinerary should at a minimum indicate what type of work the beneficiary will be engaged, where, and when this work will take place.
[^ 10] See 8 CFR 214.2(o)(2)(ii).
[^ 11] See 8 CFR 214.2(o)(2)(iii).
[^ 12] See 8 CFR 214.2(o)(2)(ii)(B).
[^ 13] For specific requirements relating to petitioning agents, see Chapter 3, Petitioners, Section C, Agents [2 USCIS-PM M.3(C)].
[^ 14] See INA 214(c)(3).
[^ 15] See 8 CFR 214.2(o)(5).
[^ 16] See 8 CFR 214.2(o)(5).
[^ 17] See 8 CFR 214.2(o)(5).
[^ 18] See 8 CFR 214.2(o)(5)(iv).
[^ 19] See 8 CFR 214.2(o)(5).
Chapter 8 - Adjudication
Officers must carefully review each Petition for a Nonimmigrant Worker (Form I-129) to determine whether the petitioner has established eligibility based on the applicable requirements for the type of O classification being sought. Officers must apply a “preponderance of the evidence” standard when evaluating eligibility for the O nonimmigrant classification.[1] The burden of proving eligibility for the benefit sought rests entirely with the petitioner.[2]
A. Decision
Approvals
If the petitioner properly filed the petition and the officer is satisfied that the petitioner has met the required eligibility standards, the officer approves the petition. The approval period must not exceed the maximum period of stay allowed.[3] Furthermore, USCIS should not deny a petition on the basis of the approval of a permanent labor certification or the filing of a preference petition for the O-1 beneficiary.[4]
The table below provides a list of the classifications for nonimmigrant of extraordinary ability or achievement, those accompanying and assisting the principal O-1 beneficiary’s artistic or athletic performance, and dependents.
Beneficiary | Code of Admission |
---|---|
Nonimmigrant of extraordinary ability in the sciences, education, business, or athletics (principal) | O-1A |
Nonimmigrant of extraordinary ability in the arts (principal) | O-1B |
Nonimmigrant of extraordinary achievement in the motion picture or television industry (principal) | O-1B |
Accompanying alien who is coming to the United States to assist in the performance of certain O-1s | O-2 |
Spouse or child of an O-1 or O-2 | O-3 |
Once USCIS approves the petition, USCIS notifies the petitioner of the approval using a Notice of Action (Form I-797).[5]
Denials
If the petitioner does not meet the eligibility requirements, the officer denies the petition.[6] If the officer denies the petition, he or she must notify the petitioner of the denial in writing. The written decision must explain why USCIS denied the petition and must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.[7] The office that issued the decision has jurisdiction over any motion and the Administrative Appeals Office (AAO) has jurisdiction over any appeal.[8]
B. Revocation
USCIS may revoke an approved petition at any time, even after the validity of the petition has expired. USCIS automatically revokes the petition if the petitioner ceases to exist or files a written withdrawal of the petition.[9]
USCIS may also revoke an O petition approval on notice. USCIS sends the petitioner a Notice of Intent to Revoke (NOIR) if it is determined that:
- The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
- The statement of facts contained in the petition was not true and correct;
- The petitioner violated the terms and conditions of the approved petition;
- The petitioner violated the statute or regulations; or
- The approval of the petition violated the regulations or involved gross error.[10]
The NOIR must contain a detailed statement of the grounds for the revocation and the period allowed for the petitioner’s rebuttal.[11] USCIS considers all relevant evidence presented in deciding whether to revoke the petition.[12]
The petitioner may appeal the decision to revoke a petition to the AAO if USCIS revoked the petition on notice. Petitioners may not appeal an automatic revocation.[13]
Footnotes
[^ 1] See INS v. Cardoza-Fonseca (PDF), 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M- (PDF), 20 I&N Dec. 77, 79-80 (Comm. 1989)).
[^ 2] See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966).
[^ 3] See Chapter 9, Admissions, Extensions of Stay, and Changes of Status [2 USCIS-PM M.9].
[^ 4] See 8 CFR 214.2(o)(13).
[^ 5] See 8 CFR 103.2(b)(19).
[^ 6] See 8 CFR 103.2(b)(8).
[^ 7] See 8 CFR 103.2(b)(19). See 8 CFR 103.3. See 8 CFR 214.2(o)(7).
[^ 8] See 8 CFR 103.3(a)(2).
[^ 9] See 8 CFR 214.2(o)(8)(ii). See Chapter 9, Admission, Extension of Stay, Change of Status, and Change of Employer [2 USCIS-PM M.9].
[^ 10] See 8 CFR 214.2(o)(8)(iii).
[^ 11] For more information on timeframes for Notices of Intent to Revoke, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 10, Post-Decision Actions, Section D, Revocation, Rescission, or Termination [1 USCIS-PM E.10(D)].
Chapter 9 - Admission, Extension of Stay, Change of Status, and Change of Employer
A. Admission
If approved for classification as an O nonimmigrant and found otherwise admissible, a beneficiary may be admitted for a period determined to be necessary to accomplish the event or activity, not to exceed 3 years.[1]
Validity Period
If approved after the date the petitioner indicated services would begin, the validity period generally commences with the date of approval. The validity period must not exceed the period determined by USCIS to be necessary to complete the event or activity and must not exceed 3 years.
A beneficiary may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may engage in employment only during the validity period of the petition.[2]
Nonimmigrants described in the O classification are "seek[ing] to enter the United States to continue to work in the area of extraordinary ability," and may be authorized for a period of stay necessary "to provide for the event (or events) for which the nonimmigrant is admitted.”[3] The O classification is for a beneficiary coming to the United States "to perform services relating to an event or events."[4]
The O regulations define an event as an activity such as, but not limited to: a scientific project, conference, convention, lecture, series, tour, exhibit, business project, academic year, or engagement.[5] In addition, a job that may not have a specific engagement or project may also fall under this definition if the job is the "activity" within the beneficiary's area of extraordinary ability. Such activities may include short vacations, promotional appearances, and stopovers that are incidental or related to the event. Therefore, the regulations clearly indicate that USCIS may approve a petition to cover not only the actual event or events but also services and activities in connection with the event or events.
There is no statutory or regulatory authority for the proposition that a gap of a certain number of days automatically indicates a “new event,” nor is there a requirement for a "single event.” Rather, the focus is on whether the beneficiary will work in the area of extraordinary ability.[6]
The regulations define the evidentiary standard for identifying the services or activities relating to the event(s) by requiring "an explanation of the nature of the events or activities and a copy of any itinerary for the events or activities."[7] Unlike other nonimmigrant categories that have a specified time limit, a temporal period is not specified for O nonimmigrants. The regulations state that the validity period must be that which is "necessary to accomplish the event or activity, not to exceed 3 years."[8]
If the activities on the itinerary are related in such a way that they could be considered an event, the petition should be approved for the requested validity period. For example, a series of events that involve the same performers and the same or similar performance, such as a tour by a performing artist in venues around the United States, would constitute an event. In another example, if there is a break in between events in the United States and the petitioner indicates the beneficiary will be returning abroad to engage in activities that are incidental or related to the work performed in the United States, it does not necessarily interrupt the original event.
The burden is on the petitioner to demonstrate that the activities listed on the itinerary relate to the event despite gaps in which the beneficiary may travel abroad and return to the United States. Those gaps may include time in which the beneficiary attends seminars, vacations, or travels between engagements.[9] Those gaps would not be considered to interrupt the original event, and the full period of time requested may be granted as the gaps are incidental to the original event. If a review of the itinerary does not establish an event or activity or a series of connected events and activities that would allow the validity period requested, or if the petitioner is requesting a validity period beyond the last established event or activity, the officer may, in his or her discretion, issue a Request for Evidence (RFE). The RFE provides the petitioner an opportunity to provide additional documentation to establish the requested validity period.
Officers evaluate the totality of the evidence submitted under the pertinent statute and regulations to determine if the events and activities on the itinerary are connected in such a way that they would be considered an event for purposes of the validity period. If the evidence establishes that the activities or events are related in such a way that they could be considered an event, the officer approves the petition for the length of the established validity period.
Even though USCIS may consider a group of related activities to be an event, speculative employment or freelancing are not allowed.[10] A petitioner must establish that there are events or activities in the beneficiary's field of extraordinary ability for the validity period requested. Evidence of such events or activities could include an itinerary for a tour, contract or summary of the terms of the oral agreement under which the beneficiary will be employed, or contracts between the beneficiary and employers if an agent is being used.
Maintaining Status
USCIS does not consider a beneficiary in O-1 status to have failed to maintain nonimmigrant status solely because of the cessation of the employment on which the visa classification was based for a period of up to 60 days or until the end of the authorized validity period, whichever is shorter. USCIS may shorten or eliminate this 60-day grace period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the O-1 beneficiary may not work during such a period.[11]
Although the O-2 accompanying beneficiary must obtain his or her own classification, this classification does not entitle him or her to work separate and apart from the O-1 beneficiary to whom he or she provides support.[12]
B. Extension of Stay
A petitioner may request an extension of stay for an O-1 or O-2 nonimmigrant beneficiary by filing a new Petition for a Nonimmigrant Worker (Form I-129).[13] O-3 dependents may request an extension of stay or change of status by filing an Application to Extend/Change Nonimmigrant Status (Form I-539), and, when applicable, Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A).
USCIS may authorize an extension of stay in increments of up to 1 year for an O-1 or O-2 beneficiary to continue or complete the same event or activity for which the beneficiary was admitted, plus an additional 10 days to allow the beneficiary to get their personal affairs in order.[14]
Examples of an event or activity include, but are not limited to:
- A scientific project;
- Conference;
- Convention;
- Lecture series;
- Tour;
- Exhibit;
- Business project;
- Academic year; or
- Engagement.[15]
Continuing employment or research in the same capacity and involving the same activities, for example, may form the basis of an extension for up to 1 year.
Where a petitioner requests to extend the stay of an O-1 or O-2 nonimmigrant based on a new event or activity (whether or not the employer has changed), USCIS may authorize an extension of stay for a period determined to be necessary to accomplish the new event or activity, not to exceed 3 years. Such requests may include instances where a beneficiary’s continued employment may involve different activities, such as when continuing in a different phase or trial for the same research.
There is no limit to the number of extensions of stay USCIS may approve for the same beneficiary. Furthermore, USCIS should not deny such requests on the basis of the approval of a permanent labor certification or the filing of a preference petition for the O-1 beneficiary.[16]
C. Change of Status
Generally, a beneficiary in a current valid nonimmigrant status who has not violated his or her status is eligible to change status to that of an O nonimmigrant without having to depart the United States.[17]
To change to O nonimmigrant status, the petitioning employer or agent should file a Petition for a Nonimmigrant Worker (Form I-129) before the beneficiary’s current status expires and indicate the request is for a change of status.[18] The beneficiary cannot work in the new nonimmigrant classification until USCIS approves the petition and the change of status request. If USCIS determines that the beneficiary is eligible for the O classification, but not a change of status, the beneficiary must depart the United States, apply for a nonimmigrant visa at a U.S. consular post abroad (unless visa exempt), and then be readmitted to the United States in O-1 or O-2 status.[19]
USCIS should not deny an application for change of status on the basis of the approval of a permanent labor certification or the filing of a preference petition for the O-1 beneficiary.[20]
D. Change of Employer
If an O nonimmigrant in the United States seeks to change employers, the new employer or agent must file a Petition for a Nonimmigrant Worker (Form I-129) to authorize the new employment and, if applicable, request to extend the beneficiary’s stay. An O-2 beneficiary may change employers only in conjunction with a change of employers by the principal O-1 beneficiary. If an agent filed the petition, the agent must file an amended petition with evidence relating to the new employer.[21]
In the case of a professional O-1 athlete traded from one organization to another, employment authorization for the player automatically continues for a period of 30 days after acquisition by the new organization, within which time the new organization is expected to file a new Petition for a Nonimmigrant Worker (Form I-129). If a new petition is not filed within 30 days, employment authorization ceases. If a new petition is filed within 30 days, the professional athlete is deemed to be in valid O-1 status, and employment continues to be authorized, until the petition is adjudicated. If USCIS denies the new petition, employment authorization ceases.[22]
Footnotes
[^ 1] See 8 CFR 214.2(o)(6)(iii).
[^ 3] See INA 101(a)(15)(O). See INA 214(a)(2)(A).
[^ 4] See 8 CFR 214.2(o)(1)(i).
[^ 5] See 8 CFR 214.2(o)(3)(ii).
[^ 6] See 8 CFR 214.2(o)(1)(ii)(A)(1).
[^ 7] See 8 CFR 214.2(o)(2)(ii)(C).
[^ 8] See 8 CFR 214.2(o)(6)(iii).
[^ 9] Activities engaged in during the beneficiary's trips outside the United States should not by themselves be used to limit a validity period. An officer should primarily focus on the relatedness of the activities inside the United States to determine whether the beneficiary is engaged in an event for purposes of the validity period.
[^ 10] Pursuant to 8 CFR 214.2(o)(2)(iv)(D), in the case of a petition filed for an artist or entertainer, a petitioner may add additional performances or engagements during the validity period of the petition without filing an amended petition, provided the additional performances or engagements require an alien of O-1 caliber.
[^ 11] See 8 CFR 214.1(l)(2).
[^ 12] See 8 CFR 214.2(o)(4).
[^ 13] See 8 CFR 214.1(c)(1). Where a petitioner demonstrates eligibility for a requested extension, it may be granted at the discretion of USCIS. There is no appeal from the denial of a request for extension of stay. See 8 CFR 214.1(c)(5).
[^ 14] See 8 CFR 214.2(o)(12)(ii).
[^ 15] See 8 CFR 214.2(o)(3)(ii).
[^ 16] See 8 CFR 214.2(o)(13).
[^ 17] See INA 248. See 8 CFR 248.1(a). An example of a violation of status is if, generally, the nonimmigrant’s current status expires before filing a Petition for a Nonimmigrant Worker (Form I-129) with USCIS or by working without authorization.
[^ 18] See 8 CFR 248.3(a).
[^ 19] There is no appeal from a change of status denial. See 8 CFR 248.3(g).
[^ 20] See 8 CFR 214.2(o)(13).
[^ 21] See 8 CFR 214.2(o)(2)(iv)(C).
[^ 22] See 8 CFR 214.2(o)(2)(iv)(G) and 8 CFR 274a.12(b)(13).
Part N - Athletes and Entertainers (P)
Chapter 1 - Purpose and Background
A. Purpose
The Immigration and Nationality Act (INA) and implementing regulations provide that qualifying nonimmigrant athletes and entertainers may be approved for P nonimmigrant classification.
B. Background
The Immigration Act of 1990 added the O and P nonimmigrant classes to INA 101(a)(15).[1] These new classes provided for the admission of artists, athletes, entertainers, and other persons of extraordinary ability. However, as a result of the passage of the Armed Forces Immigration Adjustment Act of 1991, the use of the O and P classifications was delayed until April 1, 1992.[2] Before the enactment of these laws, artists, athletes, and other performers were admitted under the H-1 (distinguished merit and ability), H-2 (temporary agricultural or non-agricultural), or B-1 (temporary business visitor) categories. The 1990 amendments also revised the H classifications, effectively barring their continued use by most performing artists and athletes.
C. Legal Authorities
- INA 101(a)(15)(P) - Definition of P nonimmigrant classification
- INA 204(i) - Professional athletes
- INA 214(a)(2)(B) - Admission of or period of stay for P nonimmigrants
- INA 214(c)(1) - Importing employer
- INA 214(c)(4) - Petition of importing employer for P nonimmigrants[3]
- INA 214(c)(5)(B) - Return transportation
- INA 214(c)(6) - Consultation requirement
- 8 CFR 214.2(p) - Requirements for P nonimmigrant classification
Footnotes
[^ 1] See the Immigration Act of 1990, Pub. L. 101-649 (PDF) (November 29, 1990).
[^ 2] See Pub. L. 102-110 (PDF) (October 1, 1991).
[^ 3] The Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry (COMPETE) Act of 2006 amended INA 214(c)(4)(A). See the COMPETE Act of 2006, Pub. L. 109-463 (PDF) (December 22, 2006).
Chapter 2 - Eligibility Requirements
A. P-1 Nonimmigrant Classification
1. Internationally Recognized Athlete (P-1A Nonimmigrant)
The P-1A nonimmigrant classification includes individual athletes with an internationally recognized reputation and members of an athletic team that is internationally recognized.[1] The athlete or team must be coming to the United States to participate in an athletic competition which has a distinguished reputation and which requires participation of an athlete or athletic team with an international reputation.[2]
The regulatory requirements that the prospective competitions have a “distinguished reputation” and “require” the participation or services of an internationally recognized athlete or team derive from the statutory language stating that a qualifying athlete is one who performs “at an internationally recognized level of performance.”[3] Accordingly, USCIS interprets this regulatory language consistent with the statutory reference to athletes performing at an “internationally recognized level of performance.” More specifically, the relevant statutory and regulatory provisions do not require that an athlete or team be coming to participate in a competition that is limited to internationally recognized participants. Rather, it is sufficient for the petitioner to show that the competition is at an internationally recognized level of performance such that it requires that caliber of athlete or team to be among its participants or that some level of participation by internationally recognized athletes is required to maintain its current distinguished reputation in the sport.
Relevant considerations for determining whether competitions are at an internationally recognized level of performance such that they require the participation of an internationally recognized athlete or team include, but are not limited to:
-
The level of viewership, attendance, revenue, and major media coverage of the events;
-
The extent of past participation by internationally recognized athletes or teams;
-
The international ranking of athletes competing; or
-
Documented merits requirements for participants.
If the record shows the participation of internationally recognized caliber competitors is currently unusual or uncommon, this may indicate that the event may not currently be at an internationally recognized level of performance. In addition, while not necessarily determinative, the fact that a competition is open to competitors at all skill levels may be a relevant negative factor in analyzing whether it is at an internationally recognized level of performance. If the event includes differentiated categories of competition based on skill level, the focus should be on the reputation and level of recognition of the specific category of competition in which the athlete or team seeks to participate.[4]
Individual athletes who are internationally recognized may also be coming to the United States to join a U.S.-based team.[5] When a petition is for a foreign athletic team, each member of an internationally recognized athletic team may be granted P-1A classification based on that relationship, but may not perform services separate and apart from the athletic team.[6]
2. COMPETE Act [Reserved]
[Reserved]
3. Member of Internationally Recognized Entertainment Group (P-1B Nonimmigrant)
The P-1B nonimmigrant classification for entertainers applies to:
-
Members of an internationally recognized entertainment group coming to the United States; and
-
A person coming to the United States to join, as a member, an internationally recognized group, which can be based in the United States or abroad.[7]
A member of an internationally-recognized entertainment group may be granted P-1B classification based on that relationship, but may not perform services separate and apart from the entertainment group. The P-1B nonimmigrant who is a member of an internationally recognized entertainment group must be coming to the United States to perform with the group as a unit. In addition, the entertainment group must be internationally recognized as outstanding for a sustained and substantial period of time, and 75 percent of the group must have had a sustained and substantial relationship with the group for at least 1 year.[8] The P-1B nonimmigrant classification is not appropriate for a person performing as a solo entertainer.
Provisions for Certain Entertainment Groups
The regulations allow for three special provisions for certain entertainment groups:
-
A waiver of the international recognition and 1-year group membership requirement for circus personnel (both those who perform and those who constitute an integral and essential part of the performance), provided that they are coming to join a circus or circus group that has been recognized nationally as outstanding for a sustained and substantial period of time;
-
A waiver of the international recognition requirement, in consideration of special circumstances, for some entertainment groups recognized nationally as being outstanding in its discipline for a sustained and substantial period of time; and
-
A waiver of the 1-year sustained and substantial relationship requirement for 75 percent of the group due to exigent circumstances.[9]
Group – Defined
The term "group" is defined as two or more persons established as one entity or unit to perform or to provide a service.[10] “Member of a group” means a person who is actually performing the entertainment services.[11] It does not include persons who assist in the presentation who are not on the stage (such as lighting or sound technicians). These support personnel would need to be petitioned for as essential support (P-1S) and a separate petition must be filed for them.[12]
If a solo artist or entertainer traditionally performs on stage with the same group of people, such as back-up singers or musicians, the act may be classified as a group. This group would then need to meet the “75 percent rule.” The “75 percent rule” means that 75 percent of the members of the group must have been performing entertainment services for the group for a minimum of 1 year or more.[13] If the group does not meet the 75 percent rule, the artist or entertainer would need to qualify for another classification, such as an O-1 nonimmigrant (rather than P-1B) and the back-up band as O-2 nonimmigrants.
B. Performers Under Reciprocal Exchange or Culturally Unique Programs
1. Individual Performer or Part of a Group Performing Under a Reciprocal Exchange Program (P-2 Nonimmigrant)
A P-2 nonimmigrant is a person coming to the United States to perform as an artist or entertainer, individually or as part of a group and who seeks to perform under a reciprocal exchange program which is between organization(s) in the United States and organization(s) in one or more foreign states.[14]
2. Artist or Entertainer as Part of Culturally Unique Program (P-3 Nonimmigrant)
A P-3 nonimmigrant is a person coming to the United States solely to perform, teach, or coach under a commercial or noncommercial program that is culturally unique.[15]
C. Essential Support Personnel
Essential support personnel are eligible for a P-1S, P-2S, or P-3S nonimmigrant classification if the petitioner can establish that they are an integral part of the performance of the P-1, P-2, or P-3 athlete, team, entertainer, or entertainment group because he or she performs support services that cannot be readily performed by a U.S. worker and which are essential to the successful performance of services by the P-1, P-2, or P-3 nonimmigrant.[16]
D. Treatment of Family Members
The spouse and unmarried children may qualify for P-4 derivative classification. They are entitled to the same period of admission and limitations as the beneficiary of the P petition. They are not allowed to accept employment unless they have been independently granted employment authorization. If the spouse or unmarried child is in the United States in another nonimmigrant classification, he or she must separately file an Application to Extend/Change Nonimmigrant Status (Form I-539) and, if applicable, Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A) to request a change of status to P-4. The spouse or unmarried child must also separately file Form I-539 if seeking an extension of stay based on the principal nonimmigrant’s stay being extended.
Footnotes
[^ 1] See 8 CFR 214.2(p)(1)(ii)(A)(1). See INA 214(c)(4)(A)(i)(I). For information regarding additional categories of persons eligible for P-1A classification under the Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry (COMPETE) Act of 2006, see Pub. L. 109-463 (PDF), 120 Stat. 3477 (December 22, 2006). See INA 214(c)(4)(A).
[^ 2] See 8 CFR 214.2(p)(4)(i) and 8 CFR 214.2(p)(4)(ii)(A).
[^ 3] See 8 CFR 214.2(p)(4)(i) and 8 CFR 214.2(p)(4)(ii)(A). See INA 214(c)(4)(A)(i)(I) and INA 214(c)(4)(A)(ii)(I).
[^ 4] For instance, some of the top marathons allow members of the public to participate in the general event, but also include a category of elite runners who compete against each other for prize money. In such a case, if an athlete is seeking to enter the United States to participate in the elite category, it is appropriate for an officer to consider whether the elite competition is at an internationally recognized level of performance such that it requires the participation of an internationally recognized athlete.
[^ 5] See 8 CFR 214.2(p)(4)(ii)(B).
[^ 6] See 8 CFR 214.2(p)(4)(i)(B).
[^ 7] See 8 CFR 214.2(p)(1)(ii)(A)(2). The P-1B classification should not be limited to individual entertainers coming to the United States to join only foreign-based entertainment groups. Rather, as the regulation at 8 CFR 214.2(p)(3) focuses on whether the group is “internationally recognized,” which is defined as “having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country,” the P-1B classification should include individual entertainers coming to the United States to join U.S.-based internationally recognized entertainment groups.
[^ 8] See 8 CFR 214.2(p)(4)(i)(B).
[^ 9] See 8 CFR 214.2(p)(4)(iii)(C).
[^ 10] See 8 CFR 214.2(p)(3).
[^ 11] See 8 CFR 214.2(p)(3).
[^ 12] See 8 CFR 214.2(p)(4)(iv).
[^ 13] See 8 CFR 214.2(p)(4)(i)(B).
[^ 14] See INA 101(a)(15)(P)(ii). See 8 CFR 214.2(p)(1)(ii)(B).
[^ 15] See 8 CFR 214.2(p)(1)(ii)(C).
[^ 16] See 8 CFR 214.2(p)(4)(iv). See 8 CFR 214.2(p)(5)(iii). See 8 CFR 214.2(p)(6)(iii).
Chapter 3 - Petitioners
A petitioner seeking to classify a person as a P nonimmigrant must submit a Petition for a Nonimmigrant Worker (Form I-129) on his or her behalf. The petition must be properly filed with the required fee in accordance with the Form I-129 filing instructions.[1] If the beneficiary will work for more than one employer within the same time period, each employer must file a separate petition unless an agent files the petition and certain requirements are met.[2]
A request for an extension of stay for a P nonimmigrant or change of status for a person who is present in the United States in another nonimmigrant classification must be filed on Form I-129.[3] If the person is already in the United States in a P nonimmigrant status and a new employer wishes to petition for him or her, that new employer must use Form I-129 to file for a change of employer or to add an employer, and to request an extension of stay for the person.[4]
If there are any material changes in the terms or conditions of the P nonimmigrant’s employment, the petitioner must file an amended petition. However, a petitioner may add additional, similar performances, engagements, or competitions during the validity period without filing an amended petition.[5]
A. Eligible Petitioners
The following petitioners may submit Form I-129 seeking to classify a person as a P nonimmigrant:
- Petitions for P-1 nonimmigrants may be filed by a U.S. employer, a U.S. sponsoring organization, a U.S. agent, or a foreign employer through a U.S. agent;
- Petitions for P-2 nonimmigrants may be filed by the U.S. labor organization which negotiated the reciprocal exchange agreement, the sponsoring organization, or a U.S. employer; and
- Petitions for P-3 nonimmigrants may be filed by the sponsoring organization or a U.S. employer.[6]
Agents as Petitioners
A U.S. agent may file a P-1 petition in the case where the beneficiary is in an occupation where workers are generally self-employed or use agents to arrange short-term employment with multiple employers, or where a foreign employer authorizes a U.S. agent to act on its behalf.[7]
B. Multiple Beneficiaries
In some circumstances, outlined below, a petitioner may file for multiple beneficiaries on the same petition.
P-1 Petition
A petitioner may file for multiple P-1A beneficiaries.[8] In addition, a petitioner may file for multiple beneficiaries that are members of a team or group, or if they will be providing essential support and performing in the same location and in the same occupation. Up to 25 named beneficiaries may be included per petition.[9] However, a separate petition must be submitted for the essential support (non-performing) personnel.[10] More than one P-1 essential support personnel may be included on a petition.
P-2 Petition
P-2 group members can be included on a single petition. A separate petition must be submitted for the essential support personnel.[11]
P-3 Petition
P-3 group members can be included on a single petition. A separate petition must be submitted for the essential support personnel.[12]
Footnotes
[^ 1] Information on filing locations can be found on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker webpage.
[^ 2] See 8 CFR 214.2(p)(2)(iv)(B). See Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications (PDF), HQ 70/6.2.18, HQ 70/6.2.19, issued November 20, 2009.
[^ 3] See 8 CFR 214.1(c)(1).
[^ 4] See 8 CFR 214.2(p)(2)(iv)(C)(1).
[^ 5] See 8 CFR 214.2(p)(2)(iv)(D).
[^ 6] See 8 CFR 214.2(p)(2)(i).
[^ 7] See 8 CFR 214.2(p)(2)(iv)(E). See Requirements for Agents and Sponsors Filing as Petitioners for the O and P Visa Classifications (PDF), HQ 70/6.2.18, HQ 70/6.2.19, issued November 20, 2009.
[^ 8] See INA 214(c)(4)(G).
[^ 9] See 8 CFR 214.2(p)(2)(iv)(F).
[^ 10] See 8 CFR 214.2(p)(2)(i).
Chapter 4 - Documentation and Evidence
A. Evidence for P-1 Classification
A P-1 petition for classification as an internationally recognized athlete, team, or entertainment group must be supported by evidence that the person, group, or team is internationally recognized as outstanding in the discipline and is entering to perform services which require such a level of performance.[1] If the petition is for a group of entertainers, the petition must contain evidence that at least 75 percent of the group have been performing with the group for at least 1 year.[2] The petitioner must submit a consultation from a labor organization, if one exists.[3]
Internationally Recognized Individual Athlete or Athletic Team
For a team, the petitioner must submit evidence that the team as a unit is internationally recognized. For an individual athlete, the petitioner must submit evidence that the athlete has achieved international recognition in the sport based on his or her reputation.[4]
A petition for an athletic team or individual athlete must include a tendered contract with a “major United States sports league or team” or tendered contract in an individual sport commensurate with international recognition in that sport, if such contracts are normally executed in the sport.[5] USCIS interprets “major United States sports league” as a league that has a distinguished reputation that is commensurate with an internationally recognized level of performance, and “major United States sports team” as a team that participates in such a league, consistent with the statutory standard for internationally recognized athletes.[6]
Therefore, under this interpretation, the league (or the team within the league) may be one where the level of competition in the league is such that the league (or a team within the league) would not be able to remain competitive or maintain its current distinguished reputation in the sport without the services of at least some internationally recognized caliber athletes.
Factors that may be considered include, but are not limited to: information about the structure of the league or the differentiated categories of competition; documentation showing a pattern of participation by internationally recognized athletes; level of viewership, attendance, revenue, and major media coverage about the league or its teams or competitions; international ranking of athletes competing; or documented merits requirements for league participants.[7]
The petitioner must also submit documentation of at least two forms of the following:[8]
- Evidence of significant participation in a prior season with a major U.S. sports league;[9]
- Evidence of participation in international competition with a national team;
- Evidence of significant participation in a prior season for a U.S. college or university in intercollegiate competition;
- A written statement from an official of the governing body of the sport detailing the person’s or team’s international recognition;
- A written statement from a recognized expert or member of the sports media detailing the person’s or team’s international recognition;
- Evidence that the person or team is ranked if the sport has international rankings; or
- Evidence the person or team has received a significant honor or award in the sport.
Entertainment Group
In general, the petitioner must submit evidence of the group's nomination or receipt of significant international awards or prizes for outstanding achievement in its field or three forms of the following types of documentation:[10]
- Critical reviews, advertisements, publicity releases, publications, contracts, or endorsements showing that the group has performed and will perform as a starring or leading entertainment group in productions or events with a distinguished reputation;
- Reviews in major newspapers, trade journals, magazines, or other published material showing the group’s international recognition and acclaim for outstanding achievement in its field;
- Articles in newspapers, trade journals, publications, or testimonials showing that the group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation;
- Ratings, standing in the field, box office receipts, recording or video sales, and other achievements in the field, as reported in articles in major newspapers, trade journals, or other publications showing major commercial or critically acclaimed success;
- Testimonials showing that the group has achieved significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field; or
- Contracts or other reliable evidence that the group has either commanded or will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field.
Circus Group
The petitioner must submit evidence the beneficiary is coming to join (perform in) a circus that has been recognized nationally as outstanding for a sustained and substantial period or as part of such a circus.[11]
Essential Support Personnel
The petitioner must submit a statement describing the support personnel’s prior essentiality and skills and experience with the principal beneficiary, group, or team.[12]
B. Evidence for P-2 Nonimmigrant Classification
A petition filed on behalf of a person seeking P-2 nonimmigrant classification should be submitted with the following supporting evidence: the consultation,[13] a copy of the reciprocal agreement, and evidence that the beneficiaries are subject to the reciprocal exchange.[14] A list of negotiated P-2 reciprocal agreements is maintained on the P-2 Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program webpage. If a reciprocal agreement is submitted other than those listed, the officer must review the agreement to determine if the agreement adheres to the regulatory standard.[15]
C. Evidence for P-3 Nonimmigrant Classification
A petition filed on behalf of a person seeking P-3 nonimmigrant classification should be submitted with the following supporting evidence:[16]
- Affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the person’s or the group’s skills in performing, presenting, coaching, or teaching the unique or traditional art form and giving the credentials of the expert, including the basis of his or her knowledge of the person’s or group’s skill; or
- Documentation that the performance of the person or group is culturally unique, as evidenced by reviews in newspapers, journals, or other published materials.
In addition, the petition must be submitted with evidence that all of the performances or presentations will be culturally unique events.
D. Consultation Requirement
1. Statutorily Mandated Consultation Process
Along with the supporting documentation, a statutorily mandated consultation process exists for all P petitions.[17] This consultation must be from an appropriate labor organization and address the nature of the work to be done and the person’s qualifications or, for certain classifications, the organization may indicate it has no objection to approval of the petition.[18] The petitioner has the burden of furnishing a consultation.
The source and contents of the consultation varies, depending upon the type of petition as shown in the table below.
Petition | Source and Contents of Consultation |
---|---|
P-1 | Consultation with an appropriate labor organization is required if one exists. The consultation must evaluate the person's (group's) qualifications and state whether the services or performances are appropriate for an internationally recognized athlete or entertainment group.[19] The labor organization may also issue a letter of no objection. |
P-2 | Consultation with an appropriate labor organization to verify that a bona fide reciprocal agreement exists.[20] |
P-3 | Consultation with an appropriate labor organization to evaluate the cultural uniqueness of the entertainer(s) and whether the performances are in a cultural program appropriate for the P-3 classification.[21] The labor organization may also issue a letter of no objection. |
Essential Support Personnel | Consultation with an appropriate labor organization. Consultation must evaluate the essential character of the work, the relationship between the principal and support workers, and the availability of U.S. workers to do the job.[22] The labor organization may also issue a letter of no objection. |
The regulations specify mandatory response times for consultations for expedited cases and prescribe action to be taken when a requested opinion is not received.[23] The consultations are advisory in nature only and are not binding on USCIS.[24] A negative consultation does not automatically result in the denial of the petition, as decisions must be based on the totality of the evidence. Accordingly, if the petitioner submits evidence that overcomes a negative advisory opinion and which establishes the merits of the person, USCIS may approve the petition.
2. Petitions Meriting Expedited Processing
If USCIS has determined that a petition merits expeditious handling, USCIS contacts the appropriate labor organization and requests an advisory opinion if one is not submitted by the petitioner. The organization then has 24 hours to respond to the request. If no response to the request is received, then USCIS renders a decision on the petition without an advisory opinion.[25]
Footnotes
[^ 1] See 8 CFR 214.2(p)(4)(i). INA 214(c)(4)(A) provides more information regarding petitions filed under the Creating Opportunities for Minor League Professionals, Entertainers, and Teams through Legal Entry (COMPETE) Act of 2006. See Pub. L. 109-463 (PDF) (December 22, 2006).
[^ 2] See 8 CFR 214.2(p)(4)(iii). Exceptions to some requirements apply to certain entertainment groups under 8 CFR 214.2(p)(4)(iii)(C). For more information, see Chapter 2, Eligibility Requirements, Section A, P-1 Nonimmigrant Classification [2 USCIS-PM N.2(A)].
[^ 3] See Section D, Consultation Requirement [2 USCIS-PM N.4(D)]. See 8 CFR 214.2(p)(2)(ii)(D). See 8 CFR 214.2(p)(7).
[^ 4] 8 CFR 214.2(p)(4)(ii)(B).
[^ 5] 8 CFR 214.2(p)(4)(ii)(B)(1).
[^ 6] See INA 214(c)(4)(A)(i)(I) and INA 101(a)(15)(P)(i). USCIS provided this interpretation in its policy guidance on March 26, 2021 in order to provide increased clarity for USCIS officers, to promote consistent adjudications, and to increase transparency for prospective petitioners. While alternative interpretations of the undefined regulatory phrase “major United States sports league or team” are possible, USCIS believes that this interpretation most closely aligns with the statute being interpreted, which requires that internationally recognized athletes perform “at an internationally recognized level of performance.” In addition, the interpretation is consistent with USCIS’ longstanding adjudicative focus on that statutory requirement.
[^ 7] For more information, see the discussion of internationally recognized athletes in Chapter 2, Eligibility Requirements, Section A, P-1 Nonimmigrant Classification [2 USCIS-PM N.2(A)].
[^ 8] See 8 CFR 214.2(p)(4)(ii)(B)(2).
[^ 9] See previous discussion regarding the interpretation of “major United States sports league or team.”
[^ 10] See 8 CFR 214.2(p)(4)(iii)(B). Exceptions to some requirements apply to certain entertainment groups under 8 CFR 214.2(p)(4)(iii)(C). For further discussion, see Chapter 2, Eligibility Requirements, Section A, P-1 Nonimmigrant Classification [2 USCIS-PM N.2(A)].
[^ 11] See 8 CFR 214.2(p)(4)(iii)(C).
[^ 12] See 8 CFR 214.2(p)(4)(iv).
[^ 13] See Section D, Consultation Requirement [2 USCIS-PM N.4(D)].
[^ 14] See 8 CFR 214.2(p)(5)(ii).
[^ 15] See 8 CFR 214.2(p)(5)(ii).
[^ 16] See 8 CFR 214.2(p)(6)(ii). See Matter of Skirball Cultural Center (PDF), 25 I&N Dec. 799 (AAO 2012).
[^ 17] See INA 214(c)(4)(D). See INA 214(c)(4)(E).
[^ 18] See 8 CFR 214.2(p)(7).
[^ 19] See 8 CFR 214.2(p)(7)(ii). See 8 CFR 214.2(p)(7)(iii).
[^ 20] See 8 CFR 214.2(p)(7)(iv).
[^ 21] See 8 CFR 214.2(p)(7)(v).
[^ 22] See 8 CFR 214.2(p)(7)(vi).
[^ 23] See 8 CFR 214.2(p)(7)(i)(E).
Chapter 5 - Adjudication
A. Approvals
If the necessary required evidence has been submitted and all requirements have been met, the officer approves the petition and issues a Notice of Action (Form I-797) showing the period of validity and the beneficiary’s name and classification.
1. Validity Period of Petition for Athletes and Entertainers
The approval period for a P nonimmigrant petition must conform to the limits outlined in the table below.
Nonimmigrant Classification | Validity Period |
---|---|
P-1 (individual athlete) | Up to 5 years[1] |
P-1 (team or entertainment group) | Period of time determined by USCIS to be necessary to complete the event or activity, but not to exceed 1 year[2] |
P-2 | Period of time determined by USCIS to be necessary to complete the event or activity, but not to exceed 1 year[3] |
P-3 | Period of time determined by USCIS to be necessary to complete the event or activity, but not to exceed 1 year[4] |
If the petition is approved after the date the petitioner indicated services would begin, the approved petition shows a validity period commencing with the date of approval and up to the date requested by the petitioner, not to exceed the maximum period described above.[5]
If the petitioner filed Form I-129 to extend the validity of the original petition in order to continue or complete the same activities or events specified in the original petition, an extension of stay may be authorized in increments of up to 1 year. P-1 individual athletes may be extended for up to 5 years, not to exceed 10 years in total.[6]
A beneficiary may be admitted to the United States for the validity period of the petition, plus a period of up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition.[7]
2. Validity Period of Petition for Essential Support Personnel
Current DHS regulations provide that an approved P-1 petition for an individual athlete (also known as a P-1A) are valid for a period of up to 5 years.[8] The general rule for the approval period of a P-1 petition for essential support personnel (also known as P-1S) states that the approved petition must only be valid for a period of time determined by USCIS to be necessary to complete the event for which the P-1 is admitted, not to exceed 1 year.[9]
The exception to that general rule is the period for an extension of stay to continue or complete the same event or activity for essential support personnel of a P-1A individual athlete, which may be approved for a period of up to 5 years, for a total period of stay not to exceed 10 years.[10] USCIS interprets this exception at 8 CFR 214.2(p)(14) consistent with its plain language, such that the 5-year extension of stay for a P-1S for an individual athlete is only available when the petitioner requests an extension of stay (and not consulate notification) to continue or complete the same event or activity for a beneficiary who is in the United States in P-1S status at the time the petition extension is properly filed, and the extension of stay request is approved.[11]
Therefore, while the initial validity period of a P-1 petition for essential support personnel is limited to 1 year or less, the validity period of an extension of stay of essential support personnel of a P-1A individual athlete may exceed 1 year thereafter, provided that:
- The purpose is to continue or complete the same event or activity for which they were admitted; and
- The extension of stay validity period does not exceed the period of time necessary to complete the event (not to exceed 5 years, or a total period of stay of 10 years).
B. Denials
If the requirements have not been met, the officer should deny the petition. The petitioner must be notified of the decision, the reasons for denial, and the right to appeal the denial.[12] The denial of a petition to classify a beneficiary as a P nonimmigrant may be appealed to the Administrative Appeals Office. The appeal must be filed on a Notice of Appeal or Motion (Form I-290B) within 30 days of the decision.[13] There is no appeal from a decision to deny an extension of stay to the beneficiary.[14]
If the officer decides to incorporate into the denial decision a negative advisory opinion which USCIS has obtained (separate from one submitted by the petitioner), he or she must disclose the nature of the advisory opinion to the petitioner in a Notice of Intent to Deny (NOID) and give the petitioner an opportunity for rebuttal.
Footnotes
[^ 1] See 8 CFR 214.2(p)(8)(iii)(A).
[^ 2] See 8 CFR 214.2(p)(8)(iii)(A). See 8 CFR 214.2(p)(8)(iii)(B).
[^ 3] See 8 CFR 214.2(p)(8)(iii)(B).
[^ 4] See 8 CFR 214.2(p)(8)(iii)(C).
[^ 5] See 8 CFR 214.2(p)(8)(ii)(A).
[^ 6] See 8 CFR 214.2(p)(14). For guidance on applying the period of authorized stay for individual athletes, see Procedures for Applying the Period of Stay for P-1 Nonimmigrant Individual Athletes (PDF), HQ 70/6.2.19, issued March 6, 2009.
[^ 7] See 8 CFR 214.2(p)(12).
[^ 8] See 8 CFR 214.2(p)(8)(iii)(A).
[^ 9] See 8 CFR 214.2(p)(8)(iii)(E).
[^ 10] See 8 CFR 214.2(p)(14). See Procedures for Applying the Period of Authorized Stay for P-1S Nonimmigrant Individual Athletes Essential Support Personnel (PDF), HQ 70/6.2.19, issued July 14, 2009.
[^ 11] See 8 CFR 214.2(p)(14)(i), which requires a petitioner seeking an extension to file both an extension of the petition and an extension of stay, and also states that the nonimmigrant applies for a visa at a consular office abroad if the nonimmigrant leaves the United States while the extension requests are pending.
[^ 12] See 8 CFR 103.3.
[^ 13] See 8 CFR 103.3(a)(2).
[^ 14] See 8 CFR 214.1(c)(5). While requests to extend petition validity and the person’s stay for P nonimmigrants are combined on the petition, USCIS makes a separate determination on each request. See 8 CFR 214.2(p)(14)(i).
Chapter 6 - Post-Adjudication Actions
A. Substitution of Beneficiaries
A petitioner may request a substitution for one or more members of a group on an approved petition by sending a letter requesting substitution and a copy of the petitioner’s approval notice to a consular officer where the person will apply for a visa or immigration officer at a port of entry where the person will apply for admission.[1] A petitioner may not request substitutions for support personnel; rather, the petitioner must submit a new petition.[2]
If a group is already in the United States performing with approved P-1 classification and the group now needs to add or substitute members, the additions or substitutes should be petitioned for as P-1s. In such instances, the petitioner must provide evidence of the original approval and the required consultation. In situations involving illness or exigent circumstances, USCIS may waive the 1 year relationship requirements.[3]
B. Revocations
The petitioner should immediately notify USCIS of any changes in the terms and conditions of employment of the beneficiary that may affect eligibility. USCIS may revoke a petition at any time, even after the validity of the petition has expired.
1. Automatic Revocation
The approval of an unexpired petition is automatically revoked if the petitioner, or the employer in a petition filed by an agent, goes out of business, files a written withdrawal of the petition, or notifies USCIS that the beneficiary is no longer employed by the petitioner.[4]
2. Revocation on Notice
When there is no provision that would result in automatic revocation, USCIS may issue a Notice of Intent to Revoke (NOIR) the approval of the petition, such as in cases where:
-
The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
-
The statement of facts contained in the petition was not true and correct;
-
The petitioner violated the terms or conditions of the approved petition;
-
The petitioner violated the statutory or regulatory provisions for P nonimmigrant classification; or
-
The approval of the petition violated the regulations or involved gross error.[5]
The NOIR should contain a detailed description of the grounds for the revocation and the time period allowed for the petitioner’s rebuttal.[6] USCIS considers all relevant evidence presented in determining whether to revoke the petition. A petition that has been revoked on notice may be appealed to the Administrative Appeals Office.[7] A petition that is automatically revoked may not be appealed.
Footnotes
[^ 1] See 8 CFR 214.2(p)(2)(iv)(H).
[^ 2] See 8 CFR 214.2(p)(2)(iv)(H).
[^ 3] See 8 CFR 214.2(p)(4)(iii)(c)(3).
[^ 4] See 8 CFR 214.2(p)(10)(ii).
[^ 5] See 8 CFR 214.2(p)(10)(iii)(A).
[^ 6] See 8 CFR 214.2(p)(10)(iii)(B). For more information on timeframes for Notices of Intent to Revoke, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 10, Post-Decision Actions, Section D, Revocation, Rescission, or Termination [1 USCIS-PM E.10(D)].
[^ 7] See 8 CFR 103.3.
Part O - Religious Workers (R)
Chapter 1 - Purpose and Background
A. Purpose
The Immigration and Nationality Act (INA) provides separate immigration classifications for religious workers depending on whether they seek to work in the United States on a permanent or a temporary basis.[1] Aliens working in the United States temporarily as a minister or in a religious vocation or occupation are eligible for the nonimmigrant religious worker (R-1) classification.[2]
B. Background
In 1990, Congress created new immigration classifications for religious workers, including the R-1 nonimmigrant classification and a special immigrant religious worker classification.[3]
In 2005, the USCIS Office of Fraud Detection and National Security (FDNS) conducted a Benefit Fraud Assessment of the special immigrant religious worker program by randomly selecting and reviewing pending and approved cases. As a result, USCIS issued a report finding significant fraud in the use of this classification.[4] This led USCIS to reconsider how it administered the special immigrant religious worker program.
In 2008, USCIS promulgated regulations that added requirements to establish eligibility for the special immigrant and nonimmigrant religious worker programs.[5] In part, the regulations introduced a requirement that a beneficiary’s prospective employer submit a petition for all R-1 nonimmigrants, including those outside of the United States.[6] The regulations also provided USCIS with discretionary authority to verify the submitted evidence through any means it determines appropriate, up to and including an on-site inspection of the petitioning organization.[7]
C. Legal Authorities
- INA 101(a)(15)(R) - Definition of R nonimmigrant classification
- 8 CFR 214.2(r) - Religious workers
Footnotes
[^ 1] See INA 101(a)(27)(C) and INA 101(a)(15)(R). See 8 CFR 204.5(m). The INA affords permanent religious workers a special immigrant status. Ministers and non-ministers in religious vocations and occupations may immigrate to or adjust status in the United States for the purpose of performing religious work in a full-time, compensated position under the employment-based 4th-preference visa classification. See INA 101(a)(27)(C). For more information about adjusting to lawful permanent residence as a special immigrant religious worker, see Volume 7, Adjustment of Status, Part F, Special Immigrant-Based Adjustment, Chapter 2, Religious Workers [7 USCIS-PM F.2].
[^ 2] See INA 101(a)(15)(R).
[^ 3] See Section 209 of the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649 (PDF), 104 Stat. 4978, 5027 (November 29, 1990), creating new INA 101(a)(15)(R). See Section 151 of IMMACT 90, Pub. L. 101-649 (PDF), 104 Stat. 4978, 5004 (November 29, 1990), creating new INA 101(a)(27)(C).
[^ 4] See Religious Worker Benefit Fraud Assessment Summary (July 2006).
[^ 5] See 73 FR 72276 (PDF) (Nov. 26, 2008).
[^ 6] Previously, a prospective nonimmigrant outside the United States could apply at a consular office overseas or, if visa-exempt, seek initial admission into the United States. See 72 FR 20442, 20444 (Apr. 25, 2007).
[^ 7] See 8 CFR 214.2(r)(16).
Chapter 2 - General Requirements
A. Overview
The temporary nonimmigrant religious worker (R-1) classification allows religious workers to enter the United States, or change status from another nonimmigrant category, in order to temporarily perform services as a minister of religion or in a religious occupation or vocation.[1]
An alien cannot self-petition for R-1 classification.[2] A U.S. employer must file a Petition for a Nonimmigrant Worker (Form I-129), seeking to classify a beneficiary as an R-1 nonimmigrant. In general, the petitioning R-1 employer must submit evidence demonstrating that:
- The petitioner is either a bona fide non-profit religious organization, or a bona fide organization that is affiliated with the religious denomination;[3]
- The beneficiary has been a member of the same type of religious denomination as that of the petitioner for the 2 years immediately preceding the time of application for admission;[4] and
- The beneficiary is entering the United States for the purpose of undertaking a compensated (either salaried or non-salaried) position or, in certain circumstances, an uncompensated position that is part of an established program for temporary, uncompensated missionary work.[5]
B. Filing Process
USCIS requires a petitioning employer to file the Petition for a Nonimmigrant Worker (Form I-129), with the R-1 Classification Supplement and required fee, for all persons seeking an R-1 nonimmigrant classification.[6] This petition requirement also applies to visa-exempt religious workers, such as Canadian citizens.[7]
To qualify for R-1 nonimmigrant classification, the petitioning U.S. employer must submit the R-1 Employer Attestation that is included in the R-1 Classification Supplement and evidence documenting that the petitioner and beneficiary meet the requirements set forth below.[8]
The petitioner should list all locations where the R-1 nonimmigrant will be working on the Petition for a Nonimmigrant Worker (Form I-129).[9] If it is anticipated that the R-1 nonimmigrant will be moved between different locations within a larger organization, that larger organization should petition for the worker. For example, a minister may move from ministry to ministry within a denomination, including at a different or additional unit of the religious denomination with a different federal tax number if the petitioning organization oversees all of these locations.
An R-1 nonimmigrant may work for more than one bona fide religious organization at the same time.[10] However, except as described in the previous paragraph (involving a larger employer overseeing multiple locations), when the beneficiary works for more than one employer, each employing organization must submit a separate Form I-129 and R-1 Classification Supplement, including the R-1 Employer Attestation, along with the appropriate documentation and fees.[11]
If a petitioner believes that one of the requirements for this classification substantially burdens the organization’s exercise of religion, it may seek an exemption under the Religious Freedom Restoration Act of 1993 (RFRA).[12] A written request for the exemption from a provision’s requirement should accompany the initial filing, and it must explain how the provision:
- Requires participation in an activity prohibited by a sincerely held religious belief; or
- Prevents participation in conduct motivated by a sincerely held religious belief.
The petitioner must support the request with relevant documentation.[13] The petitioner bears the burden of showing that it qualifies for an RFRA exemption. USCIS decides exemption requests on a case-by-case basis.
Footnotes
[^ 1] In some circumstances, another nonimmigrant classification, such as the business visitor (B-1) classification, may be more appropriate for certain members of religious and charitable activities. Discussion of the B-1 visa is beyond the scope of this Part, but the B-1 classification may include religious ministers who are on an evangelical tour or who are exchanging pulpits with U.S. counterparts, certain missionary workers, or participants in certain voluntary service programs. See 9 FAM 402.16-12, B Visas for Certain Religious Activity. See 9 FAM 402.2-5(C)(1), Ministers of Religion and Missionaries.
[^ 2] While special immigrant religious workers may self-petition, R-1 nonimmigrants may not do so. See 73 FR 72276 (PDF) (Nov. 26, 2008).
[^ 3] See 8 CFR 214.2(r)(3).
[^ 4] See 8 CFR 214.2(r)(3) and 8 CFR 214.2(r)(8)(ii).
[^ 5] See 8 CFR 214.2(r)(1) and 8 CFR 214.2(r)(11).
[^ 6] See 8 CFR 103.2(a)(1).
[^ 7] See 8 CFR 214.2(r)(4)(i).
[^ 8] The R-1 Classification Supplement is part of the Petition for a Nonimmigrant Worker (Form I-129).
[^ 9] See 8 CFR 214.2(r)(8)(x).
[^ 10] See 8 CFR 214.2(r)(2).
[^ 11] See 8 CFR 214.2(r)(1)(v) and 8 CFR 214.2(r)(2). For information on fees, see the Fee Schedule (Form G-1055).
[^ 12] See Pub. L. 103-141 (PDF), 107 Stat. 1488 (November 16, 1993).
[^ 13] See 8 CFR 103.2(b).
Chapter 3 - Petitioner Requirements
A. Qualifying Organization
The petitioner must attest it is either a bona fide non-profit religious organization or a bona fide organization that is affiliated with a religious denomination and is exempt from taxation. The authorizing official must sign the attestation, certifying that the attestation is true and correct.[1]
Bona Fide Non-profit Religious Organization[2]
A religious organization seeking to qualify as a “bona fide non-profit” religious organization in the United States is required to submit evidence that:
- The organization is exempt from federal tax requirements as described in Section 501(c)(3) of the Internal Revenue Code (IRC) of 1986;[3] and
- The organization has a currently valid determination letter from the Internal Revenue Service (IRS) confirming such exemption.[4]
In some cases, the petitioning entity may fall within the umbrella of a parent organization that has received a group tax exemption from the IRS. In these group tax-exempt cases, the petitioner may use the parent organization’s IRS determination letter, provided it submits that letter and presents evidence that it is covered under the group exemption granted to the parent organization and it is authorized by the parent organization to use its group tax exemption.
Examples on what may be submitted to show that a petitioner may use a group tax exemption letter from a parent organization include, but are not limited to:
- A letter from the organization holding a group exemption as evidence that the petitioner is covered by such exemption; the letter from the organization named in the exemption must specifically acknowledge that the petitioner falls under the group exemption;
- Copies of pages from a directory for the parent organization showing the petitioner as a member of the group;[5]
- The parent organization’s website that lists the petitioner as a member of the group covered by the exemption; and
- An IRS letter confirming the petitioner’s coverage under the parent organization exemption.
While the IRS does not require religious organizations to obtain a determination letter, USCIS regulations require petitioners to submit a determination letter with the R-1 petition. USCIS reviews the information contained within the letter to determine if the IRS classified the organization as a religious organization, or as other than a religious organization. Determination letters from the IRS do not expire, but the IRS can revoke them. The IRS offers a web-based Tax Exempt Organization Search tool to verify an organization’s tax-exempt status. An organization may use this tool for its own purposes to obtain a printout showing its currently valid tax-exemption. However, such a printout does not satisfy the requirement for submission of an IRS determination letter.
Bona Fide Organization Affiliated with Religious Denomination[6]
A petitioner qualifies as a bona fide organization that is affiliated with a religious denomination if:
- The organization is closely associated with the religious denomination;
- The organization is exempt from federal tax requirements as described in IRC 501(c)(3); and
- The organization has a currently valid determination letter from the IRS confirming such exemption.[7]
B. Petitioner Attestations[8]
The petitioner must provide information and specifically attest to the following (in addition to attesting that it is a qualifying R-1 employer):
- The number of members of the petitioning employer’s organization;
- The number of employees who work at the same location where the religious worker will be employed, and a summary of those employees’ responsibilities;
- The number of religious workers holding special immigrant religious worker status or R-1 nonimmigrant status currently employed or employed within the past 5 years by the petitioning employer’s organization;
- The number of special immigrant religious worker and R-1 nonimmigrant petitions and applications filed by or on behalf of any religious workers for employment by the petitioning employer in the past 5 years;
- The title of the position offered to the beneficiary;
- Detailed description of the beneficiary’s proposed daily duties;[9]
- The particulars of the salaried or non-salaried compensation or self-support for the position;[10]
- A statement that beneficiary will be employed at least 20 hours per week;
- The specific location(s) of employment;
- The beneficiary will not be engaged in secular employment;
- The beneficiary is qualified to perform the duties of the offered position; and
- The beneficiary has been a member of the denomination for at least 2 years.
C. Verification and Inspections
USCIS may conduct on-site inspections either before or after USCIS makes a final decision on the petition.[11] The purpose of the inspection is to verify the evidence submitted in support of the R-1 petition, such as the petitioner’s attestations and qualifications as a religious organization, the location(s) where the beneficiary will work, the organization’s facilities (including places of worship, where applicable), and the nature of the beneficiary’s proposed position.
USCIS randomly selects religious worker petitions for compliance review on-site inspections, which normally occur after the approval of the petition.[12] These site visits include inspections of the beneficiary’s work locations to verify the beneficiary’s work hours, compensation, and duties.[13] USCIS may also conduct “for cause” inspections at any time in cases where there is suspected non-compliance with the terms of the visa classification or fraud.[14] If applicable, USCIS may issue a request for evidence or notice of intent to deny based on the findings of a pre-adjudication inspection, or a notice of intent to revoke based on the findings of a post-adjudication inspection, and the petitioner will have an opportunity to respond.[15]
The petitioner cannot use a foreign address, as the employer must be in the United States in order to petition for religious workers.[16]
D. Documentation and Evidence
General Evidence Required
An R-1 petitioner is required to provide the following documentation and evidence to show the petitioner is a qualifying religious organization:[17]
- A properly completed current version of the Petition for a Nonimmigrant Worker (Form I-129) and R-1 Classification Supplement;
- A currently valid determination letter from the IRS establishing that the organization is a tax-exempt organization;[18] and
- Verifiable evidence of how the petitioner intends to compensate the beneficiary, including whether or not the beneficiary will be self-supporting.
Additional Evidence Required – Group Tax-Exempt Religious Organizations
In addition to the general evidence requirements, a group tax-exempt religious organization is required to provide evidence that it is included under the group exemption granted to a parent organization.[19] USCIS also requires evidence that the parent organization has authorized the petitioning entity to use its tax-exempt status.
Furthermore, an organization whose IRS determination letter does not identify its tax exemption as a religious organization must establish its religious nature and purpose. Such evidence may include the entity’s articles of incorporation or bylaws, flyers, articles, brochures, or other literature that describes the religious purpose and nature of the organization.
Additional Evidence Required – Organization Affiliated with Religious Denomination
In addition to the general evidence requirements, a bona fide organization that is affiliated with the religious denomination is also required to submit a Religious Denomination Certification signed by an authorized official of the religious denomination, certifying that the petitioning organization is affiliated with the religious denomination.[20]
If the affiliated organization was granted tax-exempt status under IRC 501(c)(3) under a category other than religious organization, in addition to the general requirements, the petitioner must also provide:
- Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization; and
- Organizational literature, such as books, articles, brochures, calendars, flyers, and other literature describing the religious purpose and nature of the activities of the organization.[21]
Table Summarizing Evidentiary Requirements
The table below serves as a quick reference guide for the evidence required depending on the type of R-1 nonimmigrant petitioner.
Type of Petitioner | Required Evidence |
---|---|
Tax-Exempt 501(c)(3) Religious Organization |
|
Group Tax-Exempt Religious Organization |
|
Bona Fide Organization Affiliated with Religious Denomination |
|
E. Employer Obligations[22]
The beneficiary’s employer must notify DHS within 14 calendar days if:
- The beneficiary is working less than the required number of hours;
- The beneficiary has been released from the employment; or
- The beneficiary has otherwise terminated employment before the expiration of a period of authorized R-1 nonimmigrant stay.
F. Compensation Requirement[23]
An R-1 nonimmigrant must receive either salaried or non-salaried compensation, or provide his or her own support as a missionary under an established missionary program. The petitioner is required to state either how it intends to compensate the R-1 nonimmigrant or how the R-1 nonimmigrant will be self-supporting as part of an established missionary program, and to submit the corresponding, verifiable evidence described below.[24] To the extent that the R-1 nonimmigrant will receive funds or other benefits (such as housing) from a third party, this arrangement does not constitute compensation from the petitioner.[25]
1. Salaried or Non-salaried Compensation
Compensation may be salaried or non-salaried. Salaried means receiving traditional pay such as a paycheck. Non-salaried means any of the following (separately or in combination): receiving support such as room, board, medical care, and transportation instead of or in addition to a paycheck.
The petitioner must submit IRS documentation of compensation, such as IRS Forms W-2 or tax returns, if available. If IRS documentation is unavailable, then the petitioning employer must explain why it is unavailable and submit comparable verifiable documentation.[26]
When the beneficiary will receive salaried or non-salaried compensation, the petitioning employer may also submit verifiable evidence such as:[27]
- Documentation of past compensation for similar positions;
- Budgets showing monies set aside for salaries, leases, etc.;
- Documentary evidence demonstrating that room and board will be provided; or
- Other evidence acceptable to USCIS.[28]
While the regulation does not require audited financial reports, unaudited budgets or financial statements should be accompanied by supporting evidence that is verifiable. For example, budgets should be generally consistent with past revenue and supported by bank statements showing listed cash balances. When relying on bank statements, they should show an availability of sufficient funds to cover the beneficiary’s salaried compensation over a sufficient period of time.
Further, USCIS does not consider salaried or non-salaried support deriving from a third party as a portion of the beneficiary’s required compensation. The regulation requires that compensation derive from the petitioner.[29] Room and board at a church member’s home, or provided by any other church, is a form of third-party compensation. Unless the church reimburses the other party for this room and board, such arrangements are not a qualifying form of non-salaried compensation. A petitioner may also submit evidence such as proof that it owns the property or a lease showing it pays for the residential space to establish that it is the entity providing non-salaried compensation.
In situations where the petitioning entity is not the entity that will directly compensate the religious worker, USCIS reviews the relationship between the two entities in the totality of the circumstances to confirm that the petitioner who is attesting in the petition is the employer of the beneficiary,[30] and that the petitioner has the ability and intent to compensate the beneficiary.
In making this determination, USCIS considers whether there is a documented relationship between the petitioner and the entity providing salaried or non-salaried compensation to show that the petitioner, through this other entity, is still compensating the beneficiary. Factors that may demonstrate this relationship include, but are not limited to, the following:
- The petitioning entity has the authority to dictate financial policy, remove clergy for cause, and veto acquisition of debt at the compensating entity;
- The petitioning entity owns the compensating entity’s assets or includes the compensating entity on its audited financial statements;
- According to established rules or practice in the relevant organization or denomination, the petitioning entity makes personnel decisions for the compensating entity;
- Any other documentation showing the petitioning entity has direct oversight or involvement in the financial and personnel matters of the compensating entity.
As an example, a diocese that has the authority to move clergy from one church to another and jointly owns assets with its subordinate churches that are part of the same group’s tax-exempt status may properly file a petition for clergy at a subordinate church even if the subordinate church directly pays the salary. In this example, documentation showing how the subordinate church will compensate the religious worker may be used to satisfy the petitioner’s obligation.[31]
Consistent with the required attestations, the prospective employer must state whether the beneficiary will receive salaried or non-salaried compensation and the details of such compensation.[32]
2. Self-Support
Self-support means that the position the beneficiary will hold is part of an established program for temporary, uncompensated missionary work, and part of a broader international program of missionary work the denomination sponsors.[33]
An established program for temporary, uncompensated missionary work, is defined to be a missionary program in which:
- Foreign workers, whether compensated or uncompensated, have previously participated in R-1 status;
- Missionary workers are traditionally uncompensated;
- The organization provides formal training for missionaries; and
- Participation in such missionary work is an established element of religious development in that denomination.[34]
If the beneficiary will be self-supporting, the petitioner must provide:
- Evidence demonstrating that the petitioner has an established program for temporary, uncompensated missionary work;
- Evidence demonstrating that the denomination maintains missionary programs both in the United States and abroad;
- Evidence of the beneficiary’s acceptance into the missionary program;
- Evidence demonstrating the religious duties and responsibilities associated with the traditionally uncompensated missionary work; and
- Copies of the beneficiary’s bank records, budgets documenting the sources of self-support (including personal or family savings, room and board with host families in the United States, donations from the denomination’s churches) or other verifiable evidence acceptable to USCIS.[35]
3. Multiple Beneficiaries
A petitioner is required to attest to the number of special immigrant religious worker and R-1 nonimmigrants it currently employs, the number it has employed within the last 5 years, as well as the number of petitions and applications filed by or on behalf of any special immigrant religious worker and R-1 nonimmigrant for employment by the prospective employer within the last 5 years.[36]
Where the petitioner has filed for multiple beneficiaries, the petitioner may be required to demonstrate that it has the ability to compensate all of its religious workers, including special immigrant religious workers and R-1 nonimmigrants other than the beneficiary of the petition currently being submitted.[37]
Footnotes
[^ 1] See 8 CFR 214.2(r)(8)(i) and the R-1 Classification Supplement in Petition for a Nonimmigrant Worker (Form I-129).
[^ 2] See 8 CFR 214.2(r)(3).
[^ 3] See IRC’s Exemption Requirements - 501(c)(3) Organizations.
[^ 4] See 8 CFR 214.2(r)(9). For a religious organization that is recognized as tax-exempt under a group tax exemption, a petition should include a currently valid determination letter from the IRS establishing that the group is tax exempt. See 8 CFR 214.2(r)(9)(iii).
[^ 5] For instance, if a Roman Catholic Church petitions for a priest, the church may submit the group tax-exempt letter issued to the U.S. Conference of Catholic Bishops along with a copy of the Catholic Directory to satisfy the tax exemption requirement.
[^ 6] See 8 CFR 214.2(r)(3).
[^ 7] See Section D, Documentation and Evidence [2 USCIS-PM O.3(D)] for evidentiary requirements.
[^ 8] See 8 CFR 214.2(r)(8).
[^ 9] This attestation is derived from 8 CFR 214.2(r)(8)(vii) and relates to all R-1 petitions, including beneficiaries coming to perform a religious vocation. See 8 CFR 214.2(r)(8)(vii). Post-adjudication site visits focusing on R-1 beneficiaries cannot verify the beneficiary’s work hours, compensation, and duties consistent with supporting the integrity of the R-1 classification if the petition provides only a vague description of the beneficiary’s proposed duties.
[^ 10] See Chapter 4, Beneficiary Requirements [2 USCIS-PM O.4].
[^ 11] See 8 CFR 214.2(r)(7). See 8 CFR 214.2(r)(16).
[^ 12] As a matter of policy, USCIS no longer conducts mandatory pre-approval on-site inspections of all petitioners for religious workers. However, USCIS may still conduct site visits at any point, including pre-approval, if USCIS determines it appropriate to verify information. USCIS provided this clarification in its policy guidance on March 2, 2023.
[^ 13] See 8 CFR 214.2(r)(16).
[^ 14] See 8 CFR 214.2(r)(16).
[^ 15] See 8 CFR 103.2(b)(8), 8 CFR 103.2(b)(16)(i),and 8 CFR 214.2(r)(18)(iii).
[^ 16] See 8 CFR 214.2(r)(16).
[^ 17] See 8 CFR 103.2(a) and 8 CFR 103.2(b)(1).
[^ 18] Although an IRS-issued tax-exempt determination letter does not expire, a letter that the IRS has revoked cannot be used to meet the regulatory requirement.
[^ 19] See 8 CFR 214.2(r)(9)(ii).
[^ 20] See 8 CFR 214.2(r)(9)(iii)(D).
[^ 21] See 8 CFR 214.2(r)(9)(iii).
[^ 22] See 8 CFR 214.2(r)(14).
[^ 23] See 8 CFR 214.2(r)(11).
[^ 24] See 8 CFR 214.2(r)(11).
[^ 25] See 8 CFR 214.2(r)(11).
[^ 26] See 8 CFR 214.2(r)(11)(i).
[^ 27] This is not a conclusive list and petitioners may submit other verifiable evidence acceptable to USCIS. See 8 CFR 214.2(r)(11)(i).
[^ 28] For instance, petitioners may submit evidence demonstrating that stipends, medical care, or other non-salaried forms of support will be provided. See 73 FR 72276 (PDF), 72281-82 (Nov. 26, 2008).
[^ 29] See 8 CFR 214.2(r)(11).
[^ 30] See 8 CFR 214.2(r)(7) and 8 CFR 214.2(r)(8).
[^ 31] See 8 CFR 214.2(r)(11).
[^ 32] See 8 CFR 214.2(r)(8)(viii).
[^ 33] See 8 CFR 214.2(r)(11)(ii)(A).
[^ 34] See 8 CFR 214.2(r)(11)(ii)(B)(1)-(4).
[^ 35] See 8 CFR 214.2(r)(11)(ii)(C)(1)-(5).
[^ 36] See 8 CFR 214.2(r)(8)(v), 8 CFR 214.2(r)(8)(vi), 8 CFR 204.5(m)(7)(iv), and 8 CFR 204.5(m)(7)(v).
[^ 37] The regulations require that a petitioning organization demonstrate through verifiable evidence its intent to compensate both immigrant and nonimmigrant religious workers, or how a nonimmigrant religious worker will be self-supporting). See 8 CFR 214.2(r)(8)(viii), 8 CFR 214.2(r)(11), 8 CFR 204.5(m)(7)(xi), 8 CFR 204.5(m)(7)(xii), and 8 CFR 204.5(m)(10).
Chapter 4 - Beneficiary Requirements
To qualify for a temporary nonimmigrant religious worker (R-1) classification, the beneficiary must:
- Be a member of a religious denomination having a bona fide non-profit religious organization in the United States for at least the 2 years immediately preceding the filing of the petition;
- Be coming to the United States to work at least in a part-time position (at least 20 hours per week);
- Be coming solely as a minister or to perform a religious vocation or occupation;
- Be coming to or remaining in the United States at the request of the petitioner to work for the petitioner; and
- Not work in the United States in any capacity not approved in a DHS-approved petition.[1]
The beneficiary must also intend to depart the United States upon the expiration or termination of his or her nonimmigrant status. However, a nonimmigrant petition, application for initial admission, change of status, or extension of stay in R classification may not be denied solely on the basis of a filed or an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.[2]
A. Qualifying Employment
The beneficiary must be coming to engage in a religious vocation or in a religious occupation, or as a minister of religion.
Religious Worker[3]
For the purpose of the R-1 nonimmigrant classification, a religious worker is someone who:
- Is a member of the religious denomination that has a bona fide non-profit religious organization in the United States, and was a member in the same type of religious denomination for at least 2 years immediately preceding the time of application for admission;
- Is coming to the United States to work at least part-time (at least 20 hours per week);
- Is coming to the United States solely to perform a religious vocation or occupation in either a professional or nonprofessional capacity, or as a minister;
- Is coming to or remaining in the United States at the request of the petitioner to work for the petitioner;
- Will not work in the United States in any capacity other than that of a religious worker; and
- Is engaged in and, according to the denomination's standards, qualified for a religious occupation or vocation, whether or not in a professional capacity, or as a minister.
Religious Vocation
A religious vocation is a formal lifetime commitment through vows, investitures, ceremonies, or similar indications to a religious way of life. People within a religious vocation dedicate their lives to religious practices and functions, as distinguished from secular members of a denomination.[4] The regulations state that the religious denomination must have a class of persons whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion.
Religious Occupation[5]
In order for USCIS to consider the employment a religious occupation, the title of the position is not determinative; rather, USCIS looks at whether the occupation meets all of the following requirements:
- The duties must primarily relate to a traditional religious function and be recognized as a religious occupation within the denomination;
- The duties must be primarily related to, and must clearly involve, inculcating (teaching and instilling in others) or carrying out the religious creed and beliefs of the denomination;
- The duties do not include positions which are primarily administrative or supportive in nature, although limited administrative duties that are only incidental to religious functions are permissible;[6] and
- Religious study or training for religious work does not constitute a religious occupation, but a religious worker may pursue study or training, incident to status, while in the United States as an R-1 nonimmigrant.
Minister[7]
For the purpose of R-1 nonimmigrant classification, a minister is someone who:
- Is fully authorized by and trained in the religious denomination to conduct religious worship, and perform other duties usually performed by authorized members of the clergy of the denomination;
- Performs activities rationally related to being a minister;
- Works solely as a minister in the United States which may include administrative duties incidental to the duties of a minister; and
- Is not a lay preacher or a person not authorized to perform clergy’s duties.
B. Religious Denomination
A religious denomination is a religious group or community of believers that have a common type of ecclesiastical government that governs or administers and includes one or more of the following:
- A recognized common creed or statement of faith shared among the denomination’s members;
- A common form of worship;
- A common formal code of doctrine and discipline;
- Common religious services and ceremonies;
- Common established places of religious worship or religious congregations; or
- Comparable indications of a bona fide religious denomination.[8]
The R-1 nonimmigrant beneficiary must have at least 2 years, immediately preceding the filing of the petition, of membership in a religious denomination.[9] Such membership must be in the same type of religious denomination in which the beneficiary will work in the United States.[10]
C. Nonimmigrant Intent
To be eligible for R-1 nonimmigrant classification, the beneficiary must maintain an intention to depart the United States upon the expiration or termination of such R-1 nonimmigrant status, if granted.[11] However, a nonimmigrant petition, application for initial admission, change of status, or extension of stay in R-1 nonimmigrant classification may not be denied solely based on the beneficiary’s pursuit of permanent residence in the United States (for example, evidence of a filed or approved request for permanent labor certification or immigrant petition on the beneficiary’s behalf).[12]
D. Documentation and Evidence
The petitioner must submit evidence to establish that the beneficiary meets the requirements for R-1 nonimmigrant classification.[13]
Ministers
For a beneficiary who is a minister, the petitioner must submit the following:
- A copy of the beneficiary’s certificate of ordination or similar documents;
- Documents reflecting acceptance of the beneficiary’s qualifications as a minister in the religious denomination; and
- Evidence that the beneficiary has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation that establishes that the theological education is accredited by the denomination.[14]
For denominations that do not require a theological education, rather than document such education, the petitioner must instead submit evidence of:
- The denomination’s requirements for ordination to minister;
- Duties allowed to be performed by virtue of ordination;
- The denomination’s levels of ordination, if any; and
- The beneficiary’s completion of the denomination’s requirements for ordination.[15]
Religious Vocations and Occupations
For a beneficiary who will work in a religious vocation or occupation, the petitioner must submit evidence of the following:
- The beneficiary is entering the United States to perform a religious vocation or occupation, defined above (in either a professional or nonprofessional capacity);[16]
- The beneficiary is qualified for the religious occupation or vocation according to the denomination’s standards.[17]
E. Family Members
1. Initial Petition
The spouse and unmarried children under 21 years old of a principal R-1 nonimmigrant may qualify for dependent R-2 status if their primary purpose in coming to the United States is to join or accompany the principal R-1 nonimmigrant.[18]
In general, the spouse and children are granted R-2 nonimmigrant status for the same period of time and subject to the same conditions as the principal R-1 nonimmigrant, regardless of the amount of time the spouse and children may already have spent in the United States in R-2 status.[19]
2. Request to Extend or Change Nonimmigrant Status
R-2 dependents may request an extension of stay or change of status by filing an Application to Extend/Change Nonimmigrant Status (Form I-539).
3. Employment Authorization Prohibited
An R-2 dependent may not accept employment in the United States.[20]
Footnotes
[^ 1] See 8 CFR 214.2(r)(1).
[^ 2] See 8 CFR 214.2(r)(15).
[^ 3] See 8 CFR 214.2(r)(1).
[^ 4] Examples of persons practicing religious vocations include nuns, monks, and religious brothers and sisters. See definition of religious vocation in 8 CFR 214.2(r)(3).
[^ 5] See 8 CFR 214.2(r)(3).
[^ 6] Examples of support positions are janitors, maintenance workers, clerical employees, fund raisers, persons solely involved in the solicitation of donations, or similar positions. See (C) in the definition of religious occupation in 8 CFR 214.2(r)(3).
[^ 7] See 8 CFR 214.2(r)(3).
[^ 8] See 8 CFR 214.2(r)(3).
[^ 9] See 8 CFR 214.2(r)(1)(i).
[^ 10] See definition of denominational membership in 8 CFR 214.2(r)(3).
[^ 11] See 8 CFR 214.2(r)(15).
[^ 12] See 8 CFR 214.2(r)(15).
[^ 13] See 8 CFR 103.2(b)(1). See list of the general eligibility requirements for R-1 status at the beginning of this chapter.
[^ 14] See 8 CFR 214.2(r)(10)(i)-(ii).
[^ 15] See 8 CFR 214.2(r)(10)(iii)(A)-(D).
[^ 16] See 8 CFR 214(r)(1)(iii).
[^ 17] See definition of religious worker in 8 CFR 214.2(r)(3).
[^ 18] See INA 101(a)(15)(R). See 8 CFR 214.2(r)(4)(ii)(C).
Chapter 5 - Adjudication
Officers must carefully review each petition for a nonimmigrant religious worker (R-1) to ensure compliance with the intent of the R-1 nonimmigrant category to allow religious workers to temporarily work in the United States. Officers should apply a “preponderance of the evidence” standard when evaluating eligibility for the benefit sought.[1] The burden of proving eligibility for the benefit sought rests entirely with the petitioner.[2]
A. Decision
1. Approvals
If the petitioner properly filed the Petition for a Nonimmigrant Worker (Form I-129) and the officer is satisfied that the petitioner has met the required eligibility standards, the officer should approve the petition. The approval period should not exceed the maximum period of stay allowed.[3]
The table below provides a list of the classifications for R nonimmigrants.
Beneficiary |
Code of Admission |
---|---|
Religious Worker (Principal) |
R-1 |
Spouse of a Principal Religious Worker |
R-2 |
Child of a Principal Religious Worker |
R-2 |
Once USCIS approves the petition, the officer must notify the petitioner of the action taken using a Notice of Action (Form I-797).[4]
2. Denials
If the petitioner does not meet the eligibility requirements, the officer must deny the petition.[5] If the officer denies the petition, he or she must prepare a final notice of action, which includes information explaining why the petition is denied.[6] Additionally, officers should include information about appeal rights and the opportunity to file a motion to reopen or reconsider in the denial notice. The office that issued the decision has jurisdiction over any motion and the Administrative Appeals Office (AAO) has jurisdiction over any appeal.[7]
B. Revocations[8]
USCIS may revoke the approval of a petition at any time. USCIS automatically revokes the approval of the petition if the petitioner ceases to exist or files a written withdrawal of the petition.[9] A notice of intent to revoke (NOIR) is necessary where there is no regulatory provision that would allow for an automatic revocation, such as where:
-
The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
-
The statement of facts contained in the petition was not true and correct;
-
The petitioner violated the terms and conditions of the approved petition;
-
The petitioner violated the statutory or regulatory requirements; or
-
The approval of the petition violated the regulations or involved gross error.[10]
The NOIR should contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner’s rebuttal.[11]
USCIS must consider all relevant evidence presented in deciding whether to revoke the approval of the petition.[12]
The petitioner may appeal the decision to revoke the approval of a petition to the AAO if the petition’s approval was revoked on notice. Automatic revocations may not be appealed.[13]
Footnotes
[^ 1] See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M- (PDF), 20 I&N Dec. 77, 79-80 (Comm. 1989)).
[^ 2] See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966).
[^ 3] See Chapter 7, Period of Stay [2 USCIS-PM O.7].
[^ 4] See 8 CFR 103.2(b)(19).
[^ 5] See 8 CFR 103.2(b)(8).
[^ 6] See 8 CFR 103.2(b)(19). See 8 CFR 103.3. See 8 CFR 214.2(r)(17).
[^ 7] See 8 CFR 103.3(a)(2).
[^ 8] See 8 CFR 214.2(r)(18)-(19).
[^ 9] See 8 CFR 214.2(r)(18)(ii). See Chapter 7, Period of Stay [2 USCIS-PM O.7].
[^ 10] See 8 CFR 214.2(r)(18)(iii).
[^ 11] For more information on timeframes for Notices of Intent to Revoke, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 10, Post-Decision Actions, Section D, Revocation, Rescission, or Termination [1 USCIS-PM E.10(D)].
[^ 12] See 8 CFR 214.2(r)(18)(iii)(B).
[^ 13] See 8 CFR 214.2(r)(19).
Chapter 6 - Admissions, Extensions of Stay, and Changes of Status
A. Admission
If approved for nonimmigrant religious worker (R-1) classification and found otherwise admissible, a beneficiary may be admitted as an R-1 nonimmigrant for an initial period of up to 30 months from the date of initial admission.[1]
Maintaining Status
A religious worker may only work per the terms of the approved petition. While holding R-1 status, nonimmigrants may not work in the United States in any other capacity but as a religious worker, and cannot change capacities between a minister or other types of religious worker unless specifically approved.[2] An R-1 nonimmigrant may be considered to have violated his or her nonimmigrant status, and therefore not be in lawful immigration status, if he or she works for an employer who has not obtained prior approval of such employment through the filing of a petition and appropriate supplement, supporting documents, and appropriate fees.[3]
B. Extension of Stay
An employer may request an extension of stay for an R-1 nonimmigrant on the Petition for a Nonimmigrant Worker (Form I-129).[4] The extension may be for the validity period of the extension request, up to 30 months, for a maximum period of stay for up to 5 years.[5]
The petitioner must include the following with the Form I-129:
- R-1 Classification Supplement, including the R-1 Employer Attestation;
- Supporting documents to establish eligibility under the R-1 nonimmigrant classification, including documentation of salaried or non-salaried compensation; and
- Initial evidence of the previous R-1 employment, such as financial or other records to establish that the person worked as an R-1 nonimmigrant.[6]
1. Compensation Documentation[7]
Salaried Compensation
Any request for an extension of stay as an R-1 nonimmigrant must include initial evidence of the previous employment as a religious worker. If the beneficiary received salaried compensation, then the petitioner must submit Internal Revenue Service (IRS) documentation of salaried compensation, such as an IRS Form W-2 or certified copies of filed income tax returns, reflecting such work and compensation for the preceding 2 years.[8]
If the beneficiary was admitted for less than 2 years in the R-1 nonimmigrant status, the petitioner may provide evidence of work and compensation in that status for the duration of the beneficiary’s authorized admission.[9]
Non-Salaried Compensation
If the beneficiary is requesting an extension of stay as an R-1 nonimmigrant and previously received non-salaried compensation, the petitioner must submit IRS documentation of the non-salaried compensation if available.[10] If no IRS documentation is available, the petitioner must explain the lack of IRS documentation and submit verifiable evidence of all financial support, including information on:[11]
- Stipends;
- Room and board;
- Other support for the beneficiary along with a description of the location where the beneficiary lived (for example, a lease for the beneficiary); or
- Other evidence acceptable to USCIS.
Self-Support[12]
If the beneficiary is applying for an extension of stay as an R-1 nonimmigrant and was previously supporting him or herself financially and not receiving any compensation from the religious organization, the petitioner must provide verifiable documents to show how the beneficiary is self-supporting. Documentation may include:
- Audited financial statements;
- Financial institution records;
- Brokerage account statements;
- Trust documents signed by an attorney; or
- Other evidence acceptable to USCIS.
The table below summarizes the evidence required depending on the type of compensation.
Beneficiary’s Previous Compensation | Required Evidence |
---|---|
Salary |
|
Non-Salary |
|
No Salary, But Provided Own Support |
|
2. Requests for Evidence
With regard to a beneficiary’s eligibility for an extension of stay, an officer may issue a request for evidence (RFE) to the petitioner if it appears that the beneficiary has not maintained his or her status due to the following reasons:
- Termination – USCIS has been notified that the beneficiary was terminated from the employment before the expiration of a period of authorized R-1 stay;
- Released from Employment – USCIS has been notified that the beneficiary has been released from employment before the expiration of a period of authorized R-1 stay; or
- Worked Less Than Required Hours – USCIS has been notified that the beneficiary is working less than the required number of hours for the employment.[13]
C. Change of Status
Generally, a beneficiary in a current valid nonimmigrant status who has not violated his or her status is eligible to change status to an R-1 nonimmigrant in the United States without having to return to his or her home country for a visa interview.[14] Such a beneficiary may be granted R-1 status for an initial period of up to 30 months.[15]
To change nonimmigrant statuses, the petitioning employer should file a Petition for a Nonimmigrant Worker (Form I-129) before the beneficiary’s current status expires and indicate the request is for a change of status. The beneficiary cannot work in the new R-1 nonimmigrant classification until USCIS approves the petition and the change of status request. If USCIS determines that the beneficiary is eligible for R-1 nonimmigrant, but not a change of status, the beneficiary must apply for an R-1 nonimmigrant visa at a U.S. consular post abroad and then be readmitted to the United States as an R-1 nonimmigrant.[16]
D. Change of Employer
USCIS considers any unauthorized change to a new employer a failure to maintain status. If the R-1 nonimmigrant is to be employed by a different or additional unit of the religious denomination (if it has a different federal tax number), the employer must file a new Form I-129. Such a circumstance would be considered new employment.
However, an example of a permissible employment location change that would not require a new petition would be a petition filed on behalf of a minister who moves from ministry to ministry within a denomination so long as the organization that oversees all of these locations is the petitioner for that minister.[17]
Footnotes
[^ 1] See 8 CFR 214.2(r)(4).
[^ 2] See 8 CFR 214.2(r)(1)(v) and 8 CFR 214.2(r)(2). See 8 CFR 214.2(r)(18)(iii)(A)(1).
[^ 3] See 8 CFR 214.2(r)(13).
[^ 4] See 8 CFR 214.1(c)(1). Where a petitioner demonstrates eligibility for a requested extension, it may be granted at USCIS’ discretion. Petitioners may not appeal denials of an application for extension of stay. See 8 CFR 214.1(c)(5).
[^ 5] For more information on maximum allowable time in R-1 nonimmigrant status, see Chapter 7, Period of Stay [2 USCIS-PM O.7].
[^ 6] See 8 CFR 214.2(r)(5). See 8 CFR 214.2(r)(12).
[^ 7] See 8 CFR 214.2(r)(11) and 8 CFR 214.2(r)(12)(i).
[^ 8] See 8 CFR 214.2(r)(12)(i).
[^ 9] See 8 CFR 214.2(r)(12).
[^ 10] See 8 CFR 214.2(r)(12)(ii).
[^ 11] See 8 CFR 214.2(r)(12)(ii).
[^ 12] See 8 CFR 214.2(r)(12)(iii).
[^ 13] See 8 CFR 214.2(r)(14).
[^ 14] An example of a violation of status is if, generally, the nonimmigrant’s current status expires before seeking extension of status by filing a Petition for a Nonimmigrant Worker (Form I-129) with USCIS or by working without valid employment authorization.
[^ 15] See 8 CFR 214.2(r)(4).
[^ 16] There is no appeal from a change of status denial. See 8 CFR 248.3(g).
[^ 17] See 8 CFR 214.2(r)(7). See 8 CFR 214.2(r)(13).
Chapter 7 - Period of Stay
A. Maximum Period of Stay
An eligible alien may be admitted as a nonimmigrant religious worker (R-1) or may change status to R-1 nonimmigrant classification for a period of up to 30 months from the date of initial admission.[1] USCIS may grant one extension for up to 30 months, but with the total period of stay not to exceed the statutory maximum of 5 years (60 months) if the R-1 nonimmigrant is otherwise eligible.[2]
An R-1 nonimmigrant may be subject to removal if he or she violates the terms of his or her status, such as remaining in the United States longer than the period of his or her authorized stay.
B. Exceptions to Limitation on Total Stay[3]
A beneficiary who has spent 5 years in the United States in R-1 nonimmigrant status may not be readmitted to or receive an extension of stay in the United States under the R-1 nonimmigrant classification, unless such a beneficiary subsequently has resided abroad and been physically present outside the United States for the immediate prior year. However, this 5-year limitation does not apply to beneficiaries who:
- Did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year; or
- Reside abroad and regularly commute to the United States to engage in part-time employment.
Petitioners and beneficiaries must meet all qualifications for the exception to the limitation on total stay, and must provide clear and convincing evidence that they qualify for the exception. Such proof may include arrival and departure records, transcripts of processed income tax returns, and records of employment abroad.
C. Recapture Time
USCIS only counts time physically spent in the United States in the R-1 nonimmigrant status towards the maximum 5 years of authorized stay. Officers should count only time spent physically in the United States in valid R-1 status toward the 5-year maximum period of stay.
When requesting an extension, the petitioner, on behalf of the R-1 nonimmigrant, may request that full calendar days spent outside the United States during the period of petition validity be recaptured and added back to his or her remainder of the total maximum period of stay, regardless of whether the R-1 nonimmigrant is currently in the United States or abroad and regardless of whether he or she currently holds R-1 nonimmigrant status.
It is the burden of the petitioner, on behalf of the beneficiary, to demonstrate continuing eligibility for the classification and that the beneficiary is entitled to recapture time with appropriate evidence. The reason for the absence is not relevant to whether the time may be recaptured. Any trip of at least one 24-hour calendar day outside the United States for any purpose, personal or professional, can be recaptured.
1. Evidence
The burden of proof remains with the R-1 petitioner, on behalf of the beneficiary, to submit evidence documenting periods of physical presence outside the United States when seeking an extension of petition validity and extension of stay as an R-1 nonimmigrant. The R-1 nonimmigrant is in the best position to organize and submit evidence of his or her departures from and readmissions to the United States. While a summary, charts of travel, or both are often submitted to facilitate review of the accompanying documentation, independent documentary evidence, such as photocopies of passport stamps, Arrival/Departure Records (Form I-94), and plane tickets establishing that the R-1 beneficiary was outside the United States during all of the days, weeks, or months that he or she seeks to recapture is always required.
The fact that the burden may not be met for some claimed periods generally has no bearing on other claimed periods for which the burden has been met. Any periods for which the burden has been met may be added to the eligible period of admission upon approval of the application for extension of status. An R-1 beneficiary may not be granted an extension of stay for periods that are not supported by independent documentary evidence. It is not necessary to issue a request for evidence (RFE) for any claimed periods unsupported by independent documentary evidence.
2. Applicability to R-2 Dependents
The status of an R-2 dependent of a principal R-1 nonimmigrant is subject to the same period of admission and limitations as the principal beneficiary, regardless of the time such spouse and children may have spent in the United States in R-2 status.[4] For example, if an R-1 nonimmigrant is able to recapture a 2-week missionary trip abroad, then his or her R-2 dependents, if seeking an extension of stay, should be given an extension of stay up to the new expiration of the R-1 nonimmigrant’s period of stay.
3. Seasonal or Intermittent Employment Exception
An R-1 nonimmigrant is eligible for the exception to the limitation of stay requirements by demonstrating that he or she:
- Did not reside continually in the United States and that his or her employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year; or
- Resides abroad and regularly commutes to the United States to engage in part-time employment.
To qualify for this exception, the petitioner and the beneficiary must provide clear and convincing proof that the beneficiary qualifies for such an exception. Such proof generally consists of evidence such as: Arrival/Departure Records (Form I-94), transcripts of processed income tax returns, and records of employment abroad.
Footnotes
[^ 1] See 8 CFR 214.2(r)(4).
[^ 2] See 8 CFR 214.2(r)(5).
[^ 3] See 8 CFR 214.2(r)(6).
Part P - NAFTA Professionals (TN)
Part Q - Nonimmigrants Intending to Adjust Status (K, V)
Volume 3 - Humanitarian Protection and Parole
Part A - Protection and Parole Policies and Procedures
Part B - Victims of Trafficking
Chapter 1 - Purpose and Background
A. Purpose
Human trafficking (also known as trafficking in persons) involves the exploitation of persons in order to compel labor, services, or commercial sex acts.[1] The Trafficking Victims Protection Act (TVPA), part of the Victims of Trafficking and Violence Protection Act of 2000, was enacted to strengthen the ability of law enforcement agencies to investigate and prosecute trafficking in persons, while offering protections to victims of such trafficking, including temporary protections from removal, access to certain federal and state public benefits and services, and the ability to apply for T nonimmigrant status (commonly referred to as the T visa).
T nonimmigrant status allows eligible victims of a severe form of trafficking in persons[2] to remain in the United States on a temporary basis, receive employment authorization, and qualify for benefits and services to the same extent as a refugee.[3] It also allows victims to apply for T nonimmigrant status for certain family members.
B. Background
USCIS has sole jurisdiction over the adjudication of the Application for T Nonimmigrant Status (Form I-914).[4] T nonimmigrant status provides:
- Nonimmigrant status and employment authorization for an initial period of up to 4 years;
- Access to public benefits and services;
- Nonimmigrant status for certain eligible family members; and
- The opportunity to apply for lawful permanent resident status if eligible.[5]
Applications are adjudicated by officers who receive trauma-informed and victim-centered training. There are protections in place to safeguard the confidentiality of any information relating to the applicant.[6] In addition, in recognition of the unique challenges trafficking victims may face in providing evidentiary proof of their victimization, USCIS must consider “any credible evidence” in determining whether the applicant has established eligibility for T nonimmigrant status.[7]
C. Legislative History
Since the initial creation of the T nonimmigrant classification in 2000, Congress has amended the program requirements several times. In addition to creating a nonimmigrant classification for victims of human trafficking, the TVPA and subsequent reauthorizing legislation provide various means to combat trafficking in persons, including tools to effectively prosecute and punish perpetrators of trafficking in persons and prevent incidents of human trafficking.
Acts and Amendments | Key Changes |
---|---|
Trafficking and Violence Protection Act (TVPA) of 2000[8] |
|
Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003[9] |
|
Violence Against Women and Department of Justice Reauthorization Act (VAWA) of 2005[10] |
|
William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA 2008)[11] |
|
Violence Against Women Reauthorization Act of 2013 (VAWA 2013)[12] |
|
Justice for Victims of Trafficking Act of 2015 (JVTA)[14] |
|
D. Legal Authorities
- INA 101(a)(15)(T) – Definition of T nonimmigrant classification
- 8 CFR 214.200 – 8 CFR 214.216 – Alien victims of severe forms of trafficking in persons
- INA 101(i) – Referral to nongovernmental organizations and employment authorization
- INA 212(d)(3)(A)(ii) and INA 212(d)(13); 8 CFR 212.16 – Waivers of inadmissibility
- INA 214(o) – Nonimmigrants guilty of trafficking in persons, numerical limitations, and length and extension of status
- 8 CFR 274a.12(a)(16), 8 CFR 274a.12(c)(25), and 8 CFR 274a.12(c)(40) – Employment authorization
- INA 237(d) – Administrative stay of removal
- 8 U.S.C. 1367 – Penalties for disclosure of information
- 28 CFR 1100.35 – Authority to permit continued presence in the United States for victims of severe forms of trafficking in persons
- 22 U.S.C. 7105(b)(1) – Assistance for victims of trafficking in the United States
- 22 CFR 41.84 – Victims of trafficking in persons
Footnotes
[^ 1] See Trafficking and Violence Protection Act (TVPA) of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464, 1470 (October 28, 2000), codified at 22 U.S.C. 7101.
[^ 2] The term “severe form of trafficking in persons” is a legal term defined in the TVPA. The term is often referred to as “trafficking,” “human trafficking,” or “acts of trafficking.”
[^ 3] See TVPA, Pub. L. 106–386 (PDF), 114 Stat. 1464, 1475 (October 28, 2000) (stating that such persons “shall be eligible for benefits and services…to the same extent as an alien who is admitted to the United States as a refugee under section 207 of the [INA]”). See INA 101(i)(2) (mandating employment authorization for principal T nonimmigrants).
[^ 4] USCIS also has sole jurisdiction over the adjudication of the Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A).
[^ 5] Congress provided a specific basis for T nonimmigrants to adjust under INA 245(l), with eligibility criteria distinct from the criteria that apply to family-based, employment-based, and diversity visa adjustment under INA 245(a). For more information, see Volume 7, Adjustment of Status, Part J, Trafficking Victim-Based Adjustment [7 USCIS-PM J].
[^ 6] See 8 U.S.C. 1367. See 8 CFR 214.216. See Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 7, Privacy and Confidentiality, Section E, VAWA, T and U Cases [1 USCIS-PM A.7(E)].
[^ 7] See 8 CFR 214.204(l). USCIS also determines the evidentiary value of submitted evidence in its sole discretion.
[^ 8] See Pub. L. 106–386 (PDF) (October 28, 2000). See 22 U.S.C. 7101–7110. See 22 U.S.C. 2151n. See 22 U.S.C. 2152d.
[^ 9] See Pub. L. 108-193 (PDF) (December 19, 2003).
[^ 10] See Pub. L. 109-162 (PDF) (January 5, 2006). See Violence Against Women and Department of Justice Reauthorization Act of 2005 Technical Amendments, Pub. L. 109-271 (PDF) (August 12, 2006).
[^ 11] See Pub. L. 110-457 (PDF) (December 23, 2008).
[^ 12] See Pub. L. 113-4 (PDF) (March 7, 2013).
[^ 13] See 8 U.S.C. 1641(c)(4). See INA 212(a)(4)(E)(iii).
[^ 14] See Pub. L. 114-22 (PDF) (May 29, 2015).
Chapter 2 - Eligibility Requirements
A. Overview of Eligibility Requirements
To establish eligibility for T nonimmigrant status,[1] principal applicants must demonstrate that they:
- Have been a victim of a severe form of trafficking in persons;
- Are physically present in the United States,[2] American Samoa, or at a port of entry to the United States or American Samoa[3] on account of such trafficking;
- Have complied with any reasonable request for assistance in a federal, state, tribal, or local detection, investigation, or prosecution into acts of trafficking or the investigation of a crime where acts of trafficking are at least one central reason for the commission of that crime,[4] unless the applicant was under 18 years of age at the time at least one of the acts of trafficking occurred, or is unable to cooperate with a reasonable request due to physical or psychological trauma;[5]
- Would suffer extreme hardship involving unusual and severe harm upon removal from the United States;[6] and
- Are admissible to the United States or qualify for a waiver of any applicable grounds of inadmissibility.[7]
B. Victim of Severe Form of Trafficking in Persons
1. General Definition
The term “severe form of trafficking in persons” is defined by the Trafficking and Victims Protection Act (TVPA)[8] and USCIS regulations.[9] The definition includes both sex trafficking and labor trafficking. Applicants must demonstrate that the trafficker engaged in a prohibited action by means of force, fraud, or coercion for a particular purpose.[10] The table below breaks down the definition of a severe form of trafficking in persons into its three elements: action, purpose and means.
Type of Trafficking | Action | Purpose | Means |
---|---|---|---|
Sex Trafficking |
(Of a person) | For the purpose of a commercial sex act | Where the commercial sex act is induced by force, fraud, or coercion (Not required when the victim is under 18 years of age) |
Labor Trafficking |
(Of a person) | For the purpose of subjecting the victim to:
| Through use of force, fraud, or coercion |
2. Definition of Harboring
While the term harboring is most commonly understood to mean actively hiding or concealing a fugitive, harboring within the trafficking context refers to the series of actions a trafficker takes to exert and maintain control over a victim by substantially limiting or restricting a victim’s movement or agency.
The term agency refers to the ability to act according to one's own free will, control over one's emotional and physical states of being, and ability to exert (or attempt to exert) influence over oneself.[11] A victim’s ability to eventually escape the trafficking does not necessarily invalidate the lack of agency the victim experienced throughout the victimization. Some factors officers may evaluate to determine whether harboring occurred include, but are not limited to:
- Isolation of the victim;
- Limitations on the victim’s ability to interact with others;
- Restrictions on the victim’s movement; and
- Consequences of acting outside of the trafficker’s orders or without the trafficker’s explicit permission.
Harboring does not require a preexisting relationship between the victim and the trafficker. However, harboring may occur within a variety of consensual relationships, including employer-employee, parent-child, smuggler-smugglee, landlord-tenant, and marriages and other intimate partner relationships.
Harboring may occur for any period of time, even a brief period, but generally must endure long enough to substantially limit or restrict the victim’s movement or agency.
3. Definition of Coercion
The regulations define coercion as:
- Threats of serious harm to or physical restraint against any person;
- Any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or
- Abuse or threatened abuse of the legal process.[12]
Threats of Serious Harm
Serious harm includes any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious when considering the surrounding circumstances to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services[13] in order to avoid experiencing that harm.[14] Serious harm may include various types of harm, including, but not limited to:
- Harm to third parties close to the victim, such as family members or children in the care of the victim;
- Banishment or expulsion from the home of the victim or family members;
- Starvation or restriction of food;
- Bankruptcy of the victim or family members;
- Refusing to send money to the victim’s family;
- Withholding pay or other compensation resulting in an inability to pay off debt or obtain necessary medical care or nutrition;
- Subjecting victims to isolation, denial of sleep, or other punishments;
- Threats of deportation or removal from the United States;
- Threats to report the victim to law enforcement or immigration authorities; and
- Reputational harm, such as threats to falsely accuse the victim of being a thief or threats to disclose engagement in commercial sex, if the victim attempts to leave.
One type of harm alone may constitute serious harm; however, whether the harm asserted constitutes “serious harm” depends on the facts of the case. In cases involving multiple types of harm, each type of harm may separately meet the definition of serious harm, or when considered together may constitute serious harm.
In determining whether the trafficker made a threat of serious harm that could reasonably be believed by the victim, USCIS considers any vulnerabilities of the victim, including but not limited to the victim’s particular socioeconomic situation, physical and mental condition, age, education, cultural background, training, experience, or intelligence.[15]
Officers should determine whether a reasonable person in the same circumstances as the victim would believe that the victim would suffer serious harm if the victim did not provide labor or services. Appendix: Case Law References for T Visa Adjudications [3 USCIS-PM B, Appendices Tab] lists decisions that may provide additional clarification on the concepts of threats of harm and serious harm.
Use or Threats of Use of Physical Restraint
The use or threat of use of physical restraint or physical injury, including the use of violence or threats of violence, can constitute coercion.[16] Examples of physical coercion include:
- An actual or threatened physical act that could result in harm;
- The use or threatened use of any object or weapon to intimidate or injure; and
- The use of threats through words or actions to instill in the victim a fear that others would kill, injure, or use force against the victim or any other person.
There is no requirement that the victim be physically restrained and prevented from escaping in order for USCIS to find that physical coercion occurred. In addition, sexual abuse could constitute physical coercion.
Analyzing Whether Actions Constitute Threats
In the coercion analysis, officers may need to determine whether a trafficker’s actions constitute a threat.
A threat is a serious expression of an intention to inflict harm, immediately or in the future, as distinguished from idle or careless talk, exaggeration, or something said in a joking manner. For an expression to be a threat, the expression must have been made under such circumstances that a reasonable person (in the victim’s circumstances) who heard, read, saw, or otherwise experienced the action would perceive it to be a serious expression of an intent to cause harm. In addition, the trafficker must have made the expression intending it to be a threat, or with the knowledge that the statement would be viewed as a threat.[17]
USCIS views threats from the viewpoint of the victim, considering the victim’s individual circumstances and the totality of the circumstances surrounding the trafficker’s threats.
Scheme, Pattern, or Plan
Instead of direct threats or use of overt violence, traffickers may employ a scheme, plan, or pattern, “intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.”[18]
In determining whether there is such a scheme, pattern, or plan, officers should consider the totality of the trafficker’s actions and any evidence of the trafficker’s intent in carrying them out. Officers may consider actions taken before the victim’s arrival in the United States or before the start of the performance of labor or services that are relevant to establishing a scheme, pattern, or plan.
Indicators of a scheme, pattern, or plan could include a range of actions by traffickers, some of which may overlap with the types of serious harm discussed above. The following non-exhaustive list includes factors that may contribute to a finding of coercion by way of a scheme, pattern, or plan:
- Limiting access to public benefits and services;
- Confiscation of identification, travel, or other personal documents;
- Creating a climate of social or linguistic isolation;
- Subjecting the victim to verbal abuse, physical abuse, or harsh living or working conditions;
- Creating a belief that the perpetrator could be physically violent through demonstrations of physical violence against workers or others;
- Inducing workers to take on high debt;
- Fraudulent promises about work or housing conditions;
- Subjecting the victim to economic detriment through tactics including, but not limited to:
- Underpaying or not paying what was promised to the employee;
- Not supplying promised work hours; or
- Deducting expenses from pay that are unreasonable or not as contracted;
- Creating a belief that the employer has the power to deport, arrest, or blacklist[19] a victim through actions such as, but not limited to:
- Discussing the employer’s relationship with law enforcement;
- Threatening to call law enforcement or other authorities (for example, the sheriff, police, immigration authorities or Federal Bureau of Investigation) if the employee complains about conditions or leaves the job;
- Threatening to ensure the employee is never able to work in the United States again;
- Filing a criminal complaint if the employee complains about working conditions or requests unpaid wages;
- Threatening to report the employee as an absconder; or
- Creating a belief that the employer has powerful connections to those who can impose harm on the victim or victim’s family members, such as connections to political leaders, local law enforcement, or organized crime, in the United States or the victim’s home country.
Abuse or Threatened Abuse of the Legal Process
Coercion could also include abuse or threatened abuse of the legal process, which means the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action.[20]
Appendix: Case Law References for T Visa Adjudications [3 USCIS-PM B, Appendices Tab] lists decisions that may provide additional clarification on the concept of threatened or actual abuse of the legal system. The following is a non-exhaustive list of the types of threats that could establish abuse or threatened abuse of the legal process:
- Threats of imprisonment, prosecution, or imposition of criminal sanctions for failure to perform labor or services;
- Threats to institutionalize someone in a mental health facility;
- Threats to have immigration authorities arrest or deport workers, particularly for failing to comply with the trafficker’s directives or to perpetuate workers’ ongoing labor by exploiting their fears; or
- Threats to call immigration authorities, to report a worker for absconding, or to let a person’s visa expire.
Legal coercion may occur even when the threatened outcome is not an actual legal possibility. In determining the purpose behind the threats, USCIS examines any threat of legal consequences in light of all of the surrounding circumstances and considers whether the threat is being used for an end different from that envisioned by the law or for a coercive purpose designed to intimidate.
4. Labor Trafficking Concepts
Involuntary Servitude
Involuntary servitude is defined as a condition of servitude induced by:
- Means of any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or
- Abuse or threatened abuse of legal process.[21]
Involuntary servitude may occur where a victim initially voluntarily agrees to perform a service but is later forced or coerced into performing the same service. Involuntary servitude also occurs when the victim is forced to work for the perpetrator by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through the law or the legal process. This definition includes those cases in which the perpetrator holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion.[22] Coercion may also be established if the perpetrator uses psychological abuse.
Involuntary servitude may occur in circumstances where the victim has a preexisting relationship or arrangement with the trafficker. For example, involuntary servitude may occur in the context of a domestic relationship (including parent-child, intimate partner, or roommate relationships). Involuntary servitude can include, but is not limited to, domestic servitude and sexual exploitation. Whether the conditions occurred in a domestic context or outside of the home is not in and of itself determinative of whether involuntary servitude has occurred.
Conditions of servitude are defined by compulsory service or labor against a victim’s will in a manner that deprives the victim of liberty. Such conditions do not include scenarios in which:
- The victim is free to quit or leave without incurring retribution or harm (or without fear of retribution or harm);[23]
- The victim can exercise significant control over their working conditions;[24] or
- The victim continued working to avoid the ordinary financial, personal, or professional consequences of quitting or leaving.[25]
Conditions of Servitude Induced by Domestic Violence
Trafficking can occur alongside intimate partner abuse, and involuntary servitude and domestic violence may coexist in some situations. In determining whether abuse or threats of abuse (including physical violence, mental abuse, emotional abuse, sexual violence, intimidation, and controlling behavior in the home) create a condition of involuntary servitude that constitutes a severe form of trafficking in persons, officers should evaluate whether the situation involves:
- Compelled or coerced labor or services; or
- Forced sexual activity.
Although domestic violence and trafficking often intersect, not all work that occurs as the result of domestic violence constitutes a condition of servitude. For example, in certain contexts, the unequal assignment of household tasks among household members may signal an abusive relationship, but it does not automatically constitute the creation of a condition of servitude.
Forced labor[26] compelled by domestic violence occurs where the aim of the domestic violence is to force the victim to engage in labor that creates a condition of servitude. To distinguish between domestic violence and labor trafficking resulting from domestic violence, applicants must demonstrate that the perpetrator’s motivation or purpose is or was to subject the applicant to a condition of servitude.
Officers may evaluate the actions the trafficker has taken to maintain the applicant in a condition of servitude, including recruitment, harboring, transportation, provision, obtaining, patronization, or solicitation, to further understand the goal of the perpetrator. Where trafficking is accompanied and enforced by abuse, victims may act upon the trafficker’s demands for labor and services due to fear or coercion and may feel that they do not have their own liberty or self-determination.
The following non-exhaustive list outlines circumstances where the trafficker may control the victim’s liberty to create a condition of servitude:
- An expectation that the victim’s life fulfills the orders of the trafficker (such as a demand from the trafficker to perform domestic labor at an unreasonable level, including unreasonable working hours or constant availability to perform labor regardless of health or energy);
- Lack of control over the victim’s own wages despite laboring under the trafficker’s demands; or
- The imposition of unequal living arrangements as part of the campaign of force, fraud, and coercion (for example, unequal sleeping arrangements, living arrangements, or access to nourishment).
Conditions of Servitude Induced During a Voluntary Smuggling Arrangement
Aliens may experience violence over the course of their smuggling. While not all crimes or exploitation that occur during a smuggling arrangement rise to the level of trafficking, smuggling may develop into trafficking. The existence of a voluntary smuggling arrangement does not invalidate the possibility of involuntary servitude arising within the smuggling.
Peonage
Peonage is a status or condition of involuntary servitude based upon real or alleged indebtedness.[27] In other words, the perpetrator compels the victim into involuntary servitude in order to satisfy a real or artificially-created debt.
When a debtor voluntarily enters into a contract to pay off a debt, that debtor, like any other contractor, can choose at any time to break the contract. It does not matter that a debtor entered into a contract agreeing to perform services or labor for the creditor. There is a clear distinction between peonage and voluntarily agreeing to perform labor or provide services in payment of a debt.
In determining whether an applicant has been a victim of peonage, officers should follow the guidance above related to involuntary servitude, with the added element that the victim was held in involuntary servitude in order to satisfy a real or artificially-created debt. If the facts support a finding that the applicant was a victim of peonage, USCIS officers should also consider the applicant a victim of involuntary servitude.
Debt Bondage
“Debt bondage” is the status or condition of a debtor arising from a pledge by the debtor of the personal services of the debtor or those of a person under the debtor’s control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not limited and defined.[28] Appendix: Case Law References for T Visa Adjudications [3 USCIS-PM B, Appendices Tab] lists decisions that may provide additional clarification on the concept of debt bondage.
Slavery
The term slavery is not defined in the TVPA or regulations, but is generally understood to mean the state of being held under the complete and total ownership or control of another person or entity and being deprived of liberty, autonomy, and independence for the purpose of subjecting the victim to forced labor or services.
5. Definition of Sex Trafficking
Sex trafficking is the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act.[29] A commercial sex act is any sex act on account of which anything of value is given to or received by any person.[30] For sex trafficking to constitute a severe form of trafficking in persons, the commercial sex act must generally have been induced by force, fraud, or coercion.[31] However, a minor under the age of 18 who engages in a commercial sex act meets the definition of a victim of a severe form of trafficking in persons without having to show force, fraud, or coercion. This is because minors under the age of 18 cannot consent to sexual acts.
6. Key Principles of Trafficking in Persons
Actual Labor or Services Need Not Have Been Performed
In determining whether an applicant has been a victim of a severe form of trafficking, it is not necessary for the victim to actually perform the labor or commercial sex act(s) to be eligible for T nonimmigrant status. For example, a victim may be recruited through force, fraud, or coercion for the purpose of performing labor or services but be rescued or have escaped before performing any labor or services.
Appendix: Case Law References for T Visa Adjudications [3 USCIS-PM B, Appendices Tab] lists decisions that may provide additional clarification on the concepts of labor and services. The statutory definitions of trafficking include acts committed “for the purpose of” subjecting someone to a form of trafficking. Therefore, the statute does not require the victim to actually perform the labor or services.
Compensation is Not Determinative
A worker who is paid some or all the promised wages may still be a victim of trafficking. The fact that an applicant was paid a salary or wage for work is not determinative of whether the applicant was subjected to one of the federal trafficking crimes.
Appendix: Case Law References for T Visa Adjudications [3 USCIS-PM B, Appendices Tab] lists decisions that may provide additional clarification on the concept of compensation.
Labor or Services Might Include Non-Traditional Types of Work
When analyzing whether a person has been subjected to involuntary servitude or peonage, USCIS considers that the labor or services might include non-traditional types of work. Appendix: Case Law References for T Visa Adjudications [3 USCIS-PM B, Appendices Tab] lists decisions that may provide additional clarification on the concepts of non-traditional work. Compelled labor or services provided in the context of a familial or intimate partner relationship may satisfy the definition.
For example, in certain contexts, domestic labor may constitute forced labor and satisfy the involuntary servitude assessment, when the actions are induced by force, fraud, or coercion and where the perpetrator had a goal of securing the forced labor or services for the purpose of subjecting the victim to a condition of servitude.
In addition, other non-traditional types of work, including situations where a victim is forced or coerced to engage in criminal behavior (such as drug trafficking or theft), may also constitute forced labor or services when the actions are induced by force, fraud, or coercion, and where the perpetrator had a goal of securing the forced labor or services for the purpose of subjecting the victim to a condition of servitude.[32] USCIS evaluates such situations on a case-by-case basis, considering all relevant circumstances. USCIS retains the authority to request relevant criminal records, including arrest or police reports, trial transcripts, criminal complaints and indictments, and conviction records.
No Defined Length of Time Required
To establish that they are or have been a victim of trafficking and have been compelled to perform the labor or services, applicants do not need to show that they were victimized for a defined length of time. For example, in the context of involuntary servitude, the duration of time can be of varying length and may be short in duration.[33]
However, the totality of the circumstances must establish that the nature of the work was intended to create a condition of servitude. Appendix: Case Law References for T Visa Adjudications [3 USCIS-PM B, Appendices Tab] lists decisions that may provide additional clarification on the concept of timeframes.
The labor or services at issue also do not have to be coerced in every instance. There could be time periods in which the labor or services were voluntary and time periods in which they were involuntary. However, the labor or services must have been involuntary for at least some portion of the time that the applicant was performing the work to constitute labor trafficking.
There is no requirement regarding the length of time the labor or services are performed or the means used to induce the acts. Nevertheless, the applicant must establish that the trafficker acted for the purpose of subjecting the victim to involuntary servitude, peonage, debt bondage, slavery, or a commercial sex act. The duration of the labor or services may be relevant in assessing the trafficker’s purpose or motivation.
Trafficker Engaged in Prohibited Action for a Particular Purpose
An applicant must provide facts and evidence establishing the perpetrator’s intent or purpose to demonstrate that trafficking has occurred. To establish that they are a victim of a severe form of trafficking in persons, an applicant must demonstrate that the perpetrator engaged in a specific prohibited action through the use of force, fraud, or coercion for the purpose of inducing a commercial sex act or subjecting the applicant to involuntary servitude, peonage, debt bondage, or slavery.
7. Difference Between Trafficking and Smuggling
Federal law distinguishes between the crimes of human smuggling and human trafficking.[34] Trafficking is a crime committed against a person regardless of the person’s immigration status or the crossing of a transnational border, while smuggling is a crime committed against a country’s immigration laws and involves the willful movement of a person across a country’s border.
A person may voluntarily consent to be smuggled. In contrast, an act of trafficking must involve both a particular means, such as the use of force, fraud, or coercion, and a particular purpose, such as subjection to involuntary servitude or a commercial sex act. Federal law prohibits forced labor regardless of the victim’s initial consent to work.[35]
While human trafficking and smuggling are distinct, they are not mutually exclusive. Trafficking may occur in the context of some smuggling arrangements. For example, a person who initially agreed to be smuggled in exchange for money, services, or labor could become a victim of trafficking if, over the course of the smuggling, the smuggler subjects or intends to subject the person to acts beyond or distinct from those agreed upon that meet the definition of a severe form of trafficking.
A consensual smuggling agreement does not excuse any acts of trafficking that may arise during the course of smuggling. However, as with all cases, the applicant must establish the perpetrator's purpose. In cases involving smuggling, this may include establishing that the smuggler's motivation or purpose shifted over time to that of a trafficker and that the initial consent has been invalidated by the actions of the smuggler-turned-trafficker.
The perpetrator’s purpose or motivations can be multifaceted. For example, a smuggler who intends to extort a person for financial payments during a smuggling arrangement may also have a dual or shifting purpose to compel forced labor or services that place the person into a condition of servitude, even where the forced labor or services end upon completion of the smuggling arrangement.
Short periods of victimization may qualify as a condition of servitude depending on the victim’s credible statements. Conversely, a person may be forced to perform certain labor within a smuggling arrangement outside of a condition of servitude that does not rise to trafficking, such as facilitating the smuggling operation or avoiding detection at the border. USCIS makes an individualized determination of whether trafficking has been established based on the evidence in each particular case.
Even if an applicant establishes that trafficking arose over the course of their smuggling arrangement, the applicant must nevertheless establish that they are physically present in the United States or a U.S. port of entry on account of their trafficking.
C. Physical Presence on Account of Trafficking
Principal applicants for T nonimmigrant status must demonstrate at the time of application that they are physically present in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands,[36] or at a U.S. port of entry, on account of trafficking.[37]
Some traffickers arrange for entry of their victims into these jurisdictions as part of the trafficking scheme, while other traffickers prey upon aliens who are already in the United States. Aliens already in the United States may have entered lawfully or they may have entered without being admitted or paroled and are unlawfully present. USCIS takes into account any relevant circumstances relating to the applicant’s arrival and current presence in these jurisdictions.[38]
1. Establishing Physical Presence Requirement
Applicants are able to establish physical presence on account of trafficking if they:
- Are present because they are currently being subjected to a severe form of trafficking in persons;
- Were liberated from a severe form of trafficking in persons by a law enforcement agency (LEA);
- Escaped a severe form of trafficking in persons before an LEA was involved;
- Were subjected to a severe form of trafficking in persons at some point in the past and their continuing presence in the United States is directly related to the original trafficking in persons; or
- Are present on account of having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or perpetrator of trafficking.[39]
Applicants must demonstrate physical presence at the time of the application, but the phrase “at the time of application” does not impose a limitation on the specific amount of time between the original trafficking and the filing of the application. The victim may file the application at any time.
There is no requirement that the victim be in an ongoing trafficking situation, be in continuous contact with the trafficker, interact with the trafficker, or be under the control of the trafficker to qualify under this standard, although these factors may be relevant in determining whether an applicant has established physical presence on account of trafficking.
Trafficking survivors experience significant consequences of their victimization that may delay filing, including trauma, lack of access to legal representation, lack of support, and even lack of knowledge that they are a victim of trafficking. The passage of time alone does not prevent an applicant from establishing physical presence on account of their trafficking; however, an applicant still bears the burden of establishing that their current presence in the United States is on account of trafficking.
Establishing Liberation by Law Enforcement[40]
To establish physical presence under this provision, applicants must demonstrate that law enforcement assisted in liberating them from the trafficking situation. The applicant can satisfy physical presence under this provision regardless of the timeline between the liberation from original trafficking and the filing of the T visa application.[41] To establish that an applicant was liberated by law enforcement, the applicant must show that an LEA was involved in freeing the applicant from the trafficking situation and was aware of the applicant’s victimization.
Establishing Law Enforcement Agency Involvement[42]
To establish physical presence under this provision, the applicant must demonstrate that the LEA became actively involved in detecting, investigating, or prosecuting the acts of trafficking.[43] LEA involvement requires law enforcement action beyond receiving the applicant’s tip, and can be satisfied by demonstrating that the LEA interviewed the applicant or otherwise became involved in detecting, investigating, or prosecuting the trafficking after the applicant escaped.
The applicant can satisfy physical presence under this provision regardless of the time that has passed between the LEA’s involvement and the filing of the T visa application.[44]
Establishing the Direct Relationship between the Applicant’s Ongoing Presence and the Original Trafficking in Persons[45]
To establish eligibility under this provision, applicants must establish that their current presence in the United States is directly related to the original trafficking in persons, regardless of the length of time that has passed between the trafficking and filing of their application.[46] USCIS may find that an applicant’s current presence is not directly related to the original trafficking if the applicant:
- Has repeatedly traveled outside the United States since the trafficking, and the departures from the United States are not the result of continued victimization;
- Lacks sufficient evidence that their continued ties to the United States are directly related to their trafficking; or
- Has established an intent to abandon their life in the United States.
Developments in an applicant’s life following the trafficking, including professional and personal milestones (such as finding new employment, having children, getting married, managing mental health diagnoses) do not necessarily prevent an applicant from establishing ongoing presence on account of trafficking. Despite reaching certain milestones, an applicant can still demonstrate that their continuing presence in the United States is directly related to the initial victimization. The applicant may accomplish this by explaining the impact of the trauma the applicant continues to experience as a result of the trafficking.
When evaluating whether an applicant’s continuing presence in the United States is directly related to the original trafficking in persons, USCIS considers all evidence using a victim-centered approach.[47] Officers should look for a sufficiently detailed description of the specific impacts of trafficking on the applicant's life at the time of application. The applicant may not establish eligibility if the evidence of the ongoing impact of trauma on the applicant’s life does not sufficiently establish the connection between the trafficking and the applicant’s presence in the United States at the time of filing.
Factors officers may consider include, but are not limited to:
- Ongoing psychological or physical trauma (or both) the applicant suffers as a result of victimization;
- Health diagnoses stemming from the victimization;
- Ability to access legal, mental health, social, or other services as a tool for rehabilitation in the United States or in the home country, and whether the applicant is currently or has recently accessed trafficking-related services and benefits;
- Current efforts the applicant is undertaking to rehabilitate and stabilize, including self-identification as a victim or survivor;
- The level of control or fear the trafficker still exerts over the victim (including continued fear of law enforcement and immigration authorities and fear of retaliation from the trafficker in the victim’s home country);
- Past threats from, actions by, or interactions with the trafficker and any ongoing impact on the applicant’s daily life;
- Current cooperation with law enforcement;
- Financial impacts of the applicant’s victimization; and
- Any other activities the applicant has undertaken to deal with the consequences of having been trafficked.
Establishing Presence for Participation in an Investigative or Judicial Process[48]
The applicant meets the physical presence requirement[49] when the trafficking occurred in the United States or abroad and meets the federal definition of “a severe form of trafficking in persons” and the victim is allowed entry into the United States to participate in the detection, investigation, prosecution, or judicial process associated with an act or a perpetrator of trafficking.
Trafficking that Began Abroad and Continues to the Port of Entry or Into the United States
An applicant may be able to establish physical presence as someone who is present because they are “currently being subjected to a severe form of trafficking in persons” if the acts of trafficking:
- Began abroad and caused the victim’s entry into the United States or presence at the U.S. port of entry;
- Were discovered at the port of entry or continued after the applicant entered; and
- Are ongoing.[50]
Establishing Physical Presence When the Trafficking Ended Outside the United States
Applicants may be able to establish that they are physically present in the United States on account of trafficking[51] even when the trafficking occurred and ended abroad. Applicants must demonstrate that they are now in the United States or at a port of entry on account of their trafficking.
2. Departures From the United States
An applicant who has voluntarily departed (or has been removed) from the United States at any time after the act of a severe form of trafficking in persons is not considered to be physically present in the United States on account of such trafficking, except under the following circumstances:
- The applicant’s reentry was the result of the continued victimization;
- The applicant is a victim of a new incident of a severe form of trafficking in persons;
- The applicant has been allowed reentry to the United States for participation in the detection, investigation, prosecution, or judicial processes associated with an act or a perpetrator of trafficking, regardless of where such trafficking occurred;
- The applicant’s presence in the United States is on account of their past or current participation in investigative or judicial processes associated with an act or perpetrator of trafficking, regardless of where such trafficking occurred; or
- The applicant returned to the United States and received treatment or services related to their victimization that cannot be provided in their home country or last place of residence outside the United States.[52]
The key factors USCIS considers are the reason(s) for the applicant’s departure and the circumstances surrounding the applicant’s return to the United States.
USCIS cannot approve the application for T nonimmigrant status until the applicant returns to the United States.[53]
Reentry Due to Continued Victimization
To overcome the presumption that the applicant is no longer physically present on account of trafficking following a departure and sufficiently establish that the applicant’s reentry is due to continued victimization,[54] the applicant must demonstrate that the reentry stemmed from a continuation of a prior trafficking scheme or show a clear connection between the applicant’s continued victimization by the trafficker and the reentry.[55]
Continued victimization does not require that an applicant is currently a victim of trafficking; rather, it can include ongoing victimization that directly results from past trafficking. If an applicant experienced harm such as abduction, abuse, threats, or other trauma during their trafficking that resulted in continuing physical or psychological harm, that applicant’s reentry could be a result of their continued victimization, even though they were not trafficked upon reentry.
For example, if an applicant left the United States and their trafficker threatened to harm them and their family, such that they had to flee to the United States, they may be able to satisfy the physical presence requirement if they establish that their reentry into the United States was the result of continued victimization tied to ongoing or past trafficking.
Factors that officers may consider when evaluating whether the applicant’s reentry resulted from continuing victimization include, but are not limited to:
- The extent of the applicant’s continued fear of and connection to the trafficker;
- The threats and risk of harm the trafficker poses to the applicant and the applicant’s family; and
- The nature and severity of the victimization arising out of the impacts of trafficking on the applicant’s life at the time of reentry.
Allowed Reentry for Participation in Investigative or Judicial Processes
Applicants who departed the United States after their trafficking and subsequently reentered may satisfy the physical presence requirement if they demonstrate that they were allowed reentry[56] for participation in investigative or judicial processes[57] associated with an act or perpetrator of trafficking.[58]
Where the applicant was allowed reentry into the United States for participation in investigative or judicial processes[59] associated with an act or perpetrator of trafficking, the applicant must have entered by lawful means, and it does not matter where the trafficking occurred.[60] In this scenario, the applicant is considered to be physically present on account of trafficking, regardless of where such trafficking occurred.[61] To satisfy this ground, the applicant’s entry must be lawful and directly connected to the applicant’s participation in an investigation or judicial process related to the trafficking.[62]
Establishing Presence on Account of Past or Current Participation in Investigative or Judicial Processes
Applicants who departed the United States after their trafficking and subsequently reentered may still satisfy the physical presence requirement, even if they were not specifically allowed reentry for that purpose.[63] This may include situations where an applicant returned to the United States to pursue civil, administrative, or criminal remedies related to their trafficking.[64]
Where the applicant reentered the United States (by any means) and their physical presence is on account of their past or current participation in investigative or judicial processes, they are considered physically present on account of trafficking, regardless of where such trafficking occurred. To satisfy this ground, the applicant’s presence must be directly connected to the applicant’s participation in an investigation or judicial process related to the trafficking.
Establishing Presence Based on Receipt of Treatment or Services Related to Victimization
Where the applicant reentered the United States (by any means) and their physical presence is related to their receipt of treatment or services related to their victimization that cannot be provided in their home country or last place of residence outside the United States, they are considered physically present on account of their trafficking.[65] To satisfy this ground, the applicant must provide evidence of the treatment or services they received in the United States, as well as evidence that such treatment or services is not available in their home country or last place of residence outside the United States.
D. Requests for Law Enforcement Assistance
1. General Rule
An applicant for T nonimmigrant status is required to comply with any reasonable request for assistance in a federal, state, or local investigation or prosecution of acts of trafficking in persons or the investigation of a crime where an act of trafficking in persons is at least one central reason for the commission of that crime.[66] If an officer determines that a request was reasonable and no exceptions or exemptions apply, the officer then examines whether an applicant complied with the request.
An LEA includes any federal, state, tribal, or local LEA, prosecutor, judge, labor agency, children’s protective services agency, adult protective services agency, or other authority that has the responsibility and authority for the detection, investigation, or prosecution of severe forms of trafficking in persons.[67] Federal LEAs include, but are not limited to the following:
- U.S. Department of Justice agencies, including U.S. Marshals Service, Offices of the United States Attorneys, and Civil Rights and Criminal Divisions;
- U.S. Department of Homeland Security agencies, including U.S. Immigration and Customs Enforcement and Customs and Border Protection;
- U.S. Department of State agencies, including Diplomatic Security Service;
- U.S. Department of Labor agencies;
- Other independent labor agencies, such as the Equal Employment Opportunity Commission and National Labor Relations Board;
- Offices of inspectors general;
- Offices for civil rights and civil liberties; and
- Bureau of Indian Affairs Police.
2. Totality of the Circumstances Test
The reasonableness of an LEA request for assistance depends on the totality of the circumstances. USCIS considers the following non-exhaustive set of factors:
- General law enforcement and prosecutorial practices;
- The nature of the victimization;
- The specific circumstances of the victim;
- The victim’s capacity, competency, or lack thereof;
- Trauma suffered (both mental and physical) and whether the request would cause further trauma;
- Access to support services;
- The safety of the victim or the victim’s family;
- Compliance with previous requests and the extent of such compliance;
- Whether the request would yield essential information;
- Whether the information could be obtained without the victim’s compliance;
- Whether a qualified interpreter or attorney was present to ensure the victim understood the request;
- Cultural, religious, or moral objections to the request;
- The time the victim had to comply with the request;
- The age, health, and maturity of the victim; and
- Any other relevant circumstances surrounding the request.[68]
3. Comparably-Situated Crime Victim Standard
In examining the totality of the circumstances, USCIS uses a comparably-situated crime victim standard,[69] which focuses on the protection of victims and provides more flexibility than other standards in order to strike the proper balance between the law enforcement need to investigate and prosecute and the need to ensure that victims are not overburdened, retraumatized, or put at unnecessary risk due to reporting their trafficking.
The focus is whether the request the LEA made of the trafficking victim was generally reasonable compared to similarly-situated crime victims, not whether a victim’s refusal was unreasonable.[70]
4. Contact with Law Enforcement
Applicants must, at a minimum, have had contact with an LEA with jurisdiction[71] over the crime regarding their victimization, unless they qualify for an age-based exemption or a trauma-based exception.[72] It is sufficient for applicants to provide credible evidence to document that they have reported the victimization, including any crime where the acts of trafficking constitute at least one central reason for the commission of that crime, to law enforcement having jurisdiction over the conduct at issue.
Applicants may establish that they have cooperated with reasonable requests for assistance by submitting a Declaration for Trafficking Victim (Form I-914, Supplement B).
Applicants may also be able to satisfy the requirement to comply with reasonable requests for assistance by reporting their victimization to law enforcement by email, letter, or other reporting mechanisms and complying with reasonable requests for assistance (including, if requested, rerouting the report through the proper channels or to the proper authority with jurisdiction).
If the law enforcement agency that received the report reasonably requests that the applicant instead contact a different law enforcement agency for investigation or development of the information, non-compliance with that reasonable law enforcement request for assistance may render the applicant ineligible for T nonimmigrant status.
Alternatively, applicants may demonstrate that they qualify for an exemption due to age or exception due to trauma.
Form I-914, Supplement B provides valuable evidence of the victim’s cooperation with reasonable requests for assistance but is not a required form of evidence to establish eligibility for T nonimmigrant status. Completing Form I-914, Supplement B is a discretionary LEA decision. Although USCIS does not require applicants to submit the Form I-914, Supplement B, officers may request one depending on the circumstances.
For example, if an applicant mentions significant cooperation with an LEA in their personal affidavit but does not provide sufficient detail regarding this cooperation for USCIS to determine eligibility, USCIS may request additional evidence detailing the cooperation, including, but not limited to, Form I-914, Supplement B.
Reporting to an LEA without any authority to detect, investigate, or prosecute the underlying trafficking generally does not satisfy the reporting requirement.
However, if an applicant submits credible evidence of reporting to an LEA outside of the physical jurisdiction where the trafficking occurred, this would satisfy the reporting requirement as long as the record establishes that the LEA had jurisdiction to detect, investigate, or prosecute the trafficking crime, or the LEA connected the applicant with the agency with jurisdiction and contact between the applicant and the agency with jurisdiction has occurred.[73]
An applicant who has never had contact with an LEA regarding the victimization associated with the acts of a severe form of trafficking in persons is not eligible for T nonimmigrant status unless the applicant qualifies for the age-based exemption or trauma-based exception.[74]
5. Age-Based Exemption and Trauma-Based Exception
An applicant is exempt from the requirement to comply with reasonable law enforcement requests if the applicant was under 18 years of age at the time at least one of the acts of trafficking occurred.[75]
An applicant may qualify for an exception if the applicant can establish that the applicant’s lack of contact with an LEA or compliance with a reasonable request for assistance is due to physical or psychological trauma.[76]
6. The Relationship Between Assistance with Law Enforcement and Victimization
To establish eligibility for T nonimmigrant status, applicants must demonstrate that the acts of trafficking that they reported to law enforcement are also the acts of trafficking that they experienced directly. Witnessing trafficking alone is not sufficient to satisfy this requirement.
There are many complex factors that inform law enforcement’s decision to pursue a case, including the high evidentiary standards for pursuing criminal matters, the difficulty locating the perpetrator, and the expiration of the statute of limitations. The decision to pursue an investigation or prosecution falls solely within the discretion of law enforcement. There is no requirement that law enforcement initiate or complete an investigation or prosecution to satisfy the law enforcement cooperation requirement.
Applicants can satisfy the reasonable request for assistance requirement if they participate in an investigation or prosecution against their trafficker even if the applicant is not directly named in the case. The applicant does not need to demonstrate that the acts of trafficking they suffered are directly referenced in any investigation or prosecution that law enforcement pursues. Therefore, where a case evolves into a formal judicial proceeding as a result of the applicant’s cooperation, the applicant does not need to demonstrate any direct reference to their victimization.
E. Extreme Hardship
1. General Rule
An applicant must demonstrate that removal from the United States would subject the applicant to extreme hardship involving unusual and severe harm.[77] Generally, a finding of extreme hardship involving unusual and severe harm may not be based solely upon current or future economic detriment, or the lack of, or disruption to, social or economic opportunities.[78] Officers must consider the totality of the circumstances and all relevant factors in analyzing extreme hardship.
2. Factors
Factors that officers consider in evaluating whether removal would result in extreme hardship involving unusual and severe harm include both traditional extreme hardship factors and factors associated with having been a victim of a severe form of trafficking in persons.[79]
Traditional extreme hardship factors include, but are not limited to, the following:
- The age of the applicant, both at the time of entry and at the time of the application;
- Family ties in the United States and in the country to which the applicant would be returned, if any;
- Length of residence in the United States;
- The health of the applicant and the availability and quality of any required medical treatment in the country of relocation, including length and cost of treatment;
- The political and economic conditions in the country to which the applicant would be returned;
- The possibility of other means of adjusting status in the United States;
- The applicant's community ties in the United States; and
- The applicant’s immigration history.[80]
Extreme hardship factors associated with having been a victim of a severe form of trafficking in persons include, but are not limited to:[81]
- The age, maturity, and personal circumstances of the applicant;[82]
- Any physical or psychological issues the applicant has that require medical or psychological care not reasonably available in the foreign country to which the applicant would be returned;[83]
- The nature and extent of the physical and psychological consequences of having been a victim of a severe form of trafficking in persons;[84]
- The impact of the loss of access to the U.S. courts and criminal justice system for purposes relating to the incident of a severe form of trafficking in persons or other crimes perpetrated against the applicant, including criminal and civil redress for acts of trafficking in persons, criminal prosecution, restitution, and protection;[85]
- The reasonable expectation that the existence of laws, social practices, or customs in the foreign country to which the applicant would be returned would penalize the applicant severely for having been the victim of a severe form of trafficking in persons;[86]
- The likelihood of re-victimization and the need, ability, and willingness of foreign authorities to protect the applicant;[87]
- The likelihood that the trafficker in persons or others acting on behalf of the trafficker in the foreign country would harm the applicant;[88]
- The likelihood that the existence of civil unrest or armed conflict would threaten the applicant’s individual safety;[89] and
- The current or likelihood of future economic harm.[90]
In most instances, USCIS does not consider hardship to persons other than the applicant in determining whether an applicant would suffer extreme hardship involving unusual and severe harm.[91] However, USCIS considers the totality of the circumstances, and extreme hardship to an applicant’s family member or someone close to the applicant may be a relevant factor, but only to the extent that the evidence specifically demonstrates that the applicant will suffer extreme hardship as a result of hardship to a person other than themselves. The outcome of the analysis depends on the facts and circumstances of each case.
F. Admissibility
Applicants for T nonimmigrant status and their derivative family members must establish that they are admissible[92] to the United States or must qualify for a waiver of any applicable grounds of inadmissibility.[93] To apply for a discretionary waiver of any grounds of inadmissibility, an applicant files an Application for Advance Permission to Enter as a Nonimmigrant (Form I-192).
G. Bar to T Nonimmigrant Status Eligibility
An applicant is barred from receiving T nonimmigrant status if there is substantial reason to believe that the applicant has committed an act of a severe form of trafficking in persons.[94]
H. Effect of Immigration Status on Application
Lawful permanent residents, conditional permanent residents, and U.S. citizens are not eligible for classification as a T nonimmigrant.[95] A person in another valid nonimmigrant status may apply for T nonimmigrant status. However, an alien may not hold more than one nonimmigrant status at a time.[96]
Footnotes
[^ 1] To apply for the T nonimmigrant status classification, the applicant must file an Application for T Nonimmigrant Status (Form I-914).
[^ 2] The United States includes the 50 states of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands. See INA 101(a)(38). See 8 CFR 214.201.
[^ 3] Throughout this part, “U.S. port of entry” refers to any port of entry to the United States or American Samoa.
[^ 4] See 8 CFR 214.202(c).
[^ 5] See 8 CFR 214.202(c)(1) and 8 CFR 214.202(c)(2).
[^ 6] See 8 CFR 214.202(d).
[^ 7] See Volume 9, Waivers and Other Forms of Relief, Part O, Victims of Trafficking [9 USCIS-PM O].
[^ 8] See Pub. L. 106-386 (PDF), 114 Stat. 1464, 1470 (October 28, 2000), codified at 22 U.S.C. 7102(11).
[^ 9] See 8 CFR 214.201.
[^ 10] A victim of sex trafficking who was under 18 years of age at the time at least one of the acts of trafficking occurred does not need to demonstrate that the commercial sex act was induced by force, fraud, or coercion. See 8 CFR 214.201.
[^ 11] See American Psychological Association Dictionary of Psychology’s definition of "agency." See Merriam-Webster Dictionary’s definition of "agency."
[^ 12] See 8 CFR 214.201.
[^ 13] The term “labor or services” encompasses both labor trafficking and sex trafficking.
[^ 14] See 18 U.S.C. 1589. See H.R. Rep. 106-939 (PDF), p. 101 (Oct. 5, 2000). See 8 CFR 214.201.
[^ 15] See John S. Siffert, Modern Federal Jury Instructions-Criminal (Newark: Mathew Bender Elite Products, 2003), P 47A.02 at 5.
[^ 16] See 8 CFR 214.201.
[^ 17] See John S. Siffert, Modern Federal Jury Instructions-Criminal (Newark: Mathew Bender Elite Products, 2003), P 47A.02.
[^ 18] See 18 U.S.C. 1589.
[^ 19] See Merriam-Webster Dictionary’s definition of “blacklist.”
[^ 20] See 18 U.S.C. 1589(c)(1). See 8 CFR 214.201.
[^ 21] See 8 CFR 214.201.
[^ 22] See 8 CFR 214.201.
[^ 23] Retribution or harm in this context does not include the ordinary consequences of quitting or leaving a job.
[^ 24] Whether a victim can exercise significant control over their working conditions is assessed based on the totality of the circumstances. However, involuntary servitude is not established based solely on the fact that an employer, rather than an employee, sets the terms and conditions of employment (such as wages, hours, location, and duties or responsibilities).
[^ 25] The ordinary consequences of quitting or leaving may vary by individual. Examples of such consequences generally include, but are not limited to, having to look for a new job, loss of income if another job is not immediately available, being laid off, not receiving a promotion, impact on any existing immigration status, or receiving a negative reference.
[^ 26] The term forced labor is commonly used to refer to labor trafficking.
[^ 27] See 8 CFR 214.201.
[^ 28] See 8 CFR 214.201.
[^ 29] See 8 CFR 214.201.
[^ 30] See 8 CFR 214.201.
[^ 31] See 8 CFR 214.201 (defining “severe form of trafficking in persons”).
[^ 32] In analyzing this non-traditional work, USCIS considers that trafficking victims may have criminal records and grounds of inadmissibility (such as drug possession charges due to being forced to use drugs, or prostitution charges) that are directly related to their victimization and their trafficker’s efforts to subject them to labor or sex trafficking, or both.
[^ 33] 18 U.S.C. 1584 requires that involuntary servitude be for “any term,” which suggests that the duration of time can be short.
[^ 34] See 8 U.S.C. 1324. See 22 U.S.C. 7102.
[^ 35] See 67 FR 4784, 4787 (PDF) (Jan. 31, 2002).
[^ 36] Before the federalization of Commonwealth of the Northern Mariana Islands (CNMI) immigration law on November 28, 2009, persons in the CNMI had to travel to Guam or elsewhere in the United States to be admitted as a T nonimmigrant. The 2009 legislation effectively replaced the CNMI’s immigration laws with U.S. immigration laws. Applicants in CNMI can now apply for T nonimmigrant status without traveling to the United States or Guam. See Consolidated Natural Resources Act of 2008, Pub. L. 110–229 (PDF) (May 8, 2008).
[^ 37] See INA 101(a)(15)(T)(i)(II). See 8 CFR 214.207(a).
[^ 38] See 67 FR 4784, 4787 (PDF) (Jan. 31, 2002).
[^ 39] See INA 101(a)(15)(T)(i)(II). See 8 CFR 214.207(a). See 8 CFR 214.207(b)(4).
[^ 40] See 8 CFR 214.207(a)(2).
[^ 41] See 8 CFR 214.207(a)(2).
[^ 42] See 8 CFR 214.207(a)(3).
[^ 43] This means of establishing physical presence is distinct from the eligibility requirement to cooperate with any reasonable requests for assistance from law enforcement under INA 101(a)(15)(T)(i)(III) and 8 CFR 214.208. Applicants can generally satisfy the compliance with reasonable requests for assistance requirement by reporting their victimization to law enforcement by email, letter, or other reporting mechanisms and complying with reasonable requests for assistance or demonstrating that they qualify for an exemption due to age or exception due to trauma.
[^ 44] See 8 CFR 214.207(a)(3).
[^ 45] See 8 CFR 214.207(a)(4).
[^ 46] See 8 CFR 214.207(a)(4).
[^ 47] For additional explanation of the concept of a “victim-centered approach,” see Chapter 7, Adjudication, Section A, Victim-Centered Approach [3 USCIS-PM B.7(A)].
[^ 48] See 8 CFR 214.207(a)(5).
[^ 49] See 8 CFR 214.207(a).
[^ 50] See 8 CFR 214.207(a)(1).
[^ 51] See 8 CFR 214.207(a)(5)(i).
[^ 52] See 8 CFR 214.207(b).
[^ 53] See 8 CFR 214.207(b).
[^ 54] See 8 CFR 214.207(b)(1).
[^ 55] See, for example, In re 22022429 (PDF, 642.18 KB), Non-Precedent Decision (AAO Apr. 13, 2023) (finding that an applicant who departed and reentered the United States after being trafficked submitted sufficient evidence to establish that her reentry was due to her continued victimization); In re 24626163 (PDF, 588.62 KB), Non-Precedent Decision (AAO Mar. 6, 2023) (finding that an applicant who departed and reentered the United States after being trafficked did not establish physical presence because he did not provide evidence that he suffered harm as a result of continued victimization); In re 19062659 (PDF, 639.99 KB), Non-Precedent Decision (AAO Dec. 16, 2022) (finding that an applicant who departed and reentered the United States after being trafficked established physical presence because her reentries were the result of her continued victimization because she was still employed by her traffickers and subjected to constant and repeated threats by them); and In re 14280188 (PDF, 666.92 KB), Non-Precedent Decision (AAO Sep. 9, 2021) (finding that an applicant who departed and reentered the United States after being trafficked established physical presence because her trafficker forced her reentry, controlled her, and she remained fearful of him).
[^ 56] Applicants may enter the United States through law enforcement agency “sponsorship,” such as through a grant of parole to assist law enforcement. See 8 CFR 212.5. If DHS paroles an applicant to pursue civil remedies associated with an act or perpetrator of trafficking, the applicant meets the physical presence requirement because DHS facilitated the victim’s entry into the United States for participation in an investigation or prosecution.
[^ 57] The term “judicial processes” refers to criminal investigations, prosecutions, and civil proceedings.
[^ 58] See 8 CFR 214.207(b)(3).
[^ 59] The term “judicial processes” refers to criminal investigations, prosecutions, and civil proceedings. Applicants may enter the United States through a grant of parole to assist law enforcement. If DHS paroles an applicant to pursue civil remedies associated with an act or perpetrator of trafficking, the applicant meets the physical presence requirement because DHS facilitated the victim’s entry into the United States for participation in an investigation or prosecution.
[^ 60] See 8 CFR 214.207(b)(3).
[^ 61] See 8 CFR 214.207(b)(3).
[^ 62] See 8 CFR 214.207(b)(3). See 81 FR 92266, 92272-73 (PDF) (Dec. 19, 2016).
[^ 63] See 8 CFR 214.207(b)(4).
[^ 64] See 8 CFR 214.207(b)(4).
[^ 65] See 8 CFR 214.207(b)(5).
[^ 66] See INA 101(a)(15)(T)(i)(III)(aa).
[^ 67] See 8 CFR 214.201.
[^ 68] See 8 CFR 214.208(c).
[^ 69] See 81 FR 92266, 92275 (PDF) (Dec. 19, 2016).
[^ 70] See 81 FR 92266, 92275 (PDF) (Dec. 19, 2016). See 8 CFR 214.208(c).
[^ 71] The provisions of the T Final Rule, 89 FR 34864 (Apr. 30, 2024) apply generally to applications pending or filed on or after its effective date, August 28, 2024. However, regarding pending applications, no provision of the rule applies to an applicant who filed before August 28, 2024, if it would make an applicant who was eligible under the previous regulations, ineligible, such as the requirement at 8 CFR 214.208(b) to report to law enforcement with jurisdiction over the trafficking.
[^ 72] See 8 CFR 214.208(b).
[^ 73] See 8 CFR 214.208(b). The provisions of the T Final Rule, 89 FR 34864 (Apr. 30, 2024) apply generally to applications pending or filed on or after its effective date, August 28, 2024. However, regarding pending applications, no provision of the rule applies to an applicant who filed before August 28, 2024, if it would make an applicant who was eligible under the previous regulations, ineligible, such as the requirement at 8 CFR 214.208(b) to report to law enforcement with jurisdiction over the trafficking.
[^ 74] See 8 CFR 214.208(e).
[^ 75] See 8 CFR 214.208(e)(2).
[^ 76] See INA 101(a)(15)(T)(i)(III)(bb) and INA 101(a)(15)(T)(i)(III)(cc). See 8 CFR 214.208(e)(1).
[^ 77] See INA 101(a)(15)(T)(i)(IV).
[^ 78] See 8 CFR 214.209.
[^ 79] See 8 CFR 214.209(a).
[^ 80] See Volume 9, Waivers and Other Forms of Relief, Part B, Extreme Hardship, Chapter 5, Extreme Hardship Considerations and Factors, Section D, Examples of Factors that May Support a Finding of Extreme Hardship [9 USCIS-PM B.5(D)] and Section E, Particularly Significant Factors [9 USCIS-PM B.5(E)]. See Matter of Anderson (PDF), 16 I&N Dec. 596, 597 (BIA 1978). See Matter of Kao and Lin (PDF), 23 I&N Dec. 45 (BIA 2001). See Matter of Pilch (PDF), 21 I&N Dec. 627 (BIA 1996). See Matter of Cervantes (PDF), 22 I&N Dec. 560 (BIA 1999).
[^ 81] See 8 CFR 214.209(b).
[^ 82] See 8 CFR 214.209(b)(1).
[^ 83] See 8 CFR 214.209(b)(2).
[^ 84] See 8 CFR 214.209(b)(3).
[^ 85] See 8 CFR 214.209(b)(4).
[^ 86] See 8 CFR 214.209(b)(5).
[^ 87] See 8 CFR 214.209(b)(6).
[^ 88] See 8 CFR 214.209(b)(7).
[^ 89] See 8 CFR 214.209(b)(8).
[^ 90] See 8 CFR 214.209(b)(9).
[^ 91] See 8 CFR 214.209(c)(2).
[^ 92] See INA 212(a). Applicants for T nonimmigrant status are subject to all of the inadmissibility grounds at INA 212(a) except for the public charge ground of inadmissibility. See INA 212(d)(13)(A).
[^ 93] See INA 212(d)(13) and INA 212(d)(3). See Volume 9, Waivers and Other Forms of Relief, Part O, Victims of Trafficking [9 USCIS-PM O].
[^ 94] See INA 214(o)(1). See 8 CFR 214.202(e).
[^ 95] See INA 101(a)(3). See INA 101(a)(15). See INA 101(a)(20). See Matter of C-G-, 1 I&N Dec. 70 (BIA 1941) (noting that an alien may not be an immigrant and a nonimmigrant at the same time).
[^ 96] See 67 FR 4784, 4792 (PDF) (Jan. 31, 2002).
Chapter 3 - Documentation and Evidence for Principal Applicants
To apply for T nonimmigrant status, the principal applicant must file an Application for T Nonimmigrant Status (Form I-914).[1]
A. Burden of Proof
The applicant bears the burden of establishing eligibility for T nonimmigrant status.[2] The applicant must meet all the eligibility requirements from the time of filing the application through adjudication.[3]
B. Standard of Proof
The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. USCIS evaluates applications for T nonimmigrant status under the preponderance of the evidence standard. The applicant has the burden of demonstrating eligibility by a preponderance of the evidence.[4]
C. Evidence
USCIS reviews all evidence and may investigate any aspect of the application. Officers may use evidence previously submitted by the applicant for any immigration benefit or relief in evaluating the eligibility of an applicant for T nonimmigrant status. USCIS is not bound by previous factual determinations made in connection with a prior application or petition for any immigration benefit or relief. USCIS determines, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence.[5]
In reviewing the application, officers consider the statements, arguments, and assertions of attorneys and accredited representatives, but they do not constitute evidence and are not entitled to evidentiary weight.[6]
1. Any Credible Evidence Provision
An officer must consider any credible evidence an applicant submits to establish eligibility. The “any credible evidence” provision applies to the type or form of evidence officers must consider or may require. However, the standard of proof for each eligibility requirement remains a preponderance of the evidence. For each eligibility requirement, applicants must submit sufficient relevant, probative, and credible evidence to establish that the claim is “more likely than not” or “probably” true.[7]
Inability to Obtain Documentation and Evidence
In establishing eligibility for T nonimmigrant status, an applicant may submit “any credible evidence” for consideration.[8] USCIS recognizes the difficulties trafficking victims may experience in obtaining primary or secondary evidence relevant to establishing their eligibility, and therefore allows applicants to submit any credible evidence.
Due to the nature of their victimization (including possible loss of control of personal possessions as a tactic to further force, fraud, or coercion), trafficking victims may be unable to obtain certain personal information that would otherwise be available to support a determination of eligibility. The trafficker may control access to, confiscate, or destroy relevant documentation, including identification, travel, employment, or immigration documentation.
Applicants are not required to demonstrate the unavailability of primary and secondary evidence; however, when an applicant fails to submit evidence sufficient to establish eligibility, officers may request that the applicant demonstrate or explain the unavailability of a specific document or specific types of documents if they are necessary to establish eligibility. Although USCIS allows submission of any credible evidence and assesses the credibility of all evidence submitted, an explanation from the applicant regarding the unavailability of specific documents assists officers in determining eligibility.
Factual Inconsistencies
In evaluating the credibility and sufficiency of an applicant’s personal statement and other evidence submitted, officers must consider the impact of trauma and victimization. Officers should also be mindful of the complex ways in which trauma may present for survivors of trafficking, including cognitive, emotional, sensory, and physical impacts.
Because trauma impacts every person differently, what is traumatizing to one person may not be traumatizing to another. In some cases, trauma may result in the applicant being unable to recollect or express all details of the victimization in a linear fashion. Officers must review inconsistencies in the applicant’s story over the course of the applicant’s immigration journey in light of this fact, particularly if the applicant has established that the applicant is a victim of a severe form of trafficking in persons.
A person’s recollection of traumatic experiences may shift over time. As such, inconsistencies in the applicant’s account of victimization may not necessarily be indicators of fraud or lack of credibility but may instead be the result of a fragmented recollection due to trauma.
In addition, trafficking survivors may experience fear or mistrust of authorities, including law enforcement or immigration authorities, that may lead them to provide inconsistent information.
USCIS considers the totality of the circumstances in evaluating any inconsistencies in the record, including but not limited to:
- Any potential physical or mental effects of trauma;
- Where it appears the applicant has a fear or mistrust of authorities;
- The applicant’s background and individual circumstances; and
- Any other relevant factors.
If, after considering the totality of the circumstances, USCIS believes the inconsistencies in the evidence raise eligibility concerns, USCIS provides written notice of the issues in a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), giving the applicant the opportunity to respond and resolve the inconsistencies.
2. Weighing and Determining the Credibility of Evidence
Officers should not require the applicant to submit particular types of evidence and may not deny applications for T nonimmigrant status due to the applicant’s failure to do so. However, officers may deny an application for T nonimmigrant status where evidence lacks credibility, and the credibility concerns are not overcome by other evidence, such that the applicant has not met their burden of proof to establish eligibility by a preponderance of the evidence. Officers must examine each piece of evidence individually and within the context of the totality of the evidence for relevance, probative value, and credibility.[9]
The determination of what evidence is credible and the weight given to each type of evidence is within the sole discretion of USCIS and determined on a case-by-case basis.[10] Evidence that is relevant includes specific facts that address the eligibility criteria for T nonimmigrant status. Probative value speaks not to the quantity of evidence but instead to its quality. Evidence that is credible is plausible, sufficiently detailed, and internally and externally consistent regarding each eligibility requirement.[11]
When an officer determines the applicant has failed to meet their burden of establishing an eligibility requirement by a preponderance of the evidence, the officer may issue an RFE or NOID requesting additional evidence to establish eligibility.
Any RFE or NOID must be tailored to address credibility or evidentiary issues as they relate to the applicant’s eligibility and refrain from retraumatizing a potential victim. For example, officers should not issue an RFE or NOID that expresses skepticism or disbelief about the applicant’s claim, but instead should focus on the need for additional detail, explain the lack of probative value of the evidence submitted, or highlight inconsistencies in the record.
After requesting an explanation or additional information from an applicant whose case presents credibility or evidentiary concerns, an officer determines whether their explanation is reasonable or they have submitted sufficient evidence to establish eligibility by a preponderance of the evidence.
USCIS makes determinations of credibility based on the particular facts and circumstances of the case, taking into account the limitations on the particular applicant’s ability to obtain evidence and the general considerations that pertain to victim-based cases, including the impact of trauma and victimization discussed above.
3. Initial Filing and Accompanying Evidence
When filing the Application for T Nonimmigrant Status (Form I-914), the applicant should submit:
- Any credible evidence demonstrating that the applicant meets the eligibility requirements;[12]
- The applicant’s signed personal statement describing the facts of the victimization, the applicant’s physical presence in the United States as it relates to the trafficking, the hardship the applicant fears if they are removed from the United States, compliance with reasonable requests for assistance from law enforcement (or a basis for why the applicant has not complied), and any other eligibility requirements;[13]and
- If the applicant is seeking a waiver of inadmissibility, an Application for Advance Permission to Enter as a Nonimmigrant (Form I-192),[14] must be submitted with supporting evidence.[15]
The applicant must also submit biometrics at a local Application Support Center after receipt of an appointment notice.[16]
4. Evidence from Law Enforcement Agency
An applicant may wish to submit evidence from a law enforcement agency (LEA) to help establish eligibility requirements, including victimization and compliance with reasonable requests for assistance.[17] Evidence from an LEA is optional, and USCIS does not give it any special evidentiary weight.[18]
Law Enforcement Agency Declaration
An applicant may provide evidence from an LEA by submitting a Declaration for Trafficking Victim (Form I-914, Supplement B). The Supplement B must be signed by a supervising official responsible for the investigation or prosecution of severe forms of trafficking in persons.
The LEA completing the Supplement B should attach the results of any name or database inquiries performed and describe the victimization (including dates where known) and the cooperation of the victim. USCIS, not the LEA, determines if the applicant was or is a victim of a severe form of trafficking in persons and otherwise meets the eligibility requirements for T nonimmigrant status. Under federal law, the decision of whether to complete a Supplement B is within the discretion of the LEA.[19] A formal investigation or prosecution is not required to complete a Supplement B.[20]
An LEA may disavow or withdraw the contents of a previously submitted Supplement B in writing.[21] After disavowal or withdrawal, USCIS generally no longer considers the Supplement B as evidence of the applicant’s compliance with requests for assistance in the LEA’s detection, investigation, or prosecution. However, USCIS may consider a disavowed or withdrawn Supplement B for other eligibility requirements along with any other credible evidence relevant to the application.[22]
USCIS determines whether to consider the disavowed or withdrawn Supplement B as evidence of compliance by assessing the stated reasons for the disavowal or withdrawal. If there is an explanation from the LEA for the withdrawal or disavowal, officers should consider that explanation in determining whether to still consider the declaration as evidence of compliance with requests for assistance.
Continued Presence Documentation
An applicant granted Continued Presence (CP) by the DHS Center for Countering Human Trafficking should submit documentation of the grant of CP.[23] DHS may revoke CP if the recipient commits a crime, absconds, departs without obtaining advance parole, receives an immigration benefit, or is determined not to be a trafficking victim. Once CP is revoked, USCIS generally no longer considers CP as evidence of the applicant’s compliance with requests for assistance in the LEA’s investigation or prosecution, but it may be considered for other purposes.[24]
If USCIS determines that the revocation of the CP was unrelated to an applicant’s compliance (for example, revocation due to the applicant departing without advance parole or for subsequent criminal conduct), USCIS may continue to consider the grant of CP as evidence of the applicant’s compliance with the LEA investigation or prosecution.
5. Evidence of Immigration History
An applicant may also submit any evidence regarding entry, admission into, or permission to remain in the United States, or note that such evidence is contained within an applicant’s immigration file.[25]
6. Evidence of Severe Form of Trafficking in Persons
The applicant must submit evidence that demonstrates that the applicant is or has been a victim of a severe form of trafficking in persons. The applicant’s evidence should establish that the trafficker:
- Used a particular action (recruitment, transportation, harboring, provision, obtaining, or in the case of sex trafficking, also patronizing or soliciting);
- Employed a particular means (force, fraud, or coercion), except in instances of sex trafficking involving victims under 18 years of age; and
- Acted with the purpose of achieving an actual or intended end (commercial sex act, involuntary servitude, peonage, debt bondage, or slavery).[26]
If an applicant has not performed labor or services or a commercial sex act, the applicant must establish that they were recruited, transported, harbored, provided, or obtained (or in the case of sex trafficking, patronized or solicited) for the purpose of a commercial sex act or subjection to involuntary servitude, peonage, debt bondage, or slavery.[27]
The applicant may satisfy this requirement by submitting the following types of evidence:[28]
- The applicant’s personal statement, which should describe the circumstances of the victimization suffered;
- Form I-914, Supplement B;
- For applicants who are children under 18 years old, a letter from the U.S. Department of Health and Human Services certifying that the child is a victim of trafficking;
- Documentation of a grant of CP;[29] or
- Any other credible evidence, including but not limited to:
- Trial transcripts;
- Court documents;
- Police reports or other documentation from an LEA;
- News articles;
- Copies of reimbursement forms for travel to and from court;
- Affidavits from case managers, therapists, medical professionals, witnesses, or other victims in the same trafficking scheme;
- Correspondence or other documentation from the trafficker;
- Documents used in furtherance of the trafficking scheme, such as recruitment materials, advertisements, pay stubs, logbooks, or contracts; and
- Photographs or images.[30]
Applicants should describe the steps they have taken to report the crime to an LEA and indicate whether any criminal records relating to the trafficking crime are available.[31] If there has been civil litigation related to the trafficking, applicants may include this evidence as well.
7. Evidence of Physical Presence on Account of Trafficking
Evidence of Physical Presence in the United States
The applicant must submit evidence demonstrating that the applicant is physically present in the United States or at a port-of-entry on account of trafficking in persons. Because the regulatory language about the physical presence requirement is phrased in the present tense, USCIS considers the victim’s current situation, and whether the victim can establish current presence in the United States on account of trafficking.
USCIS considers any credible evidence presented to determine physical presence, including the applicant’s responses on the application for T nonimmigrant status regarding when they escaped from the trafficker, what activities they have undertaken since that time, including any steps taken to deal with the consequences of having been trafficked, and the applicants’ ability to leave the United States.[32]
Applicants may establish physical presence by submitting the following types of evidence:
- Form I-914, Supplement B;
- Documentation of a grant of CP;[33]
- Documentation of entry into the United States or permission to remain in the United States, such as parole,[34] or a notation that such evidence is within the applicant’s immigration records; or
- Any other credible evidence, including a personal statement from the applicant, stating the date and place (if known) and the manner and purpose (if known) for which the applicant entered the United States and demonstrating that the applicant is now present on account of the trafficking.[35]
Evidence to Establish the Direct Relationship between the Applicant’s Ongoing Presence and the Original Trafficking in Persons
An applicant may support the claim that the applicant’s continuing presence in the United States is directly related to the original trafficking in persons by providing any credible evidence. Officers should consider all evidence describing the ongoing impacts of trafficking on the applicant’s life at the time of application using a victim-centered approach.
The applicant cannot satisfy the physical presence requirement[36] unless the evidence sufficiently establishes the connection between the specific impact of trauma on the applicant’s life at the time of filing and the applicant’s ongoing presence in the United States.
Evidence that USCIS may consider includes, but is not limited to:
- A narrative within the personal statement explaining the physical effects or psychological trauma the applicant has suffered as a result of the trafficking and a description of how this trauma impacts the applicant’s life at the time of filing;
- Affidavits, evaluations, diagnoses, or other records from the applicant’s service providers (including therapists, psychologists, psychiatrists, and social workers) documenting the therapeutic, psychological or medical services the applicant has sought or is currently accessing as a result of victimization and that describe how the applicant’s life is being impacted by the trauma at the time of filing;
- Documentation of any additional stabilizing services and benefits, including financial, language, housing, or legal resources, the applicant is accessing or has accessed as a result of being trafficked. For those services and benefits not currently being accessed, the record should demonstrate how those past services and benefits related to trauma the applicant is experiencing at the time of filing;
- Evidence demonstrating the applicant’s ability to access services in the United States or in the applicant’s home country;
- Form I-914, Supplement B or other statements from LEAs documenting the cooperation between the applicant and the law enforcement agency; and
- Copies of news reports, law enforcement records, or court records.
Evidence of Reentry for or Physical Presence on Account of Participation in Investigative or Judicial Processes
There is a general presumption that victims who have traveled outside of the United States at any time after the act of trafficking and then returned are not present on account of trafficking. To overcome this presumption, applicants must show that their reentry into the United States was the result of continued victimization or that they are a victim of a new incident of a severe form of trafficking in persons.[37] This presumption also may be overcome when the applicant is allowed reentry in order to participate in investigative or judicial processes associated with an act or a perpetrator of trafficking.[38]
This presumption may also be overcome when the applicant’s current presence is directly related to their past or current participation in investigative or judicial processes associated with an act or perpetrator of trafficking, regardless of where such trafficking occurred.[39]
To establish that they were allowed entry or reentry into the United States to participate in an investigative or judicial process associated with an act or a perpetrator of trafficking, applicants must show documentation of entry through a legal means such as parole and must submit evidence that the entry is for participation in investigative or judicial processes associated with an act or perpetrator of trafficking.[40]
To establish that they are physically present on account of their participation in investigative or judicial processes associated with an act or perpetrator of trafficking, applicants need not show documentation of their entry through a legal means, but must submit evidence of their participation in the investigative or judicial processes. This is distinct from establishing physical presence after departure based on having been allowed entry for participation in investigative or judicial processes associated with the trafficking.
Such evidence may include:
- Form I-914, Supplement B;
- Other evidence from an LEA to describe the victim’s participation;
- A personal statement from the victim; or
- Any other credible supporting documentation showing that the applicant’s entry was for participation in the investigative or judicial processes relating to the applicant’s trafficking.
Evidence of Presence Based on Receipt of Treatment or Services Related to Victimization
An applicant may also overcome the general presumption that they are not present on account of trafficking due to a departure and be considered physically present on account of their trafficking in cases where:
- The applicant reentered the United States (by any means); and
- The applicant’s physical presence is related to their receipt of treatment or services related to their victimization that cannot be provided in their home country or last place of residence outside the United States.[41]
To satisfy this ground, the applicant must provide evidence of the treatment or services they received in the United States, as well as evidence that such treatment or services are not available in their home country or last place of residence outside the United States.
Such evidence may include:
- Medical or psychological records of the applicant’s treatment;
- Country conditions information regarding the availability of treatment or services in an applicant’s home country or last place of residence outside the United States;
- A personal statement from the victim; or
- Any other credible supporting documentation showing that the applicant’s entry was to receive treatment or services related to their victimization and such treatment or services cannot be provided in the applicant’s home country or last place of residence outside the United States.
If the applicant meets the physical presence requirement, the applicant must still satisfy all the other requirements for T nonimmigrant status, including compliance with reasonable requests for assistance from the LEA.
8. Evidence of Compliance with Law Enforcement Requests
Evidence to Establish Compliance
In determining whether an applicant complied with reasonable LEA requests for assistance, USCIS examines the totality of the circumstances, including several specific factors,[42] and considers any credible evidence submitted.
To establish compliance with LEA requests for assistance, the applicant may submit a variety of evidence, including but not limited to:
- Form I-914, Supplement B;
- Documentation of a grant of CP;[43]
- Email and letter correspondence showing reporting or communication between the applicant or the applicant’s attorney and an LEA;
- Copies of phone and fax logs or email and letter correspondence showing contact with an LEA to report the victimization or offer assistance, and evidence of any response received from the LEA;
- A personal statement explaining the applicant’s efforts to report to an LEA and the response or lack of response from the LEA; and
- Any credible evidence demonstrating the victim’s willingness to assist in the detection, investigation or prosecution of a severe form of trafficking in persons, such as:
- Trial transcripts;
- Court documents;
- Police reports;
- News articles;
- Copies of reimbursement forms for travel to and from court;
- Affidavits from the victim and other witnesses; and
- Any other credible evidence.
The applicant should describe in their personal statement[44] what they have done to report the crime to an LEA and indicate whether criminal records relating to the trafficking crime are available.[45] The applicant’s statement should also show that an LEA with the responsibility and authority for the detection, investigation, or prosecution of severe forms of trafficking in persons has information about such trafficking in persons, and that the applicant has complied with any reasonable request for assistance in the investigation or prosecution of such acts of trafficking.
If the applicant did not report the crime, the applicant must provide an explanation to demonstrate that they qualify for an exemption due to age or an exception for trauma.[46]
The absence of a Supplement B generally does not adversely affect an applicant who can meet the evidentiary burden with the submission of other evidence of sufficient reliability and relevance. Though an LEA declaration is not required, USCIS considers it to be a useful and convenient form of evidence, among other types of credible evidence.[47] Even in the absence of an LEA declaration, USCIS may, at its discretion, contact the LEA that is involved in the case.[48]
Evidence to Establish Physical or Psychological Trauma Exception
To establish the trauma-based exception to the requirement to comply with reasonable LEA requests, an applicant may provide the following evidence:
- A personal statement describing the trauma and explaining the circumstances surrounding the trauma experienced;[49]
- A signed statement from a qualified professional (such as a medical professional, mental health professional, social worker, or victim advocate) attesting to the victim’s mental state or medical condition;[50]
- Medical or psychological records documenting the trauma or its impact;[51]
- Witness statements;[52]
- Photographs;[53]
- Police reports;[54]
- Court records and court orders;[55]
- Disability determinations;[56]
- Government agency findings;[57] or
- Any other credible evidence.[58]
To establish that the person providing the signed attestation is qualified to make such a determination, the applicant should provide a description or evidence of the person’s qualifications, credentials, or education, or provide a detailed description of the person’s contact and experience with the applicant.[59]
Although a victim’s affidavit alone may satisfy this evidentiary burden, USCIS strongly encourages applicants to submit additional relevant evidence.[60]
Evidence of Age-Based Exemption
If an applicant was under the age of 18 at the time of victimization and is therefore exempt from the requirement to comply with reasonable law enforcement requests, the applicant must submit credible evidence of their age, including an official copy of their birth certificate, a passport, or a certified medical opinion, if available.[61] The applicant may also submit other evidence of their age.
9. Evidence of Extreme Hardship
Applicants must submit evidence that demonstrates they would suffer extreme hardship involving unusual and severe harm if removed from the United States. When evaluating whether removal would result in extreme hardship involving unusual and severe harm, USCIS considers several factors.[62]
The applicant may document extreme hardship through a personal statement or other evidence, including evidence from relevant country condition reports and any other public or private sources of information. The applicant may include evidence of hardship arising from circumstances surrounding the victimization and any other circumstances.[63] USCIS does not consider evidence of hardship to persons other than the applicant unless the evidence specifically demonstrates hardship to the applicant as a result of hardship to another person.
Applicants under the age of 18 are not exempt from the extreme hardship requirement. However, USCIS considers an applicant’s age, maturity, and personal circumstances (among other factors) when evaluating the extreme hardship requirement.[64]
Footnotes
[^ 1] See the Form I-914 webpage for more information on filing.
[^ 3] See INA 291. See 8 CFR 103.2(b)(1) and 8 CFR 214.204(l). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 4] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). See Matter of Martinez (PDF), 21 I&N Dec. 1035, 1036 (BIA 1997). See Volume 1, General Policies and Procedures, E, Adjudications, Chapter 4, Burden and Standards of Proof, Section B, Standards of Proof [1 USCIS-PM E.4(B)].
[^ 5] See 8 CFR 214.204(l)(3).
[^ 6] See Matter of Obaigbena (PDF), 19 I&N Dec. 533, 534 n.2 (BIA 1988).
[^ 7] See Matter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010).
[^ 8] See 8 CFR 214.204(l).
[^ 9] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010).
[^ 10] See 8 CFR 214.204(l)(3).
[^ 11] Internal consistency refers to consistency within the same document as the evidence in question. External consistency refers to consistency between the evidence in question and other pieces of evidence in the record.
[^ 12] See 8 CFR 214.204(c)(2).
[^ 13] See 8 CFR 214.204(c)(1).
[^ 14] See Fee Schedule (Form G-1055).
[^ 15] See 8 CFR 214.204(d).
[^ 16] See 8 CFR 103.16.
[^ 17] See 8 CFR 214.204(e).
[^ 18] See 8 CFR 214.204(e)(1) and 8 CFR 214.204(e)(2).
[^ 19] See 8 CFR 214.204(e)(5).
[^ 20] See 8 CFR 214.204(e)(6).
[^ 21] If a certifying official discovers information regarding a victim, crime, or Supplement B that the agency believes USCIS should be aware of, or if the official wishes to withdraw the certification, the official should contact USCIS using the directions outlined in the Instructions for Form I-914, Supplement B.
[^ 22] See 8 CFR 214.204(h).
[^ 23] See 8 CFR 214.204(i) and 28 CFR 1100.35 (U.S. Immigration and Customs Enforcement’s authority to grant Continued Presence).
[^ 24] See 8 CFR 214.204(i).
[^ 25] See 8 CFR 214.204(j).
[^ 26] See 8 CFR 214.206(a)(1).
[^ 27] See 8 CFR 214.206(a)(2).
[^ 28] See 8 CFR 214.206(a)(3).
[^ 29] See 8 CFR 214.204(i).
[^ 30] See 8 CFR 214.206(a)(3)(ii).
[^ 31] See 8 CFR 214.206(a).
[^ 32] See 8 CFR 214.207.
[^ 33] See 28 CFR 1100.35.
[^ 34] See INA 212(d)(5).
[^ 35] See 8 CFR 214.207(c).
[^ 36] See 8 CFR 214.207(a)(4).
[^ 37] See 8 CFR 214.207(b).
[^ 38] See 8 CFR 214.207(b)(3).
[^ 39] See 8 CFR 214.207(b)(4).
[^ 40] See 8 CFR 214.207(b)(3).
[^ 41] See 8 CFR 214.207(b)(5).
[^ 42] See Chapter 2, Eligibility Requirements, Section D, Requests for Law Enforcement Assistance, Subsection 2, Totality of the Circumstances Test [3 USCIS-PM B.2(D)(2)].
[^ 43] See 28 CFR 1100.35.
[^ 44] See Section C, Evidence, Subsection 3, Initial Filing and Accompanying Evidence [3 USCIS-PM B.3(C)(3)].
[^ 45] See 8 CFR 214.206(a)(2)(i). See 8 CFR 214.208(a) (requiring that the applicant has had contact with an LEA regarding the acts of a severe form of trafficking in persons).
[^ 46] See 8 CFR 214.208(e)(1) and 8 CFR 214.208(e)(2).
[^ 47] See 81 FR 92266, 92276 (PDF) (Dec. 19, 2016).
[^ 48] See 81 FR 92266, 92276 (PDF) (Dec. 19, 2016).
[^ 49] See 8 CFR 214.208(e)(1)(i).
[^ 50] See 8 CFR 214.208(e)(1)(ii).
[^ 51] See 8 CFR 214.208(e)(1)(iii).
[^ 52] See 8 CFR 214.208(e)(1)(iv).
[^ 53] See 8 CFR 214.208(e)(1)(v).
[^ 54] See 8 CFR 214.208(e)(1)(vi).
[^ 55] See 8 CFR 214.208(e)(1)(vii).
[^ 56] See 8 CFR 214.208(e)(1)(viii).
[^ 57] See 8 CFR 214.208(e)(1)(ix).
[^ 58] See 8 CFR 214.208(e)(1)(x).
[^ 59] See 81 FR 92266, 92277 (PDF) (Dec. 19, 2016).
[^ 60] See 81 FR 92266, 92277 (PDF) (Dec. 19, 2016).
[^ 61] See 8 CFR 214.208(e)(2). A certified medical opinion may include medical evaluations, dental assessments, and x-ray records.
[^ 62] See Chapter 2, Eligibility Requirements, Section E, Extreme Hardship, Subsection 2, Factors [3 USCIS-PM B.2(E)(2)].
[^ 63] See 8 CFR 214.209(a). See Volume 9, Waivers and Other Forms of Relief, Part O, Victims of Trafficking, Chapter 3, INA 212(d)(13) Waivers, Section A, Waiver Eligibility [9 USCIS-PM O.3(A)].
[^ 64] See 81 FR 92266, 92277 (PDF) (Dec. 19, 2016).
Chapter 4 - Family Members
A. Overview
A victim who has applied for or been granted T nonimmigrant status (the “principal applicant”) may request derivative status for certain eligible family members. The principal applicant may file Supplement A, Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A) concurrently with the principal applicant’s Application for T Nonimmigrant Status (Form I-914), at any time while the principal’s application is pending, or while the principal holds T-1 nonimmigrant status.
Eligible family members must be admissible to the United States or apply for a discretionary waiver of inadmissibility.[1]
There are two general categories of family members eligible for derivative T nonimmigrant status if accompanying, or following to join, the principal:
- Those whose eligibility is based on the age of, and their relationship to, the principal; and
- Those whose eligibility is based on a showing of a present danger of retaliation.[2]
B. Derivative Status Based on Relationship to Principal
Where the principal T nonimmigrant (T-1) is under 21 years of age, the following table outlines which family members may be eligible for derivative T nonimmigrant status.[3]
Family Member | Code of Admission |
---|---|
Spouse | T-2 |
Child (unmarried and under 21 years of age)[4] | T-3 |
Parent | T-4 |
Unmarried sibling under 18 years of age | T-5 |
Where the principal is 21 years of age or older, the following table outlines which family members may be eligible for derivative T nonimmigrant status.[5]
Family Member | Code of Admission |
---|---|
Spouse | T-2 |
Child (unmarried and under 21 years of age)[6] | T-3 |
C. Derivative Status Based on Fear of Retaliation
1. General Categories of Eligible Family Members
Regardless of the age of the principal, a principal T nonimmigrant’s family members may be eligible for derivative T nonimmigrant status if they are in present danger of retaliation as a result of the principal applicant’s escape from trafficking or cooperation with law enforcement.[7] The following table outlines which family members may be eligible on this basis.
Family Member | Code of Admission |
---|---|
Parent | T-4 |
Unmarried sibling under 18 years of age[8] | T-5 |
Adult or minor child of a derivative family member[9] | T-6 |
2. Adult or Minor Child of Derivative Family Member (T-6)
The T-6 category is unique in that it expands eligibility beyond relatives who are typically eligible for derivative status. To qualify for T-6 status, the applicant must establish:
- The familial relationship between the T-6 family member and the parent of the T-6;
- That USCIS granted the T-6 family member’s parent T-2, T-3, T-4, or T-5 status as the principal’s derivative beneficiary; and
- That the T-6 family member faces a present danger of retaliation as a result of the principal’s escape from trafficking or cooperation with law enforcement.
T-6 derivatives could include the principal’s grandchild, the principal’s spouse’s child (if not otherwise already eligible as the principal’s child), the principal’s sibling (if not otherwise already eligible, such as those over the age of 18 or married), and the principal’s niece or nephew. The adult or minor child can be of any age or marital status.
If the status of the T-1 principal or the T-2, T-3, T-4, or T-5 derivative was erroneously granted and subsequently revoked, or the T-2, T-3, T-4, or T-5 later becomes ineligible for derivative T nonimmigrant status (for example, a T-3 or T-5 derivative abroad married before admission to the United States), the T-6 applicant would not be eligible for T-6 nonimmigrant status or admission to the United States as a T-6 nonimmigrant.
The table below illustrates which family members of a principal T-1 nonimmigrant could derive T-6 status if they demonstrate they meet the present danger of retaliation requirement.
Age of the T-1 Principal | Derivative Family Member of the T-1 Principal[10] | Eligible T-6 Derivative |
---|---|---|
Under the age of 21 | Spouse (T-2) | The T-2 spouse’s child[11] (the principal’s stepchild) |
Unmarried child under age 21 (T-3) | The T-3 child’s child (the principal’s grandchild) | |
Parent (T-4) | The T-4’s child (the principal’s sibling) | |
Sibling (under the age of 18 and unmarried) (T-5) | The T-5 sibling’s child (the principal’s niece or nephew) | |
21 years of age or older | Spouse (T-2) | The T-2 spouse’s child (the principal’s stepchild) |
Unmarried child under age 21 (T-3) | The T-3 child’s child (the principal’s grandchild) | |
Any age | Parent (T-4) based on present danger of retaliation | The T-4 parent’s child (the principal’s stepchild) |
Sibling (under the age of 18 and unmarried) (T-5) based on present danger of retaliation | The T-5 sibling’s child (the principal’s niece or nephew) | |
Note: Where ages are listed in this table, they refer to age at the time of the principal applicant’s filing for T-1 nonimmigrant status. T-6 family members are eligible regardless of their marital status or age. There is no T derivative status for children (or other family members) of the adult or minor child who is granted T-6 status. |
USCIS recognizes that this derivative family category is based on “a present danger of retaliation” and different family members may face a danger of retaliation at different times. The T-6’s family member does not have to hold derivative status at the time of the T-6 application.
For example, if the principal’s spouse held T-2 status but then died before the principal files for T-6 status for the spouse’s adult child, the adult child may still be eligible for T-6 status. Additionally, if a parent who had obtained T-4 status allowed that status to lapse without extending it, the T-4 parent’s adult or minor child could still be eligible for T-6 status if the child faced a present danger of retaliation.
D. Family Relationship at Time of Filing
1. General Rule
Generally, subject to age-out protections and except as specified in subsections 2 through 4, the family relationship must exist at each of the following times:
- When the applicant files the application for T-1 nonimmigrant status;[12]
- When USCIS adjudicates the application for T-1 nonimmigrant status;
- When the applicant files the application for derivative T nonimmigrant status;
- When USCIS adjudicates the application for derivative T nonimmigrant status; and
- When the eligible family member is admitted to the United States, if residing abroad.
2. Spousal Relationship Must Exist When Principal’s Application is Adjudicated
USCIS evaluates whether the marriage creating the qualifying spousal relationship or stepchild and stepparent relationship exists at the time of adjudication of the principal’s application and thereafter.
Principal applicants who marry while their application is pending may file Form I-914, Supplement A on behalf of their spouse, even if the relationship did not exist at the time they filed their principal application.[13] Similarly, the principal applicant may file for a stepparent or stepchild if the qualifying relationship was created after they filed their principal application but before it was approved.[14]
3. Requirement to Be Unmarried
An eligible child seeking T-3 nonimmigrant status or eligible sibling seeking T-5 nonimmigrant status must be unmarried:
- When the principal files the application for T-1 nonimmigrant status;
- When USCIS adjudicates the application for T-1 nonimmigrant status;
- When the principal files an application on behalf of an eligible family member for derivative T-3 or T-5 nonimmigrant status;
- When USCIS adjudicates the application for derivative T-3 or T-5 nonimmigrant status; and
- When the family member is admitted to the United States, if residing abroad.
4. Exceptions to General Rule: Relationship and Age-Out Protections
There are certain protections available to family members whose age or relationship changes after the principal files an application for T nonimmigrant status.
Protection for New Child of a Principal Applicant
If the T-1 principal applicant had a child after filing the application for T-1 nonimmigrant status, the child is eligible to accompany or follow to join the T-1 principal applicant.[15] This includes becoming the parent of a child by means of a biological, step,[16] or adoptive relationship.
Age-Out Protection for Eligible Family Members of a Principal Applicant Under 21 Years of Age
For principal applicants who were under 21 years of age when they filed for T-1 nonimmigrant status, USCIS continues to consider a T-4 parent or T-5 unmarried sibling as eligible for derivative status even if the principal applicant turns 21 before USCIS adjudicates the T-1 application.
Unmarried siblings under 18 years of age at the time the principal filed the T-1 application remain eligible for T-5 status even if they turn 18 years of age before USCIS adjudicates the T-1 application, so long as the sibling is unmarried.[17] The derivative sibling does not “age out” even upon reaching age 18.
Age-Out Protection for Child of a Principal Applicant
USCIS continues to consider a T-3 child as an eligible family member so long as the child was under 21 years of age at the time the principal filed for T-1 nonimmigrant status. As long as the child is unmarried, the child remains eligible even if the child is over 21 years of age at the time of adjudication of the T-1 application.[18] The derivative T-3 does not “age out” even upon reaching age 21.
E. Death of Qualifying Relative
USCIS may not approve derivative status for a surviving relative whose qualifying relative (the principal applicant) died before USCIS approved the derivative T application.[19] However, the unique structure of the T-6 classification may provide for continuing eligibility for the T-6 derivative even if the T-2, T-3, T-4, or T-5 derivative beneficiary dies before the principal files for T-6 status for the surviving relative.
For example, adult children who are married or over 21 years of age could potentially qualify for T-6 nonimmigrant status if they are the children of the T-1’s deceased spouse and meet the present danger of retaliation requirement.
However, in order for the spouse’s children (adult or minor) to be eligible for the T-6 category under this scenario, the principal’s spouse must have held T-2 nonimmigrant status through the principal T-1 nonimmigrant before the T-2 spouse died. If the principal’s spouse held T-2 status but then died before the principal filed for T-6 status for the spouse’s adult or minor child, the adult or minor child may still be eligible for T-6 status. However, if the T-1 principal’s spouse is deceased and never held T-2 status, then the spouse’s child would not be eligible for T-6 status.
Footnotes
[^ 1] See 8 CFR 214.211(a).
[^ 2] See INA 101(a)(15)(T)(ii). See 8 CFR 214.211(a)(3).
[^ 3] See INA 101(a)(15)(T)(ii)(I).
[^ 4] See INA 101(b)(1), which specifically defines the term “child.” The definition includes stepchildren and adopted children under certain circumstances.
[^ 5] See INA 101(a)(15)(T)(ii)(II).
[^ 6] See INA 101(b)(1), which specifically defines the term “child.” The definition includes stepchildren and adopted children under certain circumstances.
[^ 7] See INA 101(a)(15)(T)(ii)(III).
[^ 8] See INA 101(a)(15)(T)(ii)(III).
[^ 9] The adult or minor child can be of any age or marital status. In enacting this new category of derivative beneficiaries in the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4 (PDF) (March 7, 2013), Congress used the term “adult or minor children,” which is not a term of art in the Immigration and Nationality Act (INA). Under the INA, the term “son or daughter” means a child who is married or over the age of 21, while “child” means a child who is unmarried and under the age of 21. USCIS construes the meaning of the language “adult or minor children” to encompass both the INA definitions of “son or daughter” and “child.” Therefore, persons of any age and any marital status are “adult or minor children” and may be eligible for T-6 derivative status.
[^ 10] The derivative family members of the T-1 principal listed in this column can either currently hold T-2, T-3, T-4, or T-5 nonimmigrant status, have a pending application for such status that USCIS will approve before or with the application for the T-6 nonimmigrant, or have held such status in the past (with some exceptions).
[^ 11] This assumes the principal’s T-2 spouse’s child was not already eligible as a child T-3 derivative beneficiary. Stepchildren are included in the INA definition of a child so long as the parents married when the stepchild (spouse’s biological child) was under the age of 18. However, a biological child of the T-2 spouse whose marriage to the T-1 principal nonimmigrant occurred after the child turned 18 years of age is not eligible as a T-3 nonimmigrant, but the same child may be eligible for T-6 status.
[^ 12] See 8 CFR 214.211(d)(1) as limited by Medina Tovar v. Zuchowski, 982 F.3d 631 (9th Cir. 2020) (holding invalid the regulatory requirement that a spousal relationship exist at the time a Petition for U Nonimmigrant Status (Form I-918) is filed in order for the spouse to be eligible for classification as a U-2 nonimmigrant). As a matter of policy, USCIS applies the Medina Tovar decision nationwide to spousal and stepparent-stepchild relationships arising in T visa and U visa adjudications. Therefore, where the family relationship is created by marriage, it does not have to exist at the time the applicant submits the application for T-1 nonimmigrant status. In that circumstance, the family relationship must exist at the four subsequent points set forth at 8 CFR 214.211(d).
[^ 13] See 8 CFR 214.211(e)(4)(ii) as limited by Medina Tovar v. Zuchowski, 982 F.3d 631 (9th Cir. 2020).
[^ 14] See 8 CFR 214.211(e)(4)(ii) and 8 CFR 214.211(d)(4)(iii), as limited by Medina Tovar v. Zuchowski, 982 F.3d 631 (9th Cir. 2020).
[^ 15] See 8 CFR 214.211(e)(1).
[^ 16] An applicant can establish a T-3 stepparent and stepchild relationship if the applicant shows that the qualifying relationship was created before the stepchild turned 18, regardless of the adjudication outcome for an application for derivative T-2 nonimmigrant status (for example, the spousal relationship that created the stepparent and stepchild relationship), so long as the application for derivative T-2 nonimmigrant status was not denied due to failure to establish the claimed spousal relationship.
[^ 17] See 8 CFR 214.211(e)(2).
[^ 18] See 8 CFR 214.211(e)(3).
[^ 19] See INA 204(l).
Chapter 5 - Documentation and Evidence for Family Members
A principal T nonimmigrant (T-1) may submit an application to USCIS to obtain derivative T nonimmigrant status for eligible family members who are inside or outside the United States.[1] The T-1 principal must complete a separate Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A) for each eligible family member.
A. Evidence
The applicant must submit the following with the Form I-914, Supplement A:
- Evidence demonstrating the family relationship that makes the derivative eligible for T nonimmigrant status;[2]
- Evidence demonstrating the danger of retaliation if relevant to the basis for seeking derivative status;[3] and
- If the family member is seeking a waiver of inadmissibility, an Application for Advance Permission to Enter as a Nonimmigrant (Form I-192), with supporting evidence.[4]
The family member must also submit biometrics.[5] If the family member is inside the United States, USCIS schedules a biometrics appointment at a local Application Support Center. Family members outside the United States must submit fingerprints through a completed fingerprint card (FD-258) for scanning or by electronic means as instructed by the U.S. embassy or consulate. USCIS mails fingerprint cards to the applicant, along with instructions, after the applicant files the application for the eligible family member.[6]
1. Establishing Family Relationship
USCIS must consider any credible evidence submitted to establish proof of the claimed family relationship. The instructions for the Application for T Nonimmigrant Status (Form I-914) include a list of documents the applicant may submit to establish the claimed relationship.
2. Establishing Danger of Retaliation
A family member seeking derivative T nonimmigrant status based on a present danger of retaliation must demonstrate the basis of this danger.
An applicant may satisfy this requirement by submitting the following types of evidence:
- Documentation of a previous grant of parole to an eligible family member;[7]
- A signed statement from a law enforcement official describing the danger of retaliation;[8]
- A personal statement from the principal or derivative applicant describing the danger the family member faces and how the danger is linked to the principal applicant’s escape or cooperation with law enforcement (although a personal statement may be insufficient on its own to prove present danger);[9] or
- Any other credible evidence, including trial transcripts, court documents, police reports, news articles, copies of reimbursement forms for travel to and from court, and affidavits from other witnesses.[10]
USCIS may contact a law enforcement agency involved in the detection, investigation, or prosecution of the trafficking, if appropriate.[11]
B. Timeframe for Filing the Application for Derivative Status
The T-1 principal may file the Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A) at the following times:
- Concurrently with the principal’s Application for T Nonimmigrant Status (Form I-914);
- While the principal’s application is pending; or
- At any time after the principal’s application is approved, so long as the principal continues to hold T-1 nonimmigrant status.[12]
If the principal no longer holds T-1 nonimmigrant status because the validity period has expired and has not been extended, USCIS denies the application for the eligible family member.
Footnotes
[^ 1] See INA 214(o).
[^ 2] See 8 CFR 214.211(c)(2).
[^ 3] See 8 CFR 214.211(c)(3).
[^ 4] See 8 CFR 214.211(c)(4). For information regarding filing fees, see Fee Schedule (Form G-1055).
[^ 5] See 8 CFR 103.16.
[^ 6] See 8 CFR 103.16.
[^ 7] See 8 CFR 214.211(f)(1).
[^ 8] See 8 CFR 214.211(f)(2).
[^ 9] See 8 CFR 214.211(f)(3).
[^ 10] See 8 CFR 214.211(f)(4).
[^ 11] See 8 CFR 214.211(f).
Chapter 6 - Bona Fide Determinations
A. Bona Fide Determination Process
Federal statutes provide certain benefits to individuals with a bona fide application for T nonimmigrant status.[1] Consequently, USCIS implemented the Bona Fide Determination (BFD) process.[2] Through the BFD process, USCIS may exercise discretion to grant deferred action[3] and a BFD Employment Authorization Document (BFD EAD) to aliens with pending, bona fide applications for T nonimmigrant status. This process promotes victim stability and continued cooperation with law enforcement.
The BFD process contains two steps. In the first step, USCIS determines whether an application is bona fide. This involves determining whether the pending application is complete, and whether the results of initial background checks are complete, have been reviewed, and do not present national security concerns. In the second step, USCIS considers whether to grant deferred action and employment authorization as part of the discretionary determination, considering all relevant factors.[4]
If USCIS grants the applicant deferred action as a result of the BFD process, USCIS then also exercises its discretion to grant that applicant a BFD EAD for the duration of the deferred action period. If the annual cap[5] on available visas has been met, USCIS places all applications that have been issued a BFD on the waiting list. Once an application is on the waiting list, the next step is final adjudication when a visa becomes available.
Only applicants living in the United States may receive deferred action, since those outside the United States have no potential removal to be deferred. Likewise, USCIS may only issue BFD EADs to applicants in the United States since those outside the United States cannot as a practical matter work in the United States.[6]
B. Bona Fide Determination
Bona fide generally means “made in good faith; without fraud or deceit.”[7] Accordingly, when interpreting the statutory term within the context of T nonimmigrant status, USCIS determines whether an application is bona fide based on the applicant’s compliance with initial evidence requirements and successful completion of background checks.
1. Principal Applicants
USCIS determines a principal application is bona fide if:
- The principal applicant properly filed a complete Application for T Nonimmigrant Status (Form I-914); and
- USCIS received and reviewed the results of the principal applicant’s initial background checks and determined that the applicant does not present national security concerns.[8]
2. Eligible Family Members
An eligible family member is not guaranteed a BFD solely because the principal applicant receives a BFD.[9] The record must independently demonstrate the Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A) is bona fide.
USCIS determines an eligible family member’s application is bona fide when:
- USCIS determined the principal applicant’s Form I-914 is bona fide;
- The derivative applicant properly filed a complete Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A);
- The application is supported by credible evidence that the derivative applicant qualifies as an eligible family member; and
- USCIS received and reviewed the results of the derivative applicant’s initial background checks and determined that the applicant does not present national security concerns.[10]
C. Exercise of Discretion
Once USCIS determines an application is bona fide, USCIS then considers whether the applicant poses a risk to public safety or national security. USCIS makes this determination based on background and security checks results from biometrics, any additional background check information, and review of any other relevant discretionary factors. For individuals who are required to provide biometrics, USCIS does not make this discretionary determination until it has received the results of the biometrics-based background and security checks.
USCIS uses the results of the background checks and other information in the record to make the discretionary determination of whether deferred action is warranted. During secondary review,[11] USCIS also uses such information to determine whether an applicant is admissible for the purposes of receiving a grant of T nonimmigrant status or merits a favorable exercise of discretion to waive any grounds of inadmissibility.
USCIS may choose not to exercise its discretion to grant deferred action and a BFD EAD where an applicant appears to pose a risk to national security or public safety or presents other negative discretionary factors.
1. National Security and Public Safety Concerns
Where a principal applicant or eligible family member has been convicted of or arrested for certain acts, USCIS may not issue deferred action and a BFD EAD and instead may proceed to secondary review, which involves a full adjudication of T nonimmigrant eligibility for the principal applicant and any family members.
The following concerns generally overlap with inadmissibility grounds[12] and may include:
- National security concerns;[13] and
- Public safety concerns, which include but are not limited to:
- Murder, rape, or sexual abuse;
- Offenses involving firearms, explosive materials, or destructive devices;[14]
- Offenses relating to peonage, slavery, involuntary servitude, and trafficking in persons;[15]
- Aggravated assault;
- An offense relating to child pornography; and
- Manufacturing, distributing, or selling of drugs or narcotics.[16]
USCIS may determine that other adverse factors beyond those listed above weigh against a favorable exercise of discretion.
However, USCIS may also exercise discretion favorably notwithstanding the above concerns if warranted based on the totality of the circumstances.
2. Comprehensive Review of Adverse Factors During Secondary Review
Recognizing that many factors may influence whether criminal activity is prosecuted and results in a conviction, an arrest for a serious crime may be relevant to whether USCIS should exercise its discretion favorably. Therefore, a determination about whether to favorably exercise discretion when there are any adverse concerns requires a comprehensive review of the available evidence. For example, officers may need to request additional evidence or information in certain cases where security checks indicate that an applicant has an arrest record.
USCIS does not conduct this in-depth, discretionary review during the BFD process. Instead, if USCIS determines that an applicant’s case presents relevant adverse factors that would require further review, USCIS proceeds to secondary review, which is a full T nonimmigrant status eligibility adjudication. During the full adjudication of the Form I-914, applicants have the opportunity to provide USCIS with potentially mitigating information or other evidence pertaining to arrests or convictions.
D. Adjudicative Process
1. Bona Fide Determination
When USCIS determines a principal applicant and any eligible family members have a bona fide application and warrant a favorable exercise of discretion, USCIS may grant deferred action and issues a BFD EAD.
2. Prima Facie Case for Approval
Where USCIS determines that an application is bona fide, the applicant is also considered to have established a prima facie case for approval for purposes of an administrative stay of removal.[17] The term “prima facie” refers to an application appearing sufficient on its face.
The steps taken to determine whether an application is bona fide and whether an applicant may receive deferred action through the BFD process rely on the initial evidence submitted with an application for T nonimmigrant status, as well as the results of background checks. The determination of whether an applicant is eligible for T nonimmigrant status is a more complex evaluation.
Impact of Past Grants on Future Determinations
An initial grant or renewal of deferred action and issuance of a BFD EAD does not guarantee that USCIS will approve the principal applicant or their eligible family members for T nonimmigrant status.
When the application is under final adjudication, an officer assesses eligibility requirements for T nonimmigrant status. This adjudication does not include consideration of prior grants of deferred action or BFD EAD.
3. Secondary Review
A determination that an applicant will not receive deferred action and a BFD EAD is not a denial of Form I-914 or the Application for Employment Authorization (Form I-765). USCIS does not accept or process motions to reopen or reconsider, appeals,[18] or requests to re-apply for deferred action and a BFD EAD.
When USCIS determines an application does not initially appear to be bona fide or does not merit a favorable exercise of discretion, USCIS proceeds to secondary review of the application, which consists of a full adjudication of T nonimmigrant status eligibility.[19]
4. BFD EAD Issuance
Previously Filed Applications for Employment Authorization
USCIS uses the pending Form I-765 filed by a principal or derivative applicant under the T visa employment authorization category[20] to issue a BFD EAD. Using the pending application limits the burden on applicants to file additional paperwork.
Once USCIS has determined that an applicant present in the United States has a bona fide application for T nonimmigrant status and merits a favorable exercise of discretion, and therefore may receive deferred action and a BFD EAD, USCIS issues a notice to inform the applicant of the decision.[21]
Applicants who have already filed a Form I-765 receive a grant of deferred action and an EAD valid for 4 years from the date of approval of the Form I-765.
Application for Employment Authorization Needed
Where an applicant has filed a bona fide application for T nonimmigrant status but has not filed an accompanying Form I-765 under the relevant category, USCIS issues a notice indicating that the applicant has received a BFD and may receive a BFD EAD. To obtain an EAD, the applicant must file a Form I-765 after receiving this notice.
Applicants who file a new Form I-765 after receiving the BFD notice from USCIS may receive deferred action and employment authorization valid for 4 years from the date of approval of the Form I-765.
Applicants who do not file a Form I-765 in conjunction with their application for T nonimmigrant status will likely experience delays in receiving any deferred action and BFD EAD. As such, USCIS strongly encourages all applicants to file their Form I-765 at the same time as their application for T nonimmigrant status to ensure efficient processing.
5. Eligible Family Members Residing Outside of the United States
USCIS only issues deferred action and BFD EADs to eligible family members living in the United States. As deferred action is an exercise of prosecutorial discretion to make an alien a lower priority for removal from the United States, it is only applicable to aliens in the United States. Additionally, USCIS only has authority over alien employment authorization in the United States.[22]
Because the BFD EAD is only for applicants living in the United States, eligible family members who live outside of the United States proceed to full adjudication when the principal’s application has been fully adjudicated.
E. Post Adjudicative Actions
1. Requests to Renew Deferred Action and BFD EAD
An applicant who requires a renewal of the grant of the BFD EAD and deferred action while their application for T nonimmigrant status remains pending may submit a request to renew the EAD under existing procedures. USCIS reviews the application for the BFD EAD and considers whether deferred action and employment authorization are still warranted as a matter of discretion.
An initial BFD EAD grant does not guarantee future renewals. Principal applicants and eligible family members are evaluated independently for each deferred action and EAD renewal to ensure that the grant of deferred action and BFD EAD are still warranted as a matter of discretion.
2. Background and Security Checks
USCIS updates and reviews background and security checks at regular intervals during the validity period of a principal applicant or eligible family member’s deferred action. Additionally, USCIS retains discretion to update background and security checks at any time when case-specific circumstances warrant.
During those reviews, USCIS evaluates whether the applicant and eligible family members who have been granted deferred action and BFD EADs continue to merit a favorable exercise of discretion while their applications for T nonimmigrant status are pending with USCIS.
If USCIS determines that adverse information may impact a principal applicant’s or eligible family member’s ability to maintain deferred action and a BFD EAD, USCIS places the application in line for a full adjudication.
3. Termination and Revocation
USCIS may terminate the grant of deferred action and revoke the BFD EAD[23] at any time if it determines the favorable exercise of discretion or BFD EAD are no longer warranted, or the prior deferred action and BFD EAD were granted in error. For example, USCIS may terminate deferred action and revoke the BFD EAD if USCIS identifies any adverse information, such as new information pertaining to the risks the applicant poses to national security or public safety, or any other relevant adverse discretionary factor.
Footnotes
[^ 1] See 22 U.S.C. 7105(b)(1)(E)(i)(II)(aa). See INA 237(d)(1) (authorizing the Secretary of Homeland Security to grant an administrative stay of removal to an individual whose application for T nonimmigrant status sets forth a “prima facie case for approval,” until the application is approved or there is a final administrative denial after exhaustion of administrative appeals; “prima facie” is encompassed by the bona fide determination described at 8 CFR 214.205).
[^ 2] See 8 CFR 214.205. USCIS implemented the bona fide determination (BFD) process on August 28, 2024, the effective date of the Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status Final Rule. See 89 FR 34864 (Apr. 30, 2024). USCIS applies the BFD process to all applications for T nonimmigrant status filed on or after August 28, 2024. However, if an application was pending as of that date, and additional evidence is required to establish eligibility for principal T nonimmigrant status, USCIS conducts a bona fide review. In such cases, USCIS issues a Request for Evidence informing the applicant that they may be eligible for deferred action and an EAD and may file an Application for Employment Authorization (Form I-765).
[^ 3] INA 103(a) grants the Secretary of Homeland Security the authority to administer and enforce the immigration laws and 6 U.S.C. 202(5) provides authority to set national immigration enforcement policies and priorities. Decisions made to either initiate or terminate enforcement proceedings are under the purview of the executive branch, and therefore fall within DHS’s authority. See Heckler v. Chaney, 470 U.S. 821, 831 (1985). The executive branch has exercised its discretion to grant deferred action, and the federal courts have consistently recognized the existence of this authority, since the mid-1970s. See, for example, Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th Cir. 1976); Vergel v. INS, 536 F.2d 755, 757-58 (8th Cir. 1976); and Nicholas v. INS, 590 F.2d 802, 806-08 (9th Cir. 1979), superseded by rule on other grounds, as stated in Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir. 1985).
[^ 4] In exercising its discretion, USCIS may consider the results of background checks resulting from biometrics submission, which is required for principal applicants under 8 CFR 214.204(k) as well as eligible family members under 8 CFR 214.211(c)(1).
[^ 5] See Chapter 8, Annual Cap and Waiting List [3 USCIS-PM B.8].
[^ 6] See INA 274A. See 8 CFR 274a.12(a)-(c) (referring to employment in the United States).
[^ 7] See Black’s Law Dictionary (12th ed. 2024).
[^ 8] See 8 CFR 214.205.
[^ 9] Generally, USCIS will not consider an eligible family member for deferred action and employment authorization until the principal applicant has received deferred action and employment authorization, unless there is an operational reason to process a derivative after the principal receives a BFD but before they receive deferred action and employment authorization, such as resource management.
[^ 10] See INA 212(a)(3).
[^ 11] Secondary review occurs when an application does not initially appear bona fide, and consists of a full adjudication.
[^ 12] See INA 212(a).
[^ 13] As listed in INA 212(a)(3).
[^ 14] Such as those defined in INA 101(a)(43)(C) and INA 101(a)(43)(E).
[^ 15] As defined in INA 101(a)(43)(K)(iii).
[^ 16] This includes acts defined in INA 101(a)(43)(B).
[^ 18] Because deferred action is by its nature an exercise of prosecutorial discretion and not an immigration benefit as defined in 8 CFR 1.2, the agency does not have a process to file an administrative appeal or a motion to reopen or to reconsider. The decision not to exercise favorable prosecutorial discretion is appropriately an action within USCIS’ sole and unreviewable discretion. In addition, appeals are not available to applicants who have been denied employment authorization under 8 CFR 274a.13(c). The lack of an appeals process for BFD EADs aligns with regulatory practice pertaining to employment authorization generally.
[^ 19] See Chapter 7, Adjudication [3 USCIS-PM B.7].
[^ 20] See 8 CFR 274a.12(a)(16) and 8 CFR 274a.12(c)(25).
[^ 21] For applicants for T nonimmigrant status whose applications have been deemed bona fide, BFD EADs are issued under 8 CFR 274a.12(c)(40).
[^ 23] See 8 CFR 274a.14(b).
Chapter 7 - Adjudication
A. Victim-Centered Approach
USCIS strives to apply a victim-centered approach to all victim-based filings. A victim-centered approach places equal value on stabilizing victims by providing immigration relief and investigating and prosecuting traffickers. In the context of adjudicating applications for T nonimmigrant status, a victim-centered approach means applying a trauma-informed, survivor-informed, and culturally competent approach to all policies regarding victims.
When corresponding with the applicant, officers should be mindful of the potential for retraumatization in both in-person and written interactions.
B. Interview
USCIS has discretion to interview applicants for T nonimmigrant status for purposes of adjudicating the application.[1] USCIS conducts a full review of the application and supporting evidence to determine whether an interview may be warranted.
USCIS recognizes the vulnerable position of applicants for T nonimmigrant status. USCIS generally does not require an interview if the record contains sufficient information and evidence to approve the application without an in-person assessment. However, USCIS reserves the right to interview the T applicant as needed.
C. Requests to Expedite
USCIS has discretion to expedite the adjudication of immigration benefit requests, including the Application for T Nonimmigrant Status (Form I-914) and Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A).[2]
D. Requests for Evidence and Notices of Intent to Deny
If the applicant has not presented sufficient or credible evidence to establish each eligibility requirement for T-1 nonimmigrant status by a preponderance of the evidence, USCIS may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) to request evidence of eligibility.[3]
When there is derogatory information of which the applicant is unaware and upon which an adverse decision will be based, USCIS provides a detailed summary of the derogatory information that gives the applicant meaningful notice of the derogatory information, in accordance with 8 CFR 103.2(b)(16)(i), and an opportunity to rebut to the applicant through an RFE, NOID, or other formal notice.[4]
E. Approvals
Principal Applicants
If USCIS determines the applicant is eligible for T-1 nonimmigrant status, USCIS approves the application and grants T-1 nonimmigrant status, subject to the annual limitation.[5] USCIS provides the applicant with a written notice stating the applicant is approved and has received T-1 nonimmigrant status.[6]
USCIS may also notify other parties and entities of the approval as it determines appropriate, including any law enforcement agency (LEA) providing an endorsement and the U.S. Department of Health and Human Services’ Office of Refugee Resettlement, consistent with the exceptions to the prohibitions on disclosure.[7]
Derivative Applicants
USCIS cannot approve applications for derivative T nonimmigrant status until the principal’s application has been approved.
So long as the principal T nonimmigrant’s application has been approved, if USCIS determines a family member of the principal nonimmigrant is eligible for derivative T nonimmigrant status, USCIS approves the family member’s application.
Derivative Applicants Inside the United States
For derivative family members inside the United States, USCIS notifies the T-1 principal of the approval and provides evidence of derivative T nonimmigrant status to the derivative.[8]
Derivative Applicants Outside the United States
For derivative family members outside the United States, USCIS notifies the T-1 principal of the approval and provides the necessary documentation to the U.S. Department of State for consideration of visa issuance.[9]
To enter the United States, the derivative beneficiary must present a valid, unexpired passport as well as a valid, unexpired visa.[10] In the event of an unforeseen emergency that prevents a derivative beneficiary from presenting such documents, the derivative may apply to have USCIS waive these documentary requirements.[11] USCIS decides such applications on a discretionary, case-by-case basis. USCIS can revoke any waiver it grants to waive a documentary requirement at any time.
F. Denials
If USCIS determines that the applicant has not established eligibility for T nonimmigrant status, USCIS notifies the applicant of its decision to deny the application.[12] Consistent with disclosure rules,[13] in certain limited circumstances USCIS may also provide notice of the denial to any LEA providing an LEA declaration and the U.S. Department of Health and Human Services’ Office of Refugee Resettlement.[14]
A principal applicant may request USCIS to reconsider the denial by filing a Notice of Appeal or Motion (Form I-290B). Additionally, both principal applicants and derivatives may appeal a denial of an application for T nonimmigrant status to the Administrative Appeals Office (AAO) using the Form I-290B.[15] If the applicant files a timely Form I-290B, the denial does not become final until the AAO issues a decision dismissing the appeal.[16]
Footnotes
[^ 1] See 8 CFR 103.2(b)(9).
[^ 2] See Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 5, Expedite Requests [1 USCIS-PM A.5].
[^ 3] See 8 CFR 103.2(b)(8) and 8 CFR 214.205(a)(1). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 4] See 8 CFR 103.2(b)(8)(iii), 8 CFR 103.2(b)(16)(i), and 8 CFR 214.205(a)(1), except as otherwise provided in 8 CFR 103.2(b)(16).
[^ 5] See Chapter 8, Annual Cap and Waiting List [3 USCIS-PM B.8].
[^ 6] See 8 CFR 103.2(b)(19).
[^ 7] See Chapter 14, Confidentiality Protections and Prohibitions Against Disclosure [3 USCIS-PM B.14].
[^ 8] See 8 CFR 103.2(b)(19) and 8 CFR 214.211(h)(i)(1).
[^ 9] See 8 CFR 214.211(h)(i)(2).
[^ 10] See 8 CFR 212.1.
[^ 11] See 8 CFR 212.1(g). See 8 CFR 212.1(o).
[^ 12] See 8 CFR 103.3.
[^ 13] See Chapter 14, Confidentiality Protections and Prohibitions Against Disclosure [3 USCIS-PM B.14].
[^ 14] See 8 CFR 214.204(q).
[^ 15] See 8 CFR 103.3.
[^ 16] See 8 CFR 214.204(q).
Chapter 8 - Annual Cap and Waiting List
By Congressional mandate, USCIS may only grant T-1 nonimmigrant status to 5,000 persons in any fiscal year.[1] Derivatives are not subject to this annual cap. However, USCIS does not approve applications for derivative T nonimmigrant status until USCIS has approved T-1 nonimmigrant status for the related principal applicant.
A. Waiting List Procedures
If the annual cap is met in a given fiscal year, USCIS places applicants who receive a bona fide determination but who are not granted T-1 nonimmigrant status due solely to the cap on a waiting list.[2] USCIS determines priority on the waiting list by the date the application was properly filed, with the oldest applications receiving the highest priority.[3] USCIS generally adjudicates applications in the order in which they are received.
In the subsequent fiscal year, USCIS issues a number to each applicant on the waiting list in the order of the highest priority.[4] After USCIS issues T-1 nonimmigrant status to qualifying applicants on the waiting list, USCIS issues any remaining T-1 nonimmigrant numbers for that fiscal year to new qualifying applicants in the order that the applications were properly filed.[5]
B. Unlawful Presence
An applicant for T nonimmigrant status on the waiting list to whom USCIS granted deferred action does not accrue unlawful presence[6] while maintaining deferred action.[7]
C. Removal from the Waiting List
Applicants on the waiting list must remain admissible to the United States and otherwise eligible for T nonimmigrant status. If at any time before final adjudication, USCIS receives information that an applicant is no longer eligible for T nonimmigrant status, USCIS may remove an applicant from the waiting list and terminate any grant of deferred action or parole at its discretion. USCIS provides notice to the applicant of that decision.[8]
Footnotes
[^ 1] See INA 214(o)(2).
[^ 2] See 8 CFR 214.210(b).
[^ 3] See 8 CFR 214.210(b)(1).
[^ 4] See 8 CFR 214.210(b)(2).
[^ 5] See 8 CFR 214.210(b)(3).
[^ 6] See INA 212(a)(9)(B). See Volume 8, Admissibility, Part O, Aliens Unlawfully Present [8 USCIS-PM O].
[^ 7] See 8 CFR 214.210(c).
[^ 8] See 8 CFR 214.210(d).
Chapter 9 - Applicants in Removal Proceedings
An applicant in removal proceedings who wishes to apply for T nonimmigrant status must file the Application for T Nonimmigrant Status (Form I-914) or Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A) directly with USCIS.
A. Administrative Closure
In its discretion, DHS may agree to the request of a person who is in proceedings, whether a principal or derivative applicant, to file with the immigration judge or the Board of Immigration Appeals (BIA) a joint motion to administratively close or terminate proceedings without prejudice, whichever is appropriate, while USCIS adjudicates an application for T nonimmigrant status.[1]
B. Final Orders of Removal
A person subject to a final order of removal, deportation, or exclusion may file an application for T-1 nonimmigrant status directly with USCIS.[2] If a family member eligible for derivative status is the subject of a final order of removal, deportation, or exclusion, the principal may file an application for derivative T nonimmigrant status directly with USCIS.
The filing of an application for T nonimmigrant status, whether for a principal or derivative applicant, does not automatically stay a final order of removal and has no effect on DHS’s authority or discretion to execute a final order of removal, although the person who is in proceedings may request an administrative stay of removal.[3]
If the person, whether the principal or derivative applicant, is in detention pending execution of the final order, the period of detention reasonably necessary to bring about the applicant’s removal[4] is extended during the period that any stay is in effect.
Neither an immigration judge nor the BIA has jurisdiction to adjudicate an application for a stay of removal, deportation, or exclusion based on the filing of an application for T nonimmigrant status.[5] This jurisdiction rests with U.S. Immigration and Customs Enforcement (ICE).[6]
By operation of law, a USCIS approval of an application for T nonimmigrant status cancels any order of removal, deportation, or exclusion issued by DHS as of the date of the approval.[7] Upon approval of an application for T nonimmigrant status, an applicant who is the subject of an order of removal, deportation, or exclusion issued by an immigration judge or the BIA may seek cancellation of such order by filing a motion to reopen and terminate removal proceedings with the immigration judge or the BIA, whichever is appropriate.[8] Upon a final denial of the application for T nonimmigrant status, any stay of removal, deportation, or exclusion issued due to the pending application for T nonimmigrant status is lifted.[9]
Footnotes
[^ 1] See 8 CFR 214.204(b)(1)(ii).
[^ 2] See 8 CFR 214.204(b)(2).
[^ 3] See 8 CFR 241.6(a) (procedures to request administrative stay).
[^ 4] See 8 CFR 241.4 (discussing duration of detention).
[^ 5] See 8 CFR 214.205(g)(3).
[^ 6] See INA 237(d).
[^ 7] See 8 CFR 214.204(o)(1).
[^ 8] See 8 CFR 214.204(o)(2).
[^ 9] See 8 CFR 214.204(q)(3).
Chapter 10 - Duration and Extensions of Status
A. Overview
T nonimmigrant status is limited to 4 years for a principal T nonimmigrant, unless the principal qualifies for an extension.[1] USCIS may grant eligible family members derivative T nonimmigrant status for a period that does not exceed the expiration date of the period approved for the T-1 principal.[2]
T nonimmigrant status is extended by operation of law during the time that a principal or eligible family member’s Application to Register Permanent Residence or Adjust Status (Form I-485) under INA 245(l) is pending.[3] Additionally, as a matter of discretion, USCIS may grant an extension of T nonimmigrant status for up to 4 additional years in the following two circumstances:
- A law enforcement agency (LEA), prosecutor, judge, or other authority investigating or prosecuting activity relating to human trafficking certifies that the presence of the nonimmigrant in the United States is necessary to assist in the investigation or prosecution of such activity;[4] or
- USCIS determines that an extension is warranted due to exceptional circumstances.[5]
B. Applications for Extensions of Status
1. Extensions Based on Adjustment of Status Application
To receive an extension of T nonimmigrant status based on filing an Application to Register Permanent Residence or Adjust Status (Form I-485) under INA 245(l), the T nonimmigrant must file the application in accordance with the form instructions.[6] If the T nonimmigrant files the adjustment application while still in valid T nonimmigrant status, the applicant does not need to file an Application to Extend/Change Nonimmigrant Status (Form I-539).
However, if USCIS receives the adjustment application after the period of T nonimmigrant status has expired, the filing does not operate to extend T nonimmigrant status. The Notice of Action (Form I-797) receipt notice for the adjustment application indicates that for applicants who properly and timely file their adjustment application, USCIS extends their T nonimmigrant status for as long as the adjustment application is pending.
Because both timely and untimely applicants receive the receipt notice, the receipt notice by itself does not demonstrate an automatic extension of T nonimmigrant status. Applicants may provide both the receipt notice and the Arrival/Departure Record (Form I-94) showing their most up-to-date period of T nonimmigrant status to demonstrate that their adjustment applicant was timely filed and their T nonimmigrant status has been automatically extended.
The extension of T nonimmigrant status is valid until USCIS makes a decision on the adjustment application and, during that time, the applicant continues to be in valid T nonimmigrant status with all the associated rights, privileges, and responsibilities. T nonimmigrants seeking to adjust status are authorized to work in the United States while their adjustment application is pending.
Proof of Employment Authorization
Principal T-1 nonimmigrants seeking to adjust status may present a Form I-94 reflecting their most recent validity period of T-1 nonimmigrant status with the receipt notice as evidence of employment authorization for 24 months from the expiration date on the Form I-94, unless the adjustment application is denied or withdrawn, whichever is earlier.
Principal T-1 nonimmigrants seeking to adjust status may file an Application for Employment Authorization (Form I-765) concurrently with the adjustment application to obtain an Employment Authorization Document (EAD). While the adjustment application is pending, USCIS issues any EAD, as well as renewals of such EAD, using the (c)(9) eligibility code.[7]
USCIS also issues derivative T nonimmigrants who properly file an adjustment application a receipt notice. USCIS does not extend the status of a derivative T nonimmigrant based solely on the principal T nonimmigrant’s pending adjustment application. Derivatives must independently file an adjustment application. To obtain employment authorization during the extended period of T nonimmigrant status, derivative T nonimmigrants must file an Application for Employment Authorization (Form I-765).
2. Extensions Based on Law Enforcement Need or Exceptional Circumstances
To request an extension of T nonimmigrant status based on law enforcement need or exceptional circumstances, the T nonimmigrant must file an Application to Extend/Change Nonimmigrant Status (Form I-539), along with supporting evidence, in accordance with the form instructions. The T nonimmigrant bears the burden of establishing eligibility for this discretionary extension of status.
Derivative family members who have not previously entered or resided in the United States as a T nonimmigrant cannot receive an extension of status. Instead, USCIS may issue an amended approval notice with updated validity dates.
If USCIS approves the Form I-539, USCIS issues a notice of extension of the T nonimmigrant status on a Notice of Action (Form I-797).
The extension of T nonimmigrant status based on law enforcement need or exceptional circumstances is valid for 1 year from the date the initial T nonimmigrant status ends. In the case of a Form I-539 untimely filed after T nonimmigrant status has expired, the extension is valid from the date the previous status expired and for 1 year from approval of the extension.[8] During that period, the applicant continues to be in valid T nonimmigrant status with all the associated rights, privileges, and responsibilities.
USCIS issues any EAD (including renewals) using the (a)(16) eligibility code for principals and (c)(25) eligibility code for derivatives.[9] Applicants must file an application for employment authorization in order to receive an EAD, which they may file concurrently with Form I-539.
C. Timing of Application
The applicant should file the Application to Extend/Change Nonimmigrant Status (Form I-539) before the applicant’s T nonimmigrant status expires. USCIS, however, has discretion to grant an extension after the expiration of the status.[10] When filing a Form I-539 untimely, the applicant should explain the reason(s) for the late filing.[11]
USCIS exercises its discretion to grant or deny an untimely filed extension request based upon the justification for the untimely filing in the specific circumstances of the case. If USCIS grants an extension of T nonimmigrant status, USCIS issues a new Form I-797 extension notice valid from the date that the previous status expired and ending 1 year after the approval of the application to extend status. Once an applicant receives this new Form I-797, the applicant may then file an application to adjust status before the expiration of the extension.
There is no appeal of a denial of a Form I-539. However, an applicant may file a motion to reopen or reconsider within 30 days of the denial.[12]
D. Evidence
1. Law Enforcement Need
In cases in which the T nonimmigrant is filing for an extension of status based on law enforcement need, supporting evidence may include:
- A newly executed Declaration for Trafficking Victim (Form I-914, Supplement B); or
- Other evidence from a law enforcement official, prosecutor, judge, or other authority who can detect, investigate, or prosecute human trafficking activity and was involved in the applicable case. The applicant must include evidence that comes directly from an LEA.
USCIS does not require Form I-914, Supplement B to demonstrate law enforcement need, although it is helpful. The applicant may submit a letter on the agency’s letterhead, emails, or faxes from an LEA or any other credible evidence.
2. Exceptional Circumstances
Where T nonimmigrants are filing for an extension of status based on exceptional circumstances, applicants may submit their own statement and any other credible evidence to establish exceptional circumstances. Such evidence could include, but is not limited to:
- Medical records;
- Police or court records;
- News articles;
- Correspondence with a U.S. embassy or consulate;
- Evidence of consular processing backlogs or other delays; and
- Affidavits from persons with direct knowledge or familiarity with the applicant’s circumstances.[13]
To establish eligibility for an extension of status due to exceptional circumstances, applicants should provide evidence showing how the exceptional circumstances necessitate the continuance of T nonimmigrant status.
While an applicant can file more than one extension of status, if the extension of status is based on the same evidence as a prior request, the mere fact that USCIS previously found the circumstance to be exceptional does not mean that USCIS will come to the same conclusion a second time. USCIS considers every request on a case-by-case basis and based on the evidence presented with the request.
The need to accrue continuous physical presence to be eligible to adjust status is not generally considered an exceptional circumstance warranting an extension of status. However, USCIS acknowledges that some T-1 nonimmigrants may have been unable to return to the United States due to circumstances outside their control (such as the COVID-19 pandemic or consular processing delays). USCIS may consider delays in consular processing for derivatives to be an exceptional circumstance that justifies extending the principal’s T nonimmigrant status, even if it appears the principal will not be able to adjust status under INA 245(l).
E. Considerations for Family Members
To be eligible to apply for adjustment of status, a family member who is a derivative T nonimmigrant must continue to hold T nonimmigrant status at the time of filing the application for adjustment of status.[14] To facilitate efficient processing, USCIS encourages derivative T nonimmigrants to file for adjustment of status concurrently with the principal T nonimmigrant. A derivative T nonimmigrant’s status is automatically extended when the derivative properly files for adjustment of status.
Once a principal T nonimmigrant is no longer a T nonimmigrant, whether due to adjustment of status to lawful permanent residence, change to another nonimmigrant status, or expiration of T nonimmigrant status, derivative T nonimmigrants are no longer eligible for initial admission into the United States on a T visa.[15]
Where the approved derivative is awaiting initial issuance of a T visa by a consulate and the principal’s nonimmigrant status is soon to expire, USCIS strongly encourages the principal to seek an extension of status based on exceptional circumstances, following the instructions to the Form I‑539, and then wait for the derivatives to be admitted to the United States as T derivatives before filing an adjustment application.
This prevents the derivative from being ineligible for initial admission to the United States on a derivative T visa due to the expiration of the principal’s T nonimmigrant status or adjustment of status to lawful permanent residence. Once the principal T-1 nonimmigrant adjusts status, the derivative nonimmigrant can no longer be initially admitted as a T nonimmigrant.
Footnotes
[^ 1] See INA 214(o)(7)(A). See 8 CFR 214.203(a) and 8 CFR 214.212(a).
[^ 2] See 8 CFR 214.203(b).
[^ 3] See INA 214(o)(7)(C). See 8 CFR 214.212(h). See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9].
[^ 4] See INA 214(o)(7)(B)(i).
[^ 5] See INA 214(o)(7)(B)(iii). See 8 CFR 214.212(f) (stating that USCIS may approve an extension of status for a principal applicant based on exceptional circumstances when an approved eligible family member is awaiting issuance of their T visa by a consulate and the principal’s T-1 status will expire soon).
[^ 6] USCIS adjudicates adjustment of status applications according to the T adjustment regulations at 8 CFR 245.23.
[^ 7] See 8 CFR 274a.12(c)(9).
[^ 8] The applicant should present the Form I-797 demonstrating proof of extension of T nonimmigrant status when filing an Application to Register Permanent Residence or Adjust Status (Form I-485) to adjust status to lawful permanent resident before the extension expires. See Volume 7, Adjustment of Status, Part J, Trafficking Victim-Based Adjustment [7 USCIS-PM J].
[^ 9] See 8 CFR 274a.12(a)(16). See 8 CFR 274a.12(c)(25).
[^ 10] See 8 CFR 214.212(c).
[^ 11] See 8 CFR 214.212(c).
[^ 12] See 8 CFR 103.5(a). See Notice of Appeal or Motion (Form I-290B).
[^ 13] See 8 CFR 214.212(g).
[^ 14] See 8 CFR 245.23(b)(2).
[^ 15] See 8 CFR 214.203(b) (stating that derivative family members’ period of admission may not exceed the initial period of admission for the T-1 principal applicant).
Chapter 11 - Federal Benefits and Work Authorization
A. Federal Benefits
Children under the age of 18 are eligible for certain federal benefits and services as soon as they are identified as possible victims of trafficking.[1] Adults are eligible for these benefits and services upon approval of T nonimmigrant status.[2]
When USCIS receives an application from a principal applicant under the age of 18, USCIS notifies the Department of Health and Human Services (HHS) to facilitate the provision of interim assistance.[3] In the case of adults, USCIS notifies HHS upon approval of an application for T nonimmigrant status.[4]
B. Employment Authorization
To ensure efficient processing of deferred action and a Bona Fide Determination Employment Authorization Document (BFD EAD), USCIS strongly encourages all applicants to file their Application for Employment Authorization (Form I-765) at the same time as their Application for T Nonimmigrant Status (Form I-914).
Once the Form I-914 is approved, however, a principal T nonimmigrant is authorized to work incident to status and does not need to file a separate Form I-765. Upon approval of T-1 nonimmigrant status, USCIS issues an EAD, which is valid for the duration of the T-1 nonimmigrant status. If the EAD is lost, stolen, or destroyed, the T-1 nonimmigrant must file an application for a replacement document.[5]
A derivative T nonimmigrant is eligible to receive employment authorization but must apply by filing an application for employment authorization with USCIS in accordance with the form instructions.[6] Derivatives in the United States may file the application concurrently with the Application for Derivative T Nonimmigrant Status (Form I-914, Supplement A) or any time thereafter.
Derivatives outside the United States are not eligible for employment authorization until after lawful admission to the United States in T nonimmigrant status. Therefore, derivative family members who are outside the United States should not file the application for employment authorization until after they are lawfully admitted as a T nonimmigrant. If USCIS approves the application, USCIS grants the derivative employment authorization[7] for the period remaining in derivative T nonimmigrant status.[8]
Footnotes
[^ 1] See 22 U.S.C. 7105(b)(1)(G).
[^ 2] See 22 U.S.C. 7105(b)(1)(E).
[^ 3] See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-457 (PDF), 122 Stat. 5044, 5077 (December 23, 2008). See 8 CFR 214.204(b)(4).
[^ 4] See 8 CFR 214.204(o).
[^ 5] See 8 CFR 214.204(o)(3). See Application for Employment Authorization (Form I-765).
[^ 6] For information regarding filing fees, see Fee Schedule (Form G-1055).
[^ 7] USCIS grants such authorization under 8 CFR 274a.12(c)(25).
[^ 8] See 8 CFR 214.211(i)(3).
Chapter 12 - Travel Outside the United States
A. Travel While Application for T Nonimmigrant Status is Pending
The filing of an application for T nonimmigrant status does not grant the applicant permission to travel outside the United States. Departures from the United States while an application for T nonimmigrant status is pending could affect the applicant’s ability to establish eligibility for T nonimmigrant status. For example, a departure may impact their ability to establish physical presence in the United States or at a U.S. port of entry on account of trafficking and extreme hardship.[1] Additionally, an applicant’s departure from the United States while the application for T nonimmigrant status is pending could impact the applicant’s ability to return to the United States unless the applicant has another status that allows for travel. Moreover, if an applicant for T nonimmigrant status has accrued more than 180 days of unlawful presence in a single stay before departing, the applicant would be inadmissible if they again seek admission to the United States within 3 or 10 years of departure.[2]
B. Travel for T Nonimmigrants
A T nonimmigrant may travel outside the United States before applying for lawful permanent resident status. The T nonimmigrant must file an Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131) seeking an advance parole document, and must be issued an advance parole document that is valid for the entire period of travel before leaving the United States in order to return to the United States in T nonimmigrant status.
Leaving the United States after first obtaining an advance parole document does not constitute a departure within the meaning of INA 212(a)(9)(B)(i).[3] Therefore, a T nonimmigrant who accrued more than 180 days of unlawful presence in a single stay would not be inadmissible under INA 212(a)(9)(B)(i) upon leaving the United States after first obtaining an advance parole document and thereafter again seeking admission.[4] However, leaving the United States after first obtaining an advance parole document does count towards time constituting a break in continuous physical presence for the purposes of adjustment under INA 245(l).[5]
A T nonimmigrant who departs the United States and returns through means other than an advance parole document issued before departure or admission at a designated port of entry with a T nonimmigrant visa does not resume T nonimmigrant status and may have to reapply for such status if certain requirements are not met. In order for a T-2, T-3, T-4, T-5, or T-6 nonimmigrant to depart the United States and return to the United States in T nonimmigrant status, the T nonimmigrant must either:
- File an Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131), and obtain advance parole before departure; or
- Apply for and receive a T nonimmigrant visa from the U.S. Department of State and seek admission as a T nonimmigrant at a designated port of entry.
C. Travel Considerations
Even if a person is granted an advance parole travel document before departing the United States, the document does not entitle the person to be paroled into the United States. U.S. Customs and Border Protection makes a separate, discretionary decision on a request for parole when the person arrives at a U.S. port of entry.
DHS may revoke or terminate an advance parole document at any time, including while the person is outside the United States.[6] In that event, the person may be unable to return to the United States unless the person has a valid visa or other document that permits the person to travel to the United States and seek admission.
If the person is in the United States and DHS has granted deferred action in the case, the deferred action terminates automatically if the person leaves the United States without advance parole. Generally, if the person is in the United States and has applied for adjustment of status to that of a lawful permanent resident, USCIS deems the adjustment application abandoned if the person leaves the United States without advance parole.
Footnotes
[^ 1] See Chapter 2, Eligibility Requirements, Section C, Physical Presence on Account of Trafficking [3 USCIS-PM B.2(C)].
[^ 2] See INA 212(a)(9)(B)(i). See Volume 8, Admissibility, Part O, Aliens Unlawfully Present, Chapter 6, Effect of Seeking Admission Following Accrual of Unlawful Presence, Section A, Inadmissibility Based on Seeking Admission within the Statutory 3 Years or 10 Years After Departure or Removal [8 USCIS-PM O.6(A)].
[^ 3] See Matter of Arrabally and Yerrabelly (PDF), 25 I&N Dec. 771 (BIA 2012).
[^ 4] See Volume 8, Admissibility, Part O, Aliens Unlawfully Present, Chapter 6, Effect of Seeking Admission Following Accrual of Unlawful Presence, Section A, Inadmissibility Based on Seeking Admission within the Statutory 3 Years or 10 Years After Departure or Removal [8 USCIS-PM O.6(A)].
[^ 5] See Volume 7, Adjustment of Status, Part J, Trafficking Victim-Based Adjustment, Chapter 2, Eligibility Requirements, Section A, Principal Applicants [7 USCIS-PM J.2(A)].
[^ 6] See 8 CFR 212.5(e).
Chapter 13 - Revocation of Status
A. Grounds for Revocation
USCIS can revoke its approval of T nonimmigrant status at any time based on the specific grounds discussed below.[1] For most grounds, USCIS first issues a notice of intent to revoke. However, USCIS automatically revokes an approved application for derivative T nonimmigrant status if the beneficiary of the approved derivative application notifies USCIS that the beneficiary will not apply for admission to the United States.[2]
USCIS may revoke an approved application for T nonimmigrant status for the following reasons:
- The approval of the application violated the statutory and regulatory requirements for T nonimmigrant visas or involved USCIS error in the preparation, procedure, or adjudication that affects the outcome;[3]
- In the case of a T-2 spouse, a final divorce from the T-1 principal;[4]
- In the case of a T-1 principal, a law enforcement agency (LEA) with jurisdiction[5] to detect, investigate, or prosecute the acts of severe forms of trafficking in persons notifies USCIS that the T-1 nonimmigrant has refused to comply with reasonable requests to assist with the investigation or prosecution of the trafficking in persons and provides USCIS with a detailed explanation in writing;[6] or
- The LEA that signed the LEA endorsement withdraws it or disavows its contents and notifies USCIS and provides a detailed explanation of its reasoning in writing.[7]
B. Procedure for Revocation
If USCIS revokes approval of the previously approved T nonimmigrant status application, USCIS may notify the LEA that signed the LEA endorsement, any consular officer having jurisdiction over the applicant, or the Office of Refugee Resettlement of the Department of Health and Human Services of the revocation.[8]
The applicant may appeal the decision to revoke the approval within 30 days after the date of the revocation notice to the Administrative Appeals Office using the Notice of Appeal or Motion (Form I-290B).[9]
C. Effect of Revocation
1. Revocation of a Principal’s Application
Revocation of an approved application for T-1 nonimmigrant status results in termination of T status for the principal and any derivatives. If a derivative application is pending at the time of such revocation, USCIS denies it. Revocation of an approved application for T-1 nonimmigrant status or an application for derivative T nonimmigrant status also revokes any waiver of inadmissibility granted in conjunction with such application. The revocation of a person’s T-1 status has no effect on the annual cap.[10]
2. Revocation of T-2, T-3, T-4 or T-5 Derivative Status
If USCIS revokes T-2, T-3, T-4, or T-5 derivative status under 8 CFR 214.213, eligibility for T-6 derivative status may be affected. In cases in which the revocation ground relates to the derivative beneficiary’s eligibility for derivative T nonimmigrant status, the adult or minor child of the derivative beneficiary may not be eligible for T-6 status. Without a derivative beneficiary parent who has obtained valid derivative T nonimmigrant status, a potential T-6 family member is not able to derive T-6 status.
However, when the revocation ground is not related to the derivative beneficiary’s eligibility for derivative status, the adult or minor child may still be eligible for T-6 status. For example, one of the revocation grounds is for divorce. If the T-1’s spouse held T-2 status but then the couple divorced and USCIS revoked the T-2 status under 8 CFR 214.213(b)(2), the adult or minor child of the T-2 may still be eligible for T-6 status. The divorce of the T-2 does not impact eligibility when the T-6 derivative’s application is approved and is therefore different from other revocation grounds.
Footnotes
[^ 1] See 8 CFR 214.213.
[^ 2] See 8 CFR 214.213(a).
[^ 3] See INA 101(a)(15)(T). See 8 CFR 214.213(b)(1).
[^ 4] See 8 CFR 214.213(b)(2).
[^ 5] The provisions of the T Final Rule, 89 FR 34864 (Apr. 30, 2024) apply generally to applications pending or filed on or after its effective date, August 28, 2024. However, regarding pending applications, no provision of the rule applies to an applicant who filed before August 28, 2024, if it would make an applicant who was eligible under the previous regulations ineligible, such as the requirement at 8 CFR 214.208(b) to report to law enforcement with jurisdiction over the trafficking.
[^ 6] See 8 CFR 214.213(b)(3).
[^ 7] See 8 CFR 214.213(b)(4).
[^ 8] See 8 CFR 214.213(c) for procedures for revocation and appeal specific to applications for T nonimmigrant status. See 8 CFR 103.3 for additional information on appeal procedures.
[^ 9] See 8 CFR 103.3(a)(2).
[^ 10] See 8 CFR 214.213(d).
Chapter 14 - Confidentiality Protections and Prohibitions Against Disclosure
A. Confidentiality Protections
DHS may not generally disclose any information relating to applicants for T nonimmigrant status, as that information could be used against them by traffickers or others who would seek to harm them.[1] They are also protected against traffickers attempting to provide adverse evidence against them in relation to their applications with USCIS. These protections include the following:
- DHS is prohibited from making an adverse determination of admissibility or deportability against an applicant for T nonimmigrant status based on information furnished solely by the perpetrator of the acts of trafficking in persons;[2] and
- DHS is prohibited from disclosing any information relating to the beneficiary of a pending or approved application for T nonimmigrant status except in certain limited circumstances.[3]
B. Disclosure of Information
Officers must comply with the confidentiality provisions when an applicant for T nonimmigrant status requests information about the applicant’s case.[4]
Footnotes
[^ 1] See 8 U.S.C 1367.
[^ 2] See 8 U.S.C. 1367(a)(1)(F).
[^ 3] See 8 U.S.C. 1367(a)(2). See Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 7, Privacy and Confidentiality, Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)]. See Implementation of Section 1367 Information Provisions (PDF), DHS Instruction 002-02-001, Revision 00.1, issued November 7, 2013.
[^ 4] See Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 7, Privacy and Confidentiality [1 USCIS-PM A.7].
Part C - Victims of Crimes
Chapter 1 - Purpose and Background
A. Purpose
In 2000, Congress created the U nonimmigrant classification (also known as the “U visa”) through the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act (BIWPA)).[1] The U visa serves two purposes:
- Strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking, and other crimes; and
- Protect victims of crime who have suffered substantial mental or physical abuse due to the qualifying crime and are willing to help law enforcement authorities in the investigation or prosecution of the qualifying criminal activity or the qualifying crime (QCA).[2]
B. Background
U nonimmigrant status is available to any alien who is a victim of a QCA and is otherwise eligible for the status, regardless of sex.[3] Such victims may self-petition for U nonimmigrant status by filing a Petition for U Nonimmigrant Status (Form I-918).
Aliens petitioning for U nonimmigrant status must provide a certification from a federal, state, tribal, or local law enforcement official, prosecutor, judge, or other authority investigating or prosecuting the QCA. The certification must state that the petitioner “has been helpful, is being helpful, or is likely to be helpful” in the “investigation or prosecution”[4] of the QCA.[5]
Aliens can file petitions for or pursue U nonimmigrant status while living inside or outside of the United States.
Principal petitioners can submit U nonimmigrant petitions on behalf of certain qualifying family members. Qualifying family members may include the petitioner’s spouse, unmarried children under the age of 21, and unmarried siblings under the age of 18. Qualifying family member eligibility depends on the age of the principal petitioner at the time the principal petitioner files the petition for U nonimmigrant status.[6] USCIS must grant the principal petitioner U-1 nonimmigrant status before granting U nonimmigrant status to qualifying family members.
USCIS may grant U nonimmigrant status for an initial period of up to 4 years.[7] Principal petitioners in the United States receive employment authorization incident to status.[8] Qualifying family members in the United States are also authorized to work incident to status.[9]
After at least 3 years of continuous physical presence in the United States in U nonimmigrant status, principal U nonimmigrants and their qualifying family members may apply for adjustment of status to that of a lawful permanent resident.[10]
1. Acts and Amendments
Congress first established the U nonimmigrant status in 2000. Since then, Congress has enacted several amendments. The table below provides an overview of major legislation related to U nonimmigrant status.
Acts and Amendments | Key Changes |
---|---|
Violence Against Women Act of 2000[11] |
|
Violence Against Women and Department of Justice Reauthorization Act of 2005[12] |
|
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008[13] |
|
Violence Against Women Reauthorization Act of 2013[14] |
|
2. Program History
Congress created the U visa program in 2000 through the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act (BIWPA)). On September 17, 2007, DHS published an interim rule implementing the U nonimmigrant status provisions of BIWPA at 8 CFR 214.14 and 8 CFR 212.17.[15]
Between the time BIWPA was enacted and when the implementing regulations were published, legacy Immigration and Naturalization Service (INS) and DHS gave alien crime victims who may have been eligible based on the statutory criteria the opportunity to seek interim relief until regulations were promulgated. The 2007 interim rule formally created Form I-918, as well as the current administrative and adjudications processes for U nonimmigrant status.[16]
The 2007 interim rule addresses eligibility criteria, the petition process, filing requirements, evidentiary standards, and benefits associated with the U nonimmigrant classification.[17] The rule also provided that DHS would automatically issue an Employment Authorization Document (EAD) to principal petitioners upon the approval of the petition for U nonimmigrant status.[18]
The statute provides for 10,000 U visas available every fiscal year.[19] This statutory cap only applies to principal petitioners, not their qualifying family members. The statutory cap has been met each fiscal year, beginning in Fiscal Year (FY) 2010. Starting in FY 2011, DHS began to receive more petitions than visas available under the statutory cap.[20]
DHS created the waiting list process through the 2007 interim rule as a mechanism to address the remaining eligible petitioners after the statutory cap had been reached in a given fiscal year. U nonimmigrant petitioners placed on the waiting list, whose petitions have been deemed approvable but for the statutory cap, are eligible for employment authorization and receive a grant of deferred action[21] or, in limited circumstances, parole.
The William Wilberforce Trafficking Victims Reauthorization Act of 2008 (TVPRA 2008), signed into law on December 23, 2008, amended the Immigration and Nationality Act (INA) to provide DHS with discretion to grant employment authorization to an alien who has a pending, bona fide petition for U nonimmigrant status.[22]
In June 2021, USCIS implemented the Bona Fide Determination (BFD) process for principal petitioners and qualifying family members with pending, bona fide petitions who USCIS determines merit a favorable exercise of discretion. Under this process, USCIS exercises its discretion on a case-by-case basis to grant BFD Employment Authorization Documents (BFD EADs) and deferred action. The BFD process is distinct from the waiting list process. Before June 2021, a principal petitioner and his or her qualifying family members received employment authorization and deferred action only when USCIS placed the principal petitioner on the waiting list.
C. Legal Authorities
- INA 101(a)(15)(U) - Definition of U nonimmigrant classification
- INA 103(a) - Powers and duties of the Secretary of Homeland Security
- INA 214(p) - Requirements applicable to U nonimmigrant status visas
- 8 CFR 214.14 - Alien victims of certain qualifying criminal activity
- INA 212(a) - Classes of “aliens” ineligible for visas or admission
- INA 212(d)(3) - Temporary admission of nonimmigrants
- INA 212(d)(14) - Discretion to waive ground of inadmissibility for U nonimmigrant status
- INA 212(a)(4)(E)(ii) – Exemption from public charge ground of inadmissibility
- INA 237(d) – Administrative stay of final order of removal
- INA 248(b) – Change of nonimmigrant classification
- 8 U.S.C. 1367 – Penalties for disclosure of information
- 8 CFR 212.17 – Applications for the exercise of discretion relating to U nonimmigrant status
- 8 CFR 274a.12 – Classes of “aliens” authorized to accept employment
Footnotes
[^ 1] See Section 1513 of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA 2000), Pub. L. 106-386 (PDF), 114 Stat. 1464, 1533 (October 28, 2000), as amended by Section 801 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162 (PDF), 119 Stat. 2960, 3053 (January 5, 2006); Violence Against Women and Department of Justice Reauthorization Act of 2005—Technical Corrections, Pub. L. 109-271 (PDF), 120 Stat. 750 (August 12, 2006); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457 (PDF), 122 Stat. 5044 (December 23, 2008); and Title VIII of the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), Pub. L. 113-4 (PDF), 127 Stat. 54, 110 (March 7, 2013).
[^ 2] See Section 1502 and 1513(a)(2) of the Violence Against Women Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1518, 1533-1534 (October 28, 2000) (“[P]roviding battered immigrant women and children who were experiencing domestic violence at home with protection against deportation allows them to obtain protection orders against their abusers and frees them to cooperate with law enforcement and prosecutors in criminal cases brought against their abusers and the abusers of their children . . .”).
[^ 3] For specific requirements, see Chapter 2, Eligibility Requirements for U Nonimmigrant Status [3 USCIS-PM C.2].
[^ 4] In this context, the terms “investigation or prosecution” encompass detection, investigation, prosecution, conviction, and sentencing. See 8 CFR 214.14(a)(5).
[^ 5] See INA 214(p)(1).
[^ 6] See 8 CFR 214.14(f)(1).
[^ 7] See INA 214(p)(6) (subject to extension based on law enforcement need, while an application for adjustment of status under INA 245(m) is pending, or if warranted due to exceptional circumstances). See 8 CFR 214.14(g)(2).
[^ 8] See 8 CFR 274a.12(a)(19).
[^ 9] See INA 101(a)(15)(U)(ii). See INA 214(p)(3)(B). See 8 CFR 274a.12(a)(20). Under 8 CFR 214.14(f)(7), qualifying family members must file a separate Application for Employment Authorization (Form I-765) to obtain an employment authorization document.
[^ 10] See INA 245(m).
[^ 11] See Section 1513 of VTVPA 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464, 1533 (October 28, 2000).
[^ 12] See Title VIII of VAWA 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960, 3053 (January 5, 2006).
[^ 13] See TVPRA 2008, Pub. L. 110-457 (PDF) (December 23, 2008).
[^ 14] See VAWA 2013, Pub. L. 113-4 (PDF) (March 7, 2013).
[^ 15] See 72 FR 53014 (PDF) (Sept. 17, 2007) (interim rule).
[^ 16] See 72 FR 53014 (PDF) (Sept. 17, 2007) (interim rule).
[^ 17] See 72 FR 53014 (PDF) (Sept. 17, 2007) (interim rule).
[^ 18] See 8 CFR 214.14(c)(7).
[^ 19] See INA 214(p)(2).
[^ 20] See Number of Form I-918, Petition for U Nonimmigrant Status by Fiscal Year, Quarter, and Case Status (Fiscal Years 2009-2020).
[^ 21] Deferred action is an exercise of prosecutorial discretion that makes the alien a lower priority for removal. See 72 FR 53014 (PDF), 53015 (Sept. 17, 2007), footnote 3. See 8 CFR 274a.12(c)(14).
[^ 22] See Section 201(c) of Pub. L. 110-457 (PDF), 122 Stat. 5044, 5053 (December 23, 2008). See INA 214(p)(6).
Chapter 2 - Eligibility Requirements for U Nonimmigrant Status
A. Principal Petitioners
To be eligible for U nonimmigrant status, principal petitioners must establish that they meet the following eligibility requirements by a preponderance of the evidence:
- They are or were the victim of a qualifying criminal activity or qualifying crime (QCA) that violated U.S. law or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States;
- They possess information concerning the QCA;
- They have been, are being, or are likely to be helpful to a federal, state, tribal, or local law enforcement official, prosecutor, judge, or other authority investigating or prosecuting the QCA;
- They have suffered substantial physical or mental abuse as a result of being a victim of a QCA;[1] and
- They are admissible or merit a discretionary waiver of any applicable grounds of inadmissibility.[2]
B. Qualifying Family Members
Certain family members of the principal petitioner may be eligible for derivative U nonimmigrant status, depending on the age of the principal petitioner at the time of filing the principal petition for U nonimmigrant status.[3] The principal petitioner must be granted U-1 nonimmigrant status in order for any qualifying family member to be granted derivative U nonimmigrant status.
Petitioner | Qualifying Family Member |
---|---|
A principal petitioner 21 years of age or older at the time of filing the petition may file for: |
|
A principal petitioner under the age of 21 years old at the time of filing the petition may file for: |
|
Principal petitioners may choose to file for qualifying family members:
- At the time of submitting the principal petition;
- After the principal petition has been filed and remains pending; or
- After the principal petition has been approved for U nonimmigrant status.
When determining whether a family member is eligible for U-2, U-3, U-4, or U-5 nonimmigrant status, officers must confirm that:
- The alien for whom the Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A) was filed has a qualifying family relationship with the principal petitioner; and
- The qualifying family member is admissible to the United States.
For the alien to establish eligibility as a qualifying family member, the relationship between the principal petitioner and the family member must exist:
- When the principal petitioner’s Petition for U Nonimmigrant Status (Form I-918) is favorably adjudicated;
- When the Form I-918 Supplement A is filed;
- When the Form I-918 Supplement A is adjudicated; and
- At the time of the family member’s admission as a U nonimmigrant.[4]
The eligibility requirements that apply to principal petitioners do not apply to qualifying family members. Qualifying family members do not need to demonstrate helpfulness in the investigation or prosecution of the qualifying crime, or that they have suffered substantial physical or mental abuse as a result of a qualifying crime.
Footnotes
[^ 1] See INA 101(a)(15)(U).
[^ 2] See INA 212(d)(14).
[^ 3] See 8 CFR 214.14(f)(1).
[^ 4] See 8 CFR 214.14(f)(4) as limited by Medina Tovar v. Zuchowski, 982 F.3d 631 (9th Cir. 2020) (en banc) (holding invalid the regulatory requirement that a spousal relationship exist at the time the Form I-918 is filed in order for the spouse to be eligible for classification as a U-2 nonimmigrant). As a matter of policy, USCIS applies the Medina Tovar decision nationwide.
Chapter 3 - Documentation and Evidence [Reserved]
Chapter 4 - Adjudication
The U nonimmigrant status program now involves three distinct adjudicative processes:
- Bona Fide Determination (BFD) process for principal petitioners and qualifying family members with pending, bona fide U nonimmigrant petitions, who USCIS determines merit a favorable exercise of discretion;[1]
- Waiting list adjudication for petitions USCIS determines are eligible for U nonimmigrant status but cannot be approved due to the annual statutory cap; and
- Final adjudication of eligible petitions for U nonimmigrant status, where the approval of a principal petition results in the issuance of a visa drawn from the statutory cap of 10,000 visas allotted per fiscal year.
Adjudication | USCIS Process | Benefits |
---|---|---|
BFD (Interim Benefit) |
|
|
Waiting List (Interim Benefit) |
|
|
Final Adjudication (Full Benefit) |
|
|
Footnotes
[^ 1] See Appendix: Bona Fide Determination Process Flowchart [3 USCIS-PM C.4, Appendices Tab].
[^ 2] See 8 CFR 214.14(d)(2).
Chapter 5 - Bona Fide Determination Process
By statute, USCIS has discretion to provide employment authorization to aliens with pending, bona fide U nonimmigrant status petitions.[1] Consequently, USCIS implemented the Bona Fide Determination (BFD) process.
During the BFD process, USCIS first determines whether a pending petition is bona fide. Second, USCIS, in its discretion, determines whether the petitioner poses a risk to national security or public safety, and otherwise merits a favorable exercise of discretion. If USCIS grants the alien a Bona Fide Determination Employment Authorization Document (BFD EAD) as a result of the BFD process, USCIS then also exercises its discretion to grant that alien deferred action for the period of the BFD EAD. USCIS generally does not conduct waiting list adjudications for aliens who USCIS grants BFD EADs and deferred action to; these petitioners’ next adjudicative step is final adjudication when space is available under the statutory cap.[2]
As a matter of policy, USCIS interprets “bona fide” as part of its administrative authority to implement the statute as outlined below. Bona fide generally means “made in good faith; without fraud or deceit.”[3] Accordingly, when interpreting the statutory term within the context of U nonimmigrant status, USCIS determines whether a petition is bona fide based on the petitioner’s compliance with initial evidence requirements and successful completion of background checks. If USCIS determines a petition is bona fide, USCIS then considers any national security and public safety risks, as well as any other relevant considerations, as part of the discretionary adjudication.[4]
As a primary goal, USCIS seeks to adequately evaluate and adjudicate petitions as efficiently as possible. The BFD process provides an opportunity for certain petitioners to receive BFD EADs and deferred action while their petitions are pending, consistent with the William Wilberforce Trafficking Victims Reauthorization Act of 2008 (TVPRA 2008).[5]
Only petitioners living in the United States may receive BFD EADs, since those outside the United States cannot as a practical matter work in the United States.[6] Likewise, deferred action can only be accorded to petitioners in the United States since those outside the United States have no potential removal to be deferred.
A. Bona Fide Determination
1. Principal Petitioners
USCIS determines a principal petition is bona fide if:
- The principal petitioner has properly filed a complete Petition for U Nonimmigrant Status (Form I-918), including all required initial evidence,[7] except for the Application for Advance Permission to Enter as a Nonimmigrant (Form I-192).[8] Required initial evidence includes:
- A complete and properly filed U Nonimmigrant Status Certification (Form I-918, Supplement B) submitted within 6 months of the certifier’s signature; and
- A personal statement from the petitioner describing the facts of the victimization; and
- USCIS has received the result of the principal petitioner’s background and security checks based upon biometrics.[9]
2. Qualifying Family Members
A qualifying family member is not guaranteed a BFD EAD solely because the principal petitioner receives a BFD.[10] The record must independently demonstrate the Form I-918, Supplement A is bona fide. USCIS determines a qualifying family member’s petition is bona fide when:
- The principal petitioner receives a BFD;
- The petitioner has properly filed a complete Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A);
- The petition includes credible evidence of the qualifying family relationship;[11] and
- USCIS has received the results of the qualifying family member’s background and security checks based upon biometrics.[12]
B. Exercise of Discretion, Including Risk to National Security or Public Safety and Other Factors
Once USCIS has determined a petition is bona fide, USCIS determines whether the petitioner poses a risk to national security[13] or public safety by reviewing the results of background checks, and considers other relevant discretionary factors.[14] USCIS then determines whether to exercise its discretion to issue a BFD EAD and grant deferred action to a petitioner.
Section 214(p)(6) of the Immigration and Nationality Act (INA) gives the Secretary of Homeland Security, and USCIS as his or her designee, discretionary authority over the issuance of employment authorization to aliens with pending, bona fide U nonimmigrant status petitions.[15] A principal petitioner or qualifying family member who poses a risk to national security or public safety, or has other adverse discretionary factors, may not merit the favorable exercise of discretion necessary to grant deferred action.
Moreover, at the final adjudication, such individuals may require a waiver for any grounds of inadmissibility, and may be ineligible for U nonimmigrant status if they do not merit a favorable exercise of discretion. Therefore, in exercising the discretion granted by the INA, USCIS grants BFD EADs to principal petitioners and qualifying family members with pending bona fide petitions who it determines merit a favorable exercise of discretion, considering any risk to national security or public safety, as well as other relevant discretionary factors.
USCIS may choose not to exercise its discretion to grant a BFD EAD and deferred action where a petitioner appears to pose a risk to national security or public safety. For example, where a principal petitioner or qualifying family member has been convicted of or arrested for any of the following acts, USCIS generally does not issue a BFD EAD and deferred action and instead proceeds to a full adjudication to assess eligibility for waiting list placement. The following categories generally overlap with inadmissibility grounds[16] and may include:
- National security concerns;[17] and
- Public safety concerns, which include but are not limited to:
- Murder, rape, or sexual abuse;
- Offenses involving firearms, explosive materials, or destructive devices;[18]
- Offenses relating to peonage, slavery, involuntary servitude, and trafficking in persons;[19]
- Aggravated assault;
- An offense relating to child pornography; and
- Manufacturing, distributing, or selling of drugs or narcotics.[20]
Violent and dangerous crimes, such as those listed above, embody the very activities law enforcement seeks to deter and prevent through cooperation facilitated by the U nonimmigrant status program.
Additionally, USCIS may determine on a case-by-case basis that other adverse factors weigh against a favorable exercise of discretion. USCIS may also exercise discretion favorably notwithstanding the above concerns if case-specific circumstances warrant it.
Recognizing that many factors may influence whether criminal activity is prosecuted and results in a conviction, an arrest for a serious crime is relevant to whether USCIS should exercise its discretion favorably. A determination about whether to favorably exercise discretion when there are indicators of national security or public safety concerns requires a comprehensive review of the available evidence.
For example, officers may need to request additional evidence or information in certain cases where security checks indicate that a petitioner has an arrest record.[21] Therefore, USCIS does not conduct this in-depth, discretionary review during the BFD process. Instead, if USCIS determines that a petitioner may pose a risk to national security or public safety, or has other relevant adverse factors that would require further review, and therefore will not receive a BFD EAD, USCIS initiates a waiting list adjudication and conducts a comprehensive discretionary review as part of the evaluation of Form I-192 if one is submitted.
USCIS evaluates all evidence provided by petitioners regarding their arrest records before making determinations for waiting list placement.[22]
C. Adjudicative Process
USCIS evaluates all petitions for U nonimmigrant status filed by aliens living in the United States as described above.[23] If USCIS determines a principal petitioner and any other qualifying family members have a bona fide petition and warrant a favorable exercise of discretion, USCIS issues them BFD EADs and grants deferred action.
USCIS initiates waiting list adjudication for petitioners who do not receive BFD EADs. When USCIS determines a principal petitioner will not receive a BFD EAD, USCIS proceeds to a full adjudication for waiting list placement for the principal petitioner and his or her qualifying family members.
A determination that a petitioner will not receive a BFD EAD and deferred action is not a denial of Form I-918 or the Application for Employment Authorization (Form I-765). A petitioner who does not receive a BFD EAD and deferred action is evaluated for waiting list eligibility and still has the opportunity to obtain employment authorization and a grant of deferred action if deemed eligible for waiting list placement. Consequently, non-issuance of a BFD EAD is not a final agency action. Correspondingly, USCIS does not accept or process motions to reopen or reconsider, appeals,[24] or requests to re-apply for a BFD EAD.
For any qualifying family member who will not receive a BFD EAD, USCIS completes a full adjudication for that qualifying family member. The full adjudication includes the issuance of Requests for Evidence (RFEs) to address any deficiencies or concerns identified in the qualifying family member’s record but it is not an adjudication for waiting list placement. Because qualifying family members are “accompanying or following to join” the principal petitioner, they will not be placed on the waiting list unless the principal petitioner was placed on the waiting list.[25]
If the qualifying family member resolves the deficiencies or concerns in the record, USCIS issues a BFD EAD and grants deferred action to the qualifying family member. If additional evidence provided by the qualifying family member does not resolve the deficiencies or concerns identified, then USCIS does not issue a BFD EAD and generally places the qualifying family member’s petition with the principal petition back in line to await a final statutory cap adjudication.
When USCIS issues a final decision to the principal petitioner, USCIS also issues a final decision for any qualifying family member who did not receive a BFD EAD. USCIS retains the authority to deny any petition when, after full adjudication, USCIS determines the qualifying family member is ineligible for the underlying benefit.
For example, USCIS may deny the petition where the record establishes that the claimed family member does not have a qualifying family relationship with the petitioner, or where USCIS determines a favorable exercise of discretion is not warranted to waive the qualifying family member’s grounds of inadmissibility.
1. Criminal History Check for Bona Fide Determination Employment Authorization Documents
To efficiently determine whether to issue BFD EADs and grant deferred action, USCIS conducts background and security checks to identify petitioners who may pose risks to national security and public safety, or other adverse discretionary factors. USCIS relies on a variety of databases that collect information from law enforcement agencies and other federal, state, local, and tribal agencies, including information regarding arrests and convictions.
USCIS uses this information to determine whether a petitioner is admissible for the purposes of receiving a grant of U nonimmigrant status or merits a favorable exercise of discretion to waive any grounds of inadmissibility. USCIS’ consideration of national security and public safety risks at the BFD EAD stage aligns with inadmissibility grounds evaluated during the adjudication of a petition for U nonimmigrant status and is therefore a consistent exercise of discretion within the authority afforded by INA 214(p)(6) to grant BFD EADs.
A petitioner who is not issued a BFD EAD due to the risk the petitioner appears to pose to national security or public safety receives a full adjudication for waiting list placement. During the adjudication for waiting list placement, petitioners have the opportunity to provide USCIS with potentially mitigating information or other evidence pertaining to arrests or convictions.
USCIS issues petitioners a BFD EAD and grants deferred action in order to promote victim stability and continued cooperation with law enforcement. However, USCIS updates and reviews background and security checks at regular intervals during the validity period of a principal petitioner or a qualifying family member’s BFD EAD.
Additionally, USCIS retains discretion to update background and security checks at any time when case-specific circumstances warrant. During those reviews, USCIS evaluates whether the petitioner and qualifying family members who have been granted BFD EADs and deferred action continue to warrant the BFD EAD and merit a favorable exercise of discretion while their petitions for U nonimmigrant status are pending with USCIS.
USCIS reserves the right to revoke the BFD EAD[26] and terminate the grant of deferred action at any time if it determines the BFD EAD or favorable exercise of discretion are no longer warranted, or the prior BFD EAD and deferred action were granted in error.
For example, USCIS may revoke the BFD EAD and terminate deferred action if USCIS identifies any adverse information, such as new information pertaining to the risks the petitioner poses to national security or public safety, or the withdrawal of a petitioner’s Form I-918, Supplement B. At that time, USCIS initiates a waiting list adjudication to gather additional information and evidence to determine if the petitioner is eligible for a waiver of inadmissibility for any relevant inadmissibility grounds and placement on the waiting list.
2. Previously Filed Form I-765 for Bona Fide Determination Process
USCIS uses all Applications for Employment Authorization (Form I-765) already filed by principal petitioners under 8 CFR 274a.12(a)(19) and (c)(14) to issue a BFD EAD. USCIS also uses Form I-765 applications previously filed under 8 CFR 274a.12(a)(20) and (c)(14) for a qualifying family member to issue a BFD EAD to qualifying family members. Using previously filed applications limits the burden on petitioners to file additional paperwork.
Where a petitioner has filed a Form I-918 but has not filed an accompanying application for employment authorization under 8 CFR 274a.12(a)(19), (a)(20) or (c)(14), USCIS issues a notice indicating that the petitioner has received a BFD and may receive a BFD EAD. To obtain an EAD, the petitioner must file a Form I-765 after receiving this notice.
3. Bona Fide Determination Employment Authorization Document Issuance
Once USCIS has determined that a petitioner present in the United States has a bona fide petition and merits a favorable exercise of discretion, and therefore may receive a BFD EAD, USCIS issues a notice to inform the petitioner of the decision.
Such petitioners who have already filed a Form I-765 under either of the EAD classifications noted above then receive an EAD and a grant of deferred action valid for 4 years. Petitioners who must file a new Form I-765 after receiving the BFD notice from USCIS receive employment authorization and deferred action valid for 4 years once USCIS finishes adjudicating the Form I-765.
4. Prima Facie Case for Approval
Where USCIS issues a BFD EAD to a petitioner, the petitioner is also considered to have established a prima facie case for approval within the meaning of INA 237(d)(1). The term “prima facie” refers to a petition appearing sufficient on its face.
The evaluation performed by USCIS to determine whether a petition is bona fide and whether a petitioner receives a BFD EAD is a more complex evaluation than looking at the petition on its face alone. The BFD process satisfies the prima facie standard that U.S. Immigration and Customs Enforcement (ICE) previously requested in specific circumstances[27] since the steps taken to determine whether a petition is bona fide and a petitioner receives a BFD EAD rely on the initial evidence submitted with a petition for U nonimmigrant status, as well as the results of background checks.
5. Waiting List Adjudication for Petitioners Not Issued a Bona Fide Determination Employment Authorization Document
Once an officer has determined that a petitioner will not receive a BFD EAD, the officer reviews the complete filing and identifies any deficiencies or concerns that need to be addressed for waiting list adjudication. The officer then issues an RFE or Notice of Intent to Deny (NOID), which includes:[28]
- A notice explaining that USCIS will not be issuing a BFD EAD; and
- An RFE to address any deficiencies or concerns associated with waiting list adjudication.
If USCIS determines that a petitioner will not receive a BFD EAD, but can be placed on the waiting list, that decision generally does not affect the timeline in which the petition for U nonimmigrant status is adjudicated for final determination of U nonimmigrant status. If USCIS determines that a petitioner will not receive a BFD EAD and cannot be placed on the waiting list, USCIS will deny the petition.
6. Request to Renew Bona Fide Determination Employment Authorization Document and Deferred Action
Generally, USCIS does not charge a fee for the filing of certain victim-based and humanitarian benefit requests, including Form I-918 and Form I-918, Supplement A.[29] Consequently, petitioners who receive BFD EADs do not need to submit a filing fee for the initial Form I-765 associated with the BFD EAD. Petitioners who choose to renew their BFD EADs may do so under existing procedures without a fee.[30] Once a BFD EAD is renewed, the accompanying grant of deferred action is also renewed.
TVPRA 2008 requires USCIS to permit petitioners for U nonimmigrant status to apply for fee waivers for “any fees associated with filing an application for relief through final adjudication of the adjustment of status.”[31] USCIS has interpreted this to mean that, in addition to the main benefit request, applicants and petitioners must have the opportunity to request a fee waiver for any form associated with the main benefit, including applications for waivers of inadmissibility or employment authorization. Principal petitioners and qualifying family members who are seeking to renew a BFD EAD must either submit a filing fee or submit a Request for Fee Waiver (Form I-912).
An initial BFD EAD grant does not guarantee future renewals. Principal petitioners and qualifying family members are evaluated independently for each EAD and deferred action renewal to ensure that the BFD EAD and grant of deferred action are still warranted as a matter of discretion.
>Additionally, USCIS may identify principal petitioners and qualifying family members who pose a risk to national security and public safety during the validity period of the BFD EAD and deferred action, until final adjudication of U nonimmigrant status.
At any point during the validity period, USCIS has the right to revoke employment authorization or terminate deferred action if USCIS determines a national security or public safety concern is present, if USCIS determines the BFD EAD and deferred action is no longer warranted, the Form I-918 Supplement B law enforcement certification is withdrawn, or USCIS determines the prior BFD EAD was issued in error.[32]
If USCIS determines that adverse information may impact a principal petitioner’s ability to maintain a BFD EAD and deferred action, USCIS will initiate a waiting list review for the principal petition. Similarly, if USCIS determines that adverse information may impact a qualifying family member’s ability to maintain a BFD EAD and deferred action, USCIS will conduct a full adjudication of the qualifying family member’s petition as described above to determine whether the qualifying family member can maintain a BFD EAD and deferred action.
An initial grant or renewal of a BFD EAD and deferred action does not guarantee that USCIS will approve the principal petitioner or his or her qualifying family members for U nonimmigrant status. Generally, USCIS adjudicates petitions for U nonimmigrant status in the order in which they are received, subject to limited exceptions. When the principal petitioner’s filing is next in line for final adjudication, an officer assesses eligibility requirements for U nonimmigrant status. This adjudication does not include consideration of prior grants or renewals of BFD EAD or deferred action.
7. Petitioners Residing Outside of the United States
USCIS only issues BFD EADs and deferred action to petitioners living in the United States as it cannot provide deferred action or employment authorization to petitioners outside the United States. Deferred action, as an exercise of prosecutorial discretion to make an alien a lower priority for removal from the United States, is only applicable to aliens in the United States. Additionally, INA 274A gives the Secretary of Homeland Security, and USCIS as his or her designee, authority over alien employment authorization in the United States.
Because the BFD EAD is only for petitioners living in the United States, principal petitioners (and their qualifying family members) who live outside of the United States proceed directly to waiting list adjudication.
Generally, USCIS adjudicates cases in the order in which they were received to determine waiting list placement. If USCIS determines a principal petitioner residing outside the United States is eligible for waiting list placement, the principal petitioner and his or her qualifying family members should submit a Form I-765 upon admission to the United States to receive an EAD.
Footnotes
[^ 1] See INA 214(p)(6) (“The Secretary may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 101(a)(15)(U).”).
[^ 2] See Appendix: Bona Fide Determination Process Flowchart [3 USCIS-PM C.5, Appendices Tab].
[^ 3] See Black’s Law Dictionary (11th ed. 2019).
[^ 4] Submission of biometrics is a requirement for principal petitioners as well as derivatives. See 8 CFR 214.14(c)(3) and 8 CFR 214.14(f)(5).
[^ 5] See Pub. L. 110-457 (PDF) (December 23, 2008). See INA 214(p)(6) (“The Secretary may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 101(a)(15)(U).”).
[^ 6] See INA 274A. See 8 CFR 274a.12(a), (b), (c) (referring to employment in the United States).
[^ 7] See 8 CFR 214.14(c)(2).
[^ 8] One of the main purposes for issuing employment authorization to those with pending, bona fide petitions is to provide EADs to good faith petitioners who are vulnerable due to lengthy wait times. Requiring and adjudicating Form I-192 for purposes of the EAD would delay the EAD adjudication and undermine efficiency. Instead of adjudicating the Form I-192 at this stage, USCIS relies on criminal history checks.
[^ 9] See instructions for the Petition for U Nonimmigrant Status (Form I-918).
[^ 10] The principal petitioner enables access to the benefits associated with U nonimmigrant status for the qualifying family member. Therefore, USCIS does not consider a qualifying family member for a BFD unless the principal petitioner receives a BFD.
[^ 11] Under INA 214(p)(4), USCIS considers any credible evidence relevant to the petition.
[^ 12] See instructions for Petition for Qualifying Family Member of U-1 Recipient (Form I-918, Supplement A).
[^ 13] See INA 212(a)(3).
[^ 14] See Section C, Adjudicative Process, Subsection 1, Criminal History Check for BFD EADs [3 USCIS-PM C.5(C)(1)].
[^ 15] See INA 214(p)(6) (“The Secretary may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 101(a)(15)(U).”) (emphasis added).
[^ 16] See INA 212(a).
[^ 17] As listed in INA 212(a)(3).
[^ 18] Such as those defined in INA 101(a)(43)(C) and (E).
[^ 19] As defined in INA 101(a)(43)(K)(iii).
[^ 20] This includes acts defined in INA 101(a)(43)(B).
[^ 21] See Matter of Arreguin, 21 I&N Dec. 38, 42 (BIA 1995) (considering but hesitating to give “substantial weight” to an uncorroborated arrest report). See Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1350 (11th Cir. 2010) (“Absent corroboration, the arrest reports by themselves do not offer reasonable, substantial, and probative evidence that there is reason to believe Garces engaged in drug trafficking.”).
[^ 22] See Henry v. I.N.S., 74 F.3d 1, 6 (1st Cir. 1996) (noting “while an arrest, without more, is simply an unproven charge, the fact of the arrest, and its attendant circumstances, often have probative value in immigration proceedings.”).
[^ 23] See Section A, Principal Petitioners [3 USCIS-PM C.5(A)] and Section B, Qualifying Family Members [3 USCIS-PM C.5(B)].
[^ 24] Appeals are not available to applicants who have been denied employment authorization under 8 CFR 274a.13(c). Therefore, even if the BFD EAD issuance was considered a final agency action, the lack of an appeals process for BFD EADs aligns with regulatory practice pertaining to employment authorization generally.
[^ 25] See INA 101(a)(15)(U)(ii).
[^ 26] See 8 CFR 274a.14(b).
[^ 27] See ICE’s Revision of Stay of Removal Request Reviews for U Visa Petitioners webpage.
[^ 28] See Chapter 6, Waiting List [3 USCIS-PM C.6].
[^ 29] See Fee Schedule (Form G-1055).
[^ 30] See 8 CFR 274a.13(d). See Instructions for Form I-765. See Fee Schedule (Form G-1055).
[^ 31] See INA 245(l)(7).
[^ 32] See 8 CFR 274a.14(b).
Chapter 6 - Waiting List
When the 10,000 visas under the statutory cap have been allocated in a given fiscal year, USCIS places remaining petitioners eligible for U nonimmigrant status on the waiting list. Principal petitioners placed on the waiting list are eligible for employment authorization and receive a grant of deferred action or, in limited circumstances, parole.[1] Additionally, USCIS grants these same benefits to the qualifying family members of principal petitioners placed on the waiting list.
Officers initiate a waiting list adjudication for petitioners who do not receive employment authorization and deferred action based on the Bona Fide Determination (BFD) process.[2] While the BFD process does not include a full analysis of eligibility requirements, USCIS conducts a full adjudication necessary to determine eligibility for U nonimmigrant status as part of the waiting list process. Unlike the BFD process, officers may issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) to gather additional information necessary to adjudicate for waiting list placement.
Consistent with longstanding practice, U.S. Immigration and Customs Enforcement (ICE) may request expedited waiting list adjudications for specific petitioners, in relation to enforcement priorities.[3]
Except in cases where ICE requests expedited waiting list adjudication, or where USCIS revokes the Bona Fide Determination Employment Authorization Document (BFD EAD) and terminates deferred action, USCIS generally does not conduct waiting list adjudications for aliens to whom USCIS grants BFD EADs and deferred action.
A. Eligibility
To be placed on the waiting list, a petitioner must establish all statutory and regulatory requirements by a preponderance of the evidence.[4] At the time of placement on the waiting list, a petitioner is considered eligible for U nonimmigrant status, but not granted U nonimmigrant status “due solely to the cap.”[5] Though petitioners placed on the waiting list are generally approved for U nonimmigrant status, approval is not guaranteed.[6]
B. Adjudication of Waiting List Eligibility
USCIS determines waiting list placement on a case-by-case basis. Officers:
- Perform a full evaluation of eligibility requirements, which includes but is not limited to:
- Determining whether the petitioner was the victim of qualifying criminal activity or qualifying crime (QCA);
- Analyzing evidence submitted to establish substantial mental and physical abuse;
- Assessing the U Nonimmigrant Status Certification (Form I-918, Supplement B) for all details regarding the QCA;
- Complete a full review of background checks; and
- Determine whether any applicable inadmissibility grounds are waivable in the exercise of discretion in the final adjudication, which includes a detailed, individualized assessment for principal petitioners and qualifying family members who have one or more applicable grounds of inadmissibility.[7]
Petitioners or qualifying family members who are inadmissible under INA 212(a) are generally ineligible to receive visas or be admitted to the United States. USCIS may exercise its discretion to deny waiver requests in the following circumstances:
- Aliens with criminal histories or serious immigration violations;
- Aliens who pose a national security or public safety risk;
- Aliens determined to have committed fraud or misrepresentation; or
- For any other reasons that USCIS deems necessary and appropriate.
For example, officers may need to request additional evidence or information in certain cases where security checks indicate that a petitioner has an arrest record.[8] The courts and administrative appellate bodies have deemed an arrest record, as well as police reports and other corroborating information, as appropriate for consideration for purposes of applications for discretionary relief, provided that the evidentiary weight of the arrest and police reports is properly assessed and considered.[9]
Although officers fully evaluate a petition for placement on the waiting list, officers must review the filing again and determine that the petitioner remains eligible for U nonimmigrant status before approving the petition when space becomes available under the statutory cap in a subsequent fiscal year.
Decision
Upon determining eligibility for waiting list placement, USCIS issues a notice to petitioners with information regarding eligibility for work authorization and deferred action. Employment authorization based on deferred action is permitted under 8 CFR 274a.12(c)(14) to petitioners living in the United States who have filed an Application for Employment Authorization (Form I-765).
Waitlisted petitioners remain on the waiting list until their petitions are adjudicated for U nonimmigrant status in the order they were received. Grants of deferred action or parole to principal petitioners placed on the waiting list, and their qualifying family members, are preserved until a final agency decision is made on the petition, unless the individual grant of deferred action or parole is terminated at USCIS’ discretion.[10]
Waitlisted petitioners do not accrue unlawful presence while on the waiting list.[11] Petitioners on the waiting list and their qualifying family members, who are outside the United States, may generally seek parole on a case-by-case basis through the processes available to other aliens.
Principal petitioners placed on the waiting list, and their qualifying family members, receive employment authorization valid for a period of 4 years, similar to petitioners who receive a BFD EAD. Principal petitioners who file an application for employment authorization under 8 CFR 274a.12(c)(14) must submit a fee or a Request for Fee Waiver (Form I-912). Principal petitioners placed on the waiting list and their qualifying family members may request renewals of employment authorization and deferred action if they remain on the waiting list longer than 4 years.
Principal petitioners are granted employment authorization incident to a grant of U nonimmigrant status. Consequently, USCIS converts applications for employment authorization under 8 CFR 274a.12(a)(19) to 8 CFR 274a.12(c)(14) for principal petitioners placed on the waiting list.
For applications for employment authorization under 8 CFR 274a.12(a)(20) or (c)(14), qualifying family members must submit a fee or a Form I-912.[12]
USCIS issues an RFE or NOID to principal petitioners who are determined ineligible for waiting list placement based on the file review. Petitioners have the opportunity to submit additional information to address deficiencies or concerns identified in the RFE or the NOID. If, after reviewing the additional evidence, the officer determines that the petitioner has not established eligibility for U nonimmigrant status by a preponderance of the evidence, USCIS issues a notice of denial of the petition for U nonimmigrant status to the petitioner.
Footnotes
[^ 1] See 8 CFR 214.14(d)(2).
[^ 2] See Chapter 5, Bona Fide Determination Process [3 USCIS-PM C.5].
[^ 3] See ICE Directive 11005.2: Stay of Removal Requests and Removal Proceedings Involving U Nonimmigrant Status (U Visa) Petitioners, issued August 2, 2019.
[^ 4] See Chapter 2, Eligibility Requirements for U Nonimmigrant Status, Section A, Principal Petitioners [3 USCIS-PM C.2].
[^ 5] See 8 CFR 214.14(d)(2).
[^ 6] See Chapter 7, Adjudication for Statutory Cap, Section C, Adjudicative Order [3 USCIS-PM C.7].
[^ 7] Congress granted DHS the discretionary authority to waive most inadmissibility grounds for a person seeking U nonimmigrant status if it is in the public or national interest to do so. See INA 212(d)(3)(A)(ii). See INA 212(d)(14) (authorizing the waiver of any inadmissibility ground except for participation in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].
[^ 8] See Matter of Arreguin, 21 I&N Dec. 38, 42 (BIA 1995) (considering but hesitating to give “substantial weight” to an uncorroborated arrest report). See Garces v. U.S. Att’y Gen., 611 F.3d 1337, 1350 (11th Cir. 2010) (“Absent corroboration, the arrest reports by themselves do not offer reasonable, substantial, and probative evidence that there is reason to believe Garces engaged in drug trafficking.”).
[^ 9] See Paredes-Urrestarazu v. U.S. l.N.S., 36 F.3d 801, 810 (9th Cir. 1994) Paredes-Urrestarazu v. I.N.S., 36 F.3d 801, 810 (9th Cir. 1994) (holding that an arrest can be relevant to a discretionary determination). See Matter of Grijalva (PDF), 19 I&N Dec. 713, 721-22 (BIA 1988) (hearsay evidence is admissible in deportation proceedings unless its use is fundamentally unfair; the admission into evidence of police reports concerning the circumstances of an arrest and conviction is appropriate in cases involving discretionary relief). See Matter of Teixeira (PDF), 21 I&N Dec. 316, 321 (BIA 1996) (police reports that are not part of the “record of conviction” may be appropriately considered for purposes of an application for discretionary relief, where the focus is on conduct rather than conviction). See Avila-Ramirez v. Holder, 764 F.3d 717, 725 (7th Cir. 2014) (consideration of arrest reports in the weighing of discretionary factors is not prohibited but must be given appropriate evidentiary weight). See Arias-Minaya v. Holder, 779 F.3d 49, 54 (1st Cir. 2015) (noting “it is settled beyond hope of contradiction that in reviewing requests for discretionary relief, immigration courts may consider police reports” and that this holds true even where there is no conviction.).
[^ 10] See 8 CFR 214.14(d)(3).
[^ 11] See INA 212(a)(9)(B). See 8 CFR 214.14(d)(3).
Chapter 7 - Final Adjudication
A. Determination of U Nonimmigrant Status for A Petitioner Granted A Bona Fide Determination Employment Authorization Document and Deferred Action
A Bona Fide Determination Employment Authorization Document (BFD EAD) and grant of deferred action does not guarantee eligibility for U nonimmigrant status at the time a visa becomes available in a given fiscal year under the statutory cap.
Officers perform a full file review to determine eligibility for U nonimmigrant status for petitioners granted employment authorization and deferred action, as a matter of discretion, through the BFD process.
USCIS determines eligibility for U nonimmigrant status on a case-by-case basis. Officers:
- Perform a full evaluation of eligibility requirements, which includes but is not limited to:
- Determining whether the petitioner was the victim of qualifying criminal activity or qualifying crime (QCA);
- Analyzing evidence submitted to establish substantial mental and physical abuse;
- Assessing the U Nonimmigrant Status Certification (Form I-918, Supplement B) law enforcement certification for all details regarding the QCA;
- Complete a full review of background checks; and
- Determine whether any applicable inadmissibility grounds are waivable in the exercise of discretion, which includes a detailed, individualized assessment for principal petitioners and qualifying family members who have one or more applicable grounds of inadmissibility.[1]
Petitioners and qualifying family members seeking U nonimmigrant status who USCIS determines are inadmissible,[2] and do not warrant the favorable exercise of discretion to waive such inadmissibility, are generally ineligible to receive visas or be admitted to the United States. USCIS may exercise its discretion to deny waiver requests in the following circumstances:[3]
- Aliens with criminal histories and serious immigration violations;
- Aliens who pose a national security or public safety risk;
- Aliens determined to have committed fraud or misrepresentation; or
- For any other reasons that USCIS deems necessary and appropriate.
B. Determination of U Nonimmigrant Status for Petitioners Placed on the Waiting List
Although officers fully evaluate a petition for placement on the waiting list, officers conduct an additional review of the petition and update background checks to establish continuing eligibility before approving the petition when a visa becomes available in a subsequent fiscal year.
If the principal petitioner or qualifying family member has failed to establish one of the eligibility requirements, USCIS issues a Request for Evidence (RFE) to the petitioner. Petitioners have the opportunity to submit additional information to address deficiencies or concerns identified in the RFE.
Placement on the waiting list does not guarantee a grant of U nonimmigrant status. USCIS may deny a petition for U nonimmigrant status if USCIS determines the petitioner is ineligible. For example, officers may deny a petition for U nonimmigrant status where acts of criminality or immigration violations occurring after a petitioner was placed on the waiting list trigger inadmissibility grounds and USCIS does not favorably exercise its discretion to waive those grounds. Officers may also deny a petition where a certifier has withdrawn the Form I-918, Supplement B after USCIS placed the petitioner on the waiting list.
C. Order of Adjudication
Neither Congress nor USCIS anticipated filings to significantly exceed the statutory cap every year. The waiting list was first created as an intermediate mechanism for a small number of petitioners who could not be granted U nonimmigrant status in a fiscal year due to the limited number of visa numbers allotted under the statutory cap.[4] The BFD process was created as an additional mechanism to provide petitioners with bona fide petitions with employment authorization and deferred action, which are benefits equal to those accorded to petitioners placed on the waiting list.
Although current regulatory language notes the prioritization of petitioners placed on the waiting list for grants of U nonimmigrant status under the statutory cap as visas become available,[5] the regulation also clearly envisions “the oldest petitions receiving the highest priority” for such visa numbers.
To best reconcile these regulatory provisions with the BFD policy, and to maintain fairness between petitioners placed on the waiting list and petitioners issued BFD EADs, USCIS prioritizes all petitions for adjudication of U nonimmigrant status under the statutory cap in the order they were received, ensuring older petitions maintain their priority over newer petitions.
Consequently, when U nonimmigrant visas become available each fiscal year, USCIS draws from both BFD recipients and waitlisted petitioners, in order of filing date with the oldest filings receiving highest priority, to meet the statutory cap.
D. Decision
1. Approval
Petitioners Living Inside the United States
Upon approval, principal petitioners and their qualifying family members living in the United States receive a grant of U nonimmigrant status, valid for a period of no more than 4 years.
Principal Petitioners
After USCIS approves U nonimmigrant status for a principal petitioner living in the United States, USCIS notifies the petitioner of such approval by issuing a Notice of Action (Form I-797). USCIS also includes an Arrival-Departure Record (Form I-94), indicating U-1 nonimmigrant status.
Principal petitioners living in the United States receive employment authorization incident to a grant of U nonimmigrant status.[6] However, petitioners living outside the United States do not receive an initial employment authorization document until they have obtained a U nonimmigrant visa at a U.S. consulate or embassy and have been admitted to the United States as a U nonimmigrant.
Qualifying Family Members
USCIS may not approve U nonimmigrant status for a qualifying family member unless USCIS has granted the principal petitioner U nonimmigrant status.
When USCIS approves a Petition for Qualifying Family Member of a U-1 Recipient (Form I-918, Supplement A) for a qualifying family member living in the United States, it concurrently grants that petitioner U-2, U-3, U-4, or U-5 nonimmigrant status.
USCIS issues the Form I-797 regarding the approval of U-2, U-3, U-4, or U-5 nonimmigrant status to the principal petitioner. USCIS also issues a Form I-94 indicating U-2, U-3, U-4, or U-5 nonimmigrant status.
Applicant | Code of Admission |
---|---|
Principal Petitioner | U-1 |
Spouse of Principal Petitioner | U-2 |
Unmarried Child under the age of 21 of Principal Petitioner | U-3 |
Parent of Principal Petitioner (who is under the age of 21) | U-4 |
Unmarried Sibling under the age of 18 of Principal Petitioner (who is under the age of 21) | U-5 |
Qualifying family members must submit a fee or a Request for Fee Waiver (Form I-912) for an Application for Employment Authorization (Form I-765) associated with a grant of U nonimmigrant status.[7]
Petitioners Living Outside the United States
After USCIS approves U nonimmigrant status for a principal petitioner or qualifying family member living outside the United States, USCIS notifies the principal petitioner of such approval on Form I-797. USCIS also forwards the notice to the U.S. Department of State (DOS).
DOS communicates the approval to the U.S. embassy or consulate with jurisdiction over the area in which the principal petitioner or qualifying family member is located. DOS communicates the approval to the appropriate port of entry for principal petitioners or qualifying family members who are from countries that are exempt from visa requirements.[8] The approved petitioners and qualifying family members may then seek admission to the United States as U nonimmigrants at a designated port of entry.
2. Denial
USCIS provides written notification to the principal petitioner, listing the reasons for the denial of a Petition for U nonimmigrant status (Form I-918), and a Form I-918 Supplement A, where applicable.[9] A principal petitioner may request USCIS to reconsider the denial by filing a Notice of Appeal or Motion (Form I-290B).
Alternatively, the principal petitioner may appeal the denial to the Administrative Appeals Office (AAO).[10] If a principal petitioner pursues an appeal, the denial of U nonimmigrant status is not deemed administratively final until the AAO issues a decision affirming the denial.
The denial of a petition for U nonimmigrant status automatically lifts any stay of removal based on the U nonimmigrant status petition as of the date the denial becomes administratively final for a principal petitioner or qualifying family member subject to an order of removal, deportation, or exclusion.
Footnotes
[^ 1] Congress granted DHS the discretionary authority to waive most inadmissibility grounds for an alien seeking U nonimmigrant status if it is in the public or national interest to do so. See INA 212(d)(3)(A)(ii). See INA 212(d)(14) (authorizing the waiver of any inadmissibility ground except for participation in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].
[^ 2] See INA 212(a).
[^ 3] See 8 CFR 212.17.
[^ 4] See 72 FR 53013 (PDF), 53033 (Sept. 17, 2007) (estimating USCIS would receive 12,000 principal petitions per year). See Number of Form I-918, Petition for U Nonimmigrant Status By Fiscal Year, Quarter, and Case Status (Fiscal Years 2009-2020).
[^ 5] See 8 CFR 214.14(d)(2) (“After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U–1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed.”).
[^ 6] See 8 CFR 274a.12(c).
[^ 7] See 8 CFR 274a.12(a)(20).
[^ 8] See DOS’s Visa Waiver Program webpage.
[^ 9] See 8 CFR 103.3(a)(1).
[^ 10] See 8 CFR 103.3.
Chapter 8 - Post-Adjudicative Matters [Reserved]
Part D - Violence Against Women Act
Chapter 1 - Purpose and Background
A. Purpose
The Violence Against Women Act of 1994 (VAWA) amended the nation’s immigration laws and included a broad range of criminal, civil, and health-related provisions.[1] VAWA addressed the unique issues faced by victims of domestic violence and abuse and provided certain alien family members of abusive U.S. citizens and lawful permanent residents (LPRs) the ability to self-petition for immigrant classification without the abuser’s knowledge, consent, or participation in the immigration process. This allowed victims to seek both safety and independence from their abuser.
Spouses, children, and parents of U.S. citizens and spouses and children of LPRs may file a self-petition for immigrant classification with USCIS. An alien filing the self-petition is generally known as a VAWA self-petitioner.[2] If USCIS approves the self-petition, VAWA self-petitioners may then seek an immigrant visa from outside the United States or apply for adjustment of status inside the United States.[3]
B. Background
Under the family-based immigration process, U.S. citizens and LPRs may petition for certain categories of relatives to immigrate to the United States. This process generally requires U.S. citizens and LPRs to first file a family-based petition with USCIS on behalf of their alien family member. If USCIS approves the petition, the family member is then eligible to apply for LPR status.
Because the family-based immigration process requires U.S. citizens and LPRs to petition for their alien family member, they have control over the petitioning process. Some U.S. citizens and LPRs use their control over this process as a tool to further abuse the alien, threatening to withhold or withdraw the petition in order to control, coerce, and intimidate their family members. This allows abusive U.S. citizens and LPRs to perpetuate their abuse, and their family members may be afraid to report them to law enforcement or leave the abusive situation, as they may be dependent on the U.S. citizen or LPR to obtain or maintain their immigration status.
With the passage of VAWA, Congress created a path for victims of domestic violence and abuse to independently petition for themselves, or self-petition, for immigrant classification. The purpose of the immigration amendments in VAWA was to give aliens who have been abused by their U.S. citizen or LPR relative the opportunity to independently seek immigrant classification without the abuser’s participation or knowledge. Allowing victims to self-petition means that they are no longer dependent on their abusive family member to obtain immigration status, thereby removing at least one barrier to ending the abuse.
Legislative History
VAWA was enacted into law as Section IV of the Violent Crime Control and Law Enforcement Act of 1994.[4] Since its passage in 1994, there have been three reauthorizations of the statute (in 2000, 2005, and 2013), all of which expanded and added new protections for VAWA self-petitioners.[5]
The table below provides a summary of key provisions related to self-petitions in VAWA and its subsequent reauthorizations.
Laws | Key Provisions for VAWA Self-Petitions |
---|---|
Violent Crime Control and Law Enforcement Act of 1994[6] (The VAWA provisions of this law are known as the “Violence Against Women Act of 1994” or VAWA 1994) |
|
Victims of Trafficking and Violence Protection Act of 2000 (VAWA 2000)[7] |
|
Violence Against Women and Department of Justice Reauthorization Act of 2005[8] Violence Against Women and Department of Justice Reauthorization Act of 2005 Technical Amendments (These two laws are collectively referred to as VAWA 2005)[9] |
|
Violence Against Women Reauthorization Act of 2013 (VAWA 2013)[10] |
|
C. Legal Authorities
- INA 101(a)(51) – Definition of VAWA self-petitioner
- INA 204 – Procedure for granting immigrant status
- 8 CFR 204.2 – Petitions for relatives, widows and widowers, and abused spouses and children[11]
- 8 U.S.C. 1367 – Penalties for disclosure of information
Footnotes
[^ 1] See Title IV of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 (PDF), 108 Stat. 1796, 1902 (September 13, 1994).
[^ 2] See INA 101(a)(51). Although INA 101(a)(51) includes several benefits under the term “VAWA self-petitioner,” this part focuses on self-petitions filed under INA 204(a).
[^ 3] See INA 201(b)(2)(A)(i). See INA 203(a)(2)(A). See INA 245(a).
[^ 4] See Title IV of Pub. L. 103-322 (PDF), 108 Stat. 1796, 1902 (September 13, 1994).
[^ 5] See Title V of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464, 1518 (October 28, 2000). See Title VIII of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960, 3053 (January 5, 2006). See Section 6 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 Technical Amendments, Pub. L. 109-271 (PDF), 120 Stat. 750, 762 (August 12, 2006). See Title VIII of the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4 (PDF), 127 Stat. 54, 110 (March 7, 2013).
[^ 6] See Pub. L. 103-322 (PDF), 108 Stat. 1796, 1902 (September 13, 1994).
[^ 7] See Pub. L. 106-386 (PDF), 114 Stat. 1464, 1518 (October 28, 2000).
[^ 8] See Pub. L. 109-162 (PDF), 119 Stat. 2960, 3053 (January 5, 2006).
[^ 9] See Pub. L. 109-271 (PDF), 120 Stat. 750, 762 (August 12, 2006).
[^ 10] See Pub. L. 113-4 (PDF), 127 Stat. 54, 110 (March 7, 2013).
[^ 11] The VAWA regulations at 8 CFR 204.2 were promulgated in March 1996 and have not been updated to include superseding statutory provisions. Note that some of the regulatory provisions may no longer apply.
Chapter 2 - Eligibility Requirements and Evidence
The Violence Against Women Act of 1994 (VAWA) and its subsequent reauthorizations amended the Immigration and Nationality Act (INA) to allow abused spouses and children of U.S. citizens and lawful permanent residents (LPRs) and abused parents of U.S. citizen sons and daughters 21 years of age or older to file their own self-petition for immigrant classification.[1] Aliens filing self-petitions are referred to as VAWA self-petitioners or self-petitioners in this part.[2]
The VAWA self-petition is filed on the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).[3] An approved Form I-360 provides self-petitioners with immigrant classification as either immediate relatives or under a family-based preference category and allows them to apply for LPR status.[4]
A. General Overview of Eligibility Requirements
Self-petitioners must file a Form I-360 and submit evidence to establish, by a preponderance of the evidence, that they meet the general eligibility requirements outlined in the table below.[5]
General Eligibility Requirements for VAWA Self-Petitioners |
---|
The self-petitioner must have a qualifying relationship to an abusive U.S. citizen or LPR relative as the:
|
The self-petitioner must have been married in good faith (for self-petitioning spouses only). |
The self-petitioner is eligible for immigrant classification as an immediate relative or under a family-based preference category.[6] |
The self-petitioner was subjected to battery or extreme cruelty perpetrated by the U.S. citizen or LPR during the qualifying relationship (self-petitioning spouses may also be eligible based on the battery or extreme cruelty subjected on their child). |
The self-petitioner resides or resided with the abusive U.S. citizen or LPR. |
The self-petitioner is a person of good moral character.[7] |
General Evidentiary Requirements[8]
While self-petitioners are encouraged to submit primary evidence, when possible, USCIS must consider any credible evidence relevant to the petition.[9] The self-petitioner may, but is not required to, demonstrate that primary or secondary evidence is not available.[10] A petition may not be denied for failure to submit particular evidence. The petition may only be denied on evidentiary grounds if the evidence submitted is not credible or otherwise does not establish eligibility.
The determination of what evidence is credible and the weight to be given that evidence is within the sole discretion of USCIS.[11] As with all petitions and applications for an immigration benefit, a self-petitioner must remain eligible to receive a benefit under VAWA at the time of filing through final adjudication.[12]
B. Qualifying Relationship
Self-petitioners must demonstrate a qualifying relationship to an abusive U.S. citizen or LPR to be eligible for VAWA benefits.[13] Self-petitioners who have a qualifying relationship include:
- An abused spouse of a U.S. citizen or LPR or a spouse of a U.S. citizen or LPR whose child was abused by the U.S. citizen or LPR (self-petitioning spouse[14]);
- An abused child of a U.S. citizen or LPR (self-petitioning child); or
- An abused parent of a U.S. citizen son or daughter 21 years of age or older (self-petitioning parent).[15]
To establish a qualifying relationship, the self-petitioner must submit evidence to prove the requisite familial relationship to the abuser as well as evidence of the abuser’s U.S. citizenship or LPR status.[16]
1. Abuser’s U.S. Citizenship or Lawful Permanent Resident Status
The self-petitioner’s abusive qualifying family member must generally be a U.S. citizen or LPR when the self-petition is filed.[17] There are certain exceptions, however, where self-petitioners may preserve their eligibility in cases where abusers have lost or renounced their U.S. citizenship or LPR status for a reason that was related to an incident of abuse.[18] Changes to the abuser's U.S. citizenship or LPR status after the self-petitioner files the self-petition do not adversely impact approving a pending self-petition or the validity of an approved self-petition.[19]
Primary evidence to demonstrate the abuser’s U.S. citizenship includes, but is not limited to:
- A birth certificate (or legible photocopy) issued by a civil authority that establishes the abuser’s birth in the United States;
- A copy of an unexpired U.S. passport issued initially for a full 10-year period to the abuser over the age of 18 at the time of issuance;
- A copy of an unexpired U.S. passport issued initially for a full 5-year period to the abuser under the age of 18 at the time of issuance;
- A statement executed by a U.S. consular officer certifying the abuser to be a U.S. citizen and the bearer of a currently valid U.S. passport;
- The abuser’s Certificate of Naturalization or Certificate of Citizenship or a copy of either document; or
- The abuser’s Report of Birth Abroad of a Citizen of the United States (Department of State Form FS-240).[20]
Other examples of evidence to establish the U.S. citizenship of the abuser may include a receipt or approval notice of a Petition for Alien Relative (Form I-130) filed by the abuser for an immediate relative category, the abuser’s A-Number with evidence of naturalization, or information on a marriage license or certificate showing the abuser’s birth in the United States.
Primary evidence to demonstrate the abuser’s LPR status is a copy of the abuser’s Permanent Resident Card (Form I-551) or other proof from the DHS reflecting LPR status.[21] Other examples of evidence to establish the abuser’s LPR status include but are not limited to:
- A copy of the pages of the abuser’s passport with visas and entry stamps showing name and immigration status; or
- The abuser's A-Number with verification of status.
If self-petitioners are unable to provide documentary evidence of the abuser’s U.S. citizenship or LPR status, they should provide some identifying information for the abusive U.S. citizen or LPR, such as a name, place of birth, country of birth, date of birth, or Social Security number. USCIS uses this information to conduct a search of DHS records to attempt to verify the abuser’s citizenship or immigration status.[22] If USCIS is unable to identify a record as relating to the abuser or the record does not establish the abuser's citizenship or LPR status, the officer should adjudicate the self-petition based on the information submitted by the self-petitioner.[23]
An abused spouse or child of a U.S. national may also be eligible for VAWA benefits, as a U.S. national is accorded the same rights as an LPR.[24] USCIS treats a self-petitioning spouse or child of a U.S. national as a self-petitioning spouse or child of an LPR when adjudicating the self-petition.
2. Self-Petitioning Spouse
Generally, to establish a qualifying relationship, self-petitioning spouses must have a legally valid marriage to their abusive U.S. citizen or LPR spouse at the time the self-petition is filed.[25] In certain circumstances, however, self-petitioning spouses may continue to be eligible for VAWA benefits if the marriage was terminated due to divorce or death prior to filing the self-petition.[26] If self-petitioning spouses divorce their abusive U.S. citizen or LPR spouse after the self-petition is filed, it does not adversely impact approving a pending self-petition or the validity of an approved self-petition.[27]
USCIS generally considers a marriage as legally valid according to the laws of the place where the marriage was celebrated.[28] However, if a marriage is valid in the country where celebrated but considered contrary to U.S. public policy, the marriage is not recognized as valid for immigration purposes.[29] For example, incestuous and plural marriages generally are considered contrary to U.S. public policy. A common law marriage may be considered a legally valid marriage for the purpose of establishing VAWA eligibility.
Examples of evidence of a legal marriage include, but are not limited to:
- A marriage certificate issued by civil authorities;[30]
- Common law marriage announcements or certificates;
- Affidavits and photos of the wedding ceremony;
- Demonstrating a common law marriage if no certificate or announcement is available in states where common law marriages may be contracted; or
- Any other credible evidence to establish a marital relationship.
If self-petitioners were previously married, they must submit evidence to establish that all of their prior marriages were legally terminated, and that they were legally free to enter a valid marriage with the abuser.[31] If the U.S. citizen or LPR spouse was previously married, self-petitioners should submit evidence, if available, to establish that all of their spouse’s prior marriages were legally terminated.[32] If the U.S. citizen or LPR spouse’s prior marriages were not legally terminated, however, self-petitioners may continue to be eligible as intended spouses.[33]
A civil authority must have issued the marriage termination document (such as a divorce decree or an annulment) for it to be considered valid. Officers should refer to the U.S. Department of State’s Foreign Affairs Manual and U.S. Visa: Reciprocity and Civil Documents by Country webpage for country-specific information regarding the legal termination of any marriage that occurred or was terminated outside the United States.
Note that if a divorce decree requires a waiting or revocable period that has not concluded (for example, a “nisi” period in a domestic decree or an “idda” period in a foreign decree), the decree is not considered final and the marriage has not been legally terminated.[34]
Examples of evidence of a legally terminated marriage may include, but are not limited to:
- A final decree of divorce;
- A decree of annulment;
- A death certificate; or
- Any other credible evidence to establish a terminated marriage.
Intended Spouse
VAWA protects “intended spouses” who believed that they entered into a valid marriage, but the marriage was invalid solely due to the abusive U.S. citizen or LPR’s bigamy or polygamy.[35] To be eligible as intended spouses, self-petitioners must have believed that they entered into a legally valid marriage with the U.S. citizen or LPR. Therefore, USCIS focuses its inquiry on the intent of the self-petitioner and not on the intent of the abuser.
To demonstrate a qualifying relationship to the abusive U.S. citizen or LPR as an intended spouse, the self-petitioner must submit evidence to establish the following requirements:
- The self-petitioner believed a legal marriage was created with the U.S. citizen or LPR spouse who was not already married and therefore free to enter into a valid marriage;
- A marriage ceremony was actually performed;
- The requirements for the establishment of a bona fide marriage were otherwise met; and
- The apparent marriage between the self-petitioner and the U.S. citizen or LPR is not legitimate solely because of the U.S. citizen’s or LPR’s other, preexisting marriage.[36]
USCIS considers a marriage certificate issued by civil authorities in the United States or abroad to be evidence of the self-petitioner’s intent. If self-petitioners were previously married, they must submit evidence to demonstrate that all their prior marriages were legally terminated. Evidence of the termination of all the abusive U.S. citizen’s or LPR’s prior marriages, however, is not required to establish eligibility as an intended spouse.
Intended spouses in common law marriages are eligible as VAWA self-petitioners as long as they can demonstrate the requirements listed above, including that a marriage ceremony was actually performed.
Self-Petitioning Spouse Whose Child was Abused
A spouse of an abusive U.S. citizen or LPR is eligible to self-petition based on abuse committed by the U.S. citizen or LPR against the spouse’s child.[37] The abused child does not need to be the abuser’s child. If the self-petition is based on a claim that the self-petitioner’s child was battered or subjected to extreme cruelty committed by the U.S. citizen or LPR, the self-petitioner should submit evidence of a relationship to the abused child, such as the child's birth certificate or other evidence demonstrating the relationship (in addition to demonstrating the required marital relationship to the abuser).[38]
3. Self-Petitioning Child
Self-petitioning children may establish a qualifying relationship to their abusive U.S. citizen or LPR parent if they are the biological child, stepchild, or adopted child of the abuser.[39] The child must be unmarried and less than 21 years old when the self-petition is filed in order to be considered a child for immigration purposes.[40] In certain circumstances, children who turn 21 years old prior to filing the self-petition or while the self-petition is pending may remain eligible for VAWA benefits.[41] The self-petitioner must remain unmarried, however, at the time of filing and when the self-petition is approved.[42] To be considered unmarried, the self-petitioner must either never have been married or have legally terminated all prior marriages.
Termination of the abuser's parental rights or a change in legal custody does not alter the child’s eligibility to self-petition, provided the petitioner meets the definition of the term “child” under immigration law and meets all other eligibility requirements.[43]
Biological Child
Self-petitioning children may demonstrate a qualifying relationship if they are the biological child of the abusive U.S. citizen or LPR parent. If the U.S. citizen or LPR parent utilized Assisted Reproductive Technology, however, and does not have a genetic relationship to the self-petitioning child, the child may still be able to demonstrate a qualifying parent-child relationship in certain circumstances.[44] If the child did not acquire U.S. citizenship at birth and the abusive U.S. citizen or LPR parent is the biological mother of the self-petitioning child, the primary evidence to demonstrate a qualifying relationship is the child’s birth certificate issued by civil authorities listing the mother’s name.[45] If the mother’s name on the birth certificate is different from the name listed on the self-petition, the self-petitioning child may submit evidence of the name change.[46]
Other examples of evidence of a biological relationship may include, but are not limited to:
- A court decree of paternity;
- A custody or child support order;
- A baptismal certificate (or other religious document) with the seal of the religious authority showing the date and place of birth and the baptism (or similar religious ceremony) and the name(s) of the parent(s);
- Early school records showing the date of admission to the school, the child’s date and place of birth, and the name(s) of the parent(s);
- Medical records, such as a hospital birth record that names the parent(s) of the child;
- Census record, such as a state or federal census record showing the name, place of birth, and date of birth or age of each person listed; or
- Any other credible evidence of the relationship.
Self-petitioning children whose abusive U.S. citizen or LPR parent is their biological father must provide evidence demonstrating that they were either:
- Born in wedlock;
- Legitimated, or were born out of wedlock but later placed in the same legal position as a child born in wedlock; or
- Born out of wedlock but have or have had an ongoing bona fide relationship with the abusive father.[47]
For children born in wedlock, self-petitioners must submit evidence of their biological relationship to their father, the marriage of the child’s parents, and evidence of the legal termination of all prior marriages, if applicable.[48]
Examples of evidence may include:
- The child’s birth certificate issued by civil authorities to show a biological relationship;
- A civilly-issued marriage certificate of the parents;
- Common law marriage announcements or certificates conforming to the legal requirements of the location where the marriage took place;
- Proof of the legal termination of the parents’ prior marriages, if any, issued by civil authorities; or
- Any other available evidence.[49]
Children who were legitimated must provide evidence of a biological relationship to the father and evidence of the child’s legitimation.[50] Generally, legitimation is governed by the law of the place of residence of the parent or child.[51] Self-petitioners may generally establish legitimation by showing that their parents married at any time before they turned 18 years old.[52]
Children who were born out of wedlock and have not been legitimated must provide evidence that a bona fide parent-child relationship with the abusive biological father has been established.[53] Evidence should establish more than merely a biological relationship. A bona fide parent-child relationship should include emotional or financial ties (or both).[54] There should be evidence that the father and child actually lived together, that the father openly held the child out as being his own, that the father provided for some or all of the child's needs, or that the father's behavior in general evidenced a genuine relationship with the child.[55]
Examples of evidence to establish a bona fide parent-child relationship may include, but are not limited to:
- Money order receipts or cancelled checks showing the father's financial support of the child;
- The father's income tax returns, medical records, or insurance policies listing the child as a dependent;
- School, social services, or other state or federal government agency records for the child listing the father as a guardian or family contact;
- Correspondence between the parties;
- Notarized affidavits of friends, neighbors, school officials, or other associates with knowledge of the relationship; or
- Any other credible evidence of a bona fide parent-child relationship.
The following table provides a summary of the types of evidence required to demonstrate a qualifying relationship for self-petitioning children who have a biological relationship to their abusive U.S. citizen or LPR parent.
Child | Abusive Parent | Required Evidence[56] |
---|---|---|
Child | Biological mother |
|
Child born in wedlock | Biological father |
|
Legitimated child | Biological father |
|
Child born out of wedlock | Biological father |
|
Stepchild
Self-petitioning children may demonstrate a qualifying relationship if they have a step relationship with the abusive U.S. citizen or LPR parent. A step relationship is created when a child’s biological or legal parent marries a person who is not the child’s other biological or legal parent before the child’s 18th birthday.[57] If the marriage that created the step relationship is terminated due to divorce prior to filing, the stepchild remains eligible to self-petition.[58] If the marriage is terminated due to the death of the biological or legal parent prior to filing, the stepchild may remain eligible to self-petition if a family relationship has continued to exist as a matter of fact between the stepparent and stepchild at the time of filing.[59]
To demonstrate a qualifying relationship as a stepchild of an abusive U.S. citizen or LPR stepparent, self-petitioning children must submit evidence of:
- The relationship between themselves and their biological or legal parent;
- The marriage between their biological or legal parent and the abusive stepparent before they turned 18 years old; and
- The termination of all prior marriages for both the biological or legal parent and stepparent, if applicable.[60]
Examples of evidence that demonstrate a qualifying step relationship between a self-petitioning child and an abusive stepparent may include, but are not limited to:
- The child's birth certificate issued by civil authorities;
- A civilly-issued marriage certificate of the child's biological or legal parent and stepparent showing marriage before the stepchild turned 18 years old;
- Common law marriage announcements or certificates;
- A final decree of divorce or annulment; or
- Any other credible evidence of a qualifying step relationship.[61]
Intended Spouse Provision and Self-Petitioning Children
The INA does not extend the intended spouse provision for self-petitioning spouses to self-petitioning children.[62] Therefore, if the marriage that created the step relationship is not legally valid due to bigamy or polygamy on the part of the stepparent, the child is not eligible to self-petition. However, children can be included as derivatives on their biological or legal parent’s self-petition if the biological or legal parent can establish a qualifying relationship with the abusive stepparent under the intended spouse provisions.
Adopted Child
Generally, for an adoption to be the basis for granting immigration benefits, an adoption must comply with certain statutory requirements. In the family-based petition process, the statute requires that the adoptee beneficiary has been in the legal custody of and jointly resided with the adoptive parent(s) for at least 2 years.[63] Abused adopted children, however, are not required to demonstrate that the U.S. citizen or LPR had 2 years of legal custody and 2 years of joint residence with them in order to be eligible for a VAWA self-petition.[64]
Self-petitioning adopted children may demonstrate a qualifying relationship to a U.S. citizen or LPR parent if they submit evidence of an adoption that is valid for immigration purposes.[65] Generally, for an adoptive relationship to be considered valid for the family-based petition process, the U.S. citizen or LPR must have legally adopted the child while the child was under age 16.[66] In certain circumstances, the adoption may take place prior to the child attaining 18 years old if the sibling exception applies.[67] Evidence of an adoption that may demonstrate a qualifying adoptive relationship may include a copy of the legal adoption decree or order issued by the appropriate civil authority or other relevant evidence that an adoptive relationship is valid.[68]
4. Self-Petitioning Parent
Self-petitioning parents must demonstrate a qualifying relationship to their abusive U.S. citizen son or daughter who is 21 years of age or older.[69] The INA defines a “child” as an unmarried person who is under 21 years of age.[70] Therefore, the abusive son or daughter must have qualified as the child of the abused parent before turning 21 years of age but must be 21 years of age or older at the time of filing.[71] Parents of abusive LPR sons and daughters are not eligible for VAWA benefits.
To establish a qualifying relationship, a self-petitioning parent must be a biological parent, stepparent, or adoptive parent of an abusive U.S. citizen son or daughter.[72] The requirements for self-petitioning parents are similar to the requirements for self-petitioning children to demonstrate the required parent-child relationship.
Biological Parent
Self-petitioning parents may demonstrate a qualifying relationship if they are the biological parent of the abusive U.S. citizen son or daughter. If the self-petitioning parent utilized Assisted Reproductive Technology, however, and does not have a genetic relationship to the U.S. citizen or LPR child, the parent may still be able to demonstrate a qualifying parent-child relationship in certain circumstances.[73] If the self-petitioning parent is the biological mother of the abusive U.S. citizen son or daughter, the primary evidence to demonstrate the qualifying relationship is the child’s birth certificate issued by civil authorities listing the mother’s name.[74] If the mother's name on the birth certificate is different from the name as reflected on the self-petition, the self-petitioner may submit evidence of the name change.[75]
If primary evidence is unavailable, other examples of evidence of a biological relationship may include, but are not limited to:
- A court decree of paternity;
- Custody or child support orders;
- A baptismal certificate (or other religious document) with the seal of the religious authority showing the date and place of birth and baptism (or similar religious ceremony) and the names of the parents;
- Early school records showing the date of admission to the school, the child’s date and place of birth, and the name(s) of the parent(s);
- Medical records, such as the hospital birth record that names the parent(s) of the child;
- Census record, such as a state or federal census record showing the name, place of birth, and date of birth or age of each person listed; or
- Any other credible evidence of the relationship.
If the self-petitioning parent is the biological father of the abusive U.S. citizen son or daughter, then the parent must provide evidence demonstrating that the child was either:
- Born in wedlock;
- Legitimated, or was born out of wedlock but later placed in the same legal position as a child born in wedlock; or
- Born out of wedlock but has or had an ongoing bona fide relationship with the abused parent.[76]
For fathers whose abusive U.S. citizen sons or daughters were born in wedlock, self-petitioners must submit evidence of their biological relationship to their child, the marriage between the parents of the child, and evidence of the legal termination of all prior marriages, if applicable.[77]
Examples of such evidence may include:
- A birth certificate for the child issued by civil authorities to show a biological relationship;
- A civilly-issued marriage certificate of the parents;
- Common law marriage announcements or certificates conforming to the legal requirements of the location of the marriage;
- Proof of the legal termination of the parents’ prior marriages, if any, issued by civil authorities; or
- Any other available evidence.[78]
If the child was legitimated, the father must provide evidence of a biological relationship to the child and evidence of the child’s legitimation.[79] Generally, legitimation is governed by the law of the place of residence of the parent or child.[80] Self-petitioners may generally establish legitimation by showing that they married the child’s other parent at any time before the child turned 18 years old.[81]
Fathers whose children were born out of wedlock and have not been legitimated must provide evidence that a bona fide parent-child relationship has been established with the child.[82] Evidence should establish more than merely a biological relationship. A bona fide parent-child relationship includes emotional or financial ties (or both) or a genuine concern or interest for the child’s support, instruction, and general welfare.[83] There should be evidence that the father and child actually lived together, that the father openly held the child out as being his own, that the father provided for some or all of the child’s needs, or that the father’s behavior in general evidenced a genuine concern for the child.[84]
Examples of evidence to establish a bona fide parent-child relationship may include, but are not limited to:
- Money order receipts or cancelled checks showing the father's financial support of the child;
- The father's income tax returns, medical records, or insurance policies listing the child as a dependent;
- School, social services, or other state or federal government agency records for the child listing the father as a guardian or family contact;
- Correspondence between the parties;
- Notarized affidavits of friends, neighbors, school officials, or other associates with knowledge of the relationship; or
- Any other credible evidence of a bona fide parent-child relationship.
The following table provides a summary of the types of evidence sufficient to demonstrate a qualifying relationship for self-petitioning parents who have a biological relationship to their abusive U.S. citizen son or daughter.
Abusive Son or Daughter | Parent | Required Evidence[85] |
---|---|---|
Son or daughter | Biological mother |
|
Son or daughter was born in wedlock | Biological father |
|
Legitimated son or daughter | Biological father |
|
Son or daughter was born out of wedlock | Biological father |
|
Stepparent
Self-petitioning parents may demonstrate a qualifying relationship if they have a stepparent relationship with the abusive U.S. citizen son or daughter. A step relationship is created if the abused parent married the son or daughter’s other biological or legal parent before the son or daughter’s 18th birthday.[86] If the marriage that created the step relationship is terminated due to divorce prior to filing, the stepparent remains eligible to self-petition.[87] If the marriage is terminated due to the death of the biological or legal parent prior to filing, the stepparent may remain eligible to self-petition if a family relationship has continued to exist as a matter of fact between the stepparent and stepson or stepdaughter at the time of filing.[88]
To demonstrate a qualifying stepparent relationship, self-petitioning parents must submit evidence of:
- The relationship between the biological or legal parent and the abusive son or daughter;
- Their marriage with the stepson or stepdaughter’s biological or legal parent; and
- The termination all prior marriages for both themselves and their spouse (biological or legal parent), if applicable.[89]
Examples of evidence that demonstrate a qualifying step relationship between a self-petitioning stepparent and an abusive U.S. son or daughter may include, but are not limited to:
- The son or daughter's birth certificate issued by civil authorities;
- A civilly-issued marriage certificate of the stepparent and the son or daughter's biological or legal parent showing marriage before the stepson or stepdaughter turned 18 years old;
- Common law marriage announcements or certificates;
- A final decree of divorce or annulment; or
- Any other credible evidence of a qualifying step relationship.[90]
Adoptive Parent
Self-petitioning parents may demonstrate a qualifying relationship if they have an adoptive relationship with their U.S. citizen son or daughter.[91] Generally, for an adoptive relationship to be the basis for granting immigration benefits, the adoption must be valid for immigration purposes[92] and comply with certain statutory requirements.[93]
For the adoptive relationship to be considered valid under INA 101(b)(1)(E), a child generally must be adopted while under age 16.[94] Unlike abused adopted children, abused adoptive parents must demonstrate 2 years of legal custody and 2 years of joint residence with their adopted U.S. citizen son or daughter in order to establish a qualifying adoptive relationship.[95] Self-petitioning parents may demonstrate a qualifying adoptive relationship by submitting evidence of:
- An adoption that is valid for immigration purposes;
- 2 years of legal custody of the adopted son or daughter; and
- 2 years of joint residence with the adopted son or daughter.[96]
Self-petitioning parents may also establish an adoptive parent-child relationship under INA 101(b)(1)(F) or INA 101(b)(1)(G).[97]
C. Good Faith Marriage (Self-Petitioning Spouses Only)
A self-petitioning spouse’s eligibility for the self-petition requires more than showing a legal marital relationship to a U.S. citizen or LPR. The self-petitioner must also establish that the marriage was entered into in good faith and was not entered into for the purpose of evading immigration laws.[98]
To demonstrate a good faith marriage, self-petitioning spouses must show that at the time of the marriage, they intended to establish a life together with the U.S. citizen or LPR. USCIS does not deny a self-petition, however, solely because the spouses are not living together, or the marriage is no longer viable.[99] Additionally, separation from the U.S. citizen or LPR spouse, even shortly after the marriage took place, does not prove by itself that a marriage was not entered into in good faith.[100]
Examples of evidence to demonstrate good faith entry into the marriage may include, but are not limited to:
- Documentation that one spouse has been listed as the other spouse’s beneficiary on insurance policies;
- Joint property leases, income tax forms, or accounts (for example, bank accounts, utility statements or accounts, and credit cards accounts);
- Evidence of courtship, a wedding ceremony, a shared residence, or shared experiences;
- Birth certificates of children born to the self-petitioner and abusive spouse;
- Police, medical, or court documents providing information about the relationship;
- Affidavits of persons with personal knowledge of the relationship; or
- Any other credible evidence that demonstrates the self-petitioner’s intentions for entering into the marriage.[101]
D. Eligible for Immigrant Classification
A VAWA self-petitioner must establish eligibility for a family-based immigrant classification as either an immediate relative or under a family-based preference category.[102] VAWA eligibility generally extends to children, spouses, and parents of abusive U.S. citizens, who are considered immediate relatives, and spouses and children of abusive LPRs, who are included in family-based preference categories.
Because VAWA self-petitions provide for family-based immigrant classification, they must comply with provisions applicable to family-based petitions, including INA 204(c), INA 204(g), and INA 204(a)(2), which address issues involving current and prior marriages.[103]
Note that INA 204(a)(2) applies to self-petitioners who acquire LPR status and subsequently file a family-based spousal petition. This does not apply to a self-petition filed based on a relationship with an abusive LPR spouse.
E. Subjected to Battery or Extreme Cruelty
Self-petitioners must demonstrate that their U.S. citizen or LPR relative battered or subjected them to extreme cruelty during the qualifying relationship.[104] Note that for abused adopted children, the battery or extreme cruelty may be committed by an adoptive parent or a family member of an adoptive parent residing in the same household.[105] For all other self-petitioners, battery or extreme cruelty committed by a third party may constitute abuse where the U.S. citizen or LPR acquiesced to, condoned, or participated in the abusive act(s).[106]
The battery or extreme cruelty must have been committed against the self-petitioner, or for self-petitioning spouses, against their child(ren), and must have taken place during the qualifying relationship. For self-petitioning children, there is also a requirement that the child was residing with the abuser when the abuse occurred.[107] However, residence for a child may also include any period of visitation.[108]
Note that if the self-petitioner is a stepchild or stepparent, the abuse must have occurred during the step-relationship. Evidence, however, of any abuse occurring at any time may be used to establish a pattern of abuse to support the claim.
Self-Petitioner | When the battery or extreme cruelty must have taken place |
---|---|
Spouse | During the qualifying marriage |
Child | During the claimed relationship while the child was under 21 years old and while the child was residing with or visiting the parent[109] |
Parent | During the claimed relationship and while the son or daughter was 21 years old or older |
1. Battery and Extreme Cruelty
The definitions for battery and extreme cruelty are flexible and broad. Other terms, such as abuse, acts of violence, and domestic violence, are often used to describe battery and extreme cruelty.
Battery generally includes any offensive touching or use of force on a person without the person’s consent.[110] Some examples include, but are not limited to, punching, slapping, spitting, biting, kicking, choking, kidnapping, rape, molestation, forced prostitution, sexual abuse, and sexual exploitation. Other abusive actions may also be physical acts of violence and, under certain circumstances, include acts that in and of themselves may not initially appear violent but that are part of an overall pattern of violence.
Extreme cruelty is a non-physical act of violence or threat of violence demonstrating a pattern or intent on the part of the U.S. citizen or LPR to attain compliance from or control over the self-petitioner.[111] USCIS determines whether a self-petitioner has demonstrated extreme cruelty occurred on a case-by-case basis, and no single factor is conclusive.
Acts of extreme cruelty may include but are not limited to:
- Isolation;
- Humiliation;
- Degradation, use of guilt, minimizing, or blaming;
- Economic control;
- Coercion;
- Threatening to commit a violent act toward the self-petitioner (or the self-petitioner’s children);
- Acts intended to create fear, compliance, or submission by the self-petitioner;
- Controlling what self-petitioners do and who they see and talk to;
- Denying access to food, family, or medical treatment;
- Threats of deportation; and
- Threats to remove a child from the self-petitioner’s custody.
Battery or extreme cruelty may also include:
- Any act or threatened act of violence, including forced detention, which results or threatens to result in physical or mental injury;
- Psychological or sexual abuse or exploitation, including rape, molestation, incest, or forced prostitution;
- Acts that may not initially appear violent but are a part of an overall pattern of violence;
- Acts aimed at some other person or thing may be considered abuse if the acts were deliberately used to perpetrate extreme cruelty against the self-petitioner or the self-petitioner’s child;
- Acts by a third party when the abusive U.S. citizen or LPR acquiesced to, condoned, or participated in the abuse; and
- Spousal abuse, if witnessed by the child of the victim, may be used as the basis for a self-petition by that child.[112]
2. Evidence
Examples of evidence to demonstrate battery or extreme cruelty occurred include but are not limited to:
- Reports and affidavits from police, judges, or other court officials;
- Court records;
- Reports and affidavits from medical personnel;
- Medical records;
- Reports and affidavits from school officials;
- Affidavits from a member of a religious authority;
- Reports and affidavits from social workers or other social service agency personnel;
- Documentation showing the self-petitioner sought safe-haven or services from a domestic violence shelter or other service provider;
- Protection orders;
- Photographs of injuries;
- Psychological evaluations; or
- Any other credible evidence of battery or extreme cruelty.[113]
Self-petitioners who obtained an order of protection against the abuser or have taken other legal steps to end the abuse are strongly encouraged to submit copies of the related legal documents.[114]
Moreover, evidence that the abuse victim sought safe-haven in a domestic violence shelter or similar refuge may also be relevant, as may a combination of documents such as a photograph of the visibly injured self-petitioner supported by affidavits.[115] Evidence of non-abusive acts may also be submitted to establish and demonstrate a pattern of abuse and violence.[116]
The self-petitioner is encouraged to submit a detailed personal statement as evidence supporting the self-petition. The self-petitioner’s personal statement should provide as much detailed information as possible addressing specific incidents of battery or extreme cruelty.
F. Residence with the Abusive Relative
The self-petitioner must reside or have resided with the abuser in the past to be eligible for the self-petition. USCIS no longer requires the self-petitioner to have resided with the abuser during the qualifying relationship.[117] Residence is defined as the person’s general place of abode or the principal, actual dwelling place of the self-petitioner without regard to intent.[118] A self-petitioner cannot meet the residency requirement by merely visiting the abuser’s home while maintaining a general place of abode or a principal dwelling place elsewhere.[119]
Self-petitioners must have resided with the abuser at any point prior to filing the self-petition or reside with the abuser when they file the self-petition. The self-petitioner is not required, however, to have resided with the abuser for any specific length of time, to have resided with the abuser in the United States, or to have resided with the abuser during the qualifying relationship.[120] There is also no requirement for self-petitioners to be living with the abuser at the time they file the self-petition or, for self-petitioning spouses and parents, when the abuse occurred.[121]
For self-petitioning children, there is a requirement that they resided with the abuser when the abuse occurred.[122] However, residence for a child may also include any period of visitation.[123]
If self-petitioners are in the United States at the time they file the self-petition, the shared residence can have occurred either in or outside the United States.[124]
Examples of evidence demonstrating shared residence with the abusive U.S. citizen or LPR may include but are not limited to:
- Leases, deeds, mortgages, or rental agreements listing the self-petitioner and the U.S. citizen or LPR as occupants or owners;
- Insurance policies listing a common address for the self-petitioner and U.S. citizen or LPR;
- Utility invoices listing a common address for the self-petitioner and U.S. citizen or LPR;
- Bank statements or financial documents listing a common address for the self-petitioner and U.S. citizen or LPR;
- Photocopies of income tax filings listing the self-petitioner and the U.S. citizen or LPR;
- School records listing the parent and address of record;
- Medical records or a statement from the self-petitioner’s physician;
- Affidavits of friends and family who can verify that the self-petitioner and the U.S. citizen or LPR resided together during the marriage; or
- Any other credible evidence of shared residence.[125]
G. Good Moral Character
1. General Requirements
Self-petitioners must demonstrate that they are persons of good moral character in order to be eligible for a VAWA self-petition.[126] USCIS generally looks at the 3-year period immediately preceding the date the self-petition is filed, and the self-petitioner’s conduct is evaluated on a case-by-case basis taking into account the provisions regarding good moral character in INA 101(f) and the standards of the average citizen in the community.[127]
2. Special Considerations for Children Under 14 Years of Age
A self-petitioning child who is under 14 years old is presumed to be a person of good moral character and is not required to submit evidence of good moral character with the self-petition.[128]
The presumption, however, does not preclude USCIS from requesting evidence of good moral character if there is reason to believe that the self-petitioning child may lack good moral character.[129] USCIS has discretion to request evidence of good moral character for a self-petitioning child under 14 years of age and could find that a person under the age of 14 lacks good moral character.[130]
3. Evaluating Good Moral Character
USCIS evaluates a self-petitioner’s claim of good moral character on a case-by-case basis, considering the provisions of INA 101(f) and the standards of the average citizen in the community, and may consider any conduct, behavior, acts, or convictions.[131]
Although the evidentiary requirements for good moral character focus on the 3-year period preceding the filing of the self-petition, the eligibility requirements do not specify a time period during which self-petitioners must demonstrate their good moral character.[132] USCIS may review and request any evidence of good moral character or a lack of good moral character for any time period before or after the filing of the self-petition if USCIS has reason to believe the self-petitioner lacks good moral character.[133]
A self-petitioner is required to maintain good moral character through the time of final adjudication of both the self-petition and the adjustment of status application.[134]
If the results of criminal records checks conducted prior to the approval of the self-petition or adjustment of status application disclose that the self-petitioner is no longer a person of good moral character or that the self-petitioner has not been a person of good moral character in the past, USCIS denies the self-petition if it is pending or revokes the self-petition if it was previously approved.[135]
Permanent and Conditional Bars Under INA 101(f)
INA 101(f) lists the classes of persons who are statutorily barred from being considered a person of good moral character. Self-petitioners who fall under certain categories under INA 101(f) are permanently barred from establishing good moral character.[136]
Permanent bars apply to a self-petitioner:
- Who has at any time on or after November 29, 1990 been convicted of an aggravated felony; or
- Who at any time has engaged in conduct described in INA 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or INA 212(a)(2)(G) (relating to severe violations of religious freedom).[137]
Other bars, however, are not permanent in nature and are considered “conditional bars.” Conditional bars are triggered by specific acts, offenses, activities, circumstances, or convictions under INA 101(f) that occurred in the 3-year period immediately preceding the filing of the self-petition.[138] When a conditional bar is triggered, USCIS has discretion to make a finding of good moral character despite an act or conviction falling under the conditional bar.
These self-petitioners may still be considered persons of good moral character if:
- The act or conviction is waivable for purposes of determining inadmissibility or deportability; and
- The act or conviction was connected to the self-petitioner’s having been battered or subjected to extreme cruelty.[139]
Conditional bars apply to a self-petitioner who, during the 3-year period for which good moral character is required to be established:
- Is or was a habitual drunkard;
- Is or was engaged in prostitution during the past 10 years as described in INA 212(a)(2)(D);
- Is or was involved in the smuggling of a person or persons into the United States as described in INA 212(a)(6)(E);
- Is or was a practicing polygamist;
- Has been convicted or admits committing acts that constitute a crime involving moral turpitude other than a purely political offense, except for certain petty offenses or offenses committed while the person was less than 18 years old as described in INA 212(a)(2)(A)(ii);
- Has committed two or more offenses for which the applicant was convicted, and the aggregate sentence actually imposed was 5 years or more, provided that, if an offense was committed outside the United States, it was not purely a political offense;
- Has violated laws relating to a controlled substance, except for simple possession of 30 grams or less of marijuana;
- Earns income principally from illegal gambling activities or has been convicted of two or more gambling offenses;
- Has given false testimony for the purpose of obtaining immigration benefits; or
- Has been confined as a result of a conviction to a penal institution for an aggregate period of 180 days or more.[140]
USCIS may only look to the judicial records to determine whether the person has been convicted of a crime and may not look behind the conviction to reach an independent determination concerning guilt or innocence.[141]
Acts or Convictions Under INA 101(f) That Occur Outside the 3-Year Period
If a self-petitioner’s prior acts or convictions fall under a conditional bar but occurred outside the 3 years immediately preceding the filing of the self-petition, USCIS considers all evidence in the record to make an individualized determination as to whether the self-petitioner has established good moral character.
Officers must consider the totality of the evidence, including all positive and negative factors, to determine whether under the standards of the average citizen of the community self-petitioners established their good moral character.[142] Some relevant considerations may include but are not limited to the severity of the act or conviction and whether the self-petitioner has demonstrated rehabilitation of character.
Unlawful Acts
Self-petitioners who willfully failed or refused to support dependents, committed unlawful acts that adversely reflect on their moral character, or were convicted or imprisoned for such acts but the acts do not fall under INA 101(f) will be considered as lacking good moral character unless they establish extenuating circumstances.[143]
Persons who were subjected to abuse in the form of forced prostitution or who can establish that they were forced to engage in other behavior that could render them inadmissible may still be considered a person of good moral character if they have not been convicted for the commission of the offense.[144]
All Other Conduct and Acts
If there is evidence that a self-petitioner’s conduct or acts do not fall under INA 101(f) but are contrary to the standards of the average citizen in the community, the officer must consider all of the evidence in the record and make a case-by-case determination as to whether the self-petitioner has established good moral character under the standards of the average citizen in the community.[145] Some relevant considerations may include but are not limited to the severity of the conduct or act and whether the self-petitioner has demonstrated rehabilitation of character.
Evidence
Primary evidence of good moral character is the self-petitioner’s affidavit, which should contain detailed statements regarding the self-petitioner’s conduct and behavior establishing good moral character.[146] In addition to the affidavit, the self-petitioner should also submit a local police clearance or a state-issued criminal background check from each locality or state in the United States in which the self-petitioner has resided for 6 or more months during the 3-year period immediately preceding the filing of the self-petition.[147]
If self-petitioners reside or have resided outside the United States, they should submit a police clearance, criminal background check, or similar report issued by the appropriate authority in the foreign country in which they resided for 6 or more months during the 3-year period immediately preceding the filing of the self-petition.[148]
Self-petitioners are encouraged to submit clearances or background checks based on their name and date of birth or based on their fingerprints. If the search conducted is based on a name and date of birth, self-petitioners are encouraged to provide clearances under all their aliases, including any maiden names, if applicable.
If police clearances, criminal background checks, or similar reports are not available for some or all locations, self-petitioners are encouraged to submit a detailed statement explaining the reasons they could not obtain the clearances and why the lack of a police clearance does not adversely reflect upon the self-petitioner’s good moral character. Officers may not deny self-petitions for a failure to submit criminal background checks or police clearances if self-petitioners have submitted an affidavit attesting that they have never been arrested.
In addition to the self-petitioner’s affidavit and police clearances or criminal background checks, USCIS considers any other credible evidence of good moral character, such as affidavits from responsible persons who can knowledgeably attest to the self-petitioner’s good moral character.[149]
Affidavits attesting to good moral character should generally contain the affiant's full name, address, telephone number, date and place of birth, relationship to the parties, if any, and details concerning how the affiant acquired knowledge of the self-petitioner’s good moral character.
Self-petitioners who have been arrested, charged, or otherwise have a criminal record should provide the following additional evidence, if available:
- Copies of arrest report(s);
- Certified copies of court documents showing final disposition of any charge(s); and
- Relevant excerpts of law for the jurisdiction where the act took place listing the maximum possible penalty for each charge.
4. Evaluating Acts or Convictions Falling Under the Conditional Bars Listed in INA 101(f)
If a self-petitioner has committed an act or has a conviction that falls under a conditional bar under INA 101(f), then the officer must consider the following:
- Whether a waiver for the act or conviction would be available;
- Whether the act or conviction is connected to battery or extreme cruelty experienced by the self-petitioner; and
- Whether the person warrants a finding of good moral character in the exercise of discretion.[150]
Step 1: Determine Whether a Waiver Would be Available
If the self-petitioner has committed an act or has a conviction that falls under a conditional bar, the officer should first determine whether a waiver would be available. The self-petitioner must submit evidence addressing whether a waiver would be available for the act or conviction at issue.[151]
The officer does not need to consider whether a waiver would be granted, only that a waiver would be available at the time the adjustment of status or immigrant visa application is filed.[152] If officers are uncertain whether a waiver is available, they should seek guidance from the local Office of the Chief Counsel before making a final determination.
Step 2: Determine Whether the Act or Conviction is “Connected” to the Battery or Extreme Cruelty
If a waiver is available for the act or conviction, officers must consider whether the act or conviction is “connected” to the battery or extreme cruelty experienced by the self-petitioner. For an act or conviction to be considered connected to the battery or extreme cruelty, the evidence must establish that the act or conviction has a causal or logical relationship to the battery or extreme cruelty.[153] The connection does not require compulsion or coercion on the part of the self-petitioner. To meet this evidentiary standard, the evidence submitted must demonstrate the following:
- The circumstances surrounding the act or conviction committed by the self-petitioner; and
- The connection between the act or conviction and the battery or extreme cruelty.
When determining whether a connection exists between the self-petitioner’s disqualifying act or conviction and the battery or extreme cruelty suffered by the self-petitioner, USCIS considers the full history of abuse in the case. The self-petitioner’s qualifying U.S. citizen or LPR relative must have perpetrated the battery or extreme cruelty during the qualifying relationship, but the self-petitioner is not required to establish that the act or conviction occurred during the qualifying relationship.
If the self-petitioner establishes that the battery or extreme cruelty occurred prior to and during the qualifying relationship, the officer may find that the self-petitioner has established the required “connection” between the act or conviction and the battery or extreme cruelty, even if the act or conviction occurred prior to the qualifying relationship.
Step 3: Determine Whether the Self-Petitioner Warrants a Finding of Good Moral Character in the Exercise of Discretion
Whether a self-petitioner is a person of good moral character under the exception at INA 204(a)(1)(C) is a discretionary determination made by USCIS. For example, even if the evidence establishes both that a waiver for the self-petitioner’s disqualifying act or conviction is available and that the requisite connection exists between the disqualifying act or conviction and the battery or extreme cruelty, USCIS may nevertheless conclude that the severity or gravity of the self-petitioner’s act or conviction warrants a finding of a lack of good moral character.
H. Self-Petitioners Filing from Outside the United States
If self-petitioners are outside the United States when they file the self-petition, they must demonstrate one of the following in addition to the eligibility requirements listed in this chapter:
- The abusive U.S. citizen or LPR is employed abroad by the U.S. government;
- The abusive U.S. citizen or LPR is a member of the U.S. uniformed services stationed outside the United States; or
- The claimed battery or extreme cruelty occurred in the United States.[154]
If USCIS approves the self-petition and a visa is available, the self-petitioner may apply for an immigrant visa to enter the United States as an LPR.[155]
I. Derivative Beneficiaries
Self-petitioning spouses and children may include their child(ren) as derivative beneficiaries on the self-petition.[156] Self-petitioning parents, however, are not eligible to confer derivative benefits to their family members. If self-petitioning parents include a derivative on their self-petition, the self-petition will not be denied. Any listed derivatives, however, are not eligible to derive status and do not receive any benefit under the approved self-petition.
Derivative children must be unmarried and less than 21 years old at the time of filing and otherwise qualify as the self-petitioner’s child under immigration law.[157] The statutory definition of “child” includes certain children born in or out of wedlock and certain legitimated children, adopted children, and stepchildren.[158]
Self-petitioners may add an eligible child, including a child born after the self-petition was approved, when the self-petitioner applies for an immigrant visa outside the United States or adjustment of status in the United States.[159] A new petition is not required.
Self-petitioners should submit evidence that the derivative beneficiary is under 21 years old and unmarried at the time of filing as well as evidence of the relationship between the self-petitioner and the child.[160] Derivative beneficiaries are granted the same immigrant classification and priority date as the self-petitioner.[161]
If a child turns 21 years old and is unable to benefit from the Child Status Protection Act (CSPA), as long as the self-petition was filed before the child turned 21 years old, the child is automatically considered a principal self-petitioner if the child turns 21 years old before adjusting status.[162] In such a case, the child receives the priority date of the parent’s self-petition.[163] Derivatives do not need to file a separate self-petition; they are placed in the preference category appropriate to their situation.[164]
Footnotes
[^ 1] See Title IV of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 (PDF), 108 Stat. 1796, 1902 (September 13, 1994). See Title V of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464, 1518 (October 28, 2000). See Title VIII of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960, 3053 (January 5, 2006). See Section 6 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 Technical Amendments, Pub. L. 109-271 (PDF), 120 Stat. 750, 762 (August 12, 2006). See Title VIII of the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4 (PDF), 127 Stat. 54, 110 (March 7, 2013).
[^ 2] See INA 101(a)(51). Although INA 101(a)(51) includes several benefits under the term “VAWA self-petitioner,” this part focuses on self-petitions filed under INA 204(a).
[^ 3] See 8 CFR 204.1(a)(3).
[^ 4] See INA 204(a). See 8 CFR 204.2(c)(1)(i). See 8 CFR 204.2(e)(1)(i). See INA 245(a).
[^ 5] See INA 204(a). See 8 CFR 204.1(a)(3). See 8 CFR 204.2(c)(1). See 8 CFR 204.2(e)(1). Although 8 CFR 204.2(c)(1) and 8 CFR 204.2(e)(1) require self-petitioners to demonstrate extreme hardship to themselves or their children if deported; that they reside in the United States at the time of filing; and that their shared residence with the abuser takes place in the United States, the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000) removed these as eligibility requirements and supersedes this part of the regulation.
[^ 6] See INA 201(b)(2)(A)(i). See INA 203(a)(2)(A).
[^ 7] See INA 204(a)(1). See 8 CFR 204.2(c)(1). See 8 CFR 204.2(e)(1).
[^ 8] For more information on evidentiary requirements, see Chapter 5, Adjudication, Section B, Review of Evidence, Subsection 2, Any Credible Evidence Provision [3 USCIS-PM D.5(B)(2)].
[^ 9] See INA 204(a)(1)(J). See 8 CFR 103.2(b)(2)(iii). See 8 CFR 204.1(f)(1). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i). INA 204(a)(1)(J) was not specifically amended to encompass the consideration of secondary evidence submitted by self-petitioning parents. The discussion of evidence found at 8 CFR 103.2(b)(2)(iii) and 8 CFR 204.1(f)(1) regarding self-petitions filed under INA 204(a)(1)(A)(iii) and (iv) and INA 204(a)(1)(B)(ii) and (iii) is applicable to self-petitions filed by abused parents of U.S. citizen sons or daughters under INA 204(a)(1)(A)(vii). For more information about the any credible evidence provision, see Chapter 5, Adjudication, Section B, Review of Evidence, Subsection 2, Any Credible Evidence Provision [3 USCIS-PM D.5(B)(2)].
[^ 10] See 8 CFR 204.1(f)(1).
[^ 11] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i).
[^ 12] See 8 CFR 103.2(b)(1).
[^ 13] See INA 204(a)(1). See 8 CFR 204.2(c)(2)(ii). See 8 CFR 204.2(e)(2)(ii).
[^ 14] Self-petitioning spouses may also include certain intended spouses and former spouses. For more information, see Subsection 2, Self-Petitioning Spouse [3 USCIS-PM D.2(B)(2)]; Chapter 3, Effect of Certain Life Events, Section A, Divorce Prior to Filing the Self-Petition, Subsection 1, Self-Petitioning Spouse’s Divorce [3 USCIS-PM D.3(A)(1)]; and Chapter 3, Effect of Certain Life Events, Section D, Death of the U.S. Citizen, Lawful Permanent Resident, or Self-Petitioner [3 USCIS-PM D.3(D)].
[^ 15] See INA 204(a). See 8 CFR 204.2(c)(1)(i)-(iii). See 8 CFR 204.2(e)(1)(i)-(iii).
[^ 16] See 8 CFR 204.2(c)(2)(ii). See 8 CFR 204.2(e)(2)(ii).
[^ 17] See INA 204(a)(1). See 8 CFR 103.2(b)(1).
[^ 18] See INA 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(A)(vii). See INA 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa). See INA 204(a)(1)(B)(iii). For more information, see Chapter 3, Effect of Certain Life Events, Section E, Loss or Renunciation of U.S. Citizenship or Loss of Lawful Permanent Resident Status [3 USCIS-PM D.3(E)].
[^ 19] See INA 204(a)(1)(A)(vi). See INA 204(a)(1)(B)(v).
[^ 20] See 8 CFR 204.1(g)(1). Note that self-petitioners may submit any credible evidence relevant to the abuser’s U.S. citizenship or LPR status.
[^ 21] See 8 CFR 204.1(g)(1). Note that self-petitioners may submit any credible evidence relevant to the abuser’s U.S. citizenship or LPR status.
[^ 22] See 8 CFR 103.2(b)(17)(ii). See 8 CFR 204.1(g)(3).
[^ 23] See 8 CFR 103.2(b)(17)(ii). See 8 CFR 204.1(g)(3).
[^ 24] See Matter of B--, 6 I&N Dec. 555 (BIA 1955). See Matter of Ah San (PDF), 15 I&N Dec. 315 (BIA 1975).
[^ 25] See INA 204(a)(1)(A)(iii)(II)(aa). See INA 204(a)(1)(B)(ii)(II)(aa). See 8 CFR 204.2(c)(1)(i)-(iii).
[^ 26] See INA 204(a)(1)(A)(iii)(II)(aa)(CC). See INA 204(a)(1)(B)(ii)(II)(aa)(CC). For more information, see Chapter 3, Effect of Certain Life Events, Section A, Divorce Prior to Filing the Self-Petition [3 USCIS-PM D.3(A)] and Section D, Death of the U.S. Citizen, Lawful Permanent Resident, or Self-Petitioner [3 USCIS-PM D.3(D)]. Although 8 CFR 204.2(c)(1)(i)(A) requires that the self-petitioner demonstrate an existing marriage to the abuser at the time of filing, the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000) amended this requirement to allow abused spouses to remain eligible for VAWA benefits if the marriage was terminated due to divorce or death in certain circumstances. VTVPA supersedes this part of the regulation.
[^ 27] See INA 204(a)(1)(A)(vi). See INA 204(a)(1)(B)(v).
[^ 28] See Matter of Lovo-Lara (PDF), 23 I&N Dec. 746 (BIA 2005) and Matter of Da Silva (PDF), 15 I&N Dec. 778 (BIA 1976). To determine the validity of a marriage, USCIS considers the same evidence submitted for a spousal-based Petition for Alien Relative, (Form I-130). For more information on Form I-130 and what constitutes a legally valid marriage, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].
[^ 29] See Matter of H-- (PDF), 9 I&N Dec. 640 (BIA 1962). A polygamous marriage, even if valid where contracted, is not recognized for immigration purposes.
[^ 30] See 8 CFR 204.2(c)(2)(ii).
[^ 31] See 8 CFR 204.2(c)(2)(ii).
[^ 32] See 8 CFR 204.2(c)(2)(ii).
[^ 33] See INA 204(a)(1)(A)(iii)(II)(aa)(BB). See INA 204(a)(1)(B)(ii)(II)(aa)(BB).
[^ 34] For more information on marriages terminated outside the United States, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].
[^ 35] See INA 204(a)(1)(A)(iii)(II)(aa)(BB). See INA 204(a)(1)(B)(ii)(II)(aa)(BB).
[^ 36] See INA 204(a)(1)(A)(iii)(II)(aa)(BB). See INA 204(a)(1)(B)(ii)(II)(aa)(BB).
[^ 37] See INA 204(a)(iii)(I)(bb). See INA 204(a)(1)(B)(ii)(I)(bb). See INA 101(b)(1).
[^ 38] See 8 CFR 204.2(c)(2)(ii).
[^ 39] See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(B)(iii). See INA 101(b)(1). See 8 CFR 204.2(e)(1)(ii).
[^ 40] See INA 101(b)(1). See 8 CFR 204.2(e)(1)(ii).
[^ 41] See INA 204(a)(1)(D)(i). See INA 204(a)(1)(D)(v). See INA 201(f). See INA 203(h). For more information, see Chapter 3, Effect of Certain Life Events, Section G, Child Turning 21 Years Old [3 USCIS-PM D.3(G)].
[^ 42] See 8 CFR 204.2(e)(1)(ii). For more information, see Chapter 3, Effect of Certain Life Events, Section B, Self-Petitioner’s Marriage or Remarriage [3 USCIS-PM D.3(B)].
[^ 43] See INA 101(b)(1). See 8 CFR 204.2(e)(1)(ii).
[^ 44] For more information, see Volume 6, Immigrants, Part B, Family-Based Immigrants, Chapter 8, Children, Sons, and Daughters [6 USCIS-PM B.8] and Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section B, Child Born in Wedlock [12 USCIS-PM H.3(B)].
[^ 45] See 8 CFR 204.2(e)(2)(ii)(A). For more information on acquiring U.S. citizenship at birth, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309) [12 USCIS-PM H.3].
[^ 46] See 8 CFR 204.2(d)(2)(i). USCIS considers the same evidence submitted to demonstrate a parent-child relationship under 8 CFR 204.2(d)(2) as for a child filing a self-petition. Note that officers should always consider any credible evidence submitted by the self-petitioner in accordance with INA 204(a)(1)(J).
[^ 47] See INA 101(b)(1)(A). See INA 101(b)(1)(C). See INA 101(b)(1)(D). See 8 CFR 204.2(e)(2)(ii)(B)-(D).
[^ 48] See 8 CFR 204.2(e)(2)(ii)(B).
[^ 49] See 8 CFR 204.2(d)(2)(i).
[^ 50] See INA 101(b)(1)(C). See 8 CFR 204.2(e)(2)(ii)(C).
[^ 51] See INA 101(b)(1)(C). See 8 CFR 204.2(d)(2)(ii).
[^ 52] See INA 101(b)(1)(C). See 8 CFR 204.2(d)(2)(ii). For more information on legitimation, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].
[^ 53] See INA 101(b)(1)(C). See 8 CFR 204.2(e)(2)(ii)(D).
[^ 54] See 8 CFR 204.2(d)(2)(iii).
[^ 55] See 8 CFR 204.2(d)(2)(iii).
[^ 56] See 8 CFR 204.2(d)(2). See 8 CFR 204.2(e)(2)(ii). See INA 204(a)(1)(J). See 8 CFR 204.2(e)(2)(i). For more information on the consideration of evidence, see Chapter 5, Adjudication, Section B, Review of Evidence, Subsection 2, Any Credible Evidence Provision [3 USCIS-PM D.5(B)(2)].
[^ 57] See INA 101(b)(1)(B).
[^ 58] See Arguijo v. USCIS, 991 F.3d 736 (7th Cir. 2021), holding that divorce does not terminate a stepchild relationship for the purposes of eligibility for a VAWA self-petition. For more information, see Chapter 3, Effect of Certain Life Events, Section A, Divorce Prior to Filing the Self-Petition, Subsection 2, Termination of a Step-Relationship Due to Divorce or Death [3 USCIS-PM D.3(A)(2)].
[^ 59] See Matter of Pagnerre (PDF), 13 I&N Dec. 688 (BIA 1971). This case involves whether a stepdaughter qualifies as a family-based preference category relative of a U.S. citizen under INA 203(a)(3) when the marriage that created the step relationship terminated due to the death of the beneficiary’s biological parent. The court found that there was a continuing step relationship in fact between the petitioner and beneficiary after the death of the beneficiary’s father and approved the petition for preference classification. For more information, see Chapter 3, Effect of Certain life Events, Section A, Divorce Prior to Filing the Self-Petition, Subsection 2, Termination of a Step-Relationship Due to Divorce or Death [3 USCIS-PM D.3(A)(2)].
[^ 60] See 8 CFR 204.2(e)(2)(ii)(E).
[^ 61] See 8 CFR 204.2(e)(2)(ii)(E).
[^ 62] See INA 204(a)(1). For more information, see Section B, Qualifying Relationship, Subsection 2, Self-Petitioning Spouse [3 USCIS-PM D.2(B)(2)].
[^ 63] See INA 101(b)(1)(E).
[^ 64] See INA 101(b)(1)(E)(i).
[^ 65] See INA 101(b)(1)(E)(i). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(B)(iii). There are three different ways for a child to immigrate to the United States based on adoption. See INA 101(b)(1)(E). See INA 101(b)(1)(F). See INA 101(b)(1)(G). See 8 CFR 204.2(d)(2)(vii). See 8 CFR 204.301-8 CFR 204.314. The requirements to self-petition as an abused adopted child apply to the family-based process under INA 101(b)(1)(E), INA 204(a)(1)(A)(iv), and INA 204(a)(1)(B)(iii). See Volume 5, Adoptions, Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].
[^ 66] See INA 101(b)(1)(E)(i). See INA 101(b)(1)(F). See Volume 5, Adoptions, Part E, Family-Based Adoption Petitions [5 USCIS-PM E].
[^ 67] See INA 101(b)(1)(E)(ii). See Volume 5, Adoptions, Part E, Family-Based Adoption Petitions [5 USCIS-PM E].
[^ 68] See 8 CFR 204.2(e)(2)(ii)(F). Although 8 CFR 204.2(e)(2)(ii)(F) requires that self-petitioners submit evidence that they have been residing with and in the legal custody of the abusive adoptive parent for at least 2 years, the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960 (January 5, 2006) removed this as an eligibility requirement and supersedes this part of the regulation.
[^ 69] See INA 204(a)(1)(A)(vii). See INA 101(b)(2). USCIS considers the same evidence submitted to establish eligibility for an abused spouse or child under 8 CFR 204.2(c)(2) and 8 CFR 204.2(e)(2) as for an abused parent.
[^ 70] See INA 101(b)(1).
[^ 71] See Matter of Hassan (PDF), 16 I&N Dec. 16 (BIA 1976).
[^ 72] See INA 101(b)(1). See INA 101(b)(2). A child is defined as “an unmarried person under 21 years of age” in INA 101(b)(1). INA 101(b)(1)(B) and INA 101(b)(1)(E), (F), and (G) further define a child to include a stepchild and an adopted child, respectively. Similarly, “parent,” “father,” and “mother” are defined in INA 101(b)(2) to include stepparents and certain adoptive parents. An abused parent, stepparent, or adoptive parent of a U.S. citizen is therefore eligible to apply for VAWA relief under INA 204(a)(1)(A)(vii) provided that the self-petitioner is a “parent” as defined in INA 101(b)(2) and has or had a qualifying relationship to the U.S. citizen son or daughter. USCIS considers the same evidence submitted for a Petition for Alien Relative (Form I-130) for a child or parent as for a self-petitioning parent to establish a qualifying relationship to a U.S. citizen son or daughter. For more information on Form I-130s, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].
[^ 73] For more information, see Volume 6, Immigrants, Part B, Family-Based Immigrants, Chapter 8, Children, Sons, and Daughters [6 USCIS-PM B.8] and Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section B, Child Born in Wedlock [12 USCIS-PM H.3(B)].
[^ 74] See 8 CFR 204.2(e)(2)(ii)(A). See 8 CFR 204.2(f)(2). USCIS considers the same evidence submitted to demonstrate a parent-child relationship as described in 8 CFR 204.2(e) and 8 CFR 204.2(f)(2) as for a parental relationship for parents filing a self-petition under INA 204(a)(1)(A)(vii). Note that officers should always consider any credible evidence submitted by the self-petitioner in accordance with INA 204(a)(1)(J).
[^ 75] See 8 CFR 204.2(f)(2)(i).
[^ 76] See INA 101(b)(1)(A). See INA 101(b)(1)(C). See INA 101(b)(1)(D). See INA 101(b)(2). See 8 CFR 204.2(e)(2)(ii). See 8 CFR 204.2(f)(2).
[^ 77] See 8 CFR 204.2(e)(2)(ii)(B).
[^ 78] See 8 CFR 204.2(f)(2)(i).
[^ 79] See INA 101(b)(1)(C). See 8 CFR 204.2(e)(2)(ii)(C).
[^ 80] See INA 101(b)(1)(C). See 8 CFR 204.2(f)(2)(ii).
[^ 81] See INA 101(b)(1)(C). See 8 CFR 204.2(f)(2)(ii). For more information on legitimation, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].
[^ 82] See 8 CFR 204.2(f)(2)(iii).
[^ 83] See 8 CFR 204.2(f)(2)(iii).
[^ 84] See 8 CFR 204.2(f)(2)(iii).
[^ 85] See 8 CFR 204.2(e)(2)(ii). See 8 CFR 204.2(f)(2). See INA 204(a)(1)(J). See 8 CFR 204.2(e)(2)(i). For more information on the consideration of evidence, see Chapter 5, Adjudication, Section B, Review of Evidence, Subsection 2, Any Credible Evidence Provision [3 USCIS-PM D.5(B)(2)].
[^ 86] See INA 101(b)(1)(B).
[^ 87] See Arguijo v. USCIS, 991 F.3d 736 (7th Cir. 2021), holding that divorce does not terminate a stepchild relationship for the purposes of eligibility for a VAWA self-petition. For more information, see Chapter 3, Effect of Certain Life Events, Section A, Divorce Prior to Filing the Self-Petition, Subsection 2, Termination of a Step-Relationship Due to Divorce or Death [3 USCIS-PM D.3(A)(2)].
[^ 88] See Matter of Pagnerre (PDF), 13 I&N Dec. 688 (BIA 1971). This case involves whether a stepdaughter qualifies as a family-based preference category relative of a U.S. citizen under INA 203(a)(3) when the marriage that created the step relationship terminated due to the death of the beneficiary’s biological parent. The court found that there was a continuing step relationship in fact between the petitioner and beneficiary after the death of the beneficiary’s father and approved the petition for preference classification. For more information, see Chapter 3, Effect of Certain life Events, Section A, Divorce Prior to Filing the Self-Petition, Subsection 2, Termination of a Step-Relationship Due to Divorce or Death [3 USCIS-PM D.3(A)(2)].
[^ 89] See 8 CFR 204.2(e)(2)(ii)(E).
[^ 90] See 8 CFR 204.2(e)(2)(ii)(E).
[^ 91] To meet the definition of a parent under INA 101(b)(2), the parent’s child must meet one of the definitions of child under INA 101(b)(1). There are three different ways to meet the definition of child based on adoption. See INA 101(b)(1)(E). See INA 101(b)(1)(F). See INA 101(b)(1)(G). See INA 204(a)(1)(A)(vii). See Volume 5, Adoptions, Part A, Adoption Overview [5 USCIS-PM A].
[^ 92] See Volume 5, Adoptions, Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].
[^ 93] See INA 101(b)(1)(E). See INA 101(b)(1)(F). See INA 101(b)(1)(G).
[^ 94] See INA 101(b)(1)(E)(i). In certain circumstances the adoption may take place prior to the child attaining 18 years old if a sibling exception applies. See Volume 5, Adoptions, Part E, Family-Based Adoption Petitions [5 USCIS-PM E].
[^ 95] See INA 101(b)(1)(E).
[^ 96] See INA 101(b)(1)(E). See 8 CFR 204.2(f)(2)(iv). See Volume 5, Adoptions, Part A, Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4]. USCIS considers the same evidence submitted to demonstrate a parent-child relationship under 8 CFR 204.2(f)(2) as for a parent filing a self-petition. Note that officers should always consider any credible evidence submitted by the self-petitioner in accordance with INA 204(a)(1)(J).
[^ 97] To establish an adoptive relationship if the child was adopted through the orphan process under INA 101(b)(1)(F), see Volume 5, Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C]. To establish an adoptive relationship if the child was adopted through the Hague process under INA 101(b)(1)(G), see Volume 5, Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D].
[^ 98] See INA 204(a)(1)(A)(iii)(I). See INA 204(a)(1)(B)(ii)(I). See 8 CFR 204.2(c)(1)(i)(H). See 8 CFR 204.2(c)(1)(ix).
[^ 99] See 8 CFR 204.2(c)(1)(ix).
[^ 100] See 61 FR 13061, 13068 (PDF) (Mar. 26, 1996). See Bark v. INS, 511 F.2d 1200 (9th Cir. 1975). The court stated that evidence of separation, standing alone, cannot support a finding that a marriage was not bona fide when it was entered. The duration of a separation is relevant to, but not dispositive of, an intent to enter a marriage.
[^ 101] See 8 CFR 204.2(c)(2)(vii).
[^ 102] See INA 204(a)(1)(A)(iii)(II)(cc). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(A)(vii). See INA 204(a)(1)(B)(ii)(II)(cc). See INA 204(a)(1)(B)(iii). See INA 201(b)(2)(A)(i). See INA 203(a)(2)(A). See 8 CFR 204.2(c)(1)(i)(B). See 8 CFR 204.2(e)(1)(i)(B).
[^ 103] See 8 CFR 204.2(c)(1)(iv). See 8 CFR 204.2(e)(1)(iv). For more information, see Chapter 3, Effect of Certain Life Events, Section C, Marriage-Related Prohibitions on Self-Petition Approval [3 USCIS-PM D.3(C)].
[^ 104] See INA 204(a)(1)(A)(iii)(I)(bb). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(A)(v)(I)(cc). See INA 204(a)(1)(A)(vii)(V). See INA 204(a)(1)(B)(ii)(I)(bb). See INA 204(a)(1)(B)(iii). See INA 204(a)(1)(B)(iv)(I)(cc). See 8 CFR 204.2(c)(1)(i)(E). See 8 CFR 204.2(e)(1)(i)(E).
[^ 105] See INA 101(b)(1)(E).
[^ 106] See 61 FR 13061, 13065 (PDF) (Mar. 26, 1996).
[^ 107] See 8 CFR 204.2(e)(1)(i)(E).
[^ 108] See INA 204(a)(1)(A)(iv).
[^ 109] See 8 CFR 204.2(e)(1)(i)(E).
[^ 110] See Merriam-Webster Dictionary’s law definition of “battery.”
[^ 111] See Hernandez v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003). “Non-physical actions rise to the level of domestic violence when ‘tactics of control are intertwined with the threat of harm in order to maintain the perpetrator’s dominance through fear…’ Because every insult or unhealthy interaction in a relationship does not rise to the level of domestic violence... Congress required a showing of extreme cruelty in order to ensure that [the VAWA suspension statute] protected against the extreme concept of domestic violence, rather than mere unkindness” (internal citations omitted).
[^ 112] See 8 CFR 204.2(c)(1)(vi). See 8 CFR 204.2(e)(1)(vi).
[^ 113] See 8 CFR 204.2(c)(2)(iv). See 8 CFR 204.2(e)(2)(iv).
[^ 114] See 8 CFR 204.2(c)(2)(iv). See 8 CFR 204.2(e)(2)(iv).
[^ 115] See 8 CFR 204.2(c)(2)(iv). See 8 CFR 204.2(e)(2)(iv).
[^ 116] See 8 CFR 204.2(c)(2)(iv). See 8 CFR 204.2(e)(2)(iv).
[^ 117] See INA 204(a)(1)(A)(iii)(II)(dd). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(A)(vii)(IV). See INA 204(a)(1)(B)(ii)(II)(dd). See INA 204(a)(1)(B)(iii). See 8 CFR 204.2(c)(1)(i)(D). See 8 CFR 204.2(e)(1)(i)(D). USCIS implemented this new interpretation on February 10, 2022 given that several federal courts have recently held that the statutory language does not require shared residence during the qualifying relationship. See Dartora v. U.S., No. 4:20-CV-05161-SMJ (E.D.W.A. June 7, 2021). See Bait It v. McAleenan, 410 F. Supp. 3d 874 (N.D. Ill. 2019). See Hollingsworth v. Zuchowski, 437 F. Supp. 3d 1231 (S.D. Fla. 2020).
[^ 118] See INA 101(a)(33).
[^ 119] See 61 FR 13061, 13065 (PDF) (Mar. 26, 1996).
[^ 120] Although 8 CFR 204.2(c)(1)(v) states that “[a] self-petition will not be approved if the self-petitioner is not residing in the United States,” this portion of the regulation has been superseded by the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000), which removed the requirement for the self-petitioner to reside in the United States.
[^ 121] See 8 CFR 204.2(c)(1)(v). See 8 CFR 204.2(e)(1)(v).
[^ 122] See 8 CFR 204.2(e)(1)(i)(E).
[^ 123] See INA 204(a)(1)(A)(iv).
[^ 124] For more information on filing a VAWA self-petition from outside the United States, see Section H, Self-Petitioners Filing from Outside the United States [3 USCIS-PM D.2(H)].
[^ 125] See 8 CFR 204.2(c)(2)(iii). See 8 CFR 204.2(e)(2)(iii).
[^ 126] See INA 204(a)(1)(A)(iii)(II)(bb). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(A)(vii)(II). See INA 204(a)(1)(B)(ii)(II)(bb). See INA 204(a)(1)(B)(iii). See 8 CFR 204.2(c)(1)(i)(F). See 8 CFR 204.2(e)(1)(i)(F).
[^ 127] See 8 CFR 204.2(c)(1)(vii). See 8 CFR 204.2(e)(1)(vii). See 8 CFR 316.10(a)(2).
[^ 128] See 8 CFR 204.2(e)(2)(v). Affirmative evidence of good moral character is required for all self-petitioning children age 14 or older.
[^ 129] See 61 FR 13061, 13066 (PDF) (Mar. 26, 1996).
[^ 130] See 61 FR 13061, 13066 (PDF) (Mar. 26, 1996). The regulation provides that a self-petition filed by a person of any age may be denied or revoked if the evidence establishes that the person lacks good moral character.
[^ 131] See 8 CFR 204.2(c)(1)(vii). See 8 CFR 204.2(e)(1)(vii). See 8 CFR 316.10(a)(2).
[^ 132] See 61 FR 13061, 13066 (PDF) (Mar. 26, 1996). The statute requires all self-petitioners to be persons of good moral character but does not specify the period for which good moral character must be established. The regulations require evidence of good moral character for the 3 years immediately preceding the date the self-petition is filed.
[^ 133] See 61 FR 13061, 13066 (PDF) (Mar. 26, 1996). USCIS is not precluded from choosing to examine the self-petitioner’s conduct and acts prior to the 3-year period if there is reason to believe that the self-petitioner may not have been a person of good moral character in the past. See Matter of P-- (PDF), 8 I&N Dec. 167 (R.C. 1958). See DeLucia v. INS, 370 F.2d 305 (7th Cir. 1966). See Matter of Sanchez-Linn (PDF), 20 I&N Dec. 362 (BIA 1991). The more serious the past misconduct, the longer the period of good conduct must be to meet the burden of establishing good moral character.
[^ 134] See 8 CFR 204.2(c)(1)(vii). See 8 CFR 204.2(e)(1)(vii).
[^ 135] See 8 CFR 204.2(c)(1)(vii). See 8 CFR 204.2(e)(1)(vii). The self-petitioner may appeal the decision to revoke the approval within 15 days after service of notice of the revocation. See 8 CFR 205.2(d). For more information, see Chapter 6, Post-Adjudicative Matters, Section A, Revocations [3 USCIS-PM D.6(A)].
[^ 136] See INA 101(f)(8)-(9).
[^ 137] See INA 101(f)(8)-(9).
[^ 138] See INA 101(f)(1)-(7). See 61 FR 13061, 13066 (PDF) (Mar. 26, 1996).
[^ 139] See INA 204(a)(1)(C). Note that USCIS applies INA 204(a)(1)(C) to all self-petitioners, including those filing under INA 204(a)(1)(A)(v), INA 204(a)(1)(A)(vii), and INA 204(a)(1)(B)(iv), despite the fact that these self-petitioners are not specifically referenced in INA 204(a)(1)(C).
[^ 140] See INA 101(f).
[^ 141] See 61 FR 13061, 13066 (PDF) (Mar. 26, 1996) (citing to Pablo v. INS, 72 F.3d 110, 113 (9th Cir. 1995) and Gouveia v. INS, 980 F.2d 814, 817 (1st Cir. 1992)).
[^ 142] See 8 CFR 204.2(c)(1)(vii). See 8 CFR 204.2(e)(1)(vii).
[^ 143] See 8 CFR 204.2(c)(1)(vii). See 8 CFR 204.2(e)(1)(vii).
[^ 144] For example, persons who admitted to having engaged in prostitution under duress but had no prostitution convictions were not excludable as prostitutes under INA 212(a)(2)(D), because they were involuntarily reduced to such a state of mind that they were actually prevented from exercising free will through the use of wrongful, oppressive threats or unlawful means. See Matter of M-, 7 I&N Dec. 251 (BIA 1956). See 61 FR 13061, 13066 (PDF) (Mar. 26, 1996).
[^ 145] See INA 101(f). “The fact that any person is not within the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character.” See 8 CFR 204.2(c)(1)(vii). See 8 CFR 204.2(e)(1)(vii).
[^ 146] See 8 CFR 204.2(c)(2)(v). See 8 CFR 204.2(e)(2)(v).
[^ 147] See 8 CFR 204.2(c)(2)(v). See 8 CFR 204.2(e)(2)(v).
[^ 148] See 8 CFR 204.2(c)(2)(v). See 8 CFR 204.2(e)(2)(v). For more information, see the Department of State’s Foreign Affairs Manual (FAM) for information on the availability of foreign clearances by country.
[^ 149] See 8 CFR 204.2(c)(2)(v). See 8 CFR 204.2(e)(2)(v).
[^ 150] See INA 204(a)(1)(C).
[^ 151] Relevant waivers include those under INA 212(h)(1), INA 212(i)(1), INA 237(a)(7), and INA 237(a)(1)(H)(ii).
[^ 152] See Appendix: Statutory Bars to Establishing Good Moral Character – Waivable Conduct [3 USCIS-PM D.2, Appendices Tab], which includes a quick-reference chart indicating which disqualifying acts and convictions under INA 101(f) have a waiver available.
[^ 153] See Da Silva v. Attorney General (PDF), 948 F.3d 629 (3rd Cir. 2020). The court held that “connected to” as it is used in INA 204(a)(1)(C) means “having a causal or logical relationship.”
[^ 154] See INA 204(a)(1)(A)(v). See INA 204(a)(1)(B)(iv). There is no statutory requirement that a self-petitioning parent be living in the United States at the time the self-petition is filed. The filing requirements at INA 204(a)(1)(A)(v) relating to a self-petitioning spouse, intended spouse, or child living abroad of a U.S. citizen are applicable to self-petitions filed by an abused parent of a U.S. citizen son or daughter.
[^ 155] See 8 CFR 204.2(c)(3)(i). See 8 CFR 204.2(e)(3)(i).
[^ 156] See INA 204(a)(1)(A)(iii)(I). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(B)(ii)(I). See INA 204(a)(1)(B)(iii). See 8 CFR 204.2(c)(4). 8 CFR 204.2(e)(4) has been superseded by the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000), which amended the INA to allow children of child self-petitioners to be classified as derivative beneficiaries under INA 204(a)(1)(A)(iv) and INA 204(a)(1)(B)(iii).
[^ 157] See INA 204(a)(1)(A)(iii)(I). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(B)(ii)(I). See INA 204(a)(1)(B)(iii). See 8 CFR 204.2(c)(4).
[^ 158] See INA 101(b)(1).
[^ 159] See 61 FR 13061, 13068 (PDF) (Mar. 26, 1996).
[^ 160] See 8 CFR 204.2(c)(4).
[^ 161] See INA 203(d). See 8 CFR 204.2(c)(4).
[^ 162] See INA 204(a)(1)(D)(i)(III). For more information, see Chapter 3, Effect of Certain life Events, Section G, Child Turning 21 Years Old, Subsection 2, Self-Petitioning Child or Derivative Turns 21 Years Old After the Self-Petition is Filed [3 USCIS-PM D.3(G)(2)].
Chapter 3 - Effect of Certain Life Events
A. Divorce Prior to Filing the Self-Petition
1. Self-Petitioning Spouse’s Divorce
Generally, a self-petitioning spouse of an abusive U.S. citizen or lawful permanent resident (LPR) must show the existence of a qualifying relationship at the time of filing.[1] If the qualifying marriage was legally terminated[2] prior to filing the self-petition, however, self-petitioning spouses may continue to be eligible if they are otherwise eligible for a self-petition and:
- File a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) within the 2-year period immediately following the termination of the marriage; and
- Can demonstrate that the legal termination of the marriage was connected to the battery or extreme cruelty perpetrated by the U.S. citizen or LPR spouse.[3]
The requirement that a self-petitioner file within 2 years following the termination of the marriage is a condition of eligibility for which there is no waiver or equitable tolling available. The 2-year period cannot be equitably tolled because the statute allows for self-petitioning during the marriage and creates a cut-off date for filing when the marriage has terminated.
Evidence
Self-petitions filed within 2 years of the legal termination of the marriage must include evidence that the marriage was legally terminated, such as a final divorce decree or annulment, and that the termination was connected to the battery or extreme cruelty.[4] The specific legal ground for a divorce or annulment does not need to be abuse.
Examples of evidence demonstrating the connection between the legal termination of the marriage and the battery or extreme cruelty may include, but are not limited to, the following:
- The self-petitioner’s own affidavit;
- Affidavits from third parties;
- Final divorce decrees or annulments; or
- Any other credible evidence.
2. Termination of a Step-Relationship Due to Divorce or Death
Divorce
If the marriage between a parent and a stepparent terminates due to divorce, a self-petitioning stepchild and a self-petitioning stepparent continue to be eligible for the self-petition.[5] A stepchild of an abusive U.S. citizen or LPR parent and a stepparent of an abusive U.S. citizen son or daughter may continue to be eligible to self-petition despite the divorce provided that:
- The stepchild had not reached 18 years of age at the time the marriage creating the step relationship occurred;[6] and
- The step relationship existed, by law, at the time of the abuse.
Death
If the marriage between a parent and stepparent terminates due to the death of the biological or legal parent, a self-petitioning stepchild and a self-petitioning stepparent may continue to establish eligibility for the self-petition if they can provide evidence of an ongoing family relationship with the abusive U.S. citizen or LPR stepparent or stepchild, respectively, at the time of filing.[7]
The relationship need not continue after filing.[8] The stepchild or stepparent may continue to be eligible to self-petition despite the termination of the marriage due to the death of the biological or legal parent provided that:
- The stepchild had not reached 18 years of age at the time the marriage creating the step relationship occurred;[9]
- The step relationship existed, by law, at the time of the abuse; and
- The step relationship existed as a matter of fact at the time the self-petition is filed.
Evidence of an ongoing family relationship may include financial and emotional support and any type of communication between the stepchild and stepparent, such as an email, social media post, or any other evidence of contact between them.
B. Self-Petitioner’s Marriage or Remarriage
1. Self-Petitioning Child’s Marriage
Self-petitioning children must be unmarried when the self-petition is filed and when the self-petition is approved.[10] A self-petitioning child who marries after filing the self-petition and remains married while the self-petition is pending is no longer eligible for immigrant classification as a child, as there are no VAWA provisions for married sons and daughters.[11] However, a self-petitioning child who marries after filing the self-petition but whose marriage terminates prior to a final decision on the self-petition may remain eligible under VAWA.[12]
2. Self-Petitioning Spouse’s Remarriage
Self-petitioning spouses may remarry after the self-petition is approved without impacting the approved self-petition or their eligibility for an immigrant visa or adjustment of status. However, if the self-petitioner marries again before approval of the self-petition, the officer must deny the self-petition.[13]
When the Remarriage Occurs | Impact on Self-Petition |
---|---|
Before approval of the self-petition | USCIS denies the pending self-petition because of the remarriage.[14] If the remarriage is not discovered until after USCIS approves the self-petition, USCIS revokes the approval.[15] |
After approval of the self-petition | Remarriage does not affect eligibility.[16] |
C. Marriage-Related Prohibitions on Self-Petition Approval
1. Self-Petitioning Spouses – Marriage While in Removal Proceedings
When USCIS adjudicates a spousal self-petition, there are additional considerations on top of the requirements for a qualifying relationship and a good faith marriage. There is, for example, a prohibition on approving a self-petition if the marriage creating the qualifying relationship occurred while the self-petitioner was in removal proceedings.[17]
The self-petitioner may overcome the general prohibition by requesting an exemption in writing with Form I-360 and submitting evidence demonstrating the following:[18]
- The self-petitioner has resided outside the United States for a 2-year period beginning after the date of the marriage;[19] or
- The self-petitioner provides clear and convincing evidence that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place, the marriage was not entered into to circumvent immigration laws, and no fee or other consideration was given for the filing of the self-petition.[20]
If USCIS denied a prior filing because the marriage took place during removal proceedings, and the self-petitioner then resided outside the United States for a period of 2 years following the marriage, the self-petitioner may file a new petition after the 2-year period. In addition, a denial does not prevent USCIS from considering a new petition or a motion to reopen if removal proceedings are terminated after the denial for any reason except the self-petitioner's departure from the United States.[21]
Although self-petitioners may submit similar evidence to establish a good faith marriage or to qualify for the good faith marriage exemption while in removal proceedings, they must meet a heightened standard of proof when seeking a good faith marriage exemption.
Generally, self-petitioners must establish that they entered into the marriage in good faith by a preponderance of the evidence.[22] To be eligible for a good faith marriage exemption while in removal proceedings, however, a self-petitioner must establish good faith entry into the marriage by the more stringent clear and convincing evidence standard.[23] The heightened standard applies only to the good faith marriage exemption determination; all other eligibility requirements are reviewed under the preponderance of the evidence standard.
The requirement that no fee or other consideration was given for the filing of the petition does not refer to fees paid to attorneys, notarios, or other persons who assisted with filing the self-petition.[24] Rather, this refers to instances where a fee or other consideration was paid in connection with a fraudulent marriage. If a fee or other consideration was paid in order to enter into a fraudulent marriage or to obtain an immigration benefit through a fraudulent marriage, the self-petitioner is ineligible for the good faith marriage exemption.
If the self-petitioner seeks a good faith marriage exemption by showing that the marriage was entered into in good faith and not for the purpose of circumventing immigration laws, examples of the types of evidence the self-petitioner may submit include, but are not limited to:
- Documentation showing joint ownership of property;
- A lease showing joint tenancy of a common residence;
- Documentation showing commingling of financial resources;
- Birth certificate of any children born to the self-petitioner and abusive spouse;
- Affidavits from third parties who know about the bona fides of the marital relationship;[25] or
- Any other credible evidence to establish that the marriage was not entered into in order to evade the immigration laws of the United States.
2. Prior Marriage Fraud
Self-petitioning spouses are required to demonstrate a qualifying spousal relationship and that their marriage was entered into in good faith.[26] Even if the self-petitioner meets these two eligibility requirements, USCIS cannot approve the self-petition where it determines with substantial and probative evidence that the self-petitioner previously:
- Had been granted or has sought to be accorded an immediate relative or family-based preference status as the spouse of a U.S. citizen or LPR based on a marriage that USCIS has determined the self-petitioner entered into for the purpose of evading immigration laws; or
- Attempted or conspired to enter into a marriage for the purpose of evading immigration laws.[27]
Where USCIS determines there is substantial and probative evidence that the self-petitioner previously engaged in marriage fraud, the burden shifts to the self-petitioner to overcome the finding.[28] Officers may not rely solely on a prior finding of marriage fraud but must make a separate and independent determination that the self-petitioner previously engaged in marriage fraud.[29]
USCIS provides self-petitioners with an opportunity to rebut the evidence that they entered into or conspired to enter into a prior marriage for the purpose of evading immigration laws by issuing an Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).
D. Death of the U.S. Citizen, Lawful Permanent Resident, or Self-Petitioner
Self-petitioners must demonstrate a qualifying relationship with the abusive U.S. citizen or LPR relative to be eligible for the self-petition.[30] Historically, if a petitioner for a family-based immigrant visa petition died while the petition was pending or after it was approved and the beneficiary had not yet become an LPR, USCIS denied the petition if it was pending or revoked the petition if it was approved.[31]
Over time, however, Congress recognized the inequities this created for some aliens in these situations and created provisions to allow surviving beneficiaries to continue the immigration process despite the death of certain petitioning relatives and principal beneficiaries.[32]
For self-petitioners and their derivatives, the impact of the U.S. citizen, LPR, or self-petitioner’s death on the validity of the self-petition depends on who died, who the surviving relative is, and whether the self-petition was filed at the time of the death.
Self-petitioners and derivative beneficiaries must notify USCIS of the death of the qualifying relative or the self-petitioner and submit evidence of the death, such as a death certificate.
1. Abusive U.S. Citizen’s Death
Abusive U.S. Citizen Dies Prior to the Filing of the Self-Petition
Self-petitioning spouses or parents whose abusive U.S. citizen relative died before they filed a self-petition continue to remain eligible to file a self-petition for 2 years after the death.[33] The requirement that a self-petitioner file within 2 years following the death of the U.S. citizen relative is a condition of eligibility for which there is no waiver or equitable tolling available. The 2-year period cannot be equitably tolled because the statute allows for self-petitioning while the qualifying relative is living and creates a cut-off date for filing when the relative has died.
Note that for abused parents to be eligible to self-petition, the U.S. citizen son or daughter must have been at least 21 years old when the son or daughter died. If a self-petitioning child’s U.S. citizen parent dies before the child files a self-petition, however, the child is ineligible for VAWA benefits.[34]
Abusive U.S. Citizen Relative Dies While the Self-Petition is Pending or Approved
If a self-petitioning spouse, child, or parent had a pending or approved self-petition at the time of the U.S. citizen’s death, the death does not impact their eligibility for the pending self-petition or require revocation of an approved self-petition.[35] The self-petitioner remains eligible to apply for an immigrant visa or adjustment of status after the self-petition is approved.[36]
The table below provides a summary of the impact that the death of the abusive U.S. citizen relative has on a self-petition based on the type of self-petition that is filed and if the self-petition was filed at the time of the U.S. citizen’s death.
Self-Petitioner | Petition Not Filed | Petition Pending | Petition Approved |
---|---|---|---|
Spouse | Remains eligible to file self-petition up to 2 years after U.S. citizen spouse’s death | Remains eligible for self-petition | Self-petition remains approved and self-petitioner remains eligible for immigrant visa or adjustment of status |
Child | Not eligible for self-petition | Remains eligible for self-petition | Self-petition remains approved and self-petitioner remains eligible for immigrant visa or adjustment of status |
Parent | Remains eligible to file self-petition up to 2 years following U.S. citizen son or daughter’s death | Remains eligible for self-petition | Self-petition remains approved and self-petitioner remains eligible for immigrant visa or adjustment of status |
2. Abusive Lawful Permanent Resident’s Death
If the LPR relative dies before an abused spouse or child files a self-petition, the self-petitioning spouse or child is ineligible for VAWA benefits. If the abusive LPR relative dies while a self-petition is pending or was previously approved, USCIS may approve the self-petition or continue adjudication for an adjustment of status application based on an approved self-petition in certain circumstances under INA 204(l) as a matter of discretion.[37] In order to remain eligible for the self-petition under INA 204(l), self-petitioners must demonstrate:
- They resided in the United States when the LPR relative died; and
- They continue to reside in the United States on the date the pending self-petition or adjustment of status application is approved.[38]
When there are derivative children beneficiaries, if the self-petitioner or any one derivative beneficiary meets the residence requirement, then, as a matter of discretion, USCIS may approve the self-petition or application for adjustment of status. The self-petitioner and all beneficiaries may be eligible to immigrate to the same extent that would have been permitted if the LPR relative had not died. It is not necessary for the self-petitioner and each derivative child to meet the residence requirements.
3. Self-Petitioner’s Death
If a self-petitioning spouse or self-petitioning child dies while the self-petition is pending or after it is approved, USCIS may approve the self-petition or continue adjudication for an adjustment of status application based on an approved self-petition for any derivative children of the self-petitioner as a matter of discretion under INA 204(l). Derivative beneficiaries do not have to be included on the self-petition to be considered for relief under INA 204(l) as long as they are eligible as derivative beneficiaries.
E. Loss or Renunciation of U.S. Citizenship or Loss of Lawful Permanent Resident Status
A self-petitioner must demonstrate a qualifying relationship to a U.S. citizen or LPR at the time of filing to be eligible for a self-petition.[39] Therefore, historically, if abusive U.S. citizen or LPR relatives had lost or renounced their U.S. citizenship or LPR status, self-petitioners were no longer eligible for the self-petition.
Congress recognized, however, that an abuser’s loss of U.S. citizenship or LPR status may have been related to an incident of domestic violence, and that the loss would impact a self-petitioner’s eligibility for VAWA benefits. So when Congress passed the Battered Immigrant Women Protection Act (BIWPA) in 2000, it amended the immigration laws to preserve self-petitioning eligibility in certain cases where abusers lost their U.S. citizenship or LPR status for a reason related to an incident of domestic violence, as long as the self-petition is filed within 2 years of the loss or renunciation.[40]
BIWPA also provided that if abusive U.S. citizens or LPRs lost their status after the self-petition was filed, then self-petitioners would retain their eligibility despite the loss of status without having to show a connection between the loss of U.S. citizenship or LPR status and an incident of domestic violence.[41]
Self-petitioners must notify USCIS if their qualifying relative lost or renounced U.S. citizenship or LPR status. Officers may check USCIS electronic systems to confirm the loss or renunciation of citizenship or LPR status.
1. Loss or Renunciation of U.S. Citizenship or Loss of Lawful Permanent Resident Status Prior to Filing
If abusive U.S. citizen or LPR relatives lost or renounced their U.S. citizenship or LPR status before the self-petition was filed, the self-petitioner may remain eligible if the loss or renunciation of status was related or due to an incident of domestic violence. The loss or renunciation must also have occurred within the 2-year period immediately preceding the filing of the self-petition.[42]
The requirement that a self-petitioner file within 2 years following the qualifying relative’s loss or renunciation of U.S. citizenship or LPR status is a condition of eligibility for which there is no waiver or equitable tolling available. The 2-year period cannot be equitably tolled because the statute allows for self-petitioning while the qualifying relative maintains U.S. citizenship or LPR status and creates a cut-off date for filing when the qualifying relative has lost U.S. citizenship or LPR status.
Note that for self-petitioning parents, the abusive son or daughter must have been 21 years of age or older when the son or daughter’s citizenship was lost or renounced.
USCIS considers the full history of domestic violence when determining whether the abuser’s loss or renunciation of status is related to an incident of domestic violence. When considering whether the loss or renunciation of status was related to an incident of domestic violence, USCIS determines whether the evidence submitted establishes:
- The circumstances surrounding the loss or renunciation of status;
- Whether the loss or renunciation of status is related to the incident of domestic violence; and
- The loss or renunciation of status occurred within the 2-year period immediately preceding the filing of the self-petition.
Examples of evidence demonstrating the above requirements may include but are not limited to:
- Self-affidavits;
- Police, child protective services, and other related reports;
- Court records;
- Immigration records; and
- Any other credible evidence of the above requirements.
2. Loss or Renunciation of U.S. Citizenship or Loss of Lawful Permanent Resident Status After Filing
The loss or renunciation of the qualifying relative’s U.S. citizenship or LPR status after the self-petition is filed does not impact a self-petitioning spouse or child’s eligibility or adversely affect an approved self-petition. There is no requirement to show a relation between the loss or renunciation of U.S. citizenship or LPR status and an incident of battery or extreme cruelty. The self-petitioner remains eligible for VAWA benefits.[43] In addition, loss or renunciation of the qualifying relative’s U.S. citizenship or LPR status does not adversely affect an approved VAWA self-petitioner’s ability to adjust status.[44]
Self-petitioning parents, however, whose U.S. citizen sons or daughters have denaturalized or lost or renounced their U.S. citizenship after the self-petition is filed are no longer eligible for the self-petition.[45] If a self-petitioning parent’s self-petition was previously approved, it may be revoked in such circumstances.
F. Lawful Permanent Resident’s Naturalization
If abusive LPRs naturalize after their spouse or child files a self-petition, the self-petitioning spouse or child is automatically reclassified as the spouse or child of a U.S. citizen.[46] The self-petitioner does not need to file a new self-petition; the reclassification occurs regardless of whether the self-petition remains pending or is approved at the time of the naturalization.[47] The self-petitioner is reclassified even if the abusive spouse or parent acquires citizenship after a divorce or termination of parental rights.[48]
G. Child Turning 21 Years Old
Generally, self-petitioning and derivative children must be under 21 years old and unmarried in order to be eligible as self-petitioners or be included as derivative beneficiaries on the self-petition at the time of filing.[49] If abused children turn 21 years old before they are able to file a self-petition, however, they may continue to remain eligible to file the self-petition as a child in certain circumstances as long as they remain unmarried.[50]
1. Self-Petitioning Child Turning 21 Years Old Before Filing the Self-Petition
In the past, otherwise eligible sons and daughters of U.S. citizens and LPRs were precluded from filing a self-petition if they reached age 21 before the self-petition could be filed. The inability to file a self-petition before turning 21 years old may have been due to a number of reasons, including the nature of the abuse or the time period that the abuse took place.
The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), however, amended the Immigration and Nationality Act (INA) by adding a new provision that permitted the late filing of a self-petition in certain circumstances to expand protections for abused children who were unable to file a self-petition before turning 21 years old.[51]
Self-petitioning children may remain eligible to file a self-petition as a child even after turning 21 years old but before turning 25 years old if they are unmarried and can demonstrate the following:
- They were eligible to file the self-petition on the day before they turned 21; and
- The abuse was one central reason for the delay in filing.[52]
Self-petitioners must have been qualified to file the self-petition on the day before they turned 21 years old. This means that they must have met all eligibility requirements on that date. For example, if the abuse took place only after they turned 21, then they were not eligible to file the self-petition on the day before they turned 21 years old.
In addition to meeting all of the eligibility requirements as of the day before the self-petitioner turned 21 years old, the abuse must have been “one central reason” for the self-petitioner’s delay in filing.[53] The battery or extreme cruelty is not required to be the sole reason for the delay in filing, but the connection between the battery or extreme cruelty and the delay in filing must be more than tangential.
An example where a self-petitioner could potentially meet this requirement may be that the abuse took place so near in time to the self-petitioner turning 21 years old that there was insufficient time to file the self-petition. Another example is that the abuse was so traumatic that the self-petitioner was mentally or physically incapable of filing a self-petition prior to turning 21 years old. These are only hypothetical examples; the abuse must be identifiable as one central reason for the delay.
If self-petitioners are eligible to file after turning 21 years old, USCIS treats them as if the self-petition had been filed on the day before they turned 21 years old. If USCIS approves the self-petition, however, the self-petitioner’s continued eligibility and subsequent classification for visa issuance or adjustment of status is governed by the Child Status Protection Act (CSPA) or the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), whichever is appropriate.[54]
Evidence
Self-petitioners must submit evidence that they were eligible to file the self-petition before they turned 21 years old and that the abuse was one central reason for the delay. USCIS considers the totality of the circumstances leading to the delay in filing and the full history of battery or extreme cruelty in the case.
Examples of evidence that may demonstrate that the self-petitioner’s abuse was one central reason for the delay may include but are not limited to:
- Reports or affidavits detailing incidents of abuse that occurred prior to the self-petitioner turning 21 years old from police, judges, court officials, medical personnel, counselors, social workers or other social service agency personnel, or school officials;
- Evidence that the self-petitioner sought refuge at a shelter because of the abuse;
- A personal statement describing the battery or extreme cruelty that occurred prior to the self-petitioner turning 21 years old;
- An explanation for how the abuse was one central reason for the delay in filing the self-petition; or
- Any other credible evidence.
2. Self-Petitioning Child or Derivative Turns 21 Years Old After the Self-Petition is Filed
Under CSPA, if a child turns 21 years old after the self-petition is filed but before it is adjudicated, the INA includes protections for self-petitioning and derivative children to retain eligibility after turning 21 years old as long as they remain unmarried.[55] Self-petitioning and derivative children may continue to be classified as children for immigration purposes under the CSPA in certain circumstances.[56]
If children are not eligible under CSPA, they may be eligible under VTVPA, which provides that self-petitioning children who turn 21 years old after the self-petition is filed will automatically be considered self-petitioners for preference status under INA 203 as long as they remain unmarried.[57]
Derivative children who turn 21 years old after the self-petition is filed will automatically be considered a self-petitioner with the same priority date as the self-petitioner who originally filed the self-petition, as long as the child remains unmarried.[58]
No new petition is required for either a self-petitioning or derivative child.[59] Self-petitioning or derivative children may marry after the self-petition is approved and remain eligible for an immigrant visa or adjustment of status in the appropriate preference category to their situation.[60] They do not need to file a new self-petition and will retain the priority date from the approved self-petition.
Footnotes
[^ 1] See 8 CFR 204.2(c)(1)(i). See Chapter 2, Eligibility Requirements and Evidence, Section B, Qualifying Relationship, Subsection 2, Self-Petitioning Spouse [3 USCIS-PM D.2(B)(2)].
[^ 2] USCIS generally recognizes the legal termination of a marriage in cases where the termination is valid under the laws of the jurisdiction where the marriage is terminated, or the jurisdiction of a subsequent marriage recognizes the validity of the termination.
[^ 3] See INA 204(a)(1)(A)(iii)(ii)(aa)(CC)(ccc). See INA 204(a)(1)(B)(ii)(II)(aa)(CC)(bbb).
[^ 4] See INA 204(a)(1)(A)(iii)(ii)(aa)(CC)(ccc). See INA 204(a)(1)(B)(ii)(II)(aa)(CC)(bbb).
[^ 5] See Arguijo v. USCIS, 991 F.3d 736 (7th Cir. 2021), holding that divorce does not terminate a stepchild relationship for the purposes of eligibility for a VAWA self-petition.
[^ 6] See INA 101(b)(1)(B).
[^ 7] See Matter of Pagnerre (PDF), 13 I&N Dec. 688 (BIA 1971). This case involves whether a stepdaughter qualifies as a family-based preference category relative of a U.S. citizen under INA 203(a)(3) when the marriage that created the step relationship terminated due to the death of the beneficiary’s biological parent. The court found that there was a continuing step relationship in fact between the petitioner and beneficiary after the death of the beneficiary’s father and approved the petition for preference classification.
[^ 8] See INA 204(a)(1)(A)(vi). See INA 204(a)(1)(B)(v).
[^ 9] See INA 101(b)(1)(B).
[^ 10] See INA 101(b)(1). See 8 CFR 204.2(e)(1)(ii).
[^ 11] See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(B)(iii) requiring eligibility for immigrant classification under INA 201(b)(2)(A)(i) and INA 203(a)(2)(A).
[^ 12] See INA 201(f). See 8 CFR 204.2(e)(1)(ii).
[^ 13] See INA 204(a)(1)(A)(II)(aa). See INA 204(a)(1)(B)(II)(aa). See 8 CFR 204.2(c)(1)(ii). See Delmas v. Gonzalez, 422 F.Supp.2d 1299 (S.D. Fla. 2005) (self-petitioner’s remarriage prior to filing self-petition was disqualifying). Note that 8 CFR 204.2(c)(1)(ii) states: “The self-petitioning spouse must be legally married to the abuser when the petition is properly filed with the Service. A spousal self-petition must be denied if the marriage to the abuser legally ended through annulment, death, or divorce before that time.” This portion of the regulation has been superseded by the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF) (October 28, 2000), which removed the requirement for the self-petitioner to remain married to the abuser at the time the self-petition is filed. The remainder of 8 CFR 204.2(c)(1)(ii) remains valid: “After the self-petition has been properly filed, the legal termination of the marriage will have no effect on the decision made on the self-petition. The self-petitioner’s remarriage, however, will be a basis for denial of a pending self-petition.”
[^ 14] See 8 CFR 204.2(c)(1)(ii).
[^ 15] See 8 CFR 205.1(a)(3)(i)(E). See 8 CFR 205.2.
[^ 16] See INA 204(h).
[^ 17] See INA 204(g). See INA 245(e)(3). See 8 CFR 204.2(c)(1)(iv).
[^ 18] See 8 CFR 204.2(a)(1)(iii). USCIS considers the same evidence submitted for a spousal-based Petition for Alien Relative (Form I-130) under 8 CFR 204.2(a)(1)(iii) for self-petitioning spouses.
[^ 19] See INA 204(g). See 8 CFR 204.2(a)(1)(iii).
[^ 20] See INA 245(e)(3). See 8 CFR 204.2(a)(1)(iii).
[^ 21] See 8 CFR 204.2(a)(1)(iii)(D).
[^ 22] To meet this standard, the alien must prove a claimed fact is more likely than not to be true. See Matter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010). For more information about the good faith marriage requirement for self-petitioning spouses, see Chapter 2, Eligibility Requirements and Evidence, Section C, Good Faith Marriage (Self-Petitioning Spouses Only) [3 USCIS-PM D.2(C)].
[^ 23] See INA 245(e)(3). See Matter of Arthur (PDF), 20 I&N Dec. 475, 478 (BIA 1992) and Pritchett v. I.N.S., 993 F.2d 80, 85 (5th Cir. 1993) (acknowledging clear and convincing evidence as an exacting standard).
[^ 24] See INA 245(e)(3).
[^ 25] See 8 CFR 204.2(a)(1)(iii)(B)(5). Third parties submitting affidavits may be required to testify before a USCIS officer as to the information contained in the affidavit. Affidavits should be sworn to or affirmed by persons not parties to the petition who have personal knowledge of the marital relationship. Each affidavit should generally contain the full names, addresses, and dates and places of birth of the persons providing the affidavit and their relationship to the spouses, if any. The affidavit should contain complete information and details explaining how the affiants acquired knowledge of the marriage. Self-petitioners are not required to demonstrate the unavailability of primary or secondary evidence, but affidavits should be supported, if possible, by one or more types of documentary evidence listed in this section. All evidence submitted, including affidavits are reviewed under the any credible evidence provision described in Chapter 5, Adjudication, Section B, Review of Evidence, Subsection 2, Any Credible Evidence Provision [3 USCIS-PM D.5(B)(2)]. See INA 204(a)(1)(J). See 8 CFR 103.2(b)(2)(iii). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i).
[^ 26] See INA 204(a)(1)(A)(iii). See INA 204(a)(1)(B)(ii). See 8 CFR 204.2(c)(1)(i).
[^ 27] See INA 204(c). See 8 CFR 204.2(a)(1)(ii). See Matter of Tawfik (PDF), 20 I&N Dec. 166 (BIA 1990) and Matter of R.I. Ortega, 28 I&N Dec. 9 (BIA 2020). USCIS considers the same evidence submitted for a spousal-based Petition for Alien Relative (Form I-130) under 8 CFR 204.2(a)(1)(ii) for self-petitioning spouses.
[^ 28] See Matter of Kahy (PDF), 19 I&N Dec. 803 (BIA 1988) and Matter of Tawfik (PDF), 20 I&N Dec. 166 (BIA 1990). Substantial and probative evidence is evidence that would permit a reasonable fact-finder to conclude that a given factual claim is true. See INS v. Elias-Zacarias, 502 U.S. 478 (1992). Substantial and probative evidence is more than a preponderance of the evidence, but less than clear and convincing evidence. See Matter of Singh, 27 I&N Dec. 598 (BIA 2019). For more information, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].
[^ 29] See Matter of Tawfik (PDF), 20 I&N Dec. 166 (BIA 1990).
[^ 30] See INA 204(a)(1). See 8 CFR 204.2(c)(2)(ii). See 8 CFR 204.2(e)(2)(ii).
[^ 31] See 8 CFR 205.1(a)(3)(i). See Matter of Sano (PDF), 19 I&N Dec. 299 (BIA 1985) and Matter of Varela (PDF), 13 I&N Dec. 453 (BIA 1970).
[^ 32] See INA 201(b)(2)(A)(i). See INA 204(l). See INA 204(a)(1)(A)(iii)(II)(aa)(CC)(aaa). See INA 204(a)(1)(A)(vii). See INA 204(a)(1)(A)(vi).
[^ 33] See INA 204(1)(A)(iii)(II)(aa)(CC)(aaa). See INA 204(a)(1)(A)(vii). Note that spouses of U.S. citizens who have not legally separated or divorced at the time of the U.S. citizen’s death may also be eligible as widow(er)s under INA 201(b)(2)(A)(i) if they file a petition within 2 years of the death.
[^ 34] See INA 204(a)(1)(A)(iv).
[^ 35] See INA 204(a)(1)(A)(vi).
[^ 36] See INA 204(a)(1)(A)(vi).
[^ 37] See INA 204(l)(2)(B).
[^ 38] See INA 204(l). For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 9, Death of Petitioner or Principal Beneficiary [7 USCIS-PM A.9].
[^ 39] See INA 204(a)(1). See 8 CFR 204.2(c)(2)(ii). See 8 CFR 204.2(e)(2)(ii).
[^ 40] See Title V of Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000). See INA 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(A)(vii). See INA 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa)(iii).
[^ 41] See INA 204(a)(1)(A)(vi).
[^ 42] See INA 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb). See INA 204(a)(1)(A)(iv). See INA 204(a)(1)(A)(vii). See INA 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa)(iii).
[^ 43] See INA 204(a)(1)(A)(vi). See INA 204(a)(1)(B)(v)(1).
[^ 44] See INA 204(a)(1)(A)(vi). See INA 204(a)(1)(B)(v)(1).
[^ 45] See INA 204(a)(1)(A) (vi) - (vii). There are no statutory provisions that allow for continued eligibility for self-petitioning parents whose U.S. citizen sons or daughters have denaturalized or lost or renounced their U.S. citizenship after the self-petition is filed.
[^ 46] See INA 204(a)(1)(B)(v)(II).
[^ 47] See INA 204(a)(1)(B)(v)(II).
[^ 48] See INA 204(a)(1)(B)(v)(II).
[^ 49] See INA 101(b)(1). See 8 CFR 204.2(c)(4). See 8 CFR 204.2(e)(1)(ii). 8 CFR 204.2(e)(4) has been superseded by the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF) (October 28, 2000), which allows children of child self-petitioners to be classified as derivative beneficiaries under INA 204(a)(1)(A)(iv) and INA 204(a)(1)(B)(iii).
[^ 50] See INA 204(a)(1)(D)(v).
[^ 51] See Section 805(c) of VAWA 2005, Pub. L. 109-162 (PDF), 119 Stat. 2960 (January 5, 2006) and Section 6(a) of the Violence Against Women and Department of Justice Reauthorization Act of 2005 Technical Amendments, Pub. L. 109-271 (PDF), 120 Stat. 750 (August 12, 2006). See INA 204(a)(1)(D)(v).
[^ 52] See INA 204(a)(1)(D)(v).
[^ 53] See INA 204(a)(1)(D)(v).
[^ 54] See Pub. L. 107-208 (PDF), 116 Stat. 927 (August 6, 2002) adding INA 201(f) and INA 203(h) and Title V of Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000) adding INA 204(a)(1)(D)(i)(I) and INA 203(a)(1)-(3).
[^ 55] See Pub. L. 107-208 (PDF), 116 Stat. 927 (August 6, 2002) adding INA 201(f) and INA 203(h).
[^ 56] See INA 201(f). See INA 203(h). For more information on CSPA, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].
[^ 57] See Title V of Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000) adding INA 204(a)(1)(D)(i)(I) and INA 203(a)(1)-(3).
[^ 58] See INA 204(a)(1)(D)(i)(III).
[^ 59] See INA 204(a)(1)(D)(i)(I) and (III).
[^ 60] See INA 204(a)(1)(D)(i). See INA 204(h).
Chapter 4 - Filing Requirements
A. Filing Requirements and Initial Review
An alien seeking to self-petition under the Violence Against Women Act (VAWA) must properly file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) with supporting evidence in accordance with the Form I-360 instructions.[1] USCIS considers Form I-360 as properly filed if it is:
- Submitted on the current edition of the form;
- Filed at the correct filing location; and
- Properly signed.[2]
When initially reviewing the Form I-360, USCIS first determines whether the Form I-360 has been properly filed according to the above criteria. If the self-petition is not properly filed, USCIS rejects the filing and returns it to the self-petitioner.[3] If the self-petition is properly filed, USCIS sends the self-petitioner a receipt notice with a receipt, or filing date. There is no fee when Form I-360 is filed as a VAWA self-petition.[4]
Self-petitioning spouses, children, and parents of U.S. citizens may seek to adjust status as immediate relatives by filing an Application to Register Permanent Residence or Adjust Status (Form I-485) at any time, because visas are always immediately available for immediate relatives.[5]
If, however, the self-petitioner is a spouse or child of a lawful permanent resident (LPR) and seeking to adjust under a family-based preference category, the self-petitioner may need to wait for a visa to become available before filing a Form I-485.[6]
If a visa is immediately available, the self-petitioner may file the Form I-485:
- Together (or “concurrently”) with the Form I-360;
- While the Form I-360 is pending; or
- After the Form I-360 is approved (and remains valid).[7]
1. Priority Dates
The priority date is the date the self-petition is properly filed and is used in conjunction with the Department of State Visa Bulletin to determine whether an immigrant visa is immediately available. For purposes of visa availability, a self-petitioner’s priority date is generally the date the self-petition was filed.
If self-petitioners were beneficiaries of a previously filed Petition for Alien Relative (Form I-130) filed by the abusive qualifying relative, they may retain the priority date from the Form I-130.[8] The earlier priority date may be assigned without regard to the current validity of the visa petition. Officers may verify a claimed filing by searching USCIS electronic systems or other records.[9]
Note that derivative beneficiaries must be under 21 years old and unmarried at the time Form I-360 is filed to be included as derivative beneficiaries, even if they had a previously filed Form I-130 filed for them.[10] If derivative beneficiaries are eligible to be included on the Form I-360 at the time of filing, then they may retain the self-petitioner’s priority date from a previously filed Form I-130.[11]
B. Documentation Requirements
Self-petitioners must file Form I-360 and submit documentation in accordance with the Form I-360 instructions to establish, by a preponderance of the evidence, that they meet the eligibility requirements.[12]
While self-petitioners are encouraged to submit primary evidence, where available, USCIS must consider any credible evidence relevant to the self-petition.[13] The determination of what evidence is credible and the weight to be given that evidence is within the sole discretion of USCIS.[14]
Self-petitioners must submit evidence for each of the eligibility requirements.[15] Documentation should include:
- Evidence of the abusive relative’s U.S. citizenship or LPR status, such as a birth certificate, an unexpired U.S. passport, a Certificate of Naturalization, or a copy of a Permanent Resident Card (Form I-551);[16]
- Evidence of a qualifying relationship that demonstrates a familial, legal relationship to the abuser, such as birth certificates, marriage certificates, and divorce decrees;[17]
- Evidence of having entered the marriage in good faith (for self-petitioning spouses only), such as insurance policies showing one spouse has been listed as the other spouse’s beneficiary; joint property leases, income tax forms, or accounts; or evidence of courtship, a wedding ceremony, shared residence, and other shared experiences;[18]
- Evidence of battery or extreme cruelty perpetrated by the U.S. citizen or LPR during the qualifying relationship (self-petitioning spouses may submit evidence of their child being subjected to battery or extreme cruelty), such as reports and affidavits from police, judges, other court officials, medical personnel, school officials, clergy, social workers, and other social service personnel; court or medical records; or protection orders;[19]
- Evidence of shared residence with the abusive U.S. citizen or LPR, such as leases, deeds, mortgages, or rental agreements listing the abuser and the self-petitioner; utility invoices, bank statements, or financial documents listing a common address; school records listing the parent and address of record; medical records; or income tax filings; and[20]
- Evidence of good moral character if the self-petitioner is 14 years old or older, such as affidavits and a local police clearance or state-issued criminal background check from each locality or state in or outside the United States where the self-petitioner has resided for 6 months or more during the 3-year period immediately preceding the filing of the self-petition.[21]
Footnotes
[^ 1] See 8 CFR 103.2(a)(1). See 8 CFR 106.2(a)(16)(ii). See 8 CFR 204.1(b). See 8 CFR 204.1(a)(3).
[^ 2] See 8 CFR 103.2(a)(2). See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2].
[^ 3] See 8 CFR 103.2(a)(7)(ii).
[^ 4] See Fee Schedule (Form G-1055).
[^ 5] See INA 201(b). See INA 245(a). See 8 CFR 245.2(a)(2)(i).
[^ 6] For information on visa availability, see Visa Availability and Priority Dates, Adjustment of Status Filing Charts, and the Department of State website to view the Visa Bulletin. 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)] and Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
[^ 7] See 8 CFR 245.2(a)(2)(i).
[^ 8] See 8 CFR 204.2(h)(2). See 61 FR 13061, 13069 (PDF) (Mar. 26, 1996). 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)].
[^ 9] See 61 FR 13061, 13069 (PDF) (Mar. 26, 1996).
[^ 10] See 8 CFR 204.2(c)(4).
[^ 11] See 8 CFR 204.2(c)(4).
[^ 12] See INA 204(a). See 8 CFR 204.2(c)(1). See 8 CFR 204.2(e)(1). Although 8 CFR 204.2(c)(1) and 8 CFR 204.2(e)(1) require self-petitioners to demonstrate extreme hardship to themselves or their children if deported; that they reside in the United States at the time of filing; and that their shared residence with the abuser take place in the United States, the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (PDF), 114 Stat. 1464 (October 28, 2000) removed these as eligibility requirements and supersedes this part of the regulation.
[^ 13] See INA 204(a)(1)(J). See 8 CFR 103.2(b)(2)(iii). See 8 CFR 204.1(f)(1). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i). INA 204(a)(1)(J) was not specifically amended to encompass the consideration of secondary evidence submitted by self-petitioning parents. The discussion of evidence found at 8 CFR 103.2(b)(2)(iii) and 8 CFR 204.1(f)(1) regarding self-petitions filed under INA 204(a)(1)(A)(iii) and (iv) and INA 204(a)(1)(B)(ii) and (iii) are applicable to self-petitions filed by abused parents of U.S. citizen sons or daughters under INA 204(a)(1)(A)(vii). For more information about the any credible evidence provision, see Chapter 5, Adjudication, Section B, Review of Evidence, Subsection 2, Any Credible Evidence Provision [3 USCIS-PM D.5(B)(2)].
[^ 14] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i).
[^ 15] See INA 204(a)(1). See 8 CFR 204.2(c)(1). See 8 CFR 204.2(e)(1). For more detailed information on the evidence required for each eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence [3 USCIS-PM D.2].
[^ 16] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section B, Qualifying Relationship, Section 1, Abuser’s U.S. Citizenship or Lawful Permanent Resident Status [3 USCIS-PM D.2(B)(1)].
[^ 17] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section B, Qualifying Relationship [3 USCIS-PM D.2(B)].
[^ 18] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section C, Good Faith Marriage (Self-Petitioning Spouses Only) [3 USCIS-PM D.2(C)].
[^ 19] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section E, Subjected to Battery or Extreme Cruelty [3 USCIS-PM D.2(E)].
[^ 20] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section F, Residence with the Abusive Relative [3 USCIS-PM D.2(F)].
[^ 21] For more detailed information on the evidence required for this eligibility requirement, see Chapter 2, Eligibility Requirements and Evidence, Section G, Good Moral Character [3 USCIS-PM D.2(G)].
Chapter 5 - Adjudication
A. Prima Facie Review
After receipting a self-petition, USCIS first determines whether the evidence submitted establishes a prima facie (“at first look”) case.[1] Self-petitioning spouses and children and any listed derivative beneficiaries may be considered “qualified aliens” eligible for certain public benefits if they can establish a prima facie case for immigrant classification or have an approved self-petition.[2]
USCIS does not make a prima facie determination for self-petitions filed from outside the United States. Self-petitioners who are outside the United States are not eligible for U.S. public benefits. Note that although USCIS issues prima facie determinations for self-petitioning parents of U.S. citizens, they are not included in the definition of “qualified aliens” in statute and are, therefore, ineligible for public benefits as “qualified aliens.”[3]
1. Establishing a Prima Facie Case
To establish a prima facie case, the self-petitioner must submit a completed Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) and evidence to support each of the eligibility requirements for the self-petition.[4] The self-petitioner must merely address each of the eligibility requirements but need not prove eligibility in order to establish a prima facie case.[5]
If USCIS determines that a self-petitioner has demonstrated prima facie eligibility, USCIS issues a Notice of Prima Facie Case (NPFC) to the self-petitioner.[6] The decision to issue an NPFC rests solely with USCIS.[7]
If USCIS determines that the self-petitioner did not establish a prima facie case upon initial review, officers may, in their discretion, issue a Request For Evidence (RFE) seeking additional evidence. If additional evidence is submitted and the self-petitioner establishes a prima facie case upon second review, USCIS issues an NPFC.
Regardless of whether a self-petitioner establishes a prima facie case and receives an NPFC or not, USCIS may discover additional deficiencies while adjudicating the self-petition. For such cases, USCIS may issue an RFE and will consider RFE responses solely to adjudicate the self-petition.[8]
Note that the NPFC does not confer immigration status or a benefit, and a self-petitioner may not apply solely for an NPFC. USCIS’ decision to issue or not issue an NPFC is not a consideration in the adjudication of the underlying self-petition, and a prima facie determination, whether favorable or adverse, is not a final adjudication of the self-petition.
A favorable NPFC does not mean the self-petitioner has established eligibility for the underlying self-petition, and additional evidence may be required to establish such eligibility after a favorable NPFC has been issued.[9]
2. Validity Period and Renewals
Self-petitioners may use the NPFC as evidence to establish their eligibility for certain public benefits and are eligible to renew their NPFC, as needed, until USCIS completes adjudication of the self-petition.[10] NPFCs are initially valid for 1 year. If USCIS has not made a decision on the self-petition by the time the NPFC expires, USCIS automatically sends a renewed NPFC within 60 days of the expiration date.
The NPFC is renewed for 180 days and continues to be renewed for 180-day periods until USCIS adjudicates the self-petition. If the Form I-360 is denied, USCIS does not re-issue or extend the NPFC. Filing an appeal of Form I-360 does not extend the validity of an existing NPFC.
B. Review of Evidence
1. Standard of Proof
The standard of proof refers to the quality and weight of the evidence required to prove a fact. The standard of proof to establish eligibility for a self-petition is preponderance of the evidence.[11] Establishing eligibility by a preponderance of the evidence means that it is more likely than not that the self-petitioner qualifies for the benefit. This is a lower standard of proof than both the “clear and convincing” and “beyond a reasonable doubt” standards of proof. The burden is on self-petitioners to demonstrate their eligibility for the self-petition by a preponderance of the evidence.[12]
2. Any Credible Evidence Provision
Generally, petitioners are required to submit primary or secondary evidence with a family-based immigrant visa petition.[13] Although Violence Against Women Act (VAWA) self-petitioners are encouraged to submit primary or secondary evidence whenever possible, an officer must consider any credible evidence a self-petitioner submits to establish eligibility.[14] The determination of what evidence is credible and the weight to be given to the evidence is within the sole discretion of USCIS.[15]
For VAWA self-petitioners, the abusive family member may control access to or destroy necessary documents in furtherance of the abuse, which may prevent the applicant from being able to submit specific documentation. Other self-petitioners may have fled the abusive situation without taking important documents with them.
Congress created the “any credible evidence” standard for VAWA filings in recognition of these evidentiary challenges. Officers should be aware of and consider these issues when evaluating the evidence.
Weighing and Determining the Credibility of Evidence
A self-petition may not be denied for failure to submit a particular piece of evidence.[16] An officer may only deny a self-petition on evidentiary grounds if the evidence that was submitted is not credible or otherwise fails to establish eligibility. Officers may not require that the self-petitioner demonstrate the unavailability of primary evidence or a specific document. An explanation from the self-petitioner, however, regarding the unavailability of such documents may assist officers in adjudicating the case.
Officers determine what evidence is credible on a case-by-case basis. Often, evidence that is credible in one setting will not be so in another. Officers should consider whether the evidence may be credible or not on either an internal or external basis.
For example, evidence that is inconsistent with the other elements of the self-petition is likely not internally credible; and evidence that does not conform to external facts, such as information contained in USCIS electronic databases, is likely not credible on an external basis. Officers should carefully review evidence in both these regards before making a credibility determination. The determination of what is credible will often also be a function of other elements in the case.
For example, if USCIS finds a self-petitioner’s testimony in an affidavit to be inconsistent internally or inconsistent with other evidence, officers could determine in their discretion that the evidentiary value of that affidavit may be diminished. However, officers could determine in their discretion that minor inconsistencies regarding information that is not material to the self-petitioner’s eligibility would not likely diminish the evidentiary value of the self-petitioner’s affidavit.
Some general principles are applicable in making a credibility determination. Officers generally should give more weight to primary evidence and evidence provided in court documents, medical reports, police reports, and other official documents.[17] Self-petitioners who submit affidavits are encouraged, but not required, to provide affidavits from more than one person. Any form of documentary evidence may be submitted, and the absence of a particular form or piece of evidence is not grounds for denial of the self-petition.
USCIS may issue an RFE or a Notice of Intent to Deny to notify self-petitioners of deficiencies in the self-petition and to allow them an opportunity to respond before issuing a final decision.[18]
C. Decision
1. Discretion
The decision to approve or deny a self-petition is not discretionary.[19] If USCIS determines that the alien meets all the eligibility requirements for the self-petition, USCIS approves the self-petition. If derogatory information unrelated to eligibility for the self-petition is discovered, the officer may forward the information to an investigation unit for appropriate action. Unless the derogatory information relates to eligibility for the self-petition, however, such information cannot serve as the basis for a denial.
2. Approvals
If USCIS determines that the facts and information provided with the Form I-360 demonstrate eligibility by a preponderance of the evidence, USCIS approves the self-petition.
Self-petitioning spouses, children, and parents of abusive U.S. citizens are considered immediate relatives and make seek adjustment of status or an immigrant visa immediately after approval of the self-petition, as a visa is immediately available for this category of family-based immigrants.[20] Immediate relatives in the United States also have the option to file an application for adjustment of status concurrently with the self-petition, as the visa is immediately available after the petition is approved.[21]
Self-petitioning spouses and children of abusive LPRs receive a visa number from a family-based preference category when the self-petition is approved and may file an application for adjustment of status or seek an immigrant visa when a visa is available.[22] If a self-petitioner seeks an immigrant visa from outside the United States, USCIS forwards the self-petition to the National Visa Center.[23]
Note that an approved self-petition does not confer immigration status to self-petitioners and their derivative beneficiaries. An approved self-petition provides immigrant classification so that the self-petitioner and any derivative beneficiaries have a basis upon which they may be eligible to apply for lawful permanent resident status.
Employment Authorization
Approved self-petitioners and their derivative beneficiaries are eligible for employment authorization.[24] USCIS may issue an Employment Authorization Document (EAD) to principal self-petitioners upon approval if they requested an EAD on Form I-360.[25]
Derivative beneficiaries may apply for an EAD by submitting an Application for Employment Authorization (Form I-765) and supporting documentation of the principal’s approved self-petition and of the qualifying derivative relationship. Persons eligible for employment authorization based on an approved self-petition receive an EAD with a (c)(31) employment authorization code.
Approved principal self-petitioners and derivative beneficiaries must file Form I-765 when renewing their VAWA-based employment authorization.[26] Principal self-petitioners and derivatives who are living outside of the United States are not eligible to receive an EAD.
Deferred Action
Approved self-petitioners and their derivative beneficiaries may be considered for deferred action on a case-by-case basis.[27] Derivative beneficiaries requesting deferred action must include a copy of the self-petitioner’s approval notice and evidence of the qualifying derivative relationship with the request.
3. Denials
If USCIS finds that the facts and information provided with the Form I-360 do not demonstrate eligibility by a preponderance of the evidence, then USCIS denies the self-petition. USCIS notifies the self-petitioner of the denial in writing and provides the reason(s) for the denial and the right to appeal the decision.[28] A denial of a self-petition does not prevent the self-petitioner from filing another self-petition.
D. Special Considerations for Self-Petitions Filed Subsequent to Family-Based Immigrant Petition and Adjustment Application
Self-petitioners may have previously been the beneficiary of a Petition for Alien Relative (Form I-130) and filed an Application to Register Permanent Residence or Adjust Status (Form I-485) before filing the self-petition. If the Form I-485 is pending, self-petitioners may notify USCIS either verbally in person or in writing by mail to the local USCIS field office that they filed a self-petition, and request that USCIS hold adjudication of the Form I-485 until the Form I-360 is adjudicated and change the underlying basis of the pending Form I-485 to the self-petition.
If a person intends to file a self-petition, they may notify USCIS either verbally in person or in writing by mail to the local USCIS field office of their intention to file the Form I-360 and request that USCIS hold the adjudication of the Form I-485. The written notification should contain the person’s name and A-Number, and a safe address where USCIS can contact them. The person has 30 days from the day USCIS receives notification of the request to file the Form I-360. If the self-petitioner does not file a self-petition within 30 days of the request, USCIS continues adjudication of the Form I-485 based on the Form I-130. Officers may check USCIS electronic systems to confirm that a self-petition was filed.
When a person notifies USCIS that they intend to file a self-petition or have already filed a self-petition, DHS considers the confidentiality protections at 8 U.S.C. 1367(a)(1) to apply to the self-petitioner.[29] However, if the person does not file a self-petition, USCIS concludes they do not want be treated as a VAWA self-petitioner and the protections of 8 U.S.C. 1367 will not apply to the adjudication of any forms.[30]
Footnotes
[^ 1] See 8 CFR 204.2(e)(6).
[^ 2] See the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193 (PDF), 110 Stat. 2105 (August 22, 1996) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208 (PDF), 110 Stat. 3009 (September 30, 1996), which restricted eligibility for public assistance to “qualified aliens.”
[^ 3] See Pub. L. 104-193 (PDF), 110 Stat. 2105 (August 22, 1996).
[^ 4] See 8 CFR 204.2(c)(6)(ii). See 8 CFR 204.2(e)(6)(ii). For more information, see Chapter 2, Eligibility Requirements and Evidence [3 USCIS-PM D.2].
[^ 5] See 8 CFR 204.2(c)(6)(ii). See 8 CFR 204.2(e)(6)(ii).
[^ 6] See 8 CFR 204.2(c)(6)(iii). See 8 CFR 204.2(e)(6)(iii).
[^ 7] See 62 FR 60769, 60770 (PDF) (November 13, 1997).
[^ 8] See 8 CFR 103.2(b)(8).
[^ 9] See 8 CFR 204.2(c)(6)(ii). See 8 CFR 204.2(e)(6)(ii).
[^ 10] See 8 CFR 204.2(c)(6)(iii). See 8 CFR 204.2(e)(6)(iii).
[^ 11] See Matter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010); Matter of Martinez (PDF), 21 I&N Dec. 1035, 1036 (BIA 1997); and Matter of Soo Hoo (PDF), 11 I&N Dec 151 (BIA 1965). Note that in certain circumstances, the self-petitioner may be required to satisfy a higher standard of proof. See Chapter 3, Effect of Certain Life Events, Section B, Self-Petitioner’s Marriage or Remarriage [3 USCIS-PM D.3(B)].
[^ 12] See INA 291. See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966).
[^ 13] See 8 CFR 204.1(f).
[^ 14] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i). See 61 FR 13061 (PDF) (March 26, 1996).
[^ 15] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i). See 8 CFR 103.2(b)(2)(iii). See 8 CFR 204.2(e)(2)(i). See 61 FR 13061 (PDF) (March 26, 1996).
[^ 16] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i). See 61 FR 13061 (PDF) (March 26, 1996).
[^ 17] See 61 FR 13061, 13068 (PDF) (March 26, 1996).
[^ 18] See 8 CFR 103.2(b)(8).
[^ 19] See INA 204(b).
[^ 20] See INA 201(b). See INA 245(a). See 8 CFR 245.2(a)(2)(i). See 8 CFR 245.1(g).
[^ 21] See 8 CFR 245.2(a)(2)(i)(B) and (C).
[^ 22] See INA 203(a). See INA 245(a). See 8 CFR 245.2(a)(2)(i). See 8 CFR 245.1(g). Visa availability depends on several factors, including the self-petitioner’s immigrant classification. Information on visa availability and priority dates is available at the Adjustment of Status Filing Charts from the Visa Bulletin web page. 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)] and Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
[^ 23] See 8 CFR 204.2(c)(3)(i). See 8 CFR 204.2(e)(3)(i).
[^ 24] See INA 204(a)(1)(K). See INA 204(a)(1)(D)(i)(II). See INA 204(a)(1)(D)(i)(IV).
[^ 25] See INA 204(a)(1)(K). See the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).
[^ 26] For additional information on VAWA-based employment authorization, see Instructions for Form I-360 and the Application for Employment Authorization (Form I-765).
[^ 27] See INA 103(a). See INA 204(a)(1)(D)(i)(II). See INA 204(a)(1)(D)(i)(IV). See Heckler v. Chaney, 470 U.S. 821, 831 (1985). Note that deferred action does not permit a person to re-enter the United States lawfully without prior approval if the person were to depart the country.
[^ 28] See 8 CFR 204.2(c)(3)(ii). See 8 CFR 204.2(e)(3)(ii). See 8 CFR 103.3(a).
[^ 29] See 8 U.S.C. 1367. See Implementation of Section 1367 Information Provisions (PDF), DHS Instruction 002-02-001, Revision 00.1, issued November 7, 2013. For more information, see Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 7, Privacy and Confidentiality, Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)].
Chapter 6 - Post-Adjudicative Matters
A. Revocations
USCIS may revoke the approval of a self-petition with notice to the self-petitioner if, at any time prior to adjustment of status or consular processing, USCIS becomes aware of information that constitutes “good and sufficient cause” warranting revocation.[1] Examples of reasons why the approval of a self-petition may be revoked may include, but are not limited to:
- The self-petitioner is no longer a person of good moral character; or
- The self-petitioner was not eligible for Violence Against Women Act (VAWA) classification at the time of filing.
Unless the revocation is an automatic revocation,[2] USCIS must provide self-petitioners with notice of the intent to revoke the approval of the self-petition and provide them an opportunity to respond.[3]
If USCIS decides to revoke the approval of the self-petition following consideration of the response, the officer must provide written notification of the decision explaining the specific reasons for the revocation.[4] The self-petitioner may appeal the decision to revoke the approval within 15 calendar days after service of the notice of the revocation or 18 days if the decision was sent by mail.[5]
1. Authority to Revoke a Self-Petition
The service centers have sole authority to revoke the approval of a self-petition. Service center officers who adjudicate VAWA self-petitions receive specialized training on domestic violence and abuse and have developed expertise in this subject matter, including expertise in identifying fraud. Therefore, in order to ensure consistency in the adjudication of VAWA self-petitions, USCIS field offices that believe a self-petition should be reviewed for possible revocation must return it to the appropriate service center for review and decision on the revocation.
2. USCIS Field Office – Officer’s Request for Review of an Approved Self-Petition
Officers in USCIS field offices adjudicating an Application to Register Permanent Residence or Adjust Status (Form I-485) based on an approved VAWA self-petition generally may not inquire about instances of abuse or extreme cruelty or attempt to re-adjudicate the merits of the underlying approved self-petition. If, however, officers find or obtain new information that leads them to reasonably believe that the approval of the self-petition should be revoked, they must prepare a detailed memorandum for their supervisor.
The officer must explain why the self-petition should be reviewed for possible revocation, and the memorandum must state what the new information is and how USCIS obtained it. Information is not considered new if it was available to the service centers at the time of the approval of the self-petition.
Officers must keep in mind the 8 U.S.C. 1367 confidentiality provisions preventing USCIS from making an adverse determination using information provided solely by an abuser, a family member of the abuser living in the same household, or someone acting on the abuser’s behalf, as well as the prohibition on the unauthorized disclosure of information related to a protected person, including acknowledgment that a self-petition exists.[6]
3. USCIS Field Office – Supervisory Review
If after reviewing the officer’s memorandum, the supervisor concurs with the officer’s recommendation to revoke the approval of the self-petition, the supervisor must sign the memorandum and forward it along with the A-File to the appropriate service center with an attention to “VAWA I-360.”
4. Service Center VAWA I-360 Unit – Supervisory Review
A VAWA I-360 supervisor at the service center must review the field office memorandum and the related file to determine whether to initiate the revocation process or to reaffirm the self-petition. If the supervisor disagrees with the recommendation of the field office and decides to reaffirm the self-petition, a separate memorandum must be prepared explaining why the self-petition was reaffirmed. The service center then returns the memorandum to the USCIS field office that made the recommendation. If the supervisor agrees with the recommendation to revoke the approval of the self-petition, the service center issues a notice of intent to revoke the approval to the self-petitioner.
The service center is expected to complete its review process on an expedited basis. In all cases, self-petitions that are sent to a service center from a USCIS field office or to a USCIS field office from a service center must be accompanied by a memorandum that is signed by the appropriate supervisor.
B. Appeals, Motions to Reopen, and Motions to Reconsider
If USCIS denies a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), and a self-petitioner disagrees with the decision or has additional evidence to show the decision was incorrect, the self-petitioner may file an appeal, a motion to reopen, or a motion to reconsider by submitting a Notice of Appeal or Motion (Form I-290B).[7]
The self-petitioner must file the appeal or motion within 30 days of the denial or 33 days if USCIS sent the denial by mail.[8] There is no exception to the filing period for appeals and motions to reconsider. For a motion to reopen, USCIS may excuse, in its discretion, the self-petitioner’s failure to file before this period expires where the self-petitioner demonstrates that the delay was reasonable and beyond their control.[9]
Footnotes
[^ 1] See INA 205. See 8 CFR 205.1(a). See 8 CFR 205.2(a).
[^ 2] See 8 CFR 205.1(a).
[^ 3] See 8 CFR 205.2(b).
[^ 4] See 8 CFR 205.2(c).
[^ 5] See 8 CFR 205.2(d). See 8 CFR 103.8(b). Self-petitioners may appeal the decision to revoke the self-petition by filing a Notice of Appeal or Motion (Form I-290B).
[^ 6] See 8 U.S.C. 1367(a)(1)-(2).
[^ 7] See 8 CFR 103.5.
[^ 8] See 8 CFR 103.5.
Part E - Employment Authorization for Abused Spouses of Certain Nonimmigrants
Part F - Parolees
Chapter 1 - Purpose and Background
A. Purpose
The Immigration and Nationality Act (INA) gives the Secretary of Homeland Security discretionary authority to parole into the United States temporarily, under conditions the Secretary may prescribe, on a case-by-case basis for urgent humanitarian reasons or significant public benefit, any alien applying for admission to the United States, regardless of whether the person is inadmissible to, or removable from, the United States.[1]
Congress did not define the phrase “urgent humanitarian reasons or significant public benefit,” entrusting the interpretation and application of these standards to the Secretary.
B. Background
Parole decisions are discretionary determinations made on a case-by-case basis consistent with the INA. To exercise its parole authority, USCIS must determine that parole into the United States is justified by urgent humanitarian reasons or significant public benefit.
USCIS has the authority to impose conditions on the grant of parole, including requiring reasonable assurances that the parolee will appear at all hearings and will depart the United States when required to do so.[2]
In general, if USCIS favorably exercises its discretion to authorize parole for an alien located outside of the United States, then either USCIS or the U.S. Department of State issues a travel document to enable the alien to travel to a U.S. port of entry and request parole from U.S. Customs and Border Protection (CBP). CBP officers make the ultimate determination, upon the alien’s arrival at a U.S. port of entry, whether to parole the alien into the United States and for what length of time. Once an alien is paroled into the United States, the parole allows the alien to stay temporarily in the United States.
Parole is not an admission to the United States.[3] When an alien is paroled into the United States, the alien is still deemed to be an applicant for admission.[4]
Parole terminates automatically upon the expiration of the authorized parole period or upon the parolee’s departure from the United States.[5] Parole also may be terminated upon written notice to the alien if USCIS determines the purpose for which the parole was authorized has been accomplished or if USCIS determines that neither humanitarian reasons nor public benefit warrant the continued presence of the parolee in the United States. When parole is terminated, the alien is “restored to the status that he or she had at the time of parole.”[6]
Generally, an alien who is paroled into the United States is not employment authorized incident to parole.[7] Rather, most parolees must apply for and be granted employment authorization and be issued an Employment Authorization Document (Form I-766) before they may legally work in the United States.[8] The grant of employment authorization is a separate determination from the grant of parole.
C. Legal Authorities [Reserved]
[Reserved]
Footnotes
[^ 1] See INA 212(d)(5)(A). USCIS, U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP) all have authority to authorize parole. See Delegation of Authority to the Commissioner of U.S. Customs and Border Protection, Delegation 7010.3, signed May 11, 2006. See Delegation of Authority to the Assistant Secretary for U.S. Immigration and Customs Enforcement, Delegation 7030.2, signed November 13, 2004 (effective March 1, 2003). See Delegation of Authority to the Bureau of Citizenship and Immigration Services, Delegation 0150.1, signed June 5, 2003 (effective March 1, 2003). See Memorandum of Agreement, Coordinating the Concurrent Exercise by USCIS, ICE, and CBP, of the Secretary’s Parole Authority under INA 212(d)(5)(A) with Respect to Certain Aliens Located Outside of the United States, signed September 2008.
[^ 2] See 8 CFR 212.5(d).
[^ 3] See INA 101(a)(13)(B). See INA 212(d)(5)(A). See 8 CFR 1.2 (“An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”).
[^ 4] See INA 212(d)(5)(A).
[^ 5] See 8 CFR 212.5(e)(1).
[^ 6] See 8 CFR 212.5(e). See Hassan v. Chertoff, 593 F.3d 785, 789 (9th Cir. 2010).
[^ 7] However, certain parolees are employment authorized incident to parole for any employer and other parolees are employment authorized with a specific employer incident to parole. For example, entrepreneurs paroled under 8 CFR 212.19 are employment authorized with a specific employer incident to their parole. See 8 CFR 274a.12(b)(37). In addition, DHS has decided as a matter of policy to provide the benefit of employment authorization incident to parole akin to what is normally accorded to refugees (as well as a no-fee initial and replacement of an initial Employment Authorization Document) to certain Afghan parolees and certain Ukrainian parolees so that they receive similar treatment as refugees, which aligns with the spirit of legislation that states that certain Afghan parolees and certain Ukrainian parolees “shall be eligible for . . . other benefits available to refugees . . . .” See Section 2502(b) of the Extending Government Funding and Delivering Emergency Assistance Act, Pub. L. 117-43 (PDF), 135 Stat. 344, 377 (September 30, 2021), amended by Section 1501 of Division M of the Consolidated Appropriations Act of 2023, Pub. L. 117-328 (PDF), 136 Stat. 4459, 5189 (December 29, 2022), and Section 401(b) of the Additional Ukraine Supplemental Appropriations Act, Pub. L. 117-128 (PDF), 136 Stat. 1211, 1218 (May 21, 2022). For more information on employment eligibility for aliens, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures, Chapter 2, Eligibility Requirements [10 USCIS-PM A.2].
[^ 8] See 8 CFR 274a.12(c)(11) and 8 CFR 274a.13.
Part G - International Entrepreneur Parole
Chapter 1 - Purpose and Background
A. Purpose
The international entrepreneur parole regulations provide a framework for DHS to use its parole authority[1] to grant a period of authorized stay, on a case-by-case basis, to alien entrepreneurs who possess a substantial ownership interest in a start-up entity and who can demonstrate that their stay in the United States would provide a significant public benefit through that start-up entity’s potential for rapid business growth and job creation.
Although an individual who is paroled into the United States has not been admitted into the United States for purposes of immigration law, parolees may enter and remain in the United States and may be authorized to work.
B. Background
Given the complexities involved in adjudicating applications from entrepreneurs claiming a significant public benefit, DHS established, by regulation, criteria for the case-by-case evaluation of parole applications filed by entrepreneurs of start-up entities. By including such criteria in a regulation, as well as establishing application requirements that are specifically tailored to capture the necessary information for processing parole requests on this basis, DHS facilitated the use of parole in this area.[2]
DHS published a final rule introducing the criteria for entrepreneurs seeking significant public benefit parole on January 17, 2017, with an effective date of July 17, 2017.[3] While DHS subsequently issued a rule with request for comment delaying the effective date of the rule to March 14, 2018,[4] the U.S. District Court for the District of Columbia vacated the delay rule.[5] Subsequently, on May 29, 2018, DHS issued a proposed rule that sought to remove the International Entrepreneur Rule.[6] DHS, however, did not finalize that rule. Instead, it withdrew the proposed removal rule, signifying its support of the program.[7]
On September 13, 2021, consistent with the investment and revenue amount adjustment provision in the final rule, DHS issued a technical amendment of the regulation to adjust the amounts by the Consumer Price Index for All Urban Consumers (CPI-U), effective as of October 1, 2021.[8] On July 25, 2024, DHS issued another technical amendment of the regulation to adjust the amounts once again by the CPI-U, effective as of October 1, 2024.[9]
C. Legal Authorities
- INA 212(d)(5) – Parole
- INA 274A – Unlawful employment of aliens
- 8 CFR 212.19 – Parole for entrepreneurs
- 8 CFR 274a – Control of employment of aliens
Footnotes
[^ 1] See INA 212(d)(5).
[^ 2] See 82 FR 5238 (PDF) (Jan. 17, 2017).
[^ 3] See 82 FR 5238 (PDF) (Jan. 17, 2017).
[^ 4] See 82 FR 31887 (PDF) (Jul. 11, 2017).
[^ 5] See Nat'l Venture Capital Ass'n v. Duke, 291 F. Supp. 3d 5 (D.D.C. Dec. 1, 2017).
[^ 6] See 83 FR 24415 (PDF) (May 29, 2018) (proposed rule).
[^ 7] See 86 FR 25809 (PDF) (May 11, 2021). See 86 FR 8277 (PDF) (Feb. 5, 2021), which directed agencies to identify any agency actions that fail to promote access to the legal immigration system.
[^ 8] See 86 FR 50839 (PDF) (Sept. 13, 2021).
[^ 9] See 89 FR 60298 (Jul. 25, 2024).
Chapter 2 - Requirements for Consideration
A. Applicant and Start-up Entity Criteria
An applicant files an Application for Entrepreneur Parole (Form I-941) to be considered for parole as an international entrepreneur. To be considered for such parole, the applicant must demonstrate that a grant of parole will provide a significant public benefit to the United States based on the applicant’s entrepreneurial role with a start-up entity in the United States that has significant potential for rapid growth and job creation.[1]
An applicant need not be outside the United States to apply. Persons outside the United States, persons in the United States in nonimmigrant status, and those who are in the United States not presently maintaining nonimmigrant status may apply.
If their Form I-941 is approved, those applicants who are in the United States would have to depart the United States and would need to appear at a port of entry to request parole into the United States. However, applicants who are in the United States but are not in a lawful status (for example, their Arrival/Departure Record (Form I-94) expired and they are no longer in a nonimmigrant status) may have accrued unlawful presence and may face immigration consequences upon departure from the United States.
1. Applicant Requirements
Central and Active Role
The applicant must have a central and active role in the operations of the start-up entity.[2] Within that role, the applicant must be well-positioned, due to their knowledge, skills, or experience, to substantially assist the entity with the growth and success of its business.[3]
Substantial Ownership Interest
The applicant must also have a substantial ownership in the start-up entity. USCIS considers the applicant to have substantial ownership if the applicant possesses at least a 10 percent ownership interest in the start-up entity at the time of adjudication of the Form I-941.[4] If granted parole, an applicant may reduce their ownership interest below 10 percent during the period of initial parole, so long as the applicant maintains at least a 5 percent ownership interest in the start-up entity during the initial parole period.[5]
While the applicant does not need to be the sole owner, no more than three entrepreneurs may be granted international entrepreneur parole based on the same start-up entity.[6]
2. Start-up Entity Requirements
The applicant’s start-up entity must be:
- A corporation, limited liability company, partnership, or other entity that is organized under federal law or the laws of any state, and that conducts business in the United States;
- Not primarily engaged in the offer, purchase, sale or trading of securities, futures contracts, derivatives, or similar instruments;[7]
- Formed within the 5 years immediately preceding the date the applicant filed the initial parole application and lawfully doing business during any period of operation since its date of formation; and
- An entity with substantial potential for rapid growth and job creation.[8]
The Business Structures overview provides more information on the most common business forms or structures, including information on formation, fundamental characteristics, and the tax forms submitted to the Internal Revenue Service.
B. Qualified Investment or Government Award or Grant
1. Investment Option
An applicant can demonstrate the start-up entity’s substantial potential for rapid growth and job creation through a qualified investment if, within the 18 months immediately preceding the filing of the Form I-941, one or more qualified investors made qualified investments that together are at least the required amount. The required amount automatically adjusts every 3 years by the Consumer Price Index for All Urban Consumers (CPI-U).[9]
The following table outlines the required amount of investment in the start-up, which varies based on the date the applicant filed the Form I-941.
Filing Date | Investment Amount |
---|---|
Before October 1, 2021 | $250,000 |
October 1, 2021 through September 30, 2024 | $264,147 |
On or after October 1, 2024 | $311,071 |
Qualified Investment
To be considered a qualified investment, the investment must be made in good faith and not be an attempt to circumvent any limitations imposed on investments under 8 CFR 212.19. The investment must be lawfully derived capital in a start-up entity that is a purchase from such entity of its equity, convertible debt, or other security convertible into its equity commonly used in financing transactions within such entity's industry.
A qualified investment does not include an investment, directly or indirectly, from:
- The entrepreneur;
- The parents, spouse, brother, sister, son, or daughter of such entrepreneur; or
- Any corporation, limited liability company, partnership, or other entity in which such entrepreneur or the parents, spouse, brother, sister, son, or daughter of such entrepreneur directly or indirectly has any ownership interest.
Qualified Investor
While an applicant is not prohibited from personally investing in the start-up entity or otherwise securing additional funding, only investments from a qualified investor count towards the minimum investment amount.
A qualified investor is an individual who is a U.S. citizen or lawful permanent resident (LPR) of the United States, or an organization that is located in the United States and operates through a legal entity organized under the laws of the United States or any state, that is majority owned and controlled, directly and indirectly, by U.S. citizens or LPRs of the United States.
A qualified investor must also regularly make substantial investments in start-up entities that subsequently exhibit substantial growth in terms of revenue generation or job creation by demonstrating that during the preceding 5 years:
- The qualified investor made investments in start-up entities in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within their respective industries comprising a total in such 5-year period of no less than the investment amount in the chart below; and
- Subsequent to such investment by such individual or organization, at least two such entities each either created at least five qualified jobs or generated revenue of at least the amount in the chart below with average annualized revenue growth of at least 20 percent.[10]
The following table outlines the required amount of investment and revenue for qualified investors’ prior investments, which varies based on the date the applicant filed the Form I-941.
Filing Date | Investment Amount | Revenue Amount |
---|---|---|
Before October 1, 2021 | $600,000 | $500,000 |
October 1, 2021 through September 30, 2024 | $633,952 | $528,293 |
On or after October 1, 2024 | $746,571 | $622,142 |
The term qualified investor does not include an individual or organization that has been:
- Permanently or temporarily enjoined from participating in the offer or sale of a security or in the provision of services as an investment adviser, broker, dealer, municipal securities dealer, government securities broker, government securities dealer, bank, transfer agent or credit rating agency;
- Barred from association with any entity involved in the offer or sale of securities or provision of such services; or
- Otherwise found to have participated in the offer or sale of securities or provision of such services in violation of law.[11]
2. Government Award or Grant Option
An applicant can demonstrate the start-up entity’s substantial potential for rapid growth and job creation through a qualified government award or grant. The applicant must show that, within the 18 months immediately preceding the filing of the Form I-941, the start-up entity received one or more qualified government awards or grants of at least the minimum required amount.[12]
Qualified awards or grants include those for economic development, research and development, or job creation (or other similar monetary awards typically given to start-up entities) made by a federal, state, or local government entity (not including foreign government entities) that regularly provides such awards or grants to start-up entities. Contractual commitments for goods or services do not constitute qualifying awards or grants.[13]
The following table outlines the minimum required amount for government awards and grants, which varies based on the date the applicant filed the Form I-941.
Filing Date | Award or Grant Amount |
---|---|
Before October 1, 2021 | $100,000 |
October 1, 2021 through September 30, 2024 | $105,659 |
On or after October 1, 2024 | $124,429 |
3. Alternative Option
If the applicant satisfies the criteria demonstrating that they are an entrepreneur in a start-up entity but only partially meets one or both of the criteria for qualified investments or qualified awards or grants, USCIS may still consider the applicant for entrepreneur parole if the applicant provides additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation. When considered in totality, the evidence must serve as a compelling validation of the entity’s substantial potential for rapid growth and job creation.[14]
C. Significant Public Benefit
There is no statutory or regulatory definition of significant public benefit.[15] Parole determinations are case-by-case discretionary determinations that consider the totality of the circumstances of each case.
Footnotes
[^ 1] See 8 CFR 212.19(b)(2)(i).
[^ 2] See 8 CFR 212.19(a)(1).
[^ 3] See 8 CFR 212.19(a)(1).
[^ 4] See 8 CFR 212.19(a)(1). For information on the percentage of ownership required for re-parole see Chapter 5, Additional Periods of Parole, Section B, Criteria for Consideration [3 USCIS-PM G.5(B)].
[^ 5] See 8 CFR 212.19(a)(1).
[^ 6] See 8 CFR 212.19(f).
[^ 7] See 8 CFR 212.19(a)(9) (defining U.S. business entity).
[^ 8] See 8 CFR 219.12(a)(2).
[^ 9] See 8 CFR 212.19(l).
[^ 10] See 8 CFR 212.19(a)(5). Qualified job means full-time employment located in the United States that has been filled for at least 1 year by one or more U.S. citizens, LPRs, or other immigrants lawfully authorized to be employed in the United States, who is not an entrepreneur of the relevant start-up entity (or the parent, spouse, brother, sister, son, or daughter of such entrepreneur) nor an independent contractor. See 8 CFR 212.19(a)(6) and 8 CFR 212.19(a)(7).
[^ 11] See 8 CFR 212.19(a)(5).
[^ 12] See 8 CFR 212.19(a)(3) and 8 CFR 212.19(b)(2)(ii)(B)(2).
[^ 13] See 8 CFR 212.19(a)(3).
[^ 14] See 82 FR 5238, 5240 (PDF) (Jan. 17, 2017).
[^ 15] However, 8 CFR 212.19 lists some of the factors USCIS considers when determining whether an applicant’s proposal would provide a significant public benefit to the United States.
Chapter 3 - Documentation and Evidence
A. Entrepreneur
1. Ownership
The entrepreneur applying for parole is required to have a substantial ownership interest in the start-up entity. USCIS considers at least 10 percent ownership interest to be substantial at the time of the adjudication of the initial grant of parole and 5 percent to be substantial at the adjudication of re-parole.[1]
Relevant, probative, and credible evidence of ownership interest may include, but is not limited to:
- Organizational documents (such as articles of incorporation, bylaws, articles of organization, operating agreement, certificate of partnership, or partnership agreement);
- Equity purchase or grant agreements;
- Equity ledger;
- Equity certificates;
- Contracts;
- Bank records;
- Wire transfers; and
- Any other documentation establishing an ownership interest in the start-up entity.
2. Central and Active Role in a Start-up Entity
The applicant is required to have a central and active role in the start-up entity.[2]
The applicant must provide a detailed and credible description of their central and active role in the start-up entity along with supporting evidence that may include, but is not limited to:
- A copy of the applicant’s employment agreement with the start-up entity;
- Documentation from the start-up entity’s other founders, the director of human resources, or another employee in a position that can attest to the applicant’s role at the start-up entity;
- The applicant’s position description; and
- Similar evidence that provides a detailed description of the applicant’s central and active role in the start-up entity, including the day-to-day role the applicant is currently performing for the start-up entity.[3]
3. The Applicant is Well-positioned to Substantially Assist with the Start-up Entity’s Growth and Success
Within the applicant’s central and active role, the applicant must be well-positioned, due to their knowledge, skills, or experience, to substantially assist the start-up entity with the growth and success of its business.[4] Relevant, probative, and credible evidence to demonstrate that the applicant satisfies this threshold may include, but is not limited to:
- The applicant’s resume or curriculum vitae (CV);
- Letters from relevant government agencies, qualified investors, or established business associations with an understanding of the applicant’s knowledge, skills, or experience that would advance the start-up entity’s business;
- News articles or other similar evidence indicating that the applicant has received significant attention and recognition;
- Documentation showing that the applicant or start-up entity has been recently invited to participate in, is currently participating in, or has graduated from one or more established and reputable start-up accelerators;
- Documentation showing that the applicant has played an active and central role in the success of prior start-up entities or other relevant business entities;
- Degrees or other documentation indicating that the applicant has knowledge, skills, or experience that would significantly advance the start-up entity’s business;
- Documentation pertaining to intellectual property of the start-up entity, such as a patent, that was obtained by the applicant or as a result of the applicant’s efforts and expertise; and
- Similar evidence that the applicant is well-positioned, due to the applicant’s knowledge, skills, and experience, to substantially assist the start-up entity with the growth and success of its business.
B. Start-up Entity
A start-up entity is a U.S. business entity that was recently formed (created within the 5 years immediately preceding the filing date of the application), has lawfully done business during any period of operation since its date of formation, and has substantial potential for rapid growth and job creation.[5]
Evidence to demonstrate the company meets the definition of a start-up entity may include, but is not limited to:
- Organizational documents such as articles of incorporation, bylaws, articles of organization, operating agreements, certificates of partnership, partnership agreements, or other evidence of formation, as applicable;
- Tax records;
- Financial records; and
- Similar evidence that the start-up entity has lawfully done business during any period of operation since its date of formation.
The Business Structures overview provides more information on the most common business forms or structures, including information on formation, fundamental characteristics, and the tax forms submitted to the Internal Revenue Service.
C. Qualified Investment, Award, or Grant
1. Investment Option
If the applicant is using a qualified investment to demonstrate the start-up entity’s potential for rapid growth and job creation, the applicant must provide evidence that a qualified investor is the source of the investment, as well as evidence of the amount and date of the investment in the start-up entity, rather than in a parent, subsidiary, affiliated, or related company.[6]
Source of the Investment
If the investor is an individual, the applicant must submit evidence showing that the investor is a U.S. citizen or lawful permanent resident (LPR) of the United States. The applicant should submit a copy of a government-issued identity document showing the photograph, name, and date of birth of the investor, along with evidence showing that the investor is a U.S. citizen or LPR of the United States. The copy must clearly show the photo and identity information.
If the investor is an organization, such as a venture capital firm or other U.S. business investing in the start-up entity, the applicant must submit evidence that the organization operates through a legal entity organized under the laws of the United States. Such evidence may include, but is not limited to, organizational documents such as articles of incorporation, bylaws, articles of organization, operating agreement, certificate of partnership, or partnership agreement.
The applicant must also submit evidence showing that the investing organization is majority owned and controlled, directly and indirectly, by U.S. citizens or LPRs of the United States.[7] Such evidence may include an ownership structure chart outlining the direct and indirect ownership of the organization together with evidence that the individuals ultimately owning and controlling a majority of the organization are U.S. citizens or LPRs of the United States. Many investment firms based in the United States, such as venture capital firms, have a wide range of funding from limited partners that vest control in U.S. citizen partners who manage and even control the fund.
While USCIS does not require the applicant to establish that at least 50 percent of the capital contributed to the fund is sourced from U.S. citizens or LPRs, in the venture capital firm context, the applicant must nevertheless show that the firm is majority owned and controlled, directly and indirectly, by U.S. citizens or LPRs.
To demonstrate the individual investor’s or organization investor’s successful track record of investment in start-up entities, the applicant must submit evidence such as, but not limited to, bank records, wire transfers, debt agreements, equity purchase agreements, equity certificates, equity ledgers, or capitalization tables.
To satisfy the job creation or revenue generation requirement, the applicant must submit documentation, such as tax records, payroll records, Employment Eligibility Verification (Form I-9) records, or audited financial statements.
Receipt of the Investment
The applicant must submit evidence that the start-up entity received the investment.[8] Such evidence may include, but is not limited to:
- Equity purchase agreements;
- Convertible debt agreements;
- Equity certificates;
- Equity ledgers;
- Capitalization tables;
- Audited financial statements;
- Bank records;
- Wire transfers; and
- Other evidence that the investment is a purchase from the start-up entity of its equity, convertible debt, or other security convertible into its equity commonly used in financing transactions within such entity’s industry.
These records must demonstrate the trail of lawfully derived capital from a qualified investor into the applicant’s start-up entity. The records must demonstrate that the invested capital was used to purchase equity, convertible debt, or other security convertible into an equity interest in the applicant’s start-up entity.
2. Government Award or Grant Option
If the applicant is using a qualified government award or grant to establish the start-up entity’s substantial potential for rapid growth and job creation, the applicant must submit evidence to establish that the award or grant is for economic development, research and development, or job creation (or other similar monetary award typically given to start-up entities), made by a federal, state, or local government entity that regularly provides such awards or grants to start-up entities.[9] Such evidence may include records such as:
- Copies of grant or award letters or notices;
- Other documentation from the government entity confirming the issuance of the award or grant, including the amount of the award or grant as well as the recipient;
- Information from news articles or websites demonstrating that the government entity regularly makes such awards or grants to start-up entities; and
- Similar evidence showing that a federal, state, or local government entity made a qualified government award or grant to the start-up entity, and that the government entity regularly makes such awards or grants to start-up entities.
3. Alternative Evidence Option
If the applicant provides sufficient evidence to demonstrate that they meet the regulatory definition of entrepreneur and that the entity meets the regulatory definition of a start-up but only partially meets the requirements for a qualified investment or a qualified award or grant, the applicant may provide other reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.[10]
In the final rule setting forth the criteria for the case-by-case evaluation of parole applications from entrepreneurs, DHS recognized that reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth may vary depending on the nature of the business and the industry in which it operates. Therefore, applicants providing other reliable and compelling evidence of the start-up entity’s potential are not limited to certain types of evidence.[11]
The preamble to the final rule, however, did recognize that non-monetary contributions and funding from non-U.S. sources are not considered as relevant or probative evidence.[12]
Additional supporting evidence may include, but is not limited to:
- Number of users or customers;
- Revenue generated by the start-up entity;
- Additional investments or fundraising, including through crowdfunding platforms;
- Social impact of the start-up entity;
- National scope of the start-up entity;
- Positive effects on the start-up entity’s locality or region;
- Success using alternative funding platforms, including crowdfunding platforms;[13]
- The applicant’s academic degrees, with an explanation of how the field relates to the start-up entity's focus;
- The applicant’s prior success in operating start-up entities as shown by patented innovations, annual revenue, job creation, or other factors;
- Selection of the start-up entity to participate in one or more established reputable start-up accelerators or incubators; and
- Any other reliable and compelling evidence that the start-up entity has substantial potential for rapid growth and job creation.
D. Significant Public Benefit
In addition to meeting the investment, grant, or award criteria, the applicant should submit additional supporting evidence describing their start-up and demonstrating its substantial potential for rapid growth and job creation. Such supporting evidence may include:
- Evidence of investments from any investors (including those that do not meet the definition of qualified investor), or government awards or grants (including those that do not meet the definition of qualified government awards or grants). Such evidence could include bank records, wire transfers, equity purchase agreements, equity certificates, equity ledgers, or capitalization tables;
- Evidence of revenue generation;
- Letters from relevant government agencies, qualified investors, or established business associations with knowledge of the start-up entity’s research, products or services. Letters from the same organizations or individuals confirming that the applicant’s knowledge, skills, or experience would advance the start-up entity’s business;
- Newspaper articles or other similar evidence that the applicant or their start-up entity have received significant attention or recognition;
- Evidence that the applicant or their start-up entity have been recently invited to participate in, are currently participating in, or have graduated from one or more established and reputable start-up accelerators;
- Patent awards or other documents indicating that the applicant or their start-up entity are focused on developing new technologies or cutting-edge research;
- Evidence that the start-up entity is furthering the development of a critical and emerging technology or other science, technology, engineering, and math (STEM) area important to U.S. competitiveness;[14]
- Evidence that the applicant has played an active and central role in the success of prior start-ups, such as letters from relevant government agencies, qualified investors, or established business associations with knowledge of the applicant’s prior start-up activities;
- Academic degrees or other documentation indicating that the applicant has the knowledge, skills, or experience that would significantly advance their start-up entity’s business;
- Tax or payroll records, I-9 records, or other documents indicating that the applicant’s start-up entity has created qualified jobs before the applicant filed for parole;
- Any other reliable evidence indicating the applicant’s start-up entity’s potential for growth and the applicant’s ability to advance their start-up entity’s business in the United States; or
- Any other evidence that a grant of parole would provide a significant public benefit to the United States based on the applicant’s role as the entrepreneur of a start-up entity, if the other listed evidence does not apply to the applicant’s entrepreneurial activities.
Footnotes
[^ 1] See 8 CFR 212.19(a)(1).
[^ 2] See 8 CFR 212.19(a)(1).
[^ 3] See 82 FR 5238, 5246 (PDF) (Jan. 17, 2017).
[^ 4] See 8 CFR 212.19(a)(1).
[^ 5] See 8 CFR 212.19(a)(2).
[^ 6] See 8 CFR 212.19(a)(5).
[^ 7] See 8 CFR 212.19(a)(19).
[^ 8] See 8 CFR 212.19(b)(2)(ii)(B)(1). For investment threshold amounts according to the application’s filing date, see Chapter 2, Requirements for Consideration, Section B, Qualified Investment or Government Award or Grant, Subsection 1, Investment Option [3 USCIS-PM G.2(B)(1)].
[^ 9] See 8 CFR 212.19(a)(3).
[^ 10] See 8 CFR 212.19(b)(2)(iii).
[^ 11] See 82 FR 5238, 5248 (PDF) (Jan. 17, 2017).
[^ 12] See 82 FR 5238, 5249, 5251-52 (PDF) (Jan. 17, 2017).
[^ 13] While the International Entrepreneur Rule does not exclude any type of funding source for purposes of alternative evidence, it limits the types of investment that will be considered a qualifying investment because the qualifying investment serves in part as an objective way to help ensure and validate that the start-up entity’s activities will benefit the United States. See 82 FR 5238, 5251 (PDF) (Jan. 17, 2017).
[^ 14] To identify a critical and emerging technology field, USCIS considers governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the applicant. One such governmental source is the Critical and Emerging Technologies List Update (PDF) published by the National Science and Technology Council.
Chapter 4 - Adjudication
A. Discretion
USCIS’ authority to grant international entrepreneur parole (IEP) is discretionary and decided on a case-by-case basis. The officer determines, based on the totality of the evidence, whether an applicant’s presence in the United States will provide a significant public benefit and that the applicant otherwise merits a favorable exercise of discretion.
In determining whether an applicant’s presence in the United States will provide a significant public benefit and whether a favorable exercise of discretion is warranted, USCIS considers and weighs all evidence, including any derogatory evidence or information, such as, but not limited to, evidence of criminal activity and national security concerns.[1]
B. Decision
1. Approvals
If the applicant establishes that the applicant’s presence in the United States will provide a significant public benefit, USCIS may, in its discretion, approve the application for the applicant to be paroled into the United States for a period of up to 30 months. After approval of the application, the applicant may appear at a port of entry to request to be paroled into the United States.[2] The process after approval of the application is as follows:
Applicants in the United States
If the applicant is currently in the United States when USCIS approves or conditionally approves the application, the applicant must depart the United States before appearing at a U.S. port of entry for a final parole determination by U.S. Customs and Border Protection (CBP). A pending, approved, or conditionally approved application does not authorize the applicant, if they are present in the United States in nonimmigrant status, to remain in the United States beyond the expiration of their authorized period of stay.
USCIS requires the applicant’s biometrics to be collected and on file before approving the application. If the applicant requests to receive their parole documentation at their U.S. mailing address, USCIS sends a biometrics appointment notice. If the applicant requests to receive their parole documentation at a U.S. embassy or consulate, USCIS may make a preliminary decision on the application and issue a conditional approval notice with instructions on how to appear for biometrics submission and identity verification, generally at that U.S. embassy or consulate as part of the process for obtaining travel documentation.
Applicants Outside the United States
For those other than Canadian nationals traveling directly from Canada, if the applicant is outside the United States when USCIS conditionally approves the application, the applicant must visit a U.S. embassy or consulate to obtain travel documentation before appearing at a U.S. port of entry for a final parole determination. USCIS may make a preliminary decision on the application before collecting biometrics and issue a conditional approval notice with instructions on how to appear for biometrics submission and identity verification at the requested U.S. embassy or consulate. The applicant would be subject to U.S. Department of State (DOS) rules pertaining to the process for obtaining travel documentation.
A Canadian national traveling directly from Canada to a U.S. port of entry may present an approved or conditionally approved Application for Entrepreneur Parole (Form I-941) at the U.S. port of entry without first obtaining travel documentation from DOS. However, USCIS still requires the applicant to submit biometrics before parole may be authorized. The conditional approval notice includes options and instructions on how to complete the biometrics requirement in such circumstances.
Grant of Parole
Although advance authorization of parole by USCIS does not guarantee that the applicant will be issued travel documentation by DOS or paroled by CBP upon their appearance at a port of entry, with a grant of advance parole, the applicant is issued a document authorizing travel (in lieu of a visa) indicating that, so long as circumstances do not meaningfully change after USCIS conditionally approves Form I-941, and DHS does not discover material information that was previously unavailable, CBP’s discretion to parole the individual at a port of entry will likely be exercised favorably.
Work Authorization
An entrepreneur who is paroled into the United States is authorized for employment with the start-up entity incident to the conditions of the parole.[3] It is not necessary for the parolee to apply for an Employment Authorization Document.
2. Denials
If the applicant fails to establish that the applicant’s presence in the United States will provide a significant public benefit and that a favorable exercise of discretion is warranted, the officer denies the application and notifies the applicant in writing of the specific reasons for a denial.[4] An applicant may not appeal or move to reopen or reconsider a denial of international entrepreneur parole.[5] However, USCIS may reopen or reconsider a denial on its own motion.[6]
Footnotes
[^ 1] See 8 CFR 212.19(d)(1).
[^ 2] See 8 CFR 212.19(d)(2).
[^ 3] See 8 CFR 212.19(g) and 8 CFR 274a.12(b)(37).
[^ 4] See 8 CFR 103.3(a)(1).
[^ 5] See 8 CFR 212.19(d)(4).
[^ 6] See 8 CFR 103.5(a)(5).
Chapter 5 - Additional Periods of Parole
In general, the parolee may be considered for a single period of re-parole for up to 30 months[1] as an international entrepreneur if the parolee demonstrates that a grant of parole will continue to provide a significant public benefit to the United States based on their role as an entrepreneur of a start-up entity.[2]
A. Filing
Before expiration of the initial period of parole, an entrepreneur parolee may request an additional period of parole based on the same start-up entity that formed the basis for the initial period of parole. To request such parole, an entrepreneur parolee must timely file an Application for Entrepreneur Parole (Form I-941).[3]
B. Criteria for Consideration
A parolee seeking re-parole must demonstrate that the parolee continues to be an entrepreneur and that the entity continues to be a start-up entity.[4]
The applicant is no longer required to demonstrate an ownership interest of 10 percent when applying for re-parole. Instead, as of the date USCIS adjudicates the application for re-parole, the parolee must have retained at least a 5 percent ownership in the start-up entity.[5]
1. General Criteria
The parolee may seek re-parole by establishing that during the initial parole period the entity has:
- Received a qualified investment, qualified government grants or awards, or a combination of such funding, of at least the amounts specified in the table below;
- Created at least five qualified jobs with the start-up entity; or
- Reached annual revenue in the United States of at least the amount specified in the table below and averaged 20 percent in annual revenue growth.[6]
The following table outlines the required amount of investment, grants, awards, or revenue, which varies based on the date the applicant filed the Form I-941.
Filing Date | Investment, Grants, Awards, or Revenue Amount |
---|---|
Before October 1, 2021 | $500,000 |
October 1, 2021 through September 30, 2024 | $528,293 |
On or after October 1, 2024 | $622,142 |
2. Alternative Criteria
A parolee who partially meets one or more of the general criteria above may alternatively provide other reliable and compelling evidence of the start-up entity's substantial potential for rapid growth and job creation.[7]
C. Decision
1. Approval
If the applicant establishes that applicant’s continued presence in the United States will provide a significant public benefit, USCIS may approve a single request for re-parole in its discretion.
If the entrepreneur is in the United States at the time that USCIS approves the request for re-parole, such approval is considered a grant of re-parole. If the entrepreneur is outside the United States at the time that USCIS approves the request for re-parole, the entrepreneur must appear at a port of entry to be granted parole by Customs and Border Protection (CBP), in lieu of admission.[8]
2. Denial
If the applicant fails to establish that the applicant’s presence in the United States will provide a significant public benefit and that a favorable exercise of discretion is warranted, the officer denies the application and notifies the applicant in writing of the specific reasons for a denial.[9]
An applicant may not appeal or move to reopen or reconsider a denial of international entrepreneur parole.[10] However, USCIS may reopen or reconsider a denial on its own motion.[11]
Footnotes
[^ 1] See 8 CFR 212.19(d)(3).
[^ 2] See 8 CFR 212.19(c)(2)(i).
[^ 3] See 8 CFR 212.19(c)(1).
[^ 4] See 8 CFR 212.19(c)(2)(ii)(A).
[^ 5] See 8 CFR 212.19(a)(1).
[^ 6] See 8 CFR 212.19(c)(2)(ii)(B).
[^ 7] See 8 CFR 212.19(c)(2)(iii). For more discussion of consideration of alternative evidence, see Chapter 3, Documentation and Evidence, Section C, Qualified Investment, Award, or Grant, Subsection 3, Alternative Evidence Option [3 USCIS-PM G.3(C)(3)].
[^ 8] See 8 CFR 212.19(d)(3).
[^ 9] See 8 CFR 103.3(a)(1).
[^ 10] See 8 CFR 212.19(d)(4).
[^ 11] See 8 CFR 103.5(a)(5).
Chapter 6 - Family Members
An entrepreneur parolee’s spouse and children may also apply for parole.[1] The spouse and children of an entrepreneur parolee may be granted parole for no longer than the period of parole granted to the entrepreneur.[2]
A. Application
The entrepreneur’s spouse and children who are seeking parole as derivatives must individually file an Application for Travel Documents, Parole Documents, and Arrival/Departure Records (Form I-131) with evidence that the applicant has a qualifying relationship to the entrepreneur and otherwise merits a grant of parole in the exercise of discretion.[3] The applicant is required to appear for a biometrics services appointment.[4]
B. Work Authorization
The spouse of the entrepreneur parolee, after being paroled into the United States, may be eligible for employment authorization on the basis of parole under this section. To request employment authorization, an eligible spouse paroled into the United States must file an Application for Employment Authorization (Form I-765).[5] The applicant must submit evidence establishing eligibility, including evidence of the spousal relationship.[6]
A child of the entrepreneur parolee may not be authorized for and may not accept employment on the basis of parole.[7]
Footnotes
[^ 1] See 8 CFR 212.19(h).
[^ 2] See 8 CFR 212.19(h)(2).
[^ 3] See 8 CFR 212.19(h)(1).
[^ 4] See 8 CFR 212.19(e).
[^ 5] See 8 CFR 212.19(h)(3).
[^ 6] See 8 CFR 212.19(h)(3).
[^ 7] See 8 CFR 212.19(h)(4).
Chapter 7 - Conditions on Parole and Termination
USCIS may impose reasonable conditions in its sole discretion with respect to any parolee and may request verification of the parolee’s compliance with any such condition at any time.[1] Violation of any condition of parole may lead to termination of the parole or denial of re-parole.[2]
USCIS, in its discretion, may terminate a grant of international entrepreneur parole at any time and without prior notice or opportunity to respond if it determines that the entrepreneur’s continued parole in the United States no longer provides a significant public benefit.[3]
Alternatively, USCIS, in its discretion, may provide the entrepreneur notice and an opportunity to respond before terminating the parole.[4]
A. Conditions
As a condition of international entrepreneur parole, a parolee must maintain household income that is greater than 400 percent of the federal poverty guidelines for their household size as defined by the U.S. Department of Health and Human Services.[5]
B. Reporting of Material Changes
Parolees are required to report any material changes to USCIS immediately.
If the entrepreneur will no longer be employed by the start-up entity or will cease to possess a qualifying ownership stake, the entrepreneur must immediately notify USCIS in writing.
If the start-up entity continues to employ the entrepreneur, who maintains a qualifying ownership interest, the entrepreneur must submit the Application for Entrepreneur Parole (Form I-941) with the applicable fee to notify USCIS of the material change.[6]
A material change is any change in facts that could reasonably affect the outcome of the determination whether the entrepreneur provides, or continues to provide, a significant public benefit to the United States. Such changes include, but are not limited to:
- Any criminal charge, conviction, plea of no contest, or other judicial determination in a criminal case concerning the entrepreneur or start-up entity;
- Any complaint, settlement, judgment, or other judicial or administrative determination concerning the entrepreneur or start-up entity in a legal or administrative proceeding brought by a government entity;
- Any settlement, judgment, or other legal determination concerning the entrepreneur or start-up entity in a legal proceeding brought by a private individual or organization other than proceedings primarily involving claims for damages not exceeding 10 percent of the current assets of the entrepreneur or start-up entity;
- A sale or other disposition of all or substantially all of the start-up entity’s assets;
- The liquidation, dissolution, or cessation of operations of the start-up entity;
- The voluntary or involuntary filing of a bankruptcy petition by or against the start-up entity;
- A significant change with respect to ownership and control of the start-up entity; and
- A cessation of the entrepreneur’s qualifying ownership interest in the start-up entity or the entrepreneur’s central and active role in the operations of that entity.[7]
C. Automatic Termination
International entrepreneur parole or re-parole[8] automatically terminates without notice upon the expiration of the time for which parole was authorized, unless, during the initial parole period, the parolee timely files a non-frivolous application for re-parole.[9]
Before the expiration, USCIS automatically terminates parole when USCIS receives written notice from the entrepreneur parolee that the parolee will no longer be employed by the start-up entity or will cease to possess a qualifying ownership stake in the start-up entity.[10]
When the entrepreneur’s parole automatically terminates, the parole of the spouse or child of the entrepreneur also automatically terminates without notice.[11] Any employment authorization based on terminated parole is automatically revoked.[12]
D. Termination on Notice
USCIS may terminate the period of parole or re-parole upon written notice to the entrepreneur or the entrepreneur’s spouse or children, as applicable, of its intent to terminate parole if USCIS believes that:
- The facts or information contained in the request for parole were not true and accurate;
- The parolee failed to timely file or otherwise comply with the material change reporting requirements;[13]
- The entrepreneur parolee is no longer employed in a central and active role by the start-up entity or ceases to possess a qualifying ownership stake in the start-up entity;
- The parolee otherwise violated the terms and conditions of parole; or
- Parole was erroneously granted.[14]
1. Notices of Intent to Terminate
A notice of intent to terminate generally identifies the grounds for termination of the parole and provides a period of up to 30 days for the parolee’s written rebuttal.[15] The parolee may submit additional evidence in support of the rebuttal, when applicable, and USCIS considers all relevant evidence presented in deciding whether to terminate the parole.[16] Failure to timely respond to a notice of intent to terminate will result in termination of the parole.[17]
2. Charging Documents
If a charging document is served on the parolee, the charging document will constitute written notice of termination of parole (if parole has not already been terminated), unless otherwise specified.[18]
3. Termination Decisions
An applicant may not appeal or move to reopen or reconsider a termination of international entrepreneur parole.[19] However, USCIS may reopen or reconsider a termination on its own motion.[20]
Footnotes
[^ 1] See 8 CFR 212.19(i).
[^ 2] See 8 CFR 212.19(i).
[^ 3] See 8 CFR 212.19(k)(1).
[^ 4] See 8 CFR 212.19(k)(1).
[^ 5] See 8 CFR 212.19(i).
[^ 6] See 8 CFR 212.19(j).
[^ 7] See 8 CFR 212.19(a)(10).
[^ 8] For more on re-parole, see Chapter 5, Additional Periods of Parole [3 USCIS-PM G.5].
[^ 9] See 8 CFR 212.19(k)(2). For more on applying for re-parole, see Chapter 5, Additional Periods of Parole [3 USCIS-PM G.5].
[^ 10] See 8 CFR 212.19(k)(2).
[^ 11] See 8 CFR 212.19(k)(2).
[^ 12] See 8 CFR 212.19(k)(2).
[^ 13] See 8 CFR 212.19(j).
[^ 14] See 8 CFR 212.19(k)(3).
[^ 15] See 8 CFR 212.19(k)(4).
[^ 16] See 8 CFR 212.19(k)(4).
[^ 17] See 8 CFR 212.19(k)(4).
[^ 18] See 8 CFR 212.19(k)(4).
[^ 19] See 8 CFR 212.19(k)(4).
[^ 20] See 8 CFR 103.5(a)(5).
Part H - Deferred Action
Part I - Reserved
Part J - Temporary Protected Status
Part K - Statelessness
Chapter 1 - Purpose and Background
A. Purpose
Under recognized principles of international law, countries have jurisdiction to determine which persons are considered to hold nationality or citizenship of that particular country. Nationality, or the lack of an officially recognized nationality, is a relevant factor in many USCIS adjudications. Stateless persons, like any other aliens, may pursue a variety of immigration benefits or actions with USCIS. During the course of adjudicating an immigration benefit or reviewing an immigration request, USCIS may determine that an alien is stateless, and may consider statelessness as a factor in determining whether an alien has met eligibility requirements,[1] or merits a favorable exercise of discretion for an immigration benefit or other action.
A USCIS officer may request an internal report to analyze whether the evidence provided by the alien and available information about country conditions or foreign law suggests that the alien is stateless for immigration purposes. The report does not constitute a determination of eligibility for any immigration benefit or request. Rather, the report is intended to assist the officer to understand the circumstances surrounding the alien’s nationality (or lack of nationality), which may be a relevant factor in the underlying adjudication.
B. Background
DHS Commitment on Statelessness
On December 15, 2021, DHS announced its commitment to adopt a definition of statelessness for immigration purposes and enhance protections for stateless aliens living in the United States.[2] DHS recognizes that a significant number of stateless aliens reside in the United States and may face serious challenges and obstacles because they have no officially recognized nationality.[3] They often lack access to basic documentation, such as birth certificates, as well as documentation or evidence of their statelessness. An alien who does not possess a birth certificate for themselves or for their children may not be able to: obtain legal identity documents; secure an immigration status to apply for U.S. permanent residence or naturalization; or access employment, travel, or government services.[4]
Background Information on Causes of Statelessness and Resulting Vulnerabilities
While there is no form of immigration benefit or relief where eligibility is based solely on a requestor’s statelessness, USCIS may consider this particular circumstance as a relevant factor in the adjudication of certain immigration benefits or other requests.
The determination of whether a person is a citizen or national of a particular country sometimes involves interpreting complex issues in foreign law. However, USCIS recognizes that stateless persons—those who lack a nationality by virtue of the laws or policies of a country—may face obstacles in applying for and obtaining immigration benefits or other relief or actions.
There are a number of common causes of statelessness, including but not limited to:
- Lack of birth registration and birth certificates;
- Birth to stateless parents;
- Political change and transfer of territory, which may alter the nationality status of citizens of the former state or states;
- Administrative oversights, procedural problems, conflicts of law between two countries, or destruction of official records;
- Alteration of nationality during marriage or the dissolution of marriage between couples from different countries;
- Targeted discrimination against minorities;
- Laws restricting acquisition of citizenship;
- Laws restricting the rights of women to pass on their nationality to their children;
- Laws relating to children born out of wedlock or during transit; and
- Loss, revocation, or relinquishment of nationality without first acquiring another.[5]
Without an officially recognized nationality, stateless individuals often have no right to vote, and they often lack a variety of legal protections; lack access to education, employment, health care; lack the ability to register birth, marriage, or death; and lack property rights. Stateless individuals may also encounter travel restrictions, social exclusion, and heightened vulnerability to sexual and physical violence, exploitation, trafficking in persons, forcible displacement, and other abuses.[6]
C. International Recognition of Statelessness as a Serious Problem
Numerous international instruments reflect the concern of the international community about the problem of statelessness:
- Article 15 of the 1948 Universal Declaration of Human Rights (PDF)[7]
- Article 24 of the 1966 International Covenant on Civil and Political Rights[8]
- 1967 Protocol relating to the Status of Refugees[9]
In addition, the 1954 Convention Relating to the Status of Stateless Persons (PDF) and 1961 Convention on the Reduction of Statelessness (PDF) are dedicated to this issue.[10] Although the United States is not a state party to either of these conventions, the U.S. government has recognized the importance of the principles enshrined in them.[11]
Footnotes
[^ 1] USCIS has the general authority to administer the Immigration and Nationality Act (INA), including the authority to take and consider evidence on any matter material and relevant to administration of the INA. See INA 103(a).
[^ 2] See DHS News Release, DHS Announces Commitment to Enhance Protections for Stateless Individuals in the United States, issued December 15, 2021.
[^ 3] See DHS News Release, DHS Announces Commitment to Enhance Protections for Stateless Individuals in the United States, issued December 15, 2021.
[^ 4] See the United Nations High Commissioner for Refugees and Open Society Justice Initiative’s report, Citizens of Nowhere: Solutions for the Stateless in the U.S. (PDF) (2012).
[^ 5] See INA 349. Officers should contact the Office of the Chief Counsel in the event of potential loss of U.S. nationality through domestic renunciation or other loss of citizenship.
[^ 6] See the U.S. Department of State’s Statelessness webpage.
[^ 7] The Universal Declaration is an aspirational U.N. General Assembly document.
[^ 8] The United States is a party to the Covenant, with reservations, but the Covenant is not self-executing.
[^ 9] See 1967 Protocol, Art. 1. The United States is a party to the 1967 Protocol, which incorporates Articles 2 through 34 of the 1951 Convention Relating to the Status of Refugees, but the Protocol is not self-executing.
[^ 10] See 1954 Convention Relating to the Status of Stateless Persons. See 1961 Convention on the Reduction of Statelessness (PDF).
[^ 11] See U.S. Department of State’s Statelessness webpage. See DHS News Release, DHS Announces Commitment to Enhance Protections for Stateless Individuals in the United States, issued December 15, 2021.
Chapter 2 - USCIS Preparation of Statelessness Reports
A. Overview
A stateless person is generally not considered a national by any state under the operation of its laws.[1] In simple terms, this means that a stateless person does not have a nationality[2] of any country.
USCIS may generally consider a person to be stateless for purposes of considering immigration benefits or other requests when the available evidence[3] indicates that the person is not a national of any country under the operation of its law.
While being stateless does not in itself establish eligibility for any immigration benefit, an applicant’s statelessness may be relevant in determining eligibility for a variety of immigration benefits or may be considered a factor in the exercise of discretion. In order to address this factor, USCIS is establishing procedures to analyze whether an alien may be considered stateless for immigration purposes. These procedures include the examination of evidence and the production of an advisory report that provides the adjudicating officer with information about the alien’s potential statelessness.
The information contained in a report does not, however, compel the officer to take any specific course of action. It merely provides streamlined information about this often complex issue that may help the officer determine whether an alien may be considered stateless for immigration purposes, which may be relevant to eligibility or the exercise of discretion for purposes of the immigration benefit or action being sought.
This process also assists DHS in better identifying the number of stateless persons living in the United States and better understand the barriers stateless individuals may face in obtaining immigration relief or benefits.
USCIS is centralizing this consideration of statelessness to promote efficiency and effective use of agency resources. Through centralization, USCIS can:
- Provide specialized training to promote consistency in analyzing statelessness;
- Inform officers of the circumstances where statelessness may arise in immigration adjudications; and
- Reduce the impact of potentially burdensome research and analysis on this often complex issue for officers who are adjudicating the various immigration benefit requests or actions to which statelessness may be relevant.
B. Process for Examining Statelessness
In the interest of ensuring consistent and accurate reports of statelessness, USCIS is dedicating specialized resources to examine whether a person may be stateless. Taking into account the evidentiary issues and complex questions of foreign law and practices involved in analyzing issues of statelessness, USCIS examines individual cases of potential statelessness and issues a report that the adjudicating officer may consider when adjudicating an immigration benefit request or deciding any other immigration request.
The officer may consider this report in situations where statelessness may be relevant to determining eligibility or whether to exercise discretion for the immigration benefit or action being sought. Specific vulnerabilities or hardships that an applicant would face as a result of statelessness could be factors relevant to a favorable exercise of discretion for some benefits or other requests, as could the impracticability of removing a stateless applicant.
Where an alien seeking an immigration benefit or action indicates they are stateless in their application, request, or during an interview,[4] or where an adjudicating officer believes statelessness may be relevant in making a decision, the officer may, in their discretion, request a report to assist in determining whether to consider the alien stateless for purposes of the immigration benefit or other request. Only a USCIS officer can request a report to address whether an alien is stateless.
The report only addresses the issue of statelessness and does not mandate any factual findings or the issuance of a specific decision on the underlying immigration benefit or request. The adjudicating officer ultimately makes the final determination of eligibility for the benefit sought, including whether the evidence presented warrants a favorable exercise of discretion, if applicable.
Officers may only consider requesting a statelessness report where the alien has a pending application, petition, or other request for action with USCIS.
Footnotes
[^ 1] See the USCIS Glossary webpage. See the U.S. Department of State’s Statelessness webpage (defining a stateless person as “someone who, under national laws, does not enjoy citizenship – the legal bond between a government and an individual – in any country”). See Article 1 of the 1954 Convention Relating to the Status of Stateless Persons (PDF) (describing a stateless person as someone who is “not considered as a national by any State under the operation of its law”).
[^ 2] See INA 101(a)(21) (defining “national”).
[^ 3] See Chapter 3, Individualized and Case-by-Case Consideration, Section A, Documentation and Evidence [3 USCIS-PM K.3(A)].
[^ 4] For example, aliens may indicate potential statelessness by writing “stateless” when asked about nationality on their relevant petition, application, or request.
Chapter 3 - Individualized and Case-by-Case Consideration
Through this specialized internal process, USCIS examines evidence such as documentation, relevant country conditions information, and foreign law. Research may also be conducted on any of these topics, including citizenship laws affecting the alien, as needed. Reports are then provided to the adjudicating officer for requested cases. The report addresses whether the evidence supports a factual finding that the alien is stateless for purposes of the immigration benefit or other request.
A. Documentation and Evidence
1. Standard of Proof: Preponderance of the Evidence
As with any factual determination, USCIS determines whether an alien may be considered stateless for immigration purposes by the preponderance of the evidence standard.[1] USCIS may consider any credible evidence that can assist in determining the alien’s country of origin and may attempt to corroborate the alien’s testimony and any documentary evidence submitted.
2. Country Conditions Information
USCIS may consider any relevant country conditions information or foreign law in determining whether the alien may be considered stateless for immigration purposes. This includes whether the alien’s country of origin has a pattern or practice of denying nationality to certain individuals under the operation or effect of its nationality laws or practices. USCIS may conduct its own research to consider country condition information and may contact the U.S. Department of State as appropriate. USCIS may also review any country conditions information submitted by the alien.
3. Written Statement or Testimony from the Alien
Aliens may submit a written statement when filing their application, petition, or other request, that identifies their country of origin and country of last habitual residence and explains the circumstances which are relevant to their potential statelessness. Some common circumstances resulting in statelessness include laws restricting acquisition of citizenship or restricting the rights of women to pass on their nationality to their children, lack of birth registration and birth certificates, birth to stateless parents, or political change and transfer of territory among states. While USCIS may consider any written statement, statements that are confirmed by oath or affirmation generally carry more weight. USCIS may also issue Requests for Evidence and inquire about information relating to these issues during an interview.
4. Additional Evidence
Aliens may submit additional evidence when filing their application, petition, or other request, to corroborate their written statements to identify the circumstances that are relevant to the USCIS officer’s examination of statelessness. Primary evidence includes birth certificates, marriage certificates, school records, official travel documents, official residency documents, court documents, medical reports, vaccination records, police reports, and other official documents.[2]
USCIS recognizes that stateless aliens may have difficulty obtaining primary evidence; therefore, USCIS may also consider secondary evidence, such as employment records, property records, or birth or baptismal records maintained by religious or faith-based organizations.[3] This may also include affidavits submitted by third parties which corroborate the alien’s written statements. Aliens may, but are not required to, provide affidavits from more than one person.
USCIS may conduct its own inquiries with the alien’s country of origin while adhering to policy and confidentiality requirements. USCIS may also consult with sources such as the U.S. Department of State or the Law Library of Congress to determine whether the government of the alien’s country of origin can verify whether the alien is a national of that country.
While not required for issuance of an internal USCIS report, USCIS may also accept timely-received additional evidence from international organizations, such as the United Nations High Commissioner for Refugees, the International Organization for Migration, and the International Committee of the Red Cross, which have mandated roles with respect to various aspects of statelessness.
B. Findings
USCIS reviews and analyzes the evidence related to whether the alien may or may not be stateless for purposes of immigration benefits or other requests and drafts an internal report. The alien cannot appeal or otherwise challenge the report because it does not represent an adjudicative decision. Rather, the internal process simply examines the relevant evidence and provides a report relevant to whether the alien should or should not generally be considered stateless for immigration purposes.
Following consideration of the report, the officer may make a factual determination relating to statelessness and may memorialize those findings in a Memo to File or in the decision on the underlying application, petition, or requested action. The officer also makes the decision on the underlying application, petition, or requested action, taking into account the applicability of their statelessness finding. While the alien cannot appeal or challenge the report analyzing statelessness, the alien may file a motion or appeal, when permissible under applicable standards, to challenge an unfavorable decision on the underlying benefit or other request, or request to inspect the record of proceedings pursuant to 8 CFR 103.2(b)(16).[4]
C. Continued Relevance of Statelessness Report
The advisory report may be considered in any other relevant adjudication in addition to the one for which it was originally requested.[5] Equally, however, the officer adjudicating those applications is not bound by the report and may also consider other information or evidence provided by the alien. Nor is the report binding on any other component of DHS charged with administering and enforcing the immigration laws, including U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.
The officer may also request an updated report under circumstances including, but not limited to:
- Discovery of evidence that an alien may be a national of a third country;
- Information provided by the alien about a change in nationality or circumstance;
- Receipt of information that suggests the information provided in the request was fraudulent or materially inconsistent;
- Changes in country conditions information; and
- Availability of primary or secondary evidence that was not available at the time of the prior report.
Footnotes
[^ 1] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burdens and Standards of Proof, Section B, Standards of Proof [1 USCIS-PM E.4(B)].
[^ 2] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section B, Primary and Secondary Evidence [1 USCIS-PM E.6(B)].
[^ 3] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section B, Primary and Secondary Evidence [1 USCIS-PM E.6(B)].
[^ 4] See 8 CFR 103.3 and 8 CFR 103.5. See the instructions for Notice of Appeal or Motion (Form I-290B).
[^ 5] A past finding of statelessness may have relevance in certain limited circumstances, even if the applicant is no longer stateless. For example, an asylum applicant’s past statelessness may be relevant to a determination of past persecution in their country of last habitual residence. See INA 101(a)(42)(A).
Chapter 4 - Applicability of Statelessness in Adjudicative Review
Stateless persons are part of a vulnerable population and may encounter unique difficulties while applying for immigration benefits. USCIS may consider statelessness, depending on the circumstances, as a favorable factor in the exercise of discretion. It may also be a relevant factor in rendering a decision on various immigration benefit requests or other actions including, but not limited to, deferred action, parole in place, asylum and refugee status, U and T nonimmigrant statuses, and temporary protected status (TPS). Where an alien is stateless, it is the country of last habitual residence that must be considered in determining eligibility for refugee status, asylum,[1] or TPS.[2]
The officer may request a statelessness report during the adjudication of any relevant immigration application, petition, or request or when considering any other action or request where information on statelessness may be useful in determining identity or may serve as a factor in rendering a final decision.
A. Relevance to Deferred Action Requests
Deferred action is an act of prosecutorial discretion to delay or defer the removal of an alien. During a period of deferred action, DHS does not remove an alien from the United States. Deferred action does not constitute a lawful immigration status and does not excuse any past periods of unlawful presence.
DHS considers deferred action requests on a case-by-case basis and the decision whether to grant such a request is a matter of discretion. Statelessness may be a relevant factor when reviewing a deferred action request. Because stateless individuals may have no means to provide evidence of nationality, and since it may be impracticable to remove a stateless alien from the United States, there may be both humanitarian concerns and other relevant factors associated with statelessness to consider when reviewing a deferred action request.
Employment Authorization
If USCIS approves the deferred action request, aliens may request employment authorization by properly filing an Application for Employment Authorization (Form I-765). In general, employment authorization for aliens granted deferred action is only provided at USCIS’ discretion and only if the individual “establishes an economic necessity for employment.”[3]
B. Relevance to Parole in Place Requests
Parole may be granted, on a case-by-case basis, to aliens present in the United States who are applicants for admission.[4] This use of parole is referred to as “parole in place.”[5] An alien who is present in the United States without admission is considered an applicant for admission.[6] Parole in place may be granted only on a case-by-case basis for urgent humanitarian reasons or a significant public benefit, and where the alien demonstrates that they merit a favorable exercise of discretion.[7]
An alien granted parole in place meets the “inspected and admitted or paroled” requirement for INA 245(a) adjustment of status purposes and parole is considered a “lawful immigration status” solely for purposes of INA 245(c)(2).[8] However, a grant of parole in place does not relieve the alien from meeting all other eligibility requirements for adjustment of status, including that they warrant the favorable exercise of discretion.[9]
Statelessness may create unique vulnerabilities and difficulties for an alien located in the United States who may otherwise be at risk of return. This may be relevant to the exercise of discretion in the officer’s consideration of the alien’s parole in place request.
Employment Authorization
A grant of parole generally does not automatically confer employment authorization in the United States.[10] If USCIS approves the parole in place request, the parolee may request work authorization by properly filing Form I-765.[11]
C. Relevance to Asylum and Refugee Processing
USCIS may approve refugee classification or grant asylum to aliens who have been persecuted or fear they will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion and are otherwise eligible for those benefits. Statelessness creates specific vulnerabilities that may be relevant in these humanitarian adjudications.
Refugee classification is a determination that an applicant is eligible for a form of protection that may be granted to aliens who meet the definition of refugee, who are of special humanitarian concern to the United States, who are not firmly resettled, and who are not subject to or granted a waiver of any applicable grounds of inadmissibility. Generally, refugees are persons living outside of their country of nationality (or, if stateless, outside their country of last habitual residence) who are unable or unwilling to return to that country because they were persecuted in the past or fear persecution in the future or both. Aliens may seek a referral for refugee classification from outside of the United States.[12]
Asylum is a form of protection that may be available to aliens who meet the definition of refugee and are either already in the United States or are seeking admission at a port of entry. Aliens may apply for asylum in the United States regardless of their country of origin or their current immigration status.[13]
As part of the asylum and refugee processes, USCIS officers consider whether an alien may be stateless, as it may be a relevant factor in identifying place of last habitual residence for purposes of analyzing past and future persecution and in establishing identity.
Employment Authorization
Applicants for asylum may apply for employment authorization in the United States after their asylum application has been pending for 150 days but are not eligible to receive employment authorization until the asylum application has been pending for another 30 days, for a total of 180 days.[14] An alien granted asylum is immediately authorized to work, even if such grant occurs before USCIS makes a decision on their application for employment authorization.
Aliens admitted to the United States as refugees are employment authorized incident to status and are authorized to work for the duration of status.[15] Upon admission, refugees are provided with an Arrival-Departure Record (Form I-94), which serves as an acceptable receipt establishing both identity and employment authorization for 90 days.[16] Following arrival and admission, refugees receive an Employment Authorization Document with a Notice of Action (Form I-797C).
D. Relevance to U and T Nonimmigrant Status Processing
T nonimmigrant status is an immigration benefit that enables certain victims of a severe form of trafficking in persons to remain in the United States for an initial period of up to 4 years if they have complied with any reasonable request for assistance from law enforcement in the detection, investigation, or prosecution of human trafficking, or qualify for an exemption or exception.[17] Crime victims may also be eligible for U nonimmigrant status, which is a status for victims of certain crimes (including trafficking) who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of certain criminal activity.[18]
Stateless aliens may be at increased risk of being trafficked. Officers handling T visa and certain U visa claims often consider whether an alien may be considered stateless for immigration purposes, as it may be a relevant factor in analyzing the underlying circumstances surrounding the trafficking, establishing identity, and determining whether other eligibility requirements have been met.
Employment Authorization
By statute, USCIS has discretion to provide employment authorization to aliens with pending, bona fide U nonimmigrant status petitions.[19] U petitioners placed on the waiting list are also eligible for deferred action and employment authorization.[20] Principal U and T nonimmigrants are authorized to work incident to status and do not need to file a separate Form I-765.[21]
E. Relevance to Temporary Protected Status
The Secretary of Homeland Security may designate a foreign country for TPS due to an ongoing armed conflict, environmental disaster, epidemic, or other extraordinary and temporary conditions.[22] USCIS may grant TPS to aliens who are already in the United States and are eligible nationals of designated countries (or parts of countries), or to aliens having no nationality who last habitually resided in the designated foreign country.[23] Therefore, statelessness is a relevant factor in determining eligibility for TPS where the alien claims or appears to have no nationality and last habitually resided in a TPS-designated country.
Employment Authorization
Applicants for TPS may apply for employment authorization concurrently with their TPS application or may choose to apply for employment authorization separately at a later date by filing Form I-765.[24] TPS applicants may receive employment authorization before USCIS makes a final decision on their TPS application if they demonstrate that they are prima facie eligible for TPS.[25]
Footnotes
[^ 1] This policy clarifies when USCIS generally considers an alien to be stateless for purposes of an immigration benefit or other request. Neither the agency’s internal process of considering statelessness, nor an adjudicator’s decision that an applicant may be considered stateless for purposes of an immigration benefit or other request, create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
[^ 2] See INA 101(a)(42)(A).
[^ 3] See 8 CFR 274a.12(c)(14). For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].
[^ 4] The basic authority for parole in place is provided at INA 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.”
[^ 5] See legacy Immigration and Naturalization Service (INS) General Counsel Opinion 98-10, 1998 WL 1806685. This legacy INS General Counsel’s opinion was later endorsed by the then-INS Commissioner. See Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other than a designated Port-of-Entry, issued April 19, 1999. In 2007, the then-DHS General Counsel concurred with the 1998 INS General Counsel’s opinion in relevant part. See Clarification of the Relation Between Release under Section 236 and Parole under Section 212(d)(5) of the Immigration and Nationality Act, issued Sept. 28, 2007. The same DHS General Counsel’s opinion rejected a conclusion that the 1998 General Counsel had reached on a separate issue related to release from detention under INA 236(a)(2)(B) (so-called “conditional parole”). See Matter of Castillo-Padilla (PDF), 25 I&N Dec. 257 (BIA 2010) (agreeing with DHS that “conditional parole” under INA 236(a)(2)(B) does not constitute parole under INA 212(d)(5)(A)). This chapter only addresses aliens present in the United States without inspection and admission. It does not address those who were previously authorized parole when overseas to come to the United States as a parolee. Aliens who apply for parole from outside the United States (a process generally referred to as humanitarian or overseas parole), who then travel to the United States and are paroled in by U.S. Customs and Border Protection may seek an additional parole period while in the United States. This request for an additional parole period is sometimes referred to as a request for re-parole. See the Humanitarian or Significant Public Benefit Parole for Individuals Outside the United States webpage for more information on parole issued to aliens living abroad.
[^ 6] See INA 235(a) (expressly defining an applicant for admission to include “an alien present in the United States who has not been admitted”).
[^ 7] See INA 212(d)(5)(a).
[^ 8] See 8 CFR 245.1(d)(1)(v). See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 3, Unlawful Immigration Status at Time of Filing (INA 245(c)(2)) [7 USCIS-PM B.3].
[^ 9] See Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section A, “Inspected and Admitted” or “Inspected and Paroled,” Subsection 3, Parole [7 USCIS-PM B.2(A)(3)].
[^ 10] There are some limited exceptions. For example, effective November 21, 2022, Ukrainian and Afghan parolees, and their qualifying family members, with certain classes of admission are considered employment authorized incident to parole, which means that they do not need to wait for USCIS to approve their Form I-765 before they can work in the United States. See News Alert, Certain Afghan and Ukrainian Parolees Are Employment Authorized Incident to Parole, issued November 21, 2022.
[^ 11] For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].
[^ 12] See the Refugees and Asylum webpage.
[^ 13] See INA 208(a)(1). See the Refugees and Asylum webpage.
[^ 14] See 8 CFR 274a.12(c)(8). For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].
[^ 15] See 8 CFR 274a.12(a)(3).
[^ 16] See Handbook for Employers (M-274), 7.3 Refugees and Asylees.
[^ 17] See INA 101(a)(15)(T). For more information, see Part B, Victims of Trafficking [3 USCIS-PM B].
[^ 18] See INA 101(a)(15)(U). For more information, see Part C, Victims of Crime [3 USCIS-PM C].
[^ 19] See INA 214(p)(6).
[^ 20] See 8 CFR 214.14(d)(2).
[^ 21] For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].
[^ 22] See INA 244(b).
[^ 23] See INA 244(a).
[^ 24] For more information, see Volume 10, Employment Authorization, Part A, Employment Authorization Policies and Procedures [10 USCIS-PM A].
Volume 4 - Refugees and Asylees
Part A - Reserved
Part B - Reserved
Part C - Relative Petitions
Chapter 1 - Purpose and Background
A. Purpose
Aliens admitted as refugees[1] or granted asylee status[2] may petition for a qualifying spouse or child to be granted derivative refugee or asylee status. USCIS is responsible for adjudicating these petitions.
There are different ways for refugees and asylees to bring qualifying family members to the United States. This Part only discusses the Refugee/Asylee Relative Petition (Form I-730) process.
B. Background
An alien admitted to the United States as a principal refugee[3] or an alien who is a principal asylee[4] in the United States, may file a Form I-730 to request that their qualifying spouse[5] and unmarried children[6] receive derivative refugee or asylee status.
If USCIS approves the Form I-730, a spouse or child beneficiary receives derivative refugee or derivative asylee status, depending on whether the petitioner received refugee or asylum status. The beneficiary of a Form I-730 filed by a refugee petitioner is referred to as a following-to-join refugee (FTJ-R), and the beneficiary of a Form I-730 filed by an asylee petitioner is referred to as a following-to-join asylee (FTJ-A).
The term following-to-join, in this context, refers to the process of the qualifying family member receiving refugee or asylum status after the petitioner, regardless of whether the qualifying family member resides in or outside the United States. A spouse or child who was not included as a derivative on the principal refugee’s Registration for Classification as Refugee (Form I-590), the principal asylee’s Application for Asylum and for Withholding of Removal (Form I-589), or the Record of Determination/Credible Fear Worksheet (Form I-870), and who did not accompany the petitioner, may receive following-to-join benefits.
For beneficiaries residing outside the United States for whom USCIS has approved the Form I-730 and who are approved to travel, U.S. Customs and Border Protection makes the decision whether to admit such beneficiaries in derivative refugee or asylee status at the port of entry.
C. Legal Authorities
- INA 207(c)(2) – Admission status of spouse or child (of refugees)
- INA 208(b)(3) – Treatment of spouse and children (of asylees)
- INA 101(a)(35) – Definition of wife, spouse, or husband
- INA 101(b)(1)(A); INA 101(b)(1)(B); INA 101(b)(1)(C); INA 101(b)(1)(D); and INA 101(b)(1)(E) – Definitions of child
- INA 101(b)(2) – Definition of parent, father, or mother
- 8 CFR 103.2 – Submission and adjudication of benefit requests
- 8 CFR 103.3 – Denials, appeals, and precedent decisions
- 8 CFR 103.5 – Reopening or reconsideration
- 8 CFR 207.7 – Derivatives of refugees
- 8 CFR 208.21 – Admission of the asylee’s spouse and children
Footnotes
[^ 1] See INA 207(c)(2). See 8 CFR 207.7.
[^ 2] See INA 208(b)(3). See 8 CFR 208.21.
[^ 3] See 8 CFR 207.7(d).
[^ 4] See 8 CFR 208.21(c) and 8 CFR 208.21(d).
[^ 5] See Chapter 2, Eligibility Requirements, Section D, Beneficiaries, Subsection 1, Spousal Beneficiaries [4 USCIS-PM C.2(D)(1)].
[^ 6] See Chapter 2, Eligibility Requirements, Section D, Beneficiaries, Subsection 2, Child Beneficiaries [4 USCIS-PM C.2(D)(2)].
Chapter 2 - Eligibility Requirements
The Immigration and Nationality Act (INA) provides for the admission of alien spouses and children (derivatives) of asylees, refugees, and lawful permanent residents (LPRs) who received this status as a principal refugee or principal asylee.[1]
A. General Eligibility Requirements
An eligible petitioner may petition for their spouse and children by filing a Refugee/Asylee Relative Petition (Form I-730). The petitioner must file a separate Form I-730 for each qualifying family member.[2]
1. Petitioners
For a petitioner to be eligible to file a Form I-730, the petitioner must:
- Be a principal refugee or asylee, or have LPR status based on being a principal refugee or asylee;
- File a separate Form I-730 for each qualifying family member within 2 years of the date on which the petitioner was admitted as a refugee into the United States, or the petitioner was approved as an asylee;[3] and
- File based upon a relationship with a qualifying family member.
For general eligibility, the relationship between a petitioner and a qualifying family member must exist:
- On the date the petitioner was approved for asylum[4] or admitted as a refugee;[5]
- On the date the petitioner filed the Form I-730;[6]
- On the date USCIS adjudicates the Form I-730;[7] and
- On the date the beneficiary is admitted into the United States, if the beneficiary resided abroad when USCIS approved the Form I-730.[8]
2. Beneficiaries
Qualifying family members for purposes of a Form I-730 include a spouse[9] and unmarried children.[10] A spouse or child may be living inside or outside of the United States.
Spouses generally include persons recognized as married under the laws where the marriage took place (the place of celebration).[11] However, the INA does not recognize unconsummated proxy marriages[12] and polygamous marriages.[13] The INA limits spousal relationships for immigration purposes to those where the parties to a marriage were both present during the marriage ceremony or consummated the marriage following the ceremony if the parties were not present together.[14] Generally, to demonstrate a qualifying spousal relationship for Form I-730, the petitioner must provide evidence of a legally recognized marriage to the alien spouse.
In limited circumstances, a marriage may violate the strong public policy of the United States or the state in which the couple resides and may therefore not be valid for U.S. immigration purposes.[15] Some examples of when a marriage may violate public policy include polygamous marriages, marriage between close relatives, and marriage involving minors.[16] If the petitioner or beneficiary was previously married, the petitioner must also establish by a preponderance of the evidence that any prior marriage was legally terminated.
Eligible children must be under age 21 on the date the petitioner files an application for asylum or applies for refugee status. The child of an asylee continues to be a child for Form I-730 eligibility if the child is under 21 years of age on the date on which the parent applied for asylum.[17] The child of a refugee continues to be a child for Form I-730 eligibility if the child is under 21 years of age on the date that the parent applied for refugee status, which is the date that USCIS first interviews the principal refugee applicant.[18]
Eligible children include children born in wedlock, out of wedlock, adopted children, legitimated children, and stepchildren.[19] Children who are conceived but not yet born before the petitioner’s admission as a refugee or asylum approval are also eligible.[20]
Asylee beneficiaries must not be subject to certain bars to asylum.[21] Refugee beneficiaries must be admissible or eligible for a waiver of inadmissibility, and they must not have engaged in persecution as described in the second sentence of INA 101(a)(42).[22]
B. Two-Year Filing Deadline and Humanitarian Waiver
By regulation, the petitioner must file the Form I-730 within 2 years of the petitioner’s admission as a refugee or grant of asylum.[23]
USCIS may waive the 2-year filing deadline for humanitarian reasons on a case-by-case basis.[24] If USCIS determines that humanitarian reasons exist for extending the filing deadline, USCIS may do so, and there is no set limit on the length of extension that USCIS may approve.
The petitioner may directly request a waiver or USCIS may approve a waiver on its own accord if there are sufficient humanitarian reasons. In general, the petitioner should initiate the request for a humanitarian waiver of the 2-year filing deadline.
The petitioner should provide a letter or explanation and all appropriate evidence that supports the waiver request. Although the following is not an exhaustive list, USCIS may consider the following factors in determining whether to approve a waiver request:
- Significant harm is likely to occur to the beneficiary if not allowed to join family in the United States;
- Petitioner’s earlier belief that a relative was deceased or missing, but the petitioner later learned the relative was alive;
- Mental or physical health of the petitioner and impact on the petitioner’s ability to know, understand, and comply with filing requirements;
- Age of the beneficiary;
- Advanced age of the petitioner;
- Educational background of the petitioner and ability to understand the Form I-730 or form instructions;
- Petitioner’s diligence in trying to obtain competent assistance to complete Form I-730;
- Availability of competent assistance to the petitioner;
- Ineffective assistance of counsel or other representative;
- Whether the petitioner willfully or recklessly disregarded the Form I-730 filing deadline;
- Whether the petitioner previously filed a timely Form I-730 that was ultimately abandoned or denied;
- Existence of significant misinformation that the petitioner received that contributed to the petitioner’s belief that the petitioner was ineligible to file a Form I-730;
- Circumstances that have generated public confusion generally about the ability of the petitioner to file Form I-730 (for example, when the petitioner had a conditional asylum approval, and there was uncertainty as to when the relationship needed to have been in existence to meet following to join criteria), or other statutory or regulatory immigration changes that may create confusion and uncertainty;
- Community attention and presence of sympathetic factors (for example, the beneficiary or family members have been victims of highly publicized crime or natural disaster); or
- Other public interest factors.
C. Petitioners
Principal asylees or principal refugees are eligible to file a Form I-730. Petitioners who acquire LPR status after they are admitted to the United States as a principal refugee or approved as a principal asylee are also eligible to file a Form I-730.
An asylee or refugee who becomes a naturalized citizen is not eligible to file a Form I-730.[25] However, if the petitioner became a naturalized U.S. citizen after filing the Form I-730, USCIS will generally continue to process the petition.
A refugee petitioner must have been admitted to the United States as a principal refugee. The primary[26] classes of admission that would qualify a petitioner to be eligible to file a Form I-730 are:
- RE1; or
- RE6 (approved as principal on a refugee application).
D. Beneficiaries
The relationship between the petitioner and the family member must exist:
- On the date the petitioner was approved for asylum[27] or admitted as a refugee[28] (except for children who were conceived but not yet born when their parent was admitted as a refugee or approved for asylee status);[29]
- On the date the petitioner filed a Form I-730;[30]
- On the date USCIS adjudicates the Form I-730;[31] and
- On the date the beneficiary is admitted into the United States, if the beneficiary resided abroad when USCIS approved the Form I-730.[32]
Relationships created after the petitioner was admitted as a refugee or acquired asylee status do not qualify for Form I-730 petition purposes. However, a principal refugee or asylee may be eligible to file a Petition for Alien Relative (Form I-130) for a spouse or child if the principal refugee or asylee becomes an LPR.[33]
1. Spousal Beneficiaries
A spouse must meet the INA’s definition of a spouse.[34] Generally, USCIS does not recognize the following relationships as marriages, even if valid in the place of celebration:
- Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the parties later consummate the marriage;[35] or
- Relationships that are contrary to public policy in the United States, including those involving certain minors, polygamy, or incest.[36]
USCIS recognizes that in certain circumstances a spousal relationship may exist for the purposes of obtaining derivative refugee or asylee status if there is evidence of an informal marriage that does not satisfy the place of celebration rule.[37] USCIS may recognize a spousal relationship if the petitioner demonstrates the parties were unable to have their marriage legally recognized in the place of celebration as a result of their flight from persecution and circumstances beyond their control or due to restrictive laws or practices in their country of origin or country of first asylum.[38]
USCIS only applies the exception for spouses who have been prevented from obtaining a valid marriage if the petitioner shows indicia of a marriage such as, but not limited to, evidence of a marriage ceremony, cohabitation over a period of time, holding themselves out to be spouses over a period of time, and children born to the relationship.[39]
2. Child Beneficiaries
Definition of a Child
For purposes of Form I-730 eligibility, a child is an unmarried person under 21 years of age who is:
- A child born in wedlock[40] to the petitioner;
- The legitimated[41] child of the petitioner who was under 18 and in the legal custody of the legitimating parent or parents at the time of legitimation;
- The stepchild[42] of the petitioner who was under 18 at the time of the marriage creating the step relationship;
- A child adopted while under age 16 (or 18 if the sibling exception applies[43]) who has been in the legal custody of and jointly resided with the petitioner for at least 2 years;[44] or
- A child born out of wedlock to a natural[45] parent. If the petitioning parent is the natural father and the child has not been legitimated, the natural father and child must have had a bona-fide parent-child relationship before the child reached the age of 21.[46]
Child’s Marital Status
To receive derivative asylum or refugee status, the child must be unmarried at the time:
- The petitioner files the Form I-730; and
- USCIS adjudicates the petition (and, if the child beneficiary is outside the United States, at the time the beneficiary is admitted into the United States).[47]
As long as a beneficiary child is unmarried at these points in time, an intervening marriage and divorce or termination through an annulment does not result in their ineligibility.
Child’s Age
Congress enacted the Child Status Protection Act (CSPA) to protect certain children from aging out of certain immigration benefits, including beneficiaries of Form I-730 petitions. The CSPA went into effect on August 6, 2002.[48] Under the CSPA, USCIS continues to classify a child who is under 21 at the time their parent applied for refugee[49] or asylum[50] status to be a child regardless of their actual age at the time of the adjudication of Form I-730.
For asylees, USCIS continues to classify children who turn 21 years old after the petitioning parent files an asylum application, but before USCIS adjudicates the Form I-730, to be children and remain eligible for derivative asylum status.[51]
For refugees, USCIS continues to classify children who turn 21 years old after the petitioning parent applies for refugee status, but before USCIS adjudicates the Form I-730, to be children and remain eligible for derivative refugee status.[52]
If the petitioner filed an application for refugee or asylum status before August 6, 2002, and their child turned 21 years of age before that date, that application must have been pending on August 6, 2002, for the child to continue to be classified as a child.[53]
Children In Utero
A child who was conceived, but not yet born on the date the petitioner was admitted to the United States as a refugee or approved for asylum is eligible for derivative refugee or asylum status as a Form I-730 beneficiary.[54]
Accordingly, a child who was born within approximately 9 months after the date on which the petitioner acquired status may be eligible to be a beneficiary, so long as the beneficiary falls within one of the definitions of a child.[55]
Non-Biological Parent-Child Relationship
A child might qualify as the child of the principal refugee or asylee even if the petitioner is not the biological parent. For example, the petitioner may have been married to the child’s mother when the child was born and may also have been in the United States continuously since before the earliest possible date of the child's conception, preventing the father’s biological paternity. Although not the biological child of the petitioning father, the beneficiary could meet the definition of an in-wedlock child or stepchild.
USCIS considers a child to be born in wedlock when the child’s legal parents are married to one another at the time of the child’s birth and at least one of the legal parents has a genetic or gestational relationship to the child. As such, a petitioning father or mother’s nonbiological child with a lawful spouse meets the definition of an in-wedlock child if the law of the jurisdiction in which the child was born recognizes the petitioner and spouse as the child’s legal parents.[56]
Additionally, even if the law does not establish a legal parental relationship, when a child is born as the legal child of only one partner of a married couple, USCIS considers the child to be the stepchild of the other partner for immigration purposes.[57] Because the child qualifies as the petitioner's stepchild,[58] USCIS does not need to decide if the child otherwise meets the definition of a child.[59]
E. Beneficiaries in Removal Proceedings
1. Beneficiaries in Removal Proceedings or with a Final Order of Removal
USCIS may approve beneficiaries in the United States who are in removal proceedings or have a final order of removal for derivative asylum or refugee status if the beneficiaries meet all other eligibility requirements for Form I-730.[60]
If a Form I-730 beneficiary has a removal order, a Form I-730 approval provides the beneficiary with derivative refugee or derivative asylee status, and the removal order becomes unenforceable.[61]
2. Beneficiaries Who Re-Entered the United States After Removal
In general, an alien who re-enters the United States without prior authorization after having been previously removed or having departed voluntarily while under an order of exclusion, deportation, or removal from the United States, is subject to reinstatement of removal.[62] USCIS does not have the authority to reinstate prior orders of removal.
When adjudicating Form I-730, if an officer encounters an applicant who has re-entered without prior authorization after a prior order of removal, USCIS contacts U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations (ICE ERO) about potential reinstatement of the order of removal. ICE ERO can choose to complete and effectuate service of a Notice of Intent/Decision to Reinstate Prior Order (Form I-871).
Similarly, if a beneficiary has re-entered without inspection and ICE ERO has already signed and served a Form I-871, USCIS generally denies the Form I-730.
Footnotes
[^ 1] See INA 207(c)(2)(A) and INA 208(b)(3).
[^ 2] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).
[^ 3] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).
[^ 4] See 8 CFR 208.21(b).
[^ 5] See 8 CFR 207.7(c).
[^ 6] See 8 CFR 207.7(c) and 8 CFR 208.21(b).
[^ 7] See 8 CFR 207.7(c) and 8 CFR 208.21(b).
[^ 8] See 8 CFR 207.7(c) and 8 CFR 208.21(b). U.S. Customs and Border Protection (CBP) determines whether a beneficiary is eligible for admission or parole at the port of entry.
[^ 9] See INA 101(a)(35).
[^ 10] See INA 101(b)(1)(A)-(E).
[^ 11] See Matter of P-, 4 I&N Dec. 610, 613 (Acting A.G. 1952) (“But, apart from saying that picture and proxy marriages will not create the status of ‘wife’ for immigration purposes, the Congress has not said what will. In the absence of such legislative provision, the generally accepted rule is that the validity of a marriage is governed by the law of the place of celebration.”).
[^ 12] See INA 101(a)(35).
[^ 13] See INA 101(a)(35). See Matter of H (PDF)-, 9 I&N Dec. 640 (BIA 1962) (holding that polygamous marriages are not recognized for immigration purposes, even if recognized as lawful in the jurisdiction where the marriage took place).
[^ 14] See INA 101(a)(35), which excludes proxy marriage from meeting the qualifications of a spouse, wife, or husband. USCIS does not consider a marriage to be valid for immigration purposes if both contracting parties to the marriage were not physically present together during the marriage ceremony, unless the parties have consummated the marriage.
[^ 15] See Matter of H- (PDF), 9 I&N Dec. 640 (BIA 1962), Matter of Zappia (PDF), 12 I&N Dec. 439 (BIA 1967), and Matter of Da Silva (PDF), 15 I&N Dec. 778, 779 (BIA 1976) (A marriage complying with all the requirements of the state of celebration is invalid if it violates the strong public policy of the state where one of the parties is domiciled at the time of the marriage and where the couple intends to reside after the marriage.). However, the Board of Immigration Appeals in Matter of Hirabayashi (PDF), 10 I&N Dec. 722 (BIA 1964) determined a marriage may be valid if evidence establishes that the parties did not travel to the state of celebration with a primary purpose of evading prohibitions in their state of residence.
[^ 16] There are no statutory minimum age requirements for the petitioner or beneficiary of a spousal immigration petition. However, USCIS evaluates whether the age of the beneficiary or petitioner, or both, at the time of marriage, violates the law of the place of celebration or violates the law or public policy of the state where the couple will reside.
[^ 17] See INA 208(b)(3)(B).
[^ 18] See INA 207(c)(2)(B).
[^ 19] See INA 101(b)(1)(A)-(E).
[^ 20] See 8 CFR 207.7(c) and 8 CFR 208.21(b).
[^ 21] See Chapter 3, Admissibility and Waiver Requirements [4 USCIS-PM C.3]. See INA 208(b)(2)(A)(i)-(v). See 8 CFR 208.21(a).
[^ 22] See Chapter 3, Admissibility and Waiver Requirements [4 USCIS-PM C.3]. See INA 207(c)(2)(A).
[^ 23] Before February 28, 1998, there was no 2-year deadline in 8 CFR 207.7 or 8 CFR 208.21. Therefore, if a petitioner acquired their status on or before February 27, 1998, the petitioner could have filed their Form I-730 at any time before February 28, 2000.
[^ 24] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).
[^ 25] See, for example, INA 208(b)(3) (“A spouse or child . . . of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.”).
[^ 26] RE4 and REF have also previously been used for a refugee class of admission codes, including some principal applicants, but are no longer in use for newly admitted refugees.
[^ 27] See 8 CFR 208.21(b).
[^ 28] See 8 CFR 207.7(c).
[^ 29] See 8 CFR 207.7(c) and 8 CFR 208.21(b).
[^ 30] See 8 CFR 207.7(c) and 8 CFR 208.21(b).
[^ 31] See 8 CFR 207.7(c) and 8 CFR 208.21(b).
[^ 32] See 8 CFR 207.7(c) and 8 CFR 208.21(b). CBP determines whether a beneficiary is eligible for admission at the port of entry.
[^ 33] See 8 CFR 204.2.
[^ 34] See INA 101(a)(35).
[^ 35] See INA 101(a)(35).
[^ 36] See Matter of H- (PDF), 9 I&N Dec. 640 (BIA 1962) (holding that polygamous marriages are not recognized for immigration purposes, even if recognized as lawful in the jurisdiction where the marriage took place).
[^ 37] The term “informal marriage” includes marriages that are not legally recognized in the place of celebration because of the spouses’ flight from persecution and circumstances beyond their control, or due to restrictive laws or practices in their country of origin or country of first asylum. While the term “camp marriage” was historically used to describe these marriages, the term “informal marriage” includes marriages that may have occurred outside of a camp, and marriages the petitioner is unable to obtain in their country of origin or country of first asylum.
[^ 38] USCIS is generally bound by the place-of-celebration rule that states that the law of the place where the marriage was celebrated determines the legal validity of a marriage for immigration purposes. See Matter of Lovo-Lara (PDF), 23 l&N Dec. 746 (BIA 2005), Matter of Da Silva (PDF), 15 l&N Dec. 778 (BIA 1976), and Matter of H- (PDF), 9 l&N Dec 640 (BIA 1962).
[^ 39] See Revised Guidance on Informal (“Camp”) Marriages, issued February 14, 2022.
[^ 40] See INA 101(b)(1)(A). See Volume 6, Immigrants, Part B, Family-Based Immigrants, Chapter 8, Children, Sons, and Daughters, Section A, Definition of a Child, Subsection 1, Child Born In or Out of Wedlock [6 USCIS-PM B.8(A)(1)].
[^ 41] See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section B, Legitimated Child [12 USCIS-PM H.2(B)]. A child can be legitimated under the laws of the child’s residence or domicile, or under the laws of the father’s residence or domicile. See INA 101(b)(1)(C). A person’s residence is the person’s place of general abode, that is, the principal, actual dwelling place without regard to intent. See INA 101(a)(33). A person’s domicile refers to a “person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.” See Black’s Law Dictionary (12th ed. 2024). In most cases, a person’s residence is the same as a person’s domicile. A legitimated child includes a child of a Form I-730 petitioner who is the child’s genetic parent, or their gestational parent at the time of the child’s birth, if the relevant jurisdiction recognizes the gestational parent as the child’s legal parent.
[^ 42] See INA 101(b)(1)(B).
[^ 43] See INA 101(b)(1)(E)(ii).
[^ 44] See INA 101(b)(1)(E).
[^ 45] A natural parent may be a genetic parent, or a gestational parent (who carries and gives birth to the child) if the relevant jurisdiction recognizes the gestational parent as the child’s legal parent. See INA 101(b).
[^ 46] See INA 101(b)(1)(D).
[^ 47] See INA 101(b)(1). See 8 CFR 207.7(c) and 8 CFR 208.21(b).
[^ 48] See Pub. L. 107-208 (PDF) (August 6, 2002).
[^ 49] See INA 207(c)(2)(B).
[^ 50] See INA 208(b)(3)(B).
[^ 51] See INA 208(b)(3)(B). For purposes of determining a beneficiary’s eligibility under the CSPA, the petitioning parent’s asylum application is either an Application for Asylum and for Withholding of Removal (Form I-589), or the written record of the petitioning parent’s positive credible fear determination if USCIS grants asylum through the Asylum Merits Interview (AMI) process. For aliens who receive their grant of asylum through the AMI process, USCIS considers the date USCIS serves the positive credible fear determination on the alien to be the asylum application date.
[^ 52] See INA 207(c)(2)(B). See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act, Section E, Derivative Refugees, Subsection 2, Determining Child Status Protection Act Age [7 USCIS-PM A.7(E)(2)]. USCIS considers the date a USCIS officer interviews the principal refugee parent for Registration for Classification as Refugee (Form I-590), as the date that the parent applied for refugee status.
[^ 53] See Child Status Protection Act, Pub. L. 107-208 (PDF) (August 6, 2002).
[^ 54] See 8 CFR 207.7(c) and 8 CFR 208.21(b).
[^ 55] See INA 101(b)(1).
[^ 56] See Volume 6, Immigrants, Part B, Family-Based Immigrants, Chapter 8, Children, Sons, and Daughters, Section A, Definition of a Child, Subsection 1, Child Born In or Out of Wedlock [6 USCIS-PM B.8(A)(1)].
[^ 57] See INA 101(b)(1)(B) (Stepchildren are included in the INA definition of a child so long as the parents married when the stepchild, or the spouse’s biological child, was under the age of 18.).
[^ 58] See INA 101(b)(1)(B).
[^ 59] See INA 101(b)(1)(A), INA 101(b)(1)(C), and INA 101(b)(1)(D).
[^ 60] See 8 CFR 208.21(c) (explaining that an otherwise eligible beneficiary may be approved “regardless of the status of that spouse or child in the United States”).
[^ 61] See 8 CFR 208.22.
[^ 62] See INA 241(a)(5).
Chapter 3 - Admissibility and Waiver Requirements
Derivative asylees and derivative refugees are subject to different grounds of ineligibility. These bars and grounds of inadmissibility are summarized below.
Derivative asylees are subject to most asylum bars while derivative refugees are subject to certain grounds of inadmissibility. Both derivative asylees and refugees are subject to the persecutor bar.
A. Following-to-Join Asylee Bars to Asylum
Following-to-join asylee (FTJ-A) beneficiaries are subject to the first five asylum bars noted in the Immigration and Nationality Act (INA).[1] The sixth bar regarding firm resettlement does not apply.[2] The five applicable bars include:
- Persecution of another person on account of race, religion, nationality, membership in a particular social group, or political opinion;[3]
- Convicted of a particularly serious crime that makes the alien a danger to the community of the United States;[4]
- Serious reasons to believe the alien has committed a serious non-political crime outside of the United States before the alien arrived in the United States;[5]
- Reasonable grounds for regarding the alien as a danger to the security of the United States;[6] and
- All terrorism-related inadmissibility grounds (TRIG) in INA 212(a)(3)(B)(i)(I) - (IV), INA 212(a)(3)(B)(i)(VI) and INA 237(a)(4)(B) (encompassing all TRIG except for INA 212(a)(3)(B)(i)(V)), unless in the case of an alien described in INA 212(a)(3)(B)(i)(IV), the Attorney General determines in their discretion that there are not reasonable grounds for regarding the alien as a danger to the security of the United States.[7]
B. Following-to-Join Refugee Grounds of Inadmissibility and Waivers
Following-to-join refugee (FTJ-R) beneficiaries must not have ordered, incited, assisted, or otherwise participated in the persecution of another, and must be otherwise admissible as an immigrant.[8] A few exemptions to admissibility requirements apply and FTJ-R beneficiaries may seek a waiver for other applicable inadmissibility grounds.
1. Exemptions
The following grounds of inadmissibility do not apply to refugees, including derivatives:
2. Applicable Inadmissibility Grounds
- Health-related;[12]
- Crime-related;[13]
- Security-related;[14]
- Illegal entrants and immigration violators;[15]
- Ineligibility for citizenship;[16]
- Aliens previously removed;[17] and
- Miscellaneous.[18]
3. Waivers
USCIS may waive all applicable inadmissibility grounds listed above for humanitarian purposes, to assure family unity, or when it is in the public interest, except for controlled substance traffickers[19] and security-related grounds.[20]
Footnotes
[^ 1] See INA 208(b)(2)(A)(i)-(v). See 8 CFR 208.21(a).
[^ 2] See INA 208(b)(2)(A)(vi).
[^ 3] See INA 208(b)(2)(A)(i).
[^ 4] See INA 208(b)(2)(A)(ii).
[^ 5] See INA 208(b)(2)(A)(iii).
[^ 6] See INA 208(b)(2)(A)(iv).
[^ 7] See INA 208(b)(2)(A)(v). See the Terrorism-Related Inadmissibility Grounds (TRIG) webpage.
[^ 8] See INA 207(c)(2)(A).
[^ 9] See INA 212(a)(4).
[^ 10] See INA 212(a)(5).
[^ 11] See INA 212(a)(7)(A).
[^ 12] See INA 212(a)(1).
[^ 13] See INA 212(a)(2).
[^ 14] See INA 212(a)(3).
[^ 15] See INA 212(a)(6).
[^ 16] See INA 212(a)(8).
[^ 17] See INA 212(a)(9).
[^ 18] See INA 212(a)(10).
[^ 19] See INA 212(a)(2)(C).
[^ 20] See INA 212(a)(3)(A), INA 212(a)(3)(B), INA 212(a)(3)(C), and INA 212(a)(3)(E).
Chapter 4 - Documentation and Evidence
A. Filing
The petitioner must file the Refugee/Asylee Relative Petition (Form I-730) in accordance with the form instructions.[1] The petitioner must file a separate petition for each qualifying family member.[2]
The petitioner must file Form I-730 within 2 years of the petitioner’s refugee admission or asylum approval.[3] USCIS may exercise discretion to waive the filing deadline for humanitarian reasons.[4]
B. Burden of Proof
The petitioner bears the burden of establishing that their qualifying spouse and children[5] are eligible to receive following-to-join benefits.[6] The petitioner must establish that the beneficiaries meet all eligibility requirements at the time of filing through adjudication.[7]
C. Standard of Proof
The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. USCIS evaluates the Form I-730 under the preponderance of the evidence standard.[8] Therefore, even if there is some doubt with respect to eligibility criteria, if the petitioner submits relevant, probative, and credible evidence that leads an officer to believe that the claim is probably true or more likely than not true, then the petitioner has satisfied the standard of proof.[9]
However, with respect to following-to-join refugees (FTJ-Rs), there is one exception to the preponderance of the evidence standard. If there is evidence that would permit a reasonable person to conclude that the FTJ-R beneficiary may be inadmissible, the petitioner or beneficiary must demonstrate that the beneficiary is admissible under the higher “clearly and beyond doubt” standard.[10] Thus, if evidence of an FTJ-R beneficiary’s inadmissibility emerges, then the petitioner or beneficiary bears the burden to establish that the beneficiary is clearly and beyond a doubt entitled to be admitted and is not inadmissible under Section 212(a) of the Immigration and Nationality Act (INA).
The clearly and beyond doubt standard is higher than the preponderance of the evidence standard. This means that evidence must be stronger and more persuasive to meet the clearly and beyond doubt standard than the evidence necessary to satisfy the lower preponderance of evidence standard.[11] If the petitioner has not met the required standard, the officer may request additional evidence, issue a Notice of Intent to Deny, or deny the case.[12]
D. Evidence
To meet the burden of proof by a preponderance of the evidence, the petitioner must submit evidence of the qualifying spouse or child relationship.[13] The regulations provide that the petitioner should submit primary documentation of the qualifying relationship where possible, and the regulations also allow for USCIS to consider secondary evidence, affidavits, and credible oral testimony if civilly issued documents are not available to the petitioner.[14]
1. Petitions for a Spouse
The petitioner should list the spouse on the petitioner’s application for refugee or asylum status. While the lack of the claimed spouse’s information on those applications may raise doubts regarding the claimed relationship, the petitioner’s failure to list a spouse on these applications is not a bar to approving the petition for the spouse beneficiary. Officers should elicit testimony and consider any other relevant evidence as to whether a qualifying relationship exists.
The petitioner may still meet their burden of demonstrating eligibility by the preponderance of the evidence where there is a reasonable explanation for not including the spouse on the previously filed application, or where the absence of the spouse’s name on the form was factually accurate at the time of filing.
Primary evidence for a petitioning spouse is generally a civilly issued marriage certificate from the country where the marriage occurred and, if applicable, evidence of the legal termination of previous marriages, such as a divorce or death certificate.[15] The petitioner should also submit evidence of any legal name change of either spouse, if applicable.
To demonstrate eligibility based on an informal marriage, the petitioner should provide evidence the petitioner was unable to obtain a valid marriage as a result of the petitioner’s flight from persecution and circumstances beyond the petitioner’s control, or due to restrictive laws or practices in the petitioner’s country of origin or first asylum.
Some indicia of a marriage may include evidence of a marriage ceremony, (such as a marriage certificate from a religious or cultural institution that was not registered with the local government), cohabitation over a period, holding themselves out to be spouses over a period, and children born to the relationship.[16] USCIS may be able to recognize an informal divorce from an informal marriage.[17]
2. Petitions for Children
The petitioner should generally have listed their children on the petitioner’s application for refugee or asylum status. While the lack of the claimed child’s information on those applications may raise doubts regarding the claimed relationship, the petitioner’s failure to list a child on these applications is not a bar to approving the petition for the child beneficiary. Officers should elicit testimony and consider any other relevant evidence as to whether a qualifying relationship exists.
The petitioner may still meet their burden of demonstrating eligibility by the preponderance of the evidence where there is a reasonable explanation for not including the child on the previously filed application, or where the absence of the child’s name on the application was factually accurate at the time of filing.
Primary Evidence
Primary evidence for a petitioning parent on behalf of a child depends on whether the petitioner is the father or mother and whether the beneficiary child is a child born in wedlock, a stepchild, a legitimated child, an out-of-wedlock child, or an adopted child.[18]
Primary evidence for a petitioning mother on behalf of a natural child, whether the child was born in or out of wedlock, is generally a birth certificate showing both the child's name and the petitioning mother’s name.[19] If applicable, the petitioner should submit evidence of any legal name change.[20]
Whether born in or out of wedlock, primary evidence of a father-child relationship generally includes the child's birth certificate showing both the child's name and the petitioning father’s name.[21]
For a child born in wedlock where the father is the petitioner, primary evidence is generally a marriage certificate showing the petitioning father is married to the beneficiary’s mother.[22] If applicable, the petitioning father must also submit evidence of the legal termination of any prior marriages and the beneficiary’s mother’s previous marriages, such as a divorce or death certificate.[23]
For a child born out of wedlock, the petitioning father must submit:
- Evidence that the child was legitimated under the laws of the jurisdiction of the petitioner or beneficiary child’s residence;[24] or
- Evidence that a bona fide father-child relationship exists or existed between the father and beneficiary child.[25]
Evidence of a bona fide father-child relationship should demonstrate emotional and financial ties to the child, and that the petitioner has shown genuine interest in the child's general welfare. Evidence of a bona fide father-child relationship may include, but is not limited to, the following:
- Money order receipts or canceled checks showing financial support of the child;
- Income tax returns in which the petitioner claims the child as a dependent and a member of their household;
- Medical or insurance records that include the child as a dependent;
- School records for the child that include the petitioner’s name;
- Correspondence between the petitioner and the child;
- Notarized affidavits of reliable persons who are knowledgeable about the relationship; or
- If applicable, the petitioner must submit evidence of any legal name change related to the relationship.
Primary evidence for a stepchild generally includes the child's birth certificate and the marriage certificate between the petitioner and the child's natural parent showing the marriage occurred before the beneficiary child turned 18 years old.[26]
If the petitioner or the child's natural parent were ever previously married to other people, the petitioner must submit evidence of the legal termination of the previous marriages.[27] The petitioner must also submit evidence of any legal name changes, if applicable.[28]
Primary evidence for an adopted child generally includes a copy of the adoption order demonstrating the adoption was finalized before the child’s 16th birthday and evidence that the child resided with the petitioner and was in the petitioner’s legal custody for at least 2 years.[29] Primary evidence of legal custody usually consists of a court order for legal custody or the adoption order.[30]
Evidence that the child resided with the petitioner in a familial relationship usually consists of documents demonstrating parental control like the adoptive parents owning or maintaining the property where the child resides and providing support and day-to-day supervision.[31]
USCIS considers the total period of legal custody in the aggregate, like it does for joint residence. Therefore, a break in legal custody or joint residence does not affect time already fulfilled.[32] The petitioner must also submit evidence of any legal name changes, if applicable.[33]
3. Secondary Evidence
If the petitioner is not able to obtain primary documentation such as a civilly registered marriage or birth certificate, the petitioner may submit secondary evidence in support of the qualifying relationship.[34] It is not necessary for the petitioner to submit a statement from the civil authority certifying document unavailability for secondary evidence to meet the petitioner’s burden.
Additionally, it is not necessary for a document to be listed as “unavailable” in the U.S. Department of State (DOS) reciprocity table for USCIS to consider secondary evidence submitted by the petitioner.[35] Whether primary or secondary evidence, however, a certified English translation must accompany all documents that are not in English.[36]
USCIS considers secondary evidence to meet the petitioner’s burden of proof if primary documentation is not available to the petitioner. This secondary evidence may include baptismal certificates, school records, hospital records, census records, and affidavits. Petitioners may also voluntarily submit parentage testing (DNA) where reliable evidence is otherwise unavailable.
Affidavits are written statements from third parties that the petitioner may provide to meet the burden of proof. Petitioners relying on affidavits should generally submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances.[37] The author of an affidavit does not have to be physically present in the United States, have lawful status in the United States, or be a U.S. citizen.
Affidavits should contain the following information regarding the affiant:
- Full name;
- Address;
- Date and place of birth;
- Their relationship to the petitioner or beneficiary;
- Full information concerning the event; and
- Complete details explaining how the affiant acquired personal knowledge of the event.
The lack of a sworn statement, lack of the affiant’s address, or lack of personal knowledge is not disqualifying, but the affidavit may be considered as less probative and may not be sufficient evidence to meet the petitioner’s burden without other secondary evidence.
Footnotes
[^ 1] See 8 CFR 103.2(a)(1). See instructions for the Refugee/Asylee Relative Petition (Form I-730).
[^ 2] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).
[^ 3] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).
[^ 4] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).
[^ 5] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 6] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 7] See 8 CFR 207.7(c), 8 CFR 208.21(b), and 8 CFR 103.2(b)(1).
[^ 8] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 9] See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (defining more likely than not as a greater than 50 percent probability of something occurring). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof, Section B, Standards of Proof [1 USCIS-PM E.4(B)].
[^ 10] USCIS generally applies the “clearly and beyond doubt” standard in INA 235(b)(2)(A) and INA 240(c)(2) to admissibility determinations. See Matter of Bett (PDF), 26 I&N Dec. 437, 440 (BIA 2014).
[^ 11] See Matter of Patel (PDF), 19 I&N Dec. 774, 783 (BIA 1988) (citing Matter of Carrubba (PDF), 11 I&N Dec. 914, 917 (BIA 1966)).
[^ 12] For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 13] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 14] See 8 CFR 207.7(e) and 8 CFR 208.21(f) (cross-referencing to relevant sections of 8 CFR 204.2). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence [1 USCIS-PM E.6].
[^ 15] See 8 CFR 204.2.
[^ 16] See Revised Guidance on Informal (“Camp”) Marriages, issued February 14, 2022.
[^ 17] See Revised Guidance on Informal (“Camp”) Marriages, issued February 14, 2022.
[^ 18] See 8 CFR 204.2(d)(2).
[^ 19] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 20] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 21] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 22] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 23] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 24] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 25] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 26] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 27] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 28] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 29] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 30] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 31] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 32] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 33] See 8 CFR 207.7(e) and 8 CFR 208.21(f).
[^ 34] See 8 CFR 207.7(e) and 8 CFR 208.21(f) (stating, “[w]here possible [evidence] will consist of the documents specified in [8 CFR] 204.2(a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5) of this chapter”). Therefore, Form I-730 petitioners are not subject to the general presumption of ineligibility at 8 CFR 103.2(b)(2)(i) since 8 CFR 207.7(e) and 8 CFR 208.21(f) supersede that general rule.
[^ 35] See DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage for country-specific information on the availability and reliability of various foreign documents.
[^ 36] See 8 CFR 103.2(b)(3) (“Any document containing foreign language submitted to USCIS [must] be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that [the translator] is competent to translate from the foreign language into English.”).
[^ 37] See 8 CFR 207.7(e) and 8 CFR 208.21(f) (cross-referencing to relevant sections of 8 CFR 204.2). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence [1 USCIS-PM E.6].
Chapter 5 - Adjudication
In general, the Refugee/Asylee Relative Petition (Form I-730) adjudication process has the following steps when the U.S. Department of State (DOS) interviews the beneficiary at a location where USCIS does not have a presence:
- Receipt;
- Initial domestic processing;
- USCIS decision;
- Beneficiary interview; and
- Travel eligibility determination.[1]
In general, the Refugee/Asylee Relative Petition (Form I-730) adjudication process has the following steps when USCIS interviews the beneficiary at an international or domestic field office:
- Receipt;
- Initial domestic processing;
- Beneficiary interview; and
- USCIS decision.
USCIS has multiple directorates involved in processing Form I-730 petitions. After receipt and intake, USCIS generally completes initial domestic processing.
If the beneficiary is located within the United States, USCIS forwards the petition to the appropriate USCIS domestic field office based on the beneficiary’s residence to interview the beneficiary and adjudicate the petition.
If the beneficiary is located outside of the United States, USCIS sends the petition through the DOS National Visa Center (NVC) to a USCIS international field office or a DOS embassy or consulate. If the Form I-730 beneficiary is located outside of the United States in a country where USCIS has an international field office presence, USCIS interviews the beneficiary at the appropriate international field office and adjudicates the petition.[2]
If the Form I-730 beneficiary is located outside of the United States in a country with no USCIS international field office presence, USCIS adjudicates the petition before sending it to a DOS embassy or consulate. DOS interviews and completes processing of the beneficiary on USCIS’ behalf and determines the beneficiary’s eligibility to travel to the United States.
If the Form I-730 beneficiary completes an interview and additional processing at a DOS embassy or consulate and the DOS consular officer determines the beneficiary is ineligible to travel to the United States, DOS returns the Form I-730 petition to the USCIS domestic processing office with a consular return memo outlining the ineligibility reasons.
The USCIS initial domestic processing office then reviews the information provided by DOS and determines whether to reaffirm the initial approval of the Form I-730 petition or reopen and reconsider the approval and issue a Notice of Intent to Deny (NOID) to the Form I-730 petitioner.
A. Receipt
By regulation, all Form I-730 petitions must be filed with and adjudicated by USCIS.[3] USCIS receives all Form I-730 filings and enters the Form I-730 data into USCIS systems. USCIS then routes the petitions to an officer depending on two main factors:
- Whether the petitioner received refugee or asylee status; and
- Where the beneficiary is currently located.
B. Initial Domestic Processing
During initial domestic processing of Form I-730 petitions, USCIS conducts an initial eligibility review for eligibility, timeliness, and completeness.
During the initial eligibility review, an officer:
- Determines whether the petitioner is eligible to file the Form I-730 petition;[4]
- Determines whether the petitioner timely filed the Form I-730 petition;[5]
- Determines whether a qualifying family relationship exists between the petitioner and beneficiary listed on the Form I-730;[6] and
- Reviews preliminary security checks.
If the petitioner has not submitted all required evidence or the evidence in the record does not establish eligibility, the officer may issue a Request for Evidence (RFE) or a NOID. The officer issues a denial notice if the officer determines that the petitioner is not eligible to file the Form I-730 petition or the beneficiary is not eligible for following-to-join status.[7]
If USCIS does not issue a denial for a Form I-730 petition during initial domestic processing, and the petition is proceeding to adjudication, USCIS forwards the petition or adjudicates it, depending on whether a USCIS domestic or international field office or DOS embassy or consulate will complete the next processing steps.
If USCIS has a domestic field office or international field office with jurisdiction over the country where the beneficiary is located, USCIS forwards the unadjudicated Form I-730 to a local office for a beneficiary interview and adjudication by a USCIS officer. USCIS sends the Form I-730 petitioner a transfer notice listing the USCIS domestic or international field office where the beneficiary will be interviewed. The petitioner may also be requested to appear for an in-person interview at a USCIS field office on a case-by-case basis.
If the beneficiary lives outside of the United States and USCIS does not have an international field office with jurisdiction over the country where the beneficiary is located, USCIS adjudicates the Form I-730 petition and forwards it to the DOS embassy or consulate where the beneficiary is located, for the beneficiary interview and verification of travel eligibility.
When initial domestic processing is complete, USCIS issues an approval notice to the Form I-730 petitioner stating that USCIS has forwarded the petition to the NVC to be sent to the appropriate DOS embassy or consulate.
C. Beneficiary Interview
Generally, USCIS does not require interviews for Form I-730 petitioners. However, USCIS retains the discretion to interview petitioners on a case-by-case basis.[8]
As a matter of policy, USCIS or DOS interviews Form I-730 beneficiaries to determine their eligibility.[9] The purpose of the interview is for the USCIS or DOS officer to verify the beneficiary’s identity and claimed relationship to the petitioner. The officer also elicits information to determine if the beneficiary is barred or inadmissible.
1. Beneficiaries Located Within the United States
USCIS has jurisdiction over Form I-730 for a beneficiary who lives in the United States. After USCIS completes initial intake, receipt, and initial domestic processing, USCIS forwards the petition to the appropriate domestic USCIS field office with jurisdiction for further processing and adjudication. USCIS interviews and adjudicates both following-to-join refugee (FTJ-R) and following-to-join asylee (FTJ-A) petitions for beneficiaries who live in the United States.
If the petitioner filed a Form I-730 petition for a beneficiary who was located abroad but then later enters the United States, the petitioner should notify USCIS that the beneficiary has relocated to the United States in order for USCIS to re-route the petition for further domestic processing.[10] If USCIS has not adjudicated the Form I-730 petition, USCIS notifies the petitioner that it is transferring the petition to another USCIS office and sends the unadjudicated petition to the appropriate domestic field office for interview and adjudication.
If an I-730 beneficiary is in the United States, USCIS generally requests that the beneficiary appear for an interview. USCIS sends a written notice of the date, time, and place of the scheduled interview to the beneficiary.
2. Beneficiaries Located Outside the United States
After USCIS completes initial domestic processing for a beneficiary living outside of the United States, USCIS sends the petition to the NVC for forwarding to the appropriate DOS office or USCIS international field office.[11]
USCIS interviews beneficiaries located outside of the United States in locations abroad where there is a USCIS international field office with jurisdiction. DOS consular officers interview beneficiaries in locations abroad without USCIS international field office jurisdiction. USCIS or DOS notifies the beneficiary of the date, time, and place of their interview. Subject to local office or DOS embassy or consulate policy, USCIS or DOS may require the beneficiary to bring their own interpreter.
3. Interviews
Documentation for Interviews
The beneficiary must provide a certified English translation for any documents provided in support of the Form I-730 if the documents are not in English.[12]
USCIS Interviews
USCIS staff contact and schedule Form I-730 beneficiaries for an interview in a location abroad with a USCIS international field office. During the beneficiary interview, the USCIS officer:
- Confirms the beneficiary’s identity;
- Reviews documentation;
- Completes required biographic and biometric checks (which may require coordination with DOS and other vetting partners);
- Verifies the qualifying family relationship;
- Determines whether any mandatory bars or inadmissibility grounds apply; and
- Arranges medical examination and sponsorship assurance (for Form I-730 FTJ-R beneficiaries only).
If the USCIS international office determines that the Form I-730 beneficiary is eligible for following-to-join benefits, USCIS or DOS provides the beneficiary with travel documentation.
DOS Interviews
When the Form I-730 beneficiary resides in a location abroad where there is no USCIS presence or jurisdiction, staff from the DOS embassy or consulate contact the beneficiary to schedule their interview. DOS processing of Form I-730 petitions is similar to USCIS processing of Form I-730 petitions.
However, DOS does not have the authority to adjudicate Form I-730 petitions, and instead conducts a travel eligibility determination of the petition that USCIS previously approved. Generally, a travel eligibility interview by DOS is similar to a USCIS interview; however, DOS officers refer to the Foreign Affairs Manual (FAM) for agency procedures. If DOS determines that the Form I-730 beneficiary is eligible for travel, DOS issues travel documentation to the beneficiary.
D. USCIS Approval
For FTJ-R beneficiaries, if the Form I-730 petitioner files timely and meets all eligibility requirements, and the beneficiary meets all eligibility requirements and admissibility requirements, the USCIS officer approves the petition.[13]
For FTJ-A beneficiaries, if the Form I-730 petitioner files timely and meets all eligibility requirements, and the beneficiary meets all eligibility requirements and admissibility requirements, the USCIS officer may approve the petition as a matter of discretion.[14]
The location of a beneficiary of a Form I-730 determines when USCIS approves a Form I-730 petition.
- For a beneficiary in a location with a USCIS domestic or international field office jurisdiction, the USCIS domestic or international field office adjudicates the Form I-730 petition.
- For a beneficiary abroad in a location without a USCIS presence or jurisdiction, if the petitioner and beneficiary appear eligible and the petitioner establishes the qualifying relationship during initial domestic processing of the Form I-730 petition, USCIS approves the Form I-730 petition and forwards it to the NVC. The NVC then transfers the Form I-730 petition to the appropriate DOS embassy or consulate to interview the beneficiary and verify travel eligibility.
1. Travel Document Issuance
Approved Form I-730 beneficiaries located abroad need a transportation letter or boarding foil from USCIS or DOS to travel to the United States. These documents provide assurance to airline carriers that they may transport the Form I-730 beneficiary to the United States without liability.[15]
Form I-730 beneficiaries who complete processing with USCIS international field offices may receive either a transportation letter or a boarding foil. Form I-730 beneficiaries who complete processing with a DOS embassy or consulate receive a boarding foil.
The Form I-730 beneficiary presents the transportation letter or boarding foil to the U.S. Customs and Border Protection official at the port of entry to be admitted to the United States.
E. Final Eligibility Determination and Department of State Consular Returns
When USCIS interviews Form I-730 beneficiaries domestically or abroad, the USCIS officer approves the petition after all interview and procedural steps have been completed. Processing steps include:
- Verifying the beneficiary’s identity and qualifying family relationship;
- For Form I-730 FTJ-R beneficiaries, determining that the beneficiary has not engaged in the persecution of others and applicable inadmissibility grounds do not apply, and that the beneficiary does not have an existing grant of asylum or refugee status by the United States that remains valid;
- For Form I-730 FTJ-A beneficiaries, determining that no mandatory bars apply, and the beneficiary merits a favorable exercise of discretion;
- Confirming that USCIS has completed all required vetting, biometric, and biographic checks and the checks are current; and
- Confirming that the beneficiary has cleared medical requirements through a valid medical exam.
When DOS consular officers interview Form I-730 beneficiaries abroad, the USCIS initial domestic processing office approves the Form I-730 petition before sending the petition to DOS. At the beneficiary interview, if the DOS consular officer does not find the Form I-730 beneficiary eligible to travel to the United States, the officer then completes a consular return memo.
1. Consular Returns
If, during the DOS travel eligibility determination, a DOS consular officer uncovers adverse information that suggests USCIS should not have approved a Form I-730 petition, or that grounds of ineligibility apply, DOS completes a consular return memo and returns the petition to the USCIS office responsible for initial domestic processing for further action.[16]
To facilitate this process, the DOS consular officer prepares a consular return memo outlining the specific issue and reason for returning the petition to USCIS for reconsideration of the approval decision.[17]
When USCIS receives a consular return memo, the USCIS office responsible for initial domestic processing reviews the DOS consular officer's determination. If USCIS finds the reason for the return insufficient to reopen the approval, USCIS reaffirms the petition and sends it to NVC for forwarding to the DOS embassy or consulate for further processing with a memorandum explaining why the reason for the consular return was insufficient to reopen the approved petition.
If USCIS concurs with the ineligibility finding, USCIS issues a motion to reopen and NOID to notify the petitioner of the derogatory information and of the agency’s intent to reopen and deny the previously approved Form I-730 petition.[18] Depending on the evidence the petitioner provides, USCIS may then reapprove the petition and return it to DOS for continued processing or deny the petition.
Unless the petitioner withdraws a reopened Form I-730 petition or USCIS denies the petition, USCIS must forward the petition and all accompanying documents to the DOS embassy or consulate responsible for interviewing the beneficiary. USCIS explains how the petitioner overcame DOS’s ineligibility finding in the consular return memo in a memorandum attached to the re-approved petition.
When USCIS receives a consular return for a beneficiary and the sole issue is the beneficiary’s failure to appear at the interview, the USCIS officer administratively closes the case and sends a notice to the petitioner of the administrative closure. If the beneficiary is still interested in joining the petitioner in the United States and is available to appear at the DOS embassy or consulate, the petitioner may contact USCIS to request that USCIS reopen and resume processing of the petition.[19]
F. Denial
When a petitioner fails to establish eligibility, or the beneficiary fails to meet eligibility requirements, USCIS denies the petition and notifies the petitioner of the reasons in writing.[20] The petitioner cannot appeal the denial of a Form I-730.[21] USCIS explains the specific reasons for the denial in the denial decision[22] and informs the petitioner of the opportunity to file a motion to reopen or reconsider.[23]
1. Denial on the Merits
If, after evaluating all evidence submitted (including in response to an RFE or NOID, if applicable), the officer determines that eligibility has not been established, the officer denies the Form I-730 on the basis of the applicable ineligibility ground or grounds.[24]
2. Denial Solely for Abandonment
If the petitioner fails to respond to an RFE or NOID, the officer may deny the Form I-730 for abandonment only (and not on the merits) after verifying that USCIS followed appropriate notice procedures.[25]
3. Denial for Abandonment and the Merits
The officer may deny the Form I-730 based both upon the merits and for abandonment if:[26]
- The officer determines that the totality of the evidence does not establish eligibility; and
- The petitioner failed to reply to an RFE or NOID, if applicable.
G. Administrative Closures
USCIS administratively closes approved Form I-730 petitions when the beneficiary fails to appear for an interview and the DOS embassy or consulate returns the approved Form I-730 to the USCIS domestic office. When a beneficiary fails to appear for interview, USCIS issues a notice to the petitioner that USCIS has administratively closed the case.[27]
If the petitioner responds that the beneficiary can appear for an interview within 6 months of the date of the response, USCIS reopens, resumes processing and sends the Form I-730 to the appropriate DOS embassy or consulate for additional processing.
If the petitioner does not respond, indicates the beneficiary is unable to appear for an interview, or is unable to specify when the beneficiary can appear, the case remains administratively closed. To request that the petition resume processing, the petitioner must contact USCIS. There is no fee to request that processing of the petition resume.[28]
H. Withdrawals
For beneficiaries located outside of the United States, the petitioner may withdraw their Form I-730 petition at any time until the beneficiary is admitted to or has arrived in the United States. For beneficiaries located inside the United States, the petitioner may withdraw their Form I-730 petition at any time up until the beneficiary is granted derivative asylee or refugee status. A withdrawal may not be retracted.[29]
Only the petitioner can request withdrawal of the Form I-730. The beneficiary can defer or refuse to travel but cannot withdraw the Form I-730.[30]
The petitioner should sign and date the withdrawal request. An unsigned request from the petitioner to withdraw the petition, or a request to withdraw the petition signed by someone other than the petitioner, including an attorney or accredited representative, is generally insufficient.
If the withdrawal request is insufficient, USCIS should contact the petitioner and inform the petitioner that their request was insufficient for USCIS to accept the withdrawal and, if the petitioner wishes to withdraw the petition, the petitioner should submit a written withdrawal request signed and dated by the petitioner.
I. Appeals and Motions to Reopen or Reconsider
A petitioner may not appeal the denial of a Refugee/Asylee Relative Petition (Form I-730).[31] However, a petitioner may file a Notice of Appeal or Motion (Form I-290B) to request that USCIS reopen the case or reconsider the decision.[32]
The petitioner must file the Form I-290B within 30 days from the date USCIS issued the denial notice (or 33 days if the petitioner received the notice by mail). The filing must include the appropriate filing fee, or fee waiver request, and other documentation in support of the motion.[33]
Footnotes
[^ 1] As a matter of law, authority to adjudicate and process affirmative asylum applications, including Form I-730 following-to-join derivatives of asylees, rests exclusively with DHS. See INA 207 and INA 208. The eligibility determination could include DOS initiating a consular return, as appropriate, to ask USCIS to reconsider the grant. See Section E, Final Eligibility Determination and Department of State Consular Returns, Subsection 1, Consular Returns [4 USCIS-PM C.5(E)(1)].
[^ 2] See the International Immigration Offices webpage for a list of the current field offices outside the United States. Note that there are some countries in which USCIS does not have an international field office, but an office retains jurisdiction over Form I-730 processing. For example, the USCIS Nairobi international field office processes following-to-join refugee petitions in Uganda and Burundi.
[^ 3] See 8 CFR 207.7 and 8 CFR 208.21.
[^ 4] See Chapter 2, Eligibility Requirements, Section A, General Eligibility Requirements, Subsection 1, Petitioners [4 USCIS-PM C.2(A)(1)].
[^ 5] See Chapter 2, Eligibility Requirements, Section A, General Eligibility Requirements, Subsection 1, Petitioners [4 USCIS-PM C.2(A)(1)].
[^ 6] See Chapter 2, Eligibility Requirements, Section A, General Eligibility Requirements, Subsection 1, Petitioners [4 USCIS-PM C.2(A)(1)].
[^ 7] See Section F, Denial [4 USCIS-PM C.5(F)].
[^ 8] See 8 CFR 103.2(b)(9) (“USCIS may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request, or any group or class of such persons submitting requests, to appear for an interview and/or biometric collection.”).
[^ 9] See 8 CFR 103.2(b)(9) (“USCIS may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request, or any group or class of such persons submitting requests, to appear for an interview and/or biometric collection.”).
[^ 10] If USCIS is not informed of an address change for the Form I-730 beneficiary, the Form I-730 may remain pending until notification.
[^ 11] See 8 CFR 208.21(d) (“USCIS also will send the approved request to the Department of State for transmission to the U.S. Embassy or Consulate having jurisdiction over the area in which the asylee's spouse or child is located.”).
[^ 12] See 8 CFR 103.2(b)(3).
[^ 13] See 8 CFR 207.7(a).
[^ 14] See 8 CFR 208.21(a).
[^ 15] See INA 273(b), which requires the airline carrier to examine travel documents before boarding passengers.
[^ 16] A USCIS international office may also issue a consular return memo if the office is processing a petition that was approved during initial domestic processing. This may occur in situations where the petition was treated as a travel eligibility case during initial domestic processing with the expectation that the beneficiary would be interviewed abroad by DOS, and intervening circumstances (for example, beneficiary relocation or USCIS international office opening) resulted in the beneficiary instead being interviewed by USCIS.
[^ 17] See 8 CFR 103.5(a)(5)(ii).
[^ 18] See 8 CFR 103.2(b)(16).
[^ 19] See Section G, Administrative Closures [4 USCIS-PM C.5(G)].
[^ 20] See 8 CFR 103.3(a).
[^ 21] See 8 CFR 207.7(g) and 8 CFR 208.21(e).
[^ 22] See 8 CFR 103.3(a)(1)(i), 8 CFR 207.7(g), and 8 CFR 208.21(e).
[^ 23] See 8 CFR 103.5.
[^ 24] See 8 CFR 103.2(b)(8).
[^ 25] See 8 CFR 103.2(b)(13) and 8 CFR 103.2(b)(15).
[^ 26] See 8 CFR 103.2(b)(13).
[^ 27] USCIS follows the terms of the Tsamcho settlement agreement when administratively closing an I-730 petition if the beneficiary fails to appear for an interview. See the Important Notice of Proposed Class Action Settlement for Individuals Who Have Filed a Refugee/Asylee Relative Petition (Form I-730 Petition) on Behalf of a Relative webpage. See Tsamcho v. Napolitano, 1:10-cv-02029 (E.D.N.Y. Feb. 25, 2013).
[^ 28] Petitioners are not required to submit an Application for Action on an Approved Application or Petition (Form I-824) in order to resume processing of Form I-730.
[^ 29] See 8 CFR 103.2(b)(6).
[^ 30] See 8 CFR 103.2(b)(6).
[^ 31] See 8 CFR 207.7(g) and 8 CFR 208.21(e).
[^ 32] See 8 CFR 207.7(g).
[^ 33] For filing requirements, see 8 CFR 103.5.
Volume 5 - Adoptions
Part A - Adoptions Overview
Chapter 1 - Purpose and Background
A. Purpose
Each year, thousands of U.S. citizens and lawful permanent residents adopt children from other countries. The adoption or legal custody of a foreign-born child alone does not convey U.S. immigration status to the child or enable the child to travel to the United States. Congress enacted legislation so that eligible foreign-born adoptees can obtain citizenship or lawful immigration status in the United States.
B. Scope
This volume addresses requirements for prospective adoptive parents (PAPs) and adoptive parents to submit immigrant petitions to USCIS on behalf of adopted children so they can obtain lawful immigration status in the United States.
This guidance does not address:
- Other adoption-related requirements, such as those of the child’s country of origin,[1] state of proposed residence,[2] or other federal agencies, such as the U.S. Department of State (DOS);[3]
- The specific requirements for an adopted child to obtain U.S. citizenship;[4] or
- Requirements for stepparents to file a petition based on the stepparent-stepchild relationship (and not based on an adoptive relationship).[5]
C. Background
1. Adoption Processes
There are three different ways for a child to immigrate to the United States based on adoption. The laws, regulations, and eligibility requirements that govern immigration based on adoption depend on which of the processes the adoptive parent (petitioner) follows. The processes are:
- Hague Adoption Convention – for children from a country that is party to the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption;[6]
- Orphan (non-Hague) – for children from a country that is not party to the Hague Adoption Convention; and
- Family-based petition – for certain adopted children who have been in the legal custody of and jointly resided with the adoptive parent(s) for at least 2 years.
A child may only immigrate through the family-based process if the child was already adopted.[7] The orphan and Hague Adoption Convention processes provide the option for a child to immigrate to the United States after an adoption outside of the United States or for the purpose of adoption in the United States.
2. Federal Agency Roles
Both USCIS and DOS play a role in the intercountry adoption and immigration process.
USCIS Roles
USCIS determines the:
- Eligibility and suitability of the adoptive parents (for the Hague Adoption Convention and orphan processes);
- Eligibility of a child to immigrate to the United States (for all three of the processes); and
- Eligibility of adoptees to receive a certificate of citizenship or to naturalize.
DOS Roles
The roles of DOS in intercountry adoption include the following:
- Serves as the U.S. Central Authority for the Hague Adoption Convention. This role includes monitoring accrediting entities to ensure that adoption service providers perform their functions consistent with the Hague Adoption Convention and the Intercountry Adoption Act.[8]
- Determines the eligibility of a child to immigrate to the United States for certain orphan petitions filed outside the United States, completes the Determination on Child for Adoption (Form I-604) for certain orphan petitions, and completes the final adjudication of certain Hague Adoption Convention petitions at consular posts.
- Adjudicates visa applications for adopted children to immigrate to the United States.
- Adjudicates applications for U.S. passports.
3. Legislative History
The Displaced Persons Act of 1948 contained the first laws relating to the immigration of foreign-born orphans. In enacting legislation on foreign-born orphans and adoptees, Congress was primarily concerned with the welfare of the children. Since then, Congress has enacted several acts and amendments related to orphans and intercountry adoption. The table below provides an overview of major legislation and international treaties related to intercountry adoption.
Acts and Amendments | Key Changes or Provisions |
---|---|
Displaced Persons Act of 1948[9] |
|
The Act of September 26, 1961[10] |
|
Immigration and Nationality Act of 1965[11] |
|
Immigration and Nationality Act Amendment of 1999[12] |
|
Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) |
|
Intercountry Adoption Act (IAA 2000)[13] |
|
International Adoption Simplification Act of 2010[14] |
|
Intercountry Adoption Universal Accreditation Act of 2012 (UAA)[15] |
|
Consolidated Appropriations Act of 2014 (CAA)[18] |
|
D. Legal Authorities
- INA 101(b)(1)(E) – Definition of a child adoptee for family-based process
- INA 101(b)(1)(F) – Definition of a child adoptee for orphan process
- INA 101(b)(1)(G) – Definition of a child adoptee for Hague Adoption Convention process
- INA 201(b)(2)(A)(i) – Immediate relatives
- INA 203(a) – Preference allocation for family-sponsored immigrants
- INA 204 – Procedure for granting immigrant status
- 8 CFR 204.1 – General information about immediate relative and family-sponsored petitions
- 8 CFR 204.2(d) – Petition for a child or son or daughter
- 8 CFR 204.3 - Orphan cases under section 101(b)(1)(F) of the Act (non-Hague cases)
- 8 CFR 204 Subpart C – Intercountry adoption of a Convention adoptee
- 8 CFR 103.2 – Submission and adjudication of benefit requests
Footnotes
[^ 1] For general information on other countries’ requirements, see the U.S. Department of State (DOS)’s Country Information webpage. USCIS has country-specific processing for certain countries. For USCIS country-specific adoption information, see the USCIS Country-Specific Processing webpage.
[^ 2] For general information about state laws, see the Child Welfare Information Gateway’s State Laws Related to Adoption webpage.
[^ 3] For DOS guidance, see the Foreign Affairs Manual.
[^ 4] For guidance on citizenship for adopted children, see Part F, Citizenship for Adopted Children [5 USCIS-PM F]. For more information, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens [12 USCIS-PM H].
[^ 5] A stepparent is not required to adopt the stepchild in order for USCIS to approve a Petition for Alien Relative (Form I-130) or Refugee/Asylee Relative Petition (Form I-730). For information on filing a Form I-130 based on a non-adoptive relationship, see Form I-130 instructions. For information on filing a Form I-730, see Form I-730 instructions. For guidance on citizenship for stepchildren, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens [12 USCIS-PM H].
[^ 6] The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption is referred to in this Volume as the Hague Adoption Convention.
[^ 7] The adoption may have occurred in or outside of the United States. Certain restrictions may apply if the child is from a Hague Convention country. See Chapter 2, Adoption Processes [5 USCIS-PM A.2] for information on determining which adoption process (Hague Adoption Convention, orphan, or family-based) applies, depending on the PAP’s circumstances.
[^ 8] See Pub. L. 106-279 (PDF) (October 6, 2000).
[^ 9] See Pub. L. 80-774 (PDF) (June 25, 1948).
[^ 10] See Pub. L. 87-301 (PDF) (September 26, 1961).
[^ 11] See Pub. L. 89-236 (PDF) (October 3, 1965).
[^ 12] See Pub. L. 106–139 (PDF) (December 7, 1999).
[^ 13] See Pub. L. 106-279 (PDF) (October 6, 2000).
[^ 14] See Pub. L. 111-287 (PDF) (November 30, 2010).
[^ 15] See Pub. L. 112-276 (PDF) (January 14, 2013).
[^ 16] The UAA does not apply to cases that meet certain criteria (for example, UAA-grandfathered cases). See Guidance on the Implementation of the Intercountry Adoption Universal Accreditation Act of 2012 and the Consolidated Appropriations Act, 2014 in Intercountry Adoption Adjudications, PM-602-0103, issued June 30, 2014.
[^ 17] The regulations at 8 CFR 204.3(e) and certain definitions in 8 CFR 204.3(b) no longer apply in orphan cases that are subject to the UAA. See 8 CFR 204.301 for the definitions of adult member of the household, home study preparer, suitability as adoptive parent(s), officer, adoption, and applicant, which includes both a married U.S. citizen and the citizen’s spouse. See 8 CFR 204.311 for home study requirements.
[^ 18] See Pub. L. 113-76 (PDF) (January 17, 2014).
Chapter 2 - Adoption Processes
The primary elements that determine which adoption process (Hague Adoption Convention, orphan, or family-based) an adoptive parent (petitioner) may follow include:
- The child’s country of habitual residence;
- The petitioner’s citizenship and country of habitual residence;
- The date of any adoption or legal custody order; and
- The length of time the child has been in the legal custody of and jointly resided with the petitioner.
The following table describes which process a petitioner generally must follow to petition for a child to immigrate based on adoption.
Process | General Principles |
---|---|
Hague Adoption Convention | Generally for U.S. citizens adopting children habitually resident in a Hague Adoption Convention country.[1] |
Orphan | Generally for U.S. citizens adopting children who are not habitually resident in a Hague Adoption Convention country. |
Family-Based Petition | Open to both U.S. citizens and lawful permanent residents (LPRs) of the United States. A U.S. citizen cannot, however, use the family-based petition process for a child that is from a Hague Adoption Convention country unless they can establish that the Convention does not apply. |
A. Hague Adoption Convention[2]
1. Applicability
The petitioner must follow the Hague Adoption Convention process if:[3]
- The petitioner is a U.S. citizen who is habitually resident in the United States; and
- The petitioner seeks to adopt a child who is habitually resident in a Hague Adoption Convention country (other than the United States) based on an adoption occurring on or after April 1, 2008, and on or after the Hague Adoption Convention entered into force in the other country.[4]
If the child is from a Hague Adoption Convention country, a U.S. citizen petitioner cannot pursue the orphan or family-based petition process unless the petitioner establishes that the Hague Adoption Convention does not apply. The U.S. Hague Adoption Convention process does not apply if:
- USCIS determines that the U.S. citizen petitioner was not habitually resident in the United States at the time of the adoption;
- The child was not deemed to be habitually resident in a Hague Adoption Convention country at the time of the adoption;
- The petitioner was not a U.S. citizen at the time of the adoption;
- The U.S. citizen petitioner completed the adoption before the Hague Adoption Convention went into effect for the United States (April 1, 2008) or the other country;[5] or
- The U.S. citizen petitioner filed an orphan-based adoption petition or application[6] whose period of approval or extension had not expired before the date the Hague Adoption Convention went into effect for the United States or the other country, provided that the laws of the child’s country of origin permits continuation under the orphan process.[7]
Habitual Residence Determinations - Prospective Adoptive Parent(s)
In general, for the purposes of petitioning for a Hague Convention adoptee, USCIS considers a U.S. citizen petitioner to be habitually resident in the United States at the time of the adoption unless:
- The petitioner adopted the child outside the United States and completed the 2-year legal custody and 2-year joint residence requirements for a family-based petition by living with the child outside the United States;[8] or
- The petitioner establishes that the petitioner was not domiciled in the United States and did not intend to bring the child to the United States as an immediate consequence of the adoption.
Habitual Residence Determinations - Child
In general, USCIS considers a child’s country of citizenship to be the child’s country of habitual residence. USCIS may consider the child to be habitually resident in a country other than that of the child’s citizenship if:
- The child actually resides in that country; and
- The Central Authority[9] of the country the child is residing in, or another competent authority in either a Hague Adoption Convention or non-Hague country, determines that the child’s status in that country is sufficiently stable to make it appropriate for that country to exercise jurisdiction over the adoption of the child.[10]
Children who are Physically Present in the United States
USCIS deems a child who is present in the United States, but whose habitual residence was in another Hague Adoption Convention country before the child came to the United States, to be habitually resident in the other Hague Adoption Convention country.[11] Therefore, a petitioner in this situation must generally follow the Hague Adoption Convention process,[12] even if the child is already in the United States.[13]
The petitioner may file a Hague Adoption Convention petition if the other Hague Adoption Convention country is willing to complete the Hague Adoption Convention process.[14] If, however, the petitioner can establish[15] that the Hague Adoption Convention and the implementing regulations no longer apply,[16] then the petitioner may follow the family-based process.
2. Process
For the Hague Adoption Convention process, the petitioner must file both a suitability application[17] and a petition[18] for the child. The following table provides a summary of requirements to obtain lawful immigration status in the United States for the child through the Hague process.
Requirement | Related Form | For More Information |
---|---|---|
USCIS must find that the prospective adoptive parent(s) (PAP(s)) is suitable and eligible to adopt. | Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A) | See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B]. |
USCIS and the U.S. Department of State (DOS) must find that the child meets Hague Convention adoptee eligibility requirements. | Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800) | See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D] |
B. Orphan
1. Applicability
The petitioner may follow the orphan process if:
- At least one of the PAPs is a U.S. citizen; and
- The child is not from a Hague Adoption Convention country.[19]
If the child is from a Hague Adoption Convention country, a U.S. citizen cannot pursue the orphan petition process unless the petitioner establishes that the Hague Adoption Convention does not apply.[20]
2. Process
For the orphan process, the petitioner must file a suitability application[21] and a petition[22] for the child. The following table provides a summary of requirements to obtain lawful immigration status in the United States for the child through the orphan process.
Requirement | Form | For More Information |
---|---|---|
USCIS must find that the PAP(s) is suitable and eligible to adopt. | Application for Advance Processing of an Orphan Petition (Form I-600A) | See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B]. |
USCIS (and DOS, as applicable) must find that the child meets orphan eligibility requirements. | Petition to Classify Orphan as an Immediate Relative (Form I-600) | See Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C]. |
C. Family-Based
1. Applicability
Generally, the petitioner may follow the family-based[23] petition process if:
- The adoptive parent petitioner is a U.S. citizen or LPR;
- The petitioner establishes the Hague Adoption Convention does not apply;[24]
- A final adoption was completed before the child turned 16 (or 18 if the sibling exception applies);[25] and
- The child has been in the legal custody of and jointly resided with a U.S. citizen or LPR adoptive parent for at least 2 years at the time of filing the petition.
USCIS does not have the authority to waive the 2-year legal custody and 2-year joint residence requirement for a family-based petition, except for certain battered children.[26]
If a U.S. citizen petitioner who was not habitually resident in the United States at the time of adoption decides to move to the United States, USCIS cannot approve a family-based petition for the child before the petitioner has satisfied the 2 year legal custody and 2 year joint residence requirements.[27]
If the child is from a Hague Adoption Convention country, a U.S. citizen petitioner cannot follow the family-based petition process unless the petitioner establishes that the Hague Adoption Convention does not apply.[28]
2. Process
The family-based petition process involves a USCIS determination that the child is eligible to immigrate as the adopted child, son, or daughter[29] of the petitioner. In contrast to the other two processes, the family-based petition process does not involve a USCIS determination of the adoptive parent’s suitability.
To pursue the family-based petition process, the petitioner may file a Petition for Alien Relative (Form I-130).[30]
The adoptive parent-child relationship[31] is recognized in all applicable immigration requests under U.S. immigration law, including, but not limited to:
- Refugee/Asylee Relative Petition (Form I-730);
- Application for Certificate of Citizenship (Form N-600);
- Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K); or
- A claim to eligibility for an immigrant visa as a derivative.[32]
Adoption Between Hague Adoption Convention Countries Other Than the United States
An officer may encounter a petition or application related to an adoption in a Hague Adoption Convention country (other than the United States) for a child who is habitually resident in another Hague Adoption Convention country (other than the United States). The immigration laws of the United States determine whether an adoption properly certified according to the Hague Adoption Convention (by the Central Authorities of the other countries involved in the adoption) may form the basis for a U.S. immigration benefit.[33]
Footnotes
[^ 1] For a list of countries that are party to the Hague Adoption Convention, see the U.S. Department of State (DOS)’s Convention Countries webpage.
[^ 2] See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D].
[^ 3] See 8 CFR 204.303.
[^ 4] For a list of countries that are party to the Hague Adoption Convention, see the U.S. Department of State (DOS)’s Convention Countries webpage. For information on the entry into force date for each country, see the Hague Conference on Private International Law’s webpage, Status Table.
[^ 5] If the petitioner acquired custody of the child for purposes of emigration and adoption before April 1, 2008, but did not actually complete the adoption before April 1, 2008, the adoption of the child on or after April 1, 2008, is governed by the Hague Adoption Convention.
[^ 6] See Application for Advance Processing of an Orphan Petition (Form I-600A) or a Petition to Classify Orphan as an Immediate Relative (Form I-600).
[^ 7] If the child’s country of habitual residence agrees, such cases may proceed under the orphan process (known as transition cases). See Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C].
[^ 8] See 8 CFR 204.2(d)(2)(vii)(D) and (E).
[^ 9] Central authority means the entity designated as such under Article 6(1) of the Hague Adoption Convention by any Convention country, or, in the case of the United States, DOS. See 22 CFR 96.2.
[^ 10] See 8 CFR 204.303(b).
[^ 11] See 8 CFR 204.2(d)(2)(vii)(F).
[^ 12] See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D].
[^ 13] However, a child from a Hague Adoption Convention country who is admitted to the United States as a refugee or granted asylum is no longer considered habitually resident in the child’s prior country of citizenship or residence because the purpose of the child’s travel to the United States was not in connection with an adoption, and would therefore not circumvent the Hague Adoption Convention. Restrictions on the approval of a Form I-130 for a child from a Hague Adoption Convention country do not apply to children admitted as refugees or granted asylum as they are no longer considered habitually resident in their country of citizenship or residence.
[^ 14] See 8 CFR 204.309(b)(4).
[^ 15] For information on related evidence the petitioner must file, including when the other country is not willing to complete the Hague Adoption Convention process, see Part E, Family-Based Adoption Petitions [5 USCIS-PM E].
[^ 16] USCIS can conclude that 8 CFR 204.2(d)(2)(vii)(F) no longer applies if there is a sufficient basis to establish that the Hague Adoption Convention and the implementing regulations no longer apply to a child who came to the United States from another Hague Adoption Convention country. USCIS interprets 8 CFR 204.303(b) to permit a finding that a child is habitually resident in the United States, even if, under 8 CFR 204.2(d)(2)(vii)(F), the child is initially presumed to be habitually resident in another Hague Adoption Convention country. For more information on requirements for making a determination that a child is not habitually resident in the Convention country, see Criteria for Determining Habitual Residence in the United States for Children from Hague Convention Countries, PM 602-0095, issued November 20, 2017.
[^ 17] See the Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A).
[^ 18] See the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).
[^ 19] For a list of countries that are party to the Hague Adoption Convention, see DOS’s Convention Countries webpage. For information on the entry into force date for each country, see the Hague Conference on Private International Law’s Status Table webpage.
[^ 20] See Section A, Hague Adoption Convention, Subsection 1, Applicability [5 USCIS-PM A.2(A)(1)].
[^ 21] See the Application for Advance Processing of an Orphan Petition (Form I-600A). PAPs typically file the suitability application before the petition to determine the child’s eligibility to immigrate based on the adoption. If the PAP has already identified a child for adoption, the PAP may apply for the suitability determination at the same time as the petition to determine the child’s eligibility (known as a combination or concurrent filing), by filing evidence in support of the suitability determination with the Petition to Classify Orphan as an Immediate Relative (Form I-600).
[^ 22] See the Petition to Classify Orphan as an Immediate Relative (Form I-600).
[^ 23] See INA 101(b)(1)(E).
[^ 24] See Section A, Hague Adoption Convention, Subsection 1, Applicability [5 USCIS-PM A.2(A)(1)].
[^ 25] See Part E, Family-Based Adoption Petitions, Chapter 2, Eligibility, Section B, Qualifying Relationship [5 USCIS-PM E.2(B)].
[^ 26] See INA 101(b)(1)(E)(i).
[^ 27] If it becomes necessary to return to the United States before the 2-year legal custody and 2-year joint residence requirements are met, the petitioner may try to pursue the orphan process (if the child is not from a Hague Adoption Convention country) or the Hague Adoption Convention process instead of the family-based adoption process. The petitioner may encounter issues, however, if the child was adopted before the completion of the Hague Adoption Convention process. See Part D, Child Eligibility Determinations (Hague), Chapter 7, Required Order of Immigration and Adoption Steps [5 USCIS-PM D.7].
[^ 28] See Section A, Hague Adoption Convention, Subsection 1, Applicability [5 USCIS-PM A.2(A)(1)].
[^ 29] See Part E, Family-Based Adoption Petitions, Chapter 2, Eligibility, Section A, Age, Marital Status, and Immigration Status Requirements [5 USCIS-PM E.2(A)].
[^ 30] See Part E, Family-Based Adoption Petitions [5 USCIS-PM E].
[^ 31] As described in INA 101(b)(1)(E).
[^ 32] See INA 203(d).
[^ 33] See INA (101)(b)(1).
Chapter 3 - U.S. Citizens Residing Outside the United States
Options for a child to obtain U.S. immigration status based on adoption by a U.S. citizen prospective adoptive parent (PAP) who resides outside of the United States depend on many factors, including:
- Whether the family will continue to reside outside the United States or will reside in the United States before the child turns age 18;
- The laws of the country where the PAP resides; and
- The laws of the country where the child resides (if different from the PAP’s country of residence).
Before initiating an adoption or legal custody, the PAP should contact the competent authority (for non-Hague countries) or Central Authority (for Hague Adoption Convention countries) in the country where the PAP resides and where the child resides (if different). These authorities may provide more information to assist the PAP in understanding the process a U.S. citizen residing in that foreign country may be required to follow regarding the adoption and immigration of the child.[1]
A domestic adoption or legal custody of a child in the child’s country of origin alone does not convey U.S. immigration status to the child or enable the child to travel to the United States. If a U.S. citizen[2] PAP residing outside of the United States wishes to secure lawful U.S. immigration status for the PAP’s adopted child, the PAP generally may use one of the U.S. immigration processes (Hague Adoption Convention, orphan, or family-based).
The following table explains which U.S. immigration process a PAP who resides outside of the United States generally may pursue,[3] based on whether the child resides in a country that is a party to the Hague Adoption Convention.
If child resides in… | U.S. immigration processes[4] generally available |
---|---|
Non-Hague country |
|
Hague Adoption Convention country |
|
This table does not address the process to obtain U.S. citizenship for the child.[5]
Additional Considerations for Children from a Hague Adoption Convention Country
Generally, a U.S. citizen who adopts a child from a Hague Adoption Convention country must use the Hague Adoption Convention process.[6] The U.S. Hague Adoption Convention process is generally available to any U.S. citizen residing outside the United States.[7]
The Hague Adoption Convention requires a determination of the U.S. citizen PAP’s habitual residence. If the PAP resides in a Hague Adoption Convention country, the Central Authority of the PAP’s country of residence generally determines whether it considers the PAP to be habitually resident in that country for the purpose of adoption under the Hague Adoption Convention process.
If the Central Authority of that country determines the PAP is habitually resident in the country where the PAP resides, and it is the receiving country for the purposes of adoption of a child from another Hague Adoption Convention partner country, the PAP generally must follow the Hague Adoption Convention process of the country where the PAP is habitually resident.
The PAP may also be able to simultaneously pursue the U.S. Hague Adoption Convention process to immigrate the child to the United States if the PAP is able to obtain the required Convention documents from the Central Authority in the child’s country of origin. However, if the PAP is not able to obtain the required Convention documents, the U.S. Hague Adoption Convention process may not be available.
Footnotes
[^ 1] For information about the competent or central adoption authorities in each country and to determine if a particular country is party to the Hague Adoption Convention, see the U.S. Department of State’s webpage, Country Information.
[^ 2] A lawful permanent resident of the United States may follow the family-based process, if otherwise eligible.
[^ 3] The same processes that are available to PAPs who reside in the United States are generally available to PAPs who reside outside of the United States. For more information on applicability of adoption processes, see Chapter 2, Adoption Processes [5 USCIS-PM A.2].
[^ 4] For information on how to secure U.S. citizenship for the adopted child of a U.S. adoptive parent residing outside the United States, see Part F, Citizenship for Adopted Children [5 USCIS-PM F]. For more information, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens [12 USCIS-PM H].
[^ 5] For information on citizenship for adopted children, see Part F, Citizenship for Adopted Children [5 USCIS-PM F]. For more information, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens [12 USCIS-PM H]. For information on the naturalization process for children who reside outside of the United States, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 5, Child Residing Outside the United States (INA 322) [12 USCIS-PM H.5].
[^ 6] The petitioner may encounter issues, however, if the child was adopted before the completion of the Hague Adoption Convention process. See Part D, Child Eligibility Determinations (Hague), Chapter 7, Required Order of Immigration and Adoption Steps [5 USCIS-PM D.7].
[^ 7] See 8 CFR 204.303.
Chapter 4 - Adoption Definition and Order Validity
A child may be eligible to immigrate through the orphan or Hague Adoption Convention process if otherwise eligible and:
- The child was adopted, and the adoption meets the definition of an adoption for immigration purposes; or
- The child is not yet the subject of a final adoption[1] but meets certain criteria to come to the United States for adoption.[2]
Unlike the Hague Adoption Convention and orphan processes, a child may only immigrate through the family-based process if the child was already adopted (and is otherwise eligible).
Definition of Adoption
To meet the definition of adoption for immigration purposes, an adoption must create a legal status comparable to that of a natural legitimate child between the adopted child and the adoptive parent.[3] An adoption must be valid under the law of the country or place granting the order and must:
- Terminate the legal parent-child relationship between the child and the prior legal parent(s);
- Create a legal permanent parent-child relationship between the child and the adoptive parent; and
- Comply with the law of the country or place granting the adoption.
A. Determining the Validity and Effect of an Adoption
In general, USCIS accepts an adoption decree or order as primary evidence of an adoption. The validity of an adoption is relevant to the eligibility of a child to immigrate to the United States on the basis of adoption.[4] The law of the jurisdiction that issued the adoption order determines the validity of the adoption.[5]
USCIS may question the validity of the adoption order if there is credible and probative evidence that:
- The adoption was flawed in its execution, such as when the court (or other official body) granting the adoption appears to have lacked jurisdiction over the adoption, when the prior legal parent(s) did not consent to the adoption, or were not given proper notice of the termination of parental rights;
- The adoption was granted due to official corruption or the use of fraud or material misrepresentation; or
- The adoption order document is fraudulent.[6]
If there is credible and probative evidence that the adoption may be invalid for one of these reasons, the burden falls on the petitioner to establish that the adoption is valid under the law of the jurisdiction where the adoption order was issued.
1. Adoption as Judicial or Administrative Act
The law of the jurisdiction that issued the adoption order governs what official act constitutes an adoption in that jurisdiction. In many countries, adoption is a judicial process. The evidence of the adoption is therefore a court order. In other countries, adoption is an administrative process, not a judicial process. For example, in some countries, adoption is accomplished by adding the adopted child to one’s Family Registry.[7] In some countries, a legal adoption can be accomplished according to legal custom, without a court or administrative order.
2. Whether Adoption is Legally Possible in a Given Jurisdiction
The law of the jurisdiction where the adoption order was issued governs whether or not a legal parent-child relationship can be created by adoption.
Islamic Law
With some limited exceptions,[8] in countries that follow traditional Islamic law, adoption in the sense required for immigration purposes generally does not exist.[9] Typically, a Kafala order is issued in countries that follow traditional Islamic law, and while the Kafala order may grant legal custody sufficient for purposes of emigration for adoption, they generally do not terminate the legal parent-child relationship with their prior parents. For that reason, a Kafala order generally would not qualify as an adoption for immigration purposes. In countries which follow traditional Islamic Law, the specific laws of that country must be applied in considering the legal effect of an adoption order, and its validity for immigration purposes.
Multi-Ethnic or Multi-Religious Countries
In some multi-ethnic or multi-religious countries, the personal status laws for each ethnic or religious group governs adoptions. In such countries, different bodies of law govern adoption for different children, even within the same neighborhood. For example, an adoption valid for immigration purposes may not be available for a Muslim child under Islamic family law but may be available for another child under Jewish or Christian family law.
3. Customary Adoption
In some countries, customary adoption may exist instead of, or in addition to, adoption through a judicial or administrative procedure. If a customary adoption terminates the legal parent-child relationship with the prior parents and creates a legal parent-child relationship with the adoptive parent under local law, then that customary adoption is valid for immigration purposes.[10]
The petitioner has the burden to show that the law of the jurisdiction where the adoption order was issued actually creates a valid adoption for immigration purposes.[11] The petitioner must establish that the customary adoption complies with the requirements of the relevant customary law and meets the definition of adoption for immigration purposes.[12]
4. Simple Adoption
Some countries have a type of adoption commonly called simple adoption, in addition to another type that may be called full, plenary, or perfect adoption. Whether simple adoption is valid for immigration purposes depends on the law of the jurisdiction where the adoption order was issued.[13]
Even if a simple adoption might be more easily terminated than a full adoption, the petitioner may still establish that a permanent relationship was created by the simple adoption. A simple adoption may be valid for immigration purposes if it meets the definition of an adoption for immigration purposes and the parent-child relationship cannot be terminated for other than serious or grave reasons. If a simple adoption creates a permanent legal parent-child relationship, it might be valid for immigration purposes.[14]
5. Contact with Birth or Prior Parents After the Adoption
The mere fact that contact between the adoptee and the birth or prior parents (as in open adoptions) is ongoing does not mean that the legal parent-child relationship with the prior legal parent(s) was not terminated. As long as the adoptive parents, rather than the prior parents, exercise full parental authority over the child as a result of the adoption, the adoption order may be valid to form the basis of granting an immigration benefit under U.S. immigration law (if otherwise eligible).
6. Adoptive Stepparents
In some jurisdictions, the law allows a stepparent to adopt the child(ren) of the stepparent’s spouse if the legal parent-child relationship with the other legal or birth parent has been terminated by death or legal action. Such termination may meet the requirement that the legal parent-child relationship between the child and the prior legal parent(s) was terminated. The continuing legal parent-child relationship between the child and the adopting stepparent’s spouse does not preclude recognition of the adoption.
7. Evidence About the Applicable Adoption Law
The law of the jurisdiction where the adoption order was issued is a question of fact that the petitioner must prove with evidence.[15] If the evidence of record does not clearly show that an adoption creates a permanent legal parent-child relationship, the officer issues a request for evidence (RFE) or notice of intent to deny (NOID) asking for a copy of the relevant laws, along with properly certified English translations.[16] In this way, the officer provides the petitioner with notice and an opportunity to respond before denying a petition based on information about the jurisdiction’s adoption law that the petitioner may not be aware of.[17]
B. Effect of an Adoption
If the requirements for an adoptions-based petition have been met, the adoptee is considered to be the child, son, or daughter of the adopting parent(s), not the birth parent(s), for immigration purposes.[18] Similarly, the adoptee is considered the sibling of the adoptive parent’s other legal children, but not of the birth parent’s children.[19]
Petition by Adopted Child for Birth Parent(s) Prohibited
An adoption that meets the requirements in immigration law and terminates any prior legal parent-child relationship[20] precludes the birth parent(s) from gaining any immigration benefit from that child.[21] Accordingly, such child is prohibited from petitioning for the child’s birth parent(s), since the relationship between the child and the birth parent(s) was severed at the time of the adoption.
If, however, the adoption in question did not terminate the legal parent-child relationship with the birth parent, then the relationship between the child and the birth parent(s) was not severed, and the child is not prohibited from petitioning for such birth parent(s). A natural parent-child relationship can again be recognized for immigration purposes following the legal termination of an adoption if the petitioner can establish that:
- No immigration benefit was obtained or conferred through the adoptive relationship;
- A natural parent-child relationship meeting the requirements of INA 101(b) once existed;
- The adoption has been lawfully terminated under applicable law; and
- The natural relationship has been reestablished by law.[22]
C. Effect of Legal Termination of an Adoption
The law of the jurisdiction where the legal termination of the adoption was ordered governs the validity of a termination of an adoption.
Termination of an adoption does not necessarily mean that the legal parent-child relationship has actually been restored with the prior legal parent(s).[23] Even if the child received no immigration benefits as a result of the adoption, the evidence must show that the legal relationship to the prior legal parent(s) is re-established according to law in order for that relationship to form the basis for granting a benefit under U.S. immigration law.
Footnotes
[^ 1] Not all countries grant a final adoption for immigration purposes. The petitioner may also obtain a legal custody order for purposes of emigration and adoption.
[^ 2] For criteria for orphan cases, see Part C, Child Eligibility Determinations (Orphan), Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5]. For criteria for Hague Adoption Convention cases, see Part D, Child Eligibility Determinations (Hague), Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM D.5].
[^ 3] See Matter of Mozeb (PDF), 15 I&N Dec. 430 (BIA 1975).
[^ 4] See Guidance for Determining if an Adoption is Valid for Immigration and Nationality Act (INA) Purposes, PM 602-0070.1, issued November 6, 2012.
[^ 5] See Matter of T-, 6 I&N Dec. 634 (1955).
[^ 6] Not recognizing an adoption in one of these situations is consistent with legal principles generally observed by courts in the United States with respect to foreign country judgments. See Sections 482(2)(a)-(c) of Restatement (Third) Foreign Relations Law of the United States.
[^ 7] See Matter of Cho (PDF), 16 I&N Dec. 188 (BIA 1977).
[^ 8] See Guidance for Determining if an Adoption is Valid for Immigration and Nationality Act (INA) Purposes, PM 602-0070.1, issued November 6, 2012.
[^ 9] See Matter of Mozeb (PDF), 15 I&N Dec. 430 (BIA 1975). See Matter of Ashree, Ahmed and Ahmed (PDF), 14 I&N Dec. 305 (BIA 1973).
[^ 10] See Matter of Lee (PDF), 16 I&N Dec. 511 (BIA 1978).
[^ 11] See Matter of Annang (PDF), 14 I&N Dec. 502 (BIA 1973).
[^ 12] See Matter of Kodwo (PDF), 24 I&N Dec. 479 (BIA 2008).
[^ 13] For example, in Matter of Kong (PDF), 15 I&N Dec. 224 (BIA 1975), Matter of Kong (PDF) 14 I&N Dec. 649 (BIA 1974) and Matter of Chang (PDF), 14 I&N Dec. 720 (BIA 1974), the Board of Immigration Appeals (BIA) held that “Appatitha,” a form of simple adoption in Burma, did not create a legal parent-child relationship.
[^ 14] See Matter of Chin (PDF), 12 I&N Dec. 240 (BIA 1967).
[^ 15] See Matter of Annang (PDF), 14 I&N Dec. 502 (BIA 1973).
[^ 16] See Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].
[^ 17] See 8 CFR 103.2(b)(16).
[^ 18] See INA 101(b)(1).
[^ 19] See Matter of Li (PDF), 20 I&N Dec. 700 (BIA 1993).
[^ 20] See Guidance for Determining if an Adoption is Valid for Immigration and Nationality Act (INA) Purposes, PM 602-0070.1, issued November 6, 2012.
[^ 21] See INA 101(b)(1). See Matter of Li (PDF), 20 I&N Dec. 700 (BIA 1993).
[^ 22] See Matter of Xiu Hong Li (PDF), 21 I&N Dec. 13, 13 (BIA 1995).
[^ 23] As the Board noted in Xiu Hong Li, “We do not assume that natural relationships are automatically reestablished solely by virtue of the fact that an adoption has been lawfully terminated.” See Matter of Xiu Hong Li (PDF), 21 I&N Dec. 13 (BIA 1995).
Chapter 5 - Authorized Adoption Service Providers
The Intercountry Universal Accreditation Act of 2012 (UAA) requires that all agencies or persons providing adoption services in orphan and Hague Adoption Convention cases be accredited or approved, unless a limited exception applies.[1] Supervised providers, exempted providers, public domestic authorities, and public foreign authorities do not require accreditation or approval.
Adoption service means any one of the following six services:[2]
- Identifying a child for adoption and arranging an adoption;
- Securing the necessary consent to termination of parental rights and to adoption;
- Performing a background study on a child or a home study on a prospective adoptive parent(s) (PAP(s)), and reporting on such a study;
- Making non-judicial determinations of the best interests of a child and the appropriateness of an adoptive placement for the child;
- Monitoring a case after a child has been placed with PAP(s) until final adoption; or
- When necessary, because of a disruption before final adoption, assuming custody and providing (including facilitating the provision of) childcare or any other social service pending an alternative placement.
A primary adoption service provider is the accredited agency or approved person who is responsible under 22 CFR 96 for ensuring all six adoption services defined in 22 CFR 96.2 are provided according to the law, for supervising and being responsible for supervised providers when used,[3] and for developing and implementing a service plan in accordance with 22 CFR 96.44.[4] PAPs provide primary adoption service provider information on the petition for orphan and Hague cases.
Footnotes
[^ 1] See the Intercountry Adoption Universal Accreditation Act of 2012, Pub. L. 112-276 (PDF) (January 14, 2013). See Guidance on the Implementation of the Intercountry Adoption Universal Accreditation Act of 2012 and the Consolidated Appropriations Act, 2014 in Intercountry Adoption Adjudications, PM-602-0103, issued June 30, 2014 and USCIS’ Universal Accreditation Act webpage. See the U.S. Department of State (DOS) Accreditation Regulations at 22 CFR 96. For a list of accredited agencies and approved persons, see DOS’ Adoption Service Provider Search webpage.
[^ 2] Defined at 22 CFR 96.2.
[^ 3] See 22 CFR 96.14.
Part B - Adoptive Parent Suitability Determinations
Chapter 1 - Purpose and Background
A. Purpose
USCIS must find that a prospective adoptive parent (PAP)[1] is suitable and eligible to adopt for a PAP to complete the intercountry adoption process, whether through the Hague Adoption Convention[2] or orphan (non-Hague) process. Congress gave this authority to USCIS to ensure that only people who can provide proper parental care are approved for intercountry adoption.
USCIS has the sole authority to determine the suitability and eligibility of PAPs for intercountry adoption. USCIS makes suitability determinations based on the evidence in the record, including the PAP’s home study and the results of criminal background and security checks.
B. Scope
The guidance in this Part only applies to Hague Adoption Convention and orphan cases. Certain children may be eligible to immigrate based on a family-based adoption petition,[3] which does not require a USCIS determination of the adoptive parent’s suitability.
C. Background
USCIS must be satisfied that the PAP remains suitable and eligible to adopt a child throughout the intercountry adoption process. This involves a USCIS suitability determination at all the following points:
- Before USCIS can approve any suitability application, extension request, request for an updated approval notice, or change of country request;[4]
- Before USCIS (or the U.S. Department of State (DOS), where designated) can approve any intercountry adoption-related petition; and
- Before DOS issues any immigrant visa and the child immigrates to the United States.
Both DHS and DOS have rules that govern home studies for intercountry adoptions. The Intercountry Adoption Universal Accreditation Act of 2012 (UAA),[5] effective July 14, 2014, impacted requirements for home studies in orphan cases, including home study preparation, home study elements, and the duty of disclosure.[6] As a result and unless an exception applies,[7] Hague Adoption Convention and orphan suitability determinations are now very similar.
D. Legal Authorities
- INA 101(b)(1)(F) – Definition of a child for orphan process
- INA 101(b)(1)(G) – Definition of a child for Hague Adoption Convention process
- 8 CFR 204.3 – Orphan cases under section 101(b)(1)(F) of the Act (non-Hague cases)
- 8 CFR 204 Subpart C – Intercountry adoption of a Convention adoptee (Hague Adoption Convention cases)
- 22 CFR 96 – Intercountry adoption accreditation of agencies and approval of persons
Footnotes
[^ 1] In this Part, the term PAP refers to the applicant or petitioner and the PAP’s spouse, if any.
[^ 2] The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption is referred to in this Part as the Hague Adoption Convention.
[^ 3] See Part E, Family-Based Adoption Petitions [5 USCIS-PM E].
[^ 4] Extension requests, requests for an updated approval notice, and change of country requests are all requests for action on an approved and valid suitability application. For more information on these types of requests, see Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5].
[^ 5] See Pub. L. 112-276 (PDF) (January 14, 2013).
[^ 6] The UAA superseded parts of the orphan regulations at 8 CFR 204.3 and made certain portions of the regulations governing adoptions completed under the Hague Adoption Convention at 8 CFR 204.300 through 8 CFR 204.314 applicable to orphan cases.
[^ 7] See the Intercountry Adoption Universal Accreditation Act of 2012, Pub. L. 112-276 (PDF) (January 14, 2013). For more information on when this Act applies, see The Universal Accreditation Act of 2012 webpage.
Chapter 2 - Eligibility, Documentation, and Evidence (Orphan Process)
A. Eligibility
A prospective adoptive parent (PAP) is eligible to adopt if the PAP meets the following requirements:
- The applicant[1] is a U.S. citizen;
- If married, the applicant’s spouse must:
- Intend to also adopt the child; and
- Be in lawful immigration status if residing in the United States.[2]
- If single, is at least 24 years old when filing the suitability application,[3] and at least 25 years old when filing the immigration petition;[4] and
- Establish that they will provide proper parental care.
B. Filing
1. Advanced Processing
To apply to have the suitability determination processed in advance, the PAP must file an Application for Advance Processing of an Orphan Petition (Form I-600A), in accordance with the form instructions and include all applicable supplements,[5] evidence, and the appropriate fee.[6]
2. Combination Filing
PAPs typically file the suitability application before the petition to determine the child’s eligibility to immigrate based on adoption. If the PAP has already identified a child for adoption, the PAP may apply for the suitability determination at the same time as the petition to determine the child’s eligibility (known as a combination or concurrent filing).
To submit a combination filing, the PAP should file the supporting documentation and evidence for the suitability determination (in addition to the documentation relating to the identified child), with the petition to determine the child’s eligibility[7] and any appropriate fee.[8]
C. Documentation and Evidence
The PAP must submit evidence in accordance with the form instructions.[9] The following is a summary of the evidence the PAP must provide.
1. Proof of the Applicant’s U.S. Citizenship
The applicant must submit proof of U.S. citizenship. Examples of such proof include a birth certificate, an unexpired U.S. passport, a certificate of naturalization, or a certificate of citizenship. If such primary evidence is unavailable, USCIS may consider secondary evidence.[10]
2. Proof of the Spouse’s Immigration and Citizenship Status (If Applicable)
If the applicant is married, the applicant must submit evidence that the applicant's spouse is a U.S. citizen, a national (but not citizen) of the United States, or is otherwise in a lawful immigration status, provided the spouse resides in the United States. Examples of evidence of U.S. citizenship or U.S. national status include a birth certificate, an unexpired U.S. passport, a certificate of naturalization, or a certificate of citizenship. Examples of evidence of lawful immigration status may consist of a Permanent Resident Card (Form I-551), a foreign passport with an I-551 stamp, a foreign passport with an unexpired visa and a valid admission stamp, a valid Arrival/Departure Record (Form I-94), or other evidence of lawful status in the United States.
3. Proof of Marriage (If Applicable)
If married, the PAP must submit a copy of their marriage certificate.
If previously married, the PAP must include evidence of the termination of any prior marriages. Examples of such proof include, but are not limited to, a divorce decree, annulment decree, other legal termination of the marriage, or death certificate of previous spouse.
4. Proof of Compliance with Pre-Adoption Requirements (If Applicable)
If the suitability application or combination filing indicates that the child will be coming to the United States for adoption, the PAP must establish that any pre-adoption requirements of the state of the child’s intended residence have been or will be met. USCIS considers an orphan to be coming to the United States for adoption if:
- Neither parent personally saw and observed the child before or during the adoption;
- The PAP will not complete the adoption outside the United States (and will therefore need to complete the adoption in the United States); or
- In the case of a married couple, only one of the adoptive parents adopts the child outside of the United States (therefore, the spouse will need to adopt the child in the United States).
5. Biometrics
The PAPs and any adult members of the household[11] must submit biometrics.[12]
For those residing in the United States, USCIS schedules biometrics collection at an Application Support Center (ASC). Persons residing outside of the United States must submit biometrics at a USCIS international field office, U.S. embassy, consulate, or military installation.
USCIS considers biometric based background check results to be valid for a period of 15 months. The PAP or additional adult member of the household (AMH) may need to update their biometrics during the intercountry adoption process.[13]
Unclassifiable Biometrics
USCIS submits biometrics to the Federal Bureau of Investigation (FBI) for criminal history background checks. On occasion, the FBI is unable to provide USCIS with a criminal history based on biometrics submitted. When this happens, the FBI refers to the biometrics as “unclassifiable.” If USCIS receives two consecutive sets of unclassifiable biometrics,[14] USCIS issues a Request for Evidence (RFE) to the PAP or adult household member for police clearances[15] for all residences (domestic or foreign) for the last 5 years. If a U.S. state record is available, it is required in place of a clearance from a local police department:
- When an arrest record is needed to provide information about a conviction;
- To document that there were no arrests; or
- To document that an arrest did not lead to court action.
Police clearances are not available from certain countries.[16] If a police clearance is generally available, but a country is unable to provide one, the PAP or adult household member must provide a letter from the appropriate foreign authority stating that it is not available.
Like other criminal history results, police clearance letters are also valid for a period of 15 months from the date of issuance. If more than one letter is submitted, the date of the earlier letter becomes the validity period start date.
6. Home Study[17]
The PAP must submit a valid, original[18] home study to USCIS within 1 year of filing the suitability application.[19] If the PAP makes a combination (or concurrent) filing, the PAP must submit the home study with the filing.
The PAP may need to update the home study during the intercountry adoption process.[20] The home study, or the most recent update of the home study, cannot be more than 6 months old at the time of submission to USCIS.[21]
This means that no more than 6 months have passed since the home study preparer signed and dated the home study. If a home study will be more than 6 months old at the time of submission to USCIS, the PAP must ensure that it is updated by the home study preparer before submission.[22]
Footnotes
[^ 1] The applicant refers to the person who is filing the suitability application or the petitioner who is filing a combination or concurrent filing. For information on combination filings, see Section B, Filing, Subsection 2, Combination Filings [5 USCIS-PM B.2(B)(2)].
[^ 2] If the spouse is not a U.S. citizen, a national (but not citizen) of the United States, or a lawful permanent resident (LPR), the officer should evaluate the impact of this status on the stability and suitability of the home. For example, a U.S. citizen who ordinarily resides outside the United States could be temporarily assigned to a job in the United States and the U.S. citizen’s spouse may be eligible for a valid nonimmigrant status during the term of the U.S. citizen's temporary assignment to the United States. Generally, the lack of LPR status of the spouse would not preclude a favorable suitability determination. Similarly, USCIS factors a spouse who resides outside the United States into the suitability determination.
[^ 3] See Application for Advance Processing of an Orphan Petition (Form I-600A). See Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A).
[^ 4] See the Petition to Classify Orphan as an Immediate Relative (Form I-600).
[^ 5] See Listing of Adult Member of the Household (Supplement 1 for Form I-600A and I-600). See Consent to Disclose Information (Supplement 2 for Form I-600A and I-600).
[^ 6] See 8 CFR 103.2(a)(1). See Fee Schedule (Form G-1055).
[^ 7] See Petition to Classify Orphan as an Immediate Relative (Form I-600). See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)] for more information on filing timeframes.
[^ 8] See Fee Schedule (Form G-1055) to determine if a fee is needed for a combination filing.
[^ 9] See instructions for Application for Determination of Suitability to Adopt an Orphan (Form I-600A).
[^ 10] For more information on secondary evidence, see 8 CFR 204.1(g)(2). See instructions for Application for Advance Processing of an Orphan Petition (Form I-600A).
[^ 11] See 8 CFR 204.301.
[^ 12] For more information on biometrics collection, see Volume 1, General Policies and Procedures, Part C Biometrics Collection and Security Checks, Chapter 2, Biometrics Collection [1 USCIS-PM C.2].
[^ 13] For information on biometrics validity and updates, see Chapter 5, Action on Pending or Approved Suitability Determinations, Section E, Biometrics Validity and Updates [5 USCIS-PM B.5(E)].
[^ 14] The physical condition of certain hands or fingers may make it difficult to collect a useable set of fingerprints. For example, a person could have a medical or skin condition or may have worked with chemicals that damaged the surface of their fingers. If the FBI deems a person’s fingerprints unclassifiable, that person must provide a second set of biometrics unless USCIS grants an exemption.
[^ 15] The term police clearance means official evidence of a record of arrests, lack of arrests, or confirmation that an arrest did not result in court action from a local police department or from a state agency responsible for maintaining arrest records.
[^ 16] Officers must check DOS’s reciprocity tables to determine a country’s police clearance availability.
[^ 17] For information on USCIS’ home study requirements, see Chapter 4, Home Studies [5 USCIS-PM B.4].
[^ 18] USCIS requires an original home study (not a photocopy) with original signature.
[^ 19] If the PAP does not submit the requisite home study within 1 year of filing the suitability application for an orphan case, USCIS must deny the suitability application. See 8 CFR 204.3(h)(5). USCIS applies the definition of day at 8 CFR 1.2 to deadlines for submitting the home study or any related documentation or evidence. See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)] for more information on filing timeframes.
[^ 20] For examples of reasons that require a home study update and home study update requirements, see Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5]. If the PAP submits an updated home study, the PAP must include a copy of the original home study that is being updated, including any prior updates.
[^ 21] See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)] for more information on filing timeframes.
[^ 22] See Chapter 5, Action on Pending or Approved Suitability Determinations, Section B, Validity Periods and Extensions [5 USCIS-PM B.5(B)].
Chapter 3 - Eligibility, Documentation, and Evidence (Hague Process)
A. Eligibility
A prospective adoptive parent (PAP) is eligible to adopt if the PAP meets the following requirements:
- The applicant[1] is a U.S. citizen who is habitually resident in the United States;[2]
- If married, the applicant’s spouse must:
- Intend to also adopt the child; and
- Be in lawful immigration status if residing in the United States;[3]
- If single, is at least 24 years of age when filing the suitability application,[4] and at least 25 years old when filing the adoption petition;[5] and
- Establishes that they will provide suitable parental care.
B. Filing
To apply for a suitability determination, the PAP must file an Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A) in accordance with the form instructions, and include all applicable supplements,[6] evidence, and the appropriate fee.[7]
C. Documentation and Evidence
The PAP must submit evidence in accordance with the form instructions.[8] The following is a summary of the evidence the PAP must provide.
1. Proof of Applicant’s U.S. Citizenship
The applicant must submit proof of U.S. citizenship. Examples of such proof include a birth certificate, an unexpired U.S. passport, a certificate of naturalization, or a certificate of citizenship. If such primary evidence is unavailable, USCIS may consider secondary evidence.[9]
2. Proof of Spouse’s Immigration and Citizenship Status (If Applicable)
If the applicant is married, the applicant must submit evidence that the applicant's spouse is a U.S. citizen, a national (but not citizen) of the United States, or is otherwise in a lawful immigration status, provided the spouse resides in the United States. Examples of evidence of U.S. citizenship or U.S. national status include a birth certificate, an unexpired U. S. passport, a certificate of naturalization, or a certificate of citizenship. Examples of evidence of lawful immigration status may consist of a Permanent Resident Card (Form I-551), a foreign passport with an I-551 stamp, a foreign passport with an unexpired visa and a valid admission stamp, a valid Arrival/Departure Record (Form I-94), or other evidence of lawful status in the United States.
If the spouse does not reside in the United States, the PAP must submit evidence of the spouse’s name, identity, and citizenship. An example of such proof is a copy of the spouse’s passport from the country of citizenship.
3. Proof of Marriage
If married, the PAP must submit proof of marriage. This includes evidence of the termination of any prior marriages.
4. Proof of Compliance with Pre-Adoption Requirements (If Applicable)
If the suitability application indicates that the child will be coming to the United States for adoption, the applicant must establish that any pre-adoption requirements of the state of the child’s intended residence have been or will be met. USCIS considers a Convention adoptee to be coming to the United States for adoption if:
- The PAP will not complete the adoption outside the United States (and will therefore need to complete the adoption in the United States); or
- In the case of a married couple, only one of the adoptive parents adopts the child outside the United States (therefore, the spouse will need to adopt the child in the United States).
5. Biometrics
The PAPs and any adult members of the household[10] must submit biometrics.
For those residing in the United States, USCIS schedules biometrics collection at an Application Support Center (ASC). Persons residing outside of the United States must submit biometrics at a USCIS international field office, U.S. embassy, consulate, or military installation.
USCIS considers biometric based background check results to be valid for a period of 15 months. The PAP or additional adult member of the household (AMH) may need to update their biometrics during the intercountry adoption process.[11]
Unclassifiable Biometrics
USCIS submits biometrics to the Federal Bureau of Investigation (FBI) for criminal history background checks. On occasion, the FBI is unable to provide USCIS with a criminal history based on biometrics submitted. When this happens, the FBI refers to the biometrics as “unclassifiable.” If USCIS receives two consecutive sets of unclassifiable biometrics,[12] USCIS issues a Request for Evidence (RFE) to the PAP or adult household member for police clearances[13] for all residences (domestic or foreign) for the last 5 years. If a U.S. state record is available, it is required in place of a clearance from a local police department:
- When an arrest record is needed to provide information about a conviction;
- To document that there were no arrests; or
- To document that an arrest did not lead to court action.
Police clearances are not available from certain countries.[14] If a police clearance is generally available, but a country is unable to provide one, the PAP or AMH must provide a letter from the appropriate foreign authority stating that it is not available.
Like other criminal history results, police clearance letters are also valid for a period of 15 months from the date of issuance. If more than one letter is submitted, the date of the earlier letter becomes the validity period start date.
6. Home Study[15]
A PAP must submit a valid, original[16] home study to USCIS with the suitability application.[17]
The PAP may need to update the home study during the intercountry adoption process.[18] The home study, or the most recent update of the home study, cannot be more than 6 months old at the time of submission to USCIS.[19]
This means that no more than 6 months have passed since the home study preparer signed and dated the home study. If a home study will be more than 6 months old at the time of submission to USCIS, the PAP must ensure that it is updated by the home study preparer before submission.[20]
Footnotes
[^ 1] The applicant refers to the person who is filing the suitability application.
[^ 2] For information on which process a PAP may follow and habitual residence determinations, see Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2].
[^ 3] If the spouse is not a U.S. citizen, a national (but not citizen) of the United States, or a lawful permanent resident (LPR), the officer should evaluate the impact of this status on the stability and suitability of the home. For example, a U.S. citizen who ordinarily resides outside the United States could be temporarily assigned to a job in the United States and the U.S. citizen’s spouse may be eligible for a valid nonimmigrant status during the term of the U.S. citizen's temporary assignment to the United States. Generally, the lack of LPR status of the spouse would not preclude a favorable suitability determination. Similarly, USCIS factors a spouse who resides outside the United States into the suitability determination.
[^ 4] See Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A).
[^ 5] See the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).
[^ 6] See Listing of Adult Member of the Household (Form I-800A Supplement 1). See Consent to Disclose Information (Form I-800A Supplement 2).
[^ 7] See Fee Schedule (Form G-1055) to determine if a fee is needed for Form I-800A and its supplements.
[^ 8] See instructions for Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A). See 8 CFR 103.2(b)(1).
[^ 9] For more information on secondary evidence, see 8 CFR 204.1(g)(2).
[^ 10] See 8 CFR 204.301.
[^ 11] For information on biometrics validity and updates, see Chapter 5, Action on Pending or Approved Suitability Determinations, Section E, Biometrics Validity and Updates [5 USCIS-PM B.5(E)].
[^ 12] The physical condition of certain hands or fingers may make it difficult to collect a useable set of fingerprints. For example, a person could have a medical or skin condition or may have worked with chemicals that damaged the surface of their fingers. If the FBI deems a person’s fingerprints unclassifiable, that person must provide a second set of biometrics unless USCIS grants an exemption.
[^ 13] The term police clearance means official evidence of a record of arrests, lack of arrests, or confirmation that an arrest did not result in court action from a local police department or from a state agency responsible for maintaining arrest records.
[^ 14] Officers must check DOS’s reciprocity tables to determine a country’s police clearance availability.
[^ 15] For more information on home study requirements, see Chapter 4, Home Studies [5 USCIS-PM B.4].
[^ 16] USCIS requires an original home study (not a photocopy) with original signature.
[^ 17] The PAP may submit the suitability application without the home study only if an exception applies because the PAP’s state of residence must review and directly forward the home study to USCIS. See instructions for Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A).
[^ 18] For examples of reasons that require a home study update and home study update requirements, see Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5]. If the PAP submits an updated home study, the PAP must include a copy of the original home study that is being updated, including any prior updates.
[^ 19] For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)].
[^ 20] See Chapter 5, Action on Pending or Approved Suitability Determinations, Section B, Validity Periods and Extensions [5 USCIS-PM B.5(B)].
Chapter 4 - Home Studies
A. Purpose and Scope
A home study is a process where a licensed or authorized home study preparer screens and prepares prospective adoptive parents (PAPs) for adoption. A home study concludes with a report that makes recommendations about a PAP’s suitability to adopt based on the assessments described in this chapter. Home studies must address all required content,[1] but USCIS does not have a required format. Home studies must comply with applicable laws and policies in the:
- PAP’s place of residence (U.S. state or territory, or foreign country);
- Child’s country of origin; and
- United States (federal laws governing adoption and immigration).[2]
Requirement | Summary |
---|---|
Authorized home study preparers | Only licensed or authorized persons or agencies may conduct home studies. |
Visits and interviews | The home study preparer must conduct at least one interview in-person and at least one home visit with the PAP, at least one interview with any adult member of the household (AMH), and observe any children in the home, when possible. |
Household member information | The home study preparer must assess the impact of each household member (PAP, AMH, and child in the home) on the suitability of the PAP’s household. |
Family history | The home study preparer must assess the PAP’s family and parenting history. |
Living accommodations | The home study preparer must assess the suitability of the PAP’s living accommodations. |
PAP immigration status | The home study preparer must ask the PAPs about their citizenship and immigration status. If the applicant’s spouse resides in the United States and does not have lawful permanent resident status, the home study preparer should address any impact this may have on the stability of the home so USCIS can evaluate if the family’s situation is sufficiently stable to be found suitable. |
Financial resources | The home study preparer must assess the PAP’s ability to financially support adopted child(ren). |
Physical, medical, emotional, and behavioral health | The home study preparer must assess the physical, mental, emotional, and behavioral health of all household members (the PAP, AMH, and children in the home, as applicable). |
Criminal history and history of abuse or violence | The home study preparer must assess if any household member (the PAP, AMH, and children in the home, as applicable) has a criminal history or history of abuse or violence as an offender, including child abuse, sexual abuse, family or domestic violence, substance abuse and criminal activity, and if so, the impact on suitability. |
Child abuse registry check | The home study preparer must ensure a check has been done with any available child abuse registries[3] for any state, territory, or foreign country in which a PAP or any AMH has resided since their 18th birthday. |
Evidence of rehabilitation | If the PAP or any household member has a criminal history, or a history of any kind of abuse or violence as an offender, the home study preparer may only make a favorable finding if the person has achieved appropriate rehabilitation. |
Prior home studies | The home study preparer must evaluate the relevance of any prior or terminated home studies on suitability. |
Preparation and training | The home study preparer must ensure the PAP receives the required number of hours of preparation and training unless an exemption applies. The home study should summarize training provided and plans for any future training and preparation. |
Country-specific requirements | The home study preparer must assess the PAP’s suitability specific to each country from which they may adopt. |
State-specific requirements | The home study preparer must prepare the home study according to the requirements that apply to a domestic adoption in the state of residence if the PAP’s actual or proposed residence is in the United States. |
Special needs-specific requirements | If the PAP seeks to adopt a child with special needs, the home study preparer must assess the PAP’s ability to care for a child with special needs. |
Specific recommendation for adoptions | The home study preparer must make specific recommendations for adoption based on their assessment of the PAP’s suitability. The home study preparer must address any potential problem areas in their assessment. This includes making a referral to an appropriate licensed professional for an evaluation and written report. |
Duty of disclosure | The home study preparer must advise the PAP and any AMH of the ongoing duty of disclosure throughout the intercountry adoption process. |
Review, signature, and attestation | An accredited agency[4] must review and approve the home study if not performed in the first instance by an accredited agency, unless a public domestic or public foreign authority conducted the home study. |
Validity | The home study, or the most recent update, cannot be more than 6 months old at the time of submission to USCIS. If a home study will be more than 6 months old at the time of submission to USCIS, it must be updated before submission. |
Authorized Home Study Preparers: Requirements
Only licensed or authorized persons or agencies may conduct home studies.[5] The home study preparer (other than a public domestic or public foreign authority) must hold any license or other authorization required under the law of the jurisdiction where the home study provider conducts the home study.[6] The following table provides an overview of who can be an authorized home study preparer for PAPs who reside in the United States and for those who reside outside of the United States.[7]
Home Study Preparer | PAPs Residing in the United States | PAPs Residing Outside the United States |
---|---|---|
Accredited Agency | X | X |
Approved Person | X | X |
Supervised Provider | X | X |
Exempted Provider | X | |
Public Domestic Authority | X | |
Public Foreign Authority | X |
Statement of Home Study Preparer’s Authority
The home study preparer must include a statement of the preparer’s authority to conduct home studies.[8] The statement must:
- Specify the state, territory, or country under whose authority the home study preparer is licensed or authorized;
- Cite the specific law or regulation authorizing the preparer to conduct home studies;
- Indicate the license number and expiration date, if any, of the home study preparer’s authorization or license; and
- Specify the basis[9] for this authorization.
B. Visits and Interviews
1. Requirements
Prospective Adoptive Parents
The home study preparer must conduct at least one interview in-person and at least one home visit with the PAP.[10]
Adult Members of the Household
The home study preparer must conduct at least one interview with any additional adult member of the household (AMH).[11] The interview should be in-person, unless the home study preparer determines that an in-person interview is not reasonably feasible and explains the reason for this conclusion.[12]
Children in the Home
When possible, the home study preparer should observe in-person any child in the home during the home visit or at some point during the home study process. If observation is not possible, the home study preparer should explain why.
2. Required Home Study Content
The home study must address[13] the:
- Number of interviews and home visits;
- Participants, dates, and locations of each contact, interview, and visit; and
- If the home study preparer did not interview an AMH in person or observe a child in the home, an explanation of why it was not feasible.
C. Household Member Information
1. Required Assessment
The home study preparer must assess the impact of each household member (both children and adults) on the suitability of the PAP’s household.[14] An adult household member may also include a person who is not yet 18 years old, or a person who does not actually live at the same residence, but whose presence in the household impacts suitability.[15]
2. Required Home Study Content
The home study must identify each household member (PAP, AMH, and child in the home) by name, alien registration number (if any), date of birth, and country of birth. For any AMH and child in the home, the home study must also indicate the relationship to the PAP.[16]
The home study must describe each household member, including how the household member’s characteristics impact the overall suitability of the household and the PAP’s ability to care for adopted children. The home study preparer should include the following:
- Each person’s overall well-being, including physical, mental, emotional, and behavioral health;
- Any special needs;
- Any criminal history or history of arrest or investigation;
- Any history of abuse (sexual, substance, or child abuse) or family violence as an offender even if it did not result in an arrest or conviction;
- Any evidence of rehabilitation;
- Any potential problems areas; and
- Any additional information about the person that is relevant to the overall suitability of the home and the applicant’s ability to care for adopted children.
D. Family History
1. Required Assessment
To assess the PAP’s family history and ability to parent adopted children,[17] the home study preparer must assess the PAP’s family and parenting history. This includes any biological children and any children for whom the PAP was the primary care provider,[18] even if such children no longer reside in the PAP’s home.
2. Required Home Study Content
The home study must discuss the PAP’s parenting experience with any such children, including the relationship to the PAP, the circumstances of the relationship, and the termination of such relationship (if applicable).
E. Living Accommodations
1. Required Assessment
The home study preparer must assess the suitability of the PAP’s living accommodations.[19]
2. Required Home Study Content
The home study must include:
- A detailed description of the PAP’s current living accommodations;
- A description of the PAP’s intended living accommodations (if moving or if the PAP lives outside the United States and intends to move to an identified residence in the United States);
- A determination of which properties the PAP uses as a primary residence and which properties are used for other purposes (if the PAP owns more than one property);
- A determination of whether the living space meets any applicable state requirements, or a statement that no requirements exist; and
- An assessment of the suitability of the living accommodations.
F. PAP Immigration Status
1. Assessments
The home study preparer should ask the PAPs their citizenship and immigration status.[20]
If the applicant’s spouse resides in the United States and does not have lawful permanent resident (LPR) status,[21] the home study preparer should ask for an explanation of lawful immigration status.
2. Home Study Content
The home study should indicate the reported U.S. citizenship or immigration status of the PAPs.
If the applicant’s spouse resides in the United States and does not have LPR status, the home study preparer should indicate the reason for this so the officer can evaluate if the family’s situation is sufficiently stable to be found suitable.[22]
G. Financial Resources
1. Required Assessment
The home study preparer must assess the PAP’s ability to financially support adopted children.[23]
Any income designated for the support of children in the PAP’s care (such as foster care subsidies), or any income designated for the support of another member of the household, cannot be counted towards the financial resources available for the support of the prospective adoptive children. In addition, financial contributions from other family members (such as AMHs) cannot be counted towards the PAP’s financial resources.
2. Required Home Study Content
The home study must include:
- A description of the PAP’s income, financial resources, debts, and expenses;
- A statement summarizing the evidence the home study preparer considered in verifying the PAP’s financial resources; and
- An assessment of the PAP’s financial suitability.
H. Physical, Medical, Emotional, and Behavioral Health
1. Required Assessment
The home study preparer must assess the physical, mental, emotional, and behavioral health of all household members (the PAP, any AMH, and any children in the home).[24]
2. Required Home Study Content
The home study must include the following as it relates to all household members:
- A general description of their current physical, mental, emotional, and behavioral health; and
- A description of any history of illness or mental, emotional, psychological, or behavioral instability that may adversely impact the suitability of the home.[25]
I. Criminal History and History of Abuse or Violence
1. Required Assessment
The home study provider must assess if any household member (PAP, AMH, or children in the home) has a criminal history or history of abuse or violence as an offender.[26] USCIS considers someone to have a history of abuse or violence even if it only happened once, and even if the incident did not result in an arrest or conviction. The home study preparer must assess the history of all types of abuse, violence, or criminal history as an offender, including:
- Child abuse (including neglect and unregulated custody transfer);
- Sexual abuse;
- Family or domestic violence;
- Drug or alcohol abuse (substance abuse); and
- Criminal activity.
The home study provider must ask the PAP and any AMH to disclose any criminal history and any history of abuse or violence as an offender.[27] The home study provider should also ask if any of the child household members have any criminal history or any other history of abuse or violence as an offender by asking the child’s parents or the child (if age appropriate).
Child Abuse Registries
The home study provider must ensure a check has been done with any available child abuse registries[28] for any state, territory, or foreign country in which a PAP or any AMH has resided since their 18th birthday.[29] If a country no longer exists or if its name has changed, the home study preparer must identify the geographic location where the PAP or any AMH lived to determine what country it is now and check its child abuse registry. If a country’s border has changed, the home study preparer must generally check with both the new and former country.
The following table outlines how a home study provider should conduct the registry check and secure consents, depending on the applicable law.
If the law of the state, territory, or for | eign country where the PAP or AMH resided …Then (for the PAP and any AMH)… |
---|---|
Allows the home study preparer to access the child abuse registry information[30] | The home study preparer must submit a written records request to the child abuse registry. |
Only allows a home study preparer to check a child abuse registry with a person’s consent | The home study preparer must obtain the PAP’s and AMH’s consent and submit a written records request to the child abuse registry.[31] |
Only allows the release of child abuse registry information to the subject of the record | The PAP and any AMH must obtain the information from the registry and provide it to the home study preparer.[32] |
Does not allow the release of registry information to the home study preparer or the subject of the record | The home study preparer must address the unavailability of the information in the home study. |
A home study provider may proceed with the home study without the results of available child abuse registries if at least 6 months have gone by since making the request, and the jurisdiction has not released the information. The home study preparer must address the unavailability of the information in the home study, including efforts made to obtain the results.[33]
Child abuse registry checks cannot be more than 15 months old[34] at the time the home study preparer signs the home study.
Child Abuse or Neglect and Custody Transfers
As part of the home study preparer’s assessment of any history of child abuse or neglect, the home study preparer must assess the involvement of the PAP and any AMH in any custody transfers of children, including:
- Unregulated custody transfers (also known as rehoming);[35] and
- Terminations of prior adoptive placements (known as an adoption disruption or dissolution).[36]
Not all custody transfers of children involve child abuse or neglect. The home study preparer must ask the PAP and any AMH if they ever transferred or received permanent custody of a child. The home study preparer must then ask more narrow questions to determine if the custody transfer was an unregulated custody transfer or involved other child abuse or neglect.
If the PAP or any AMH has been involved in an unregulated custody transfer or an adoption disruption or dissolution, the home study preparer must assess the impact on the suitability and address whether the PAP or any AMH involved has been appropriately rehabilitated, as applicable.
Substance Abuse
The home study preparer must evaluate suitability in light of any history of substance abuse by the PAP or any member of the household, including child household members, as age appropriate.[37] USCIS considers a person to have a history of substance abuse if current or past use of alcohol, controlled substances,[38] or other substances impaired or impairs the person’s ability to fulfill obligations at work, school, or home, or creates other social or interpersonal problems that may adversely affect suitability.
Rehabilitation
If the PAP or any household member has a criminal history, or a history of any kind of abuse or violence as an offender, the home study preparer may only make a favorable finding if the person has achieved appropriate rehabilitation.
A home study preparer[39] cannot make a favorable recommendation based on rehabilitation while the PAP or household member is on probation, parole, supervised release, or other similar arrangement for a conviction.[40]
2. Required Home Study Content
Required Questions
The home study must include responses for PAPs and AMHs to the questions listed below. USCIS requires each person’s direct response to the questions on their history. For child household members, USCIS permits the information to come from the child’s parents or legal guardians, or the child, as is age appropriate. The questions include:
- Whether the person has any arrests, convictions, or investigations in the United States or outside the United States (other than minor traffic and parking violations);[41] and
- Whether the person has a history as an offender of substance abuse, sexual or child abuse (including any unregulated custody transfers), or family violence even if it did not result in an arrest or conviction.[42]
Child Abuse Registries and Background Check Results
The home study must include results of the child abuse registry checks[43] for every state, territory, or foreign country in which the PAP or any AMH has resided since the person’s 18th birthday. The home study must indicate that each check:
- Was completed and:
- A record was found and a summary of the results; or
- No record was found to exist; or
- Was not completed because the state, territory, or foreign country:
- Will not release information to the home study preparer or anyone in the household,
- Has not released the information and at least 6 months have passed since the request was made; or
- The state, territory, or foreign country does not have a child abuse registry.
Child Abuse or Neglect and Custody Transfers
The home study must indicate if the PAP or any AMH has ever been involved in a child custody transfer, and if so, describe the circumstances. The home study must indicate if circumstances involved an unregulated child custody transfer or other child abuse or neglect, and if so, discuss the impact on suitability and rehabilitation of the PAP or AMH involved.
Description and Summary of Each Incident
For each household member’s incident of abuse, violence, or criminal activity (even if the person was not arrested or convicted) and for each arrest or conviction, the home study must include the:[44]
- Relevant dates or time periods;
- Details of any mitigating circumstances; and
- A statement whether the information was disclosed by the PAP, AMH, or child (as age appropriate) or if it was discovered by the home study preparer.
Impact on Suitability and Rehabilitation Assessment
The home study must contain an evaluation of suitability in light of any household member’s criminal history or history of abuse or violence as an offender.[45] This must include a discussion of any rehabilitation that demonstrates suitability, including:[46]
- An evaluation of the seriousness of any relevant arrest(s), conviction(s), and history of abuse;
- The number of such incidents;
- The length of time since the last incident;
- The offender’s acceptance of responsibility for the offender’s conduct; and
- Any counseling or rehabilitation programs the person has successfully completed or a written opinion by an appropriate licensed professional.
3. Required Supporting Documentation
The PAP must submit the following to the home study preparer for consideration in the preparer’s assessment:[47]
- A statement disclosing and describing any history of abuse, violence, or criminal history as an offender, including mitigating circumstances, signed under penalty of perjury, by the household member that committed the abuse, violence, or criminal activity; and
- A certified copy of the documentation showing the final disposition of each incident which resulted in arrest, indictment, conviction, or any other judicial or administrative action.
The PAP must also attach this documentation to the home study for USCIS’ review.
J. Prior Home Studies
1. Required Assessment
The home study preparer must evaluate the relevance of any prior home studies on suitability.[48] The home study preparer must ask each PAP and all AMH whether the person previously underwent any sort of home study assessment for any form of custodial care (domestic or intercountry), whether or not it was completed, and the outcome. If so, the home study preparer must review any prior home study reports as part of their assessment, if the report is available.
2. Required Home Study Content
The home study must:
- Include the PAP’s and any AMH’s response to the question on whether they have been the subject of any prior home studies;
- If applicable, identify the agency involved in each prior or terminated home study and the dates the prior home study process began and ended;
- If applicable, indicate the outcome of the home study, including whether a favorable recommendation was made, or if the home study was terminated before a recommendation was made, why it was terminated;
- If applicable, indicate if the prior home study is available, and if not, include an explanation why; and
- If applicable, include an evaluation of the relevance of any prior unfavorable or incomplete home study on the PAP’s suitability.
3. Supporting Documentation
The PAP or any AMH must submit to the home study preparer, for the home study preparer to consider in the home study assessment, a copy of any previous rejections or unfavorable home studies. Copies of any such available prior home studies must be attached to the home study.
K. Preparation and Training
1. Required Assessment
The PAP must receive the required number of hours of preparation and training unless an exemption applies.[49] The home study preparer must ensure the PAP receives the required preparation and training necessary to promote a successful intercountry adoption,[50] including discussing with the PAP:
- The intercountry adoption process, including the requirements, expenses, challenges, and timeframes; and
- The adjustment of adopted children and parenting.
The home study preparer must tailor the preparation and training to the PAP’s particular situation.[51]
2. Required Home Study Content
The home study must contain a summary of:[52]
- The preparation and training given to the PAP(s);
- Plans for future preparation and training; and
- Any plans for post-placement monitoring, in the event the child will be adopted in the United States rather than outside the United States.
L. Country-Specific Requirements
1. Required Assessment
The home study preparer must assess the PAP’s suitability as it specifically relates to each country from which the PAP may adopt.[53]
2. Required Home Study Content
The home study must be tailored to the specific country from which the PAP intends to adopt.[54] This means that the home study should include a full and complete statement of all facts relevant to the PAP’s eligibility for adoption in that country, in light of the country’s specific requirements (if any).[55] If the PAP may adopt from more than one country, the home study must separately assess the PAP’s suitability to each specific country.
M. State-Specific Requirements
1. Required Assessment
The home study preparer must prepare the home study according to the requirements that apply to a domestic adoption in the state[56] of the PAP’s actual or proposed residence in the United States.[57] If the PAP resides outside of the United States and has no actual or proposed residence in the United States, then state law standards generally do not apply unless the PAP intends to finalize the child’s adoption in the United States.[58]
If the child will be coming to the United States for adoption, then the home study preparer must discuss with the PAP, the PAP’s ability to comply with any pre-adoption and post-adoption requirements in the state in which the child will reside.[59] Children come to the United States for adoption if:
- The PAP will not complete the adoption outside the United States (but will only obtain legal custody for the purposes of emigration to the United States for adoption);
- Only one parent of a married couple adopts the child outside the United States; or
- In orphan cases, neither parent saw or observed the child before or during the adoption proceedings.
2. Required Home Study Content
The home study must:
- Comply with any requirements of the PAP’s state of residence; and
- Indicate if the child will be coming to the United States for adoption.
If the child will be coming to the United States for adoption, the home study must also:
- Describe any pre-adoption requirements for any state(s) in which the child will reside, and:
- Cite any relevant state statutes and regulations and the steps the PAP has taken or will take to comply; or
- Explain that the state(s) of intended residence do not have any pre-adoption requirements;[60] and
- Describe plans for post-placement monitoring.[61]
N. Special Needs-Specific Requirements
1. Required Assessment
If the PAP seeks to adopt a child with special needs, the home study preparer must assess the PAP’s ability to care for a child with special needs.[62]
2. Required Home Study Content
The home study must include a discussion of the preparation, willingness, and the PAP’s ability to provide proper care to a child with special needs.[63]
O. Specific Recommendation for Adoption
1. Required Assessment
The home study preparer must make specific recommendations for adoption based on the preparer’s assessment of the PAP’s suitability.[64]
The home study preparer must address any potential problem areas in the assessment.[65] This includes making a referral to an appropriate licensed professional for an evaluation and written report if:[66]
- The home study preparer determines that there are issues beyond the preparer’s expertise that need to be further assessed; or
- The state law of the PAP’s actual or proposed place of residence would require such a referral for a domestic adoption.
2. Required Home Study Content
The home study must include a specific recommendation and discussion of the reasons for the recommendation.[67] The recommendation must state:
- The number of children the PAP is recommended to adopt;
- The country or countries from which the PAP is recommended to adopt;
- Any specific restrictions, such as age, sex, or other characteristics (for example, special needs) of the child(ren) the PAP is recommended to adopt; and
- If the PAP has been specifically approved to adopt a child with special needs (if applicable).
The home study recommendations must address suitability in light of any potential problems. This includes indicating if the home study preparer made any referrals for additional or outside evaluations, and if so, the home study preparer's assessment of the impact of the outside report on the suitability.[68]
3. Supporting Documentation
The PAP must submit to the home study preparer, for the home study preparer to consider in the home study assessment, a copy of any outside evaluation(s) that was conducted to help assess suitability (such as a psychological or psychiatric exam). Such outside evaluations must be attached to the home study.[69]
P. Duty of Disclosure
1. Requirements
The home study preparer must advise the PAP and any AMH of the duty of disclosure.[70] This duty includes the need for the PAP and any AMH to:
- Give true and complete information to the home study preparer;
- Disclose any other relevant information, such as physical, mental, or emotional health problems or behavioral issues;
- Disclose any arrest, conviction, or other criminal history, whether in the United States or outside the United States, even if the record of the arrest, conviction, or other criminal history was expunged, sealed, pardoned, or otherwise cleared;[71]
- Disclose any history of substance abuse, sexual abuse, child abuse or neglect, or family violence as an offender,[72] even if closed or unsubstantiated; and
- Notify the home study preparer and USCIS of any new event or information that might require them to submit an updated home study.[73]
The PAP and any AMH have an ongoing duty of disclosure throughout the intercountry adoption process.[74] The duty of disclosure continues until:[75]
- There is a final decision admitting the child to the United States with a visa; or
- Final approval of the immigration petition for PAPs who reside outside the United States and do not intend to immediately seek an immigrant visa for their child.[76]
USCIS requires the PAP and any AMH to notify the home study preparer and USCIS of any of the above outlined significant changes. The PAP should provide this notification within the timeframes outlined in the following table.
If… | Then the PAP should notify USCIS and the home study preparer…[77] |
---|---|
The suitability application or request for action on an approved suitability application is pending | Immediately |
USCIS has approved the suitability application or request for action on an approved suitability application, but the PAP has not yet filed the child’s petition |
|
The child’s petition is pending or approved, but the child has not yet been admitted to the United States[79] | Immediately |
2. Required Home Study Content
The home study preparer must sign under penalty of perjury that they have advised the PAP and any AMH of the duty of disclosure.[80]
Q. Review, Signature, and Attestation
1. Requirements
The home study preparer must sign the home study, include a declaration, and date the home study (and any updates). The home study preparer’s signature on the home study (and any updates) must be original.
An accredited agency must review and approve the home study if not completed in the first instance by an accredited agency, unless a public domestic or public foreign authority conducted the home study.[81] Therefore, if an approved person, supervised provider, or exempted provider conducted the home study, an accredited agency must review and approve the home study before the PAP submits it to USCIS.[82]
If the PAP resides in a state that requires the state’s (child welfare) authorities to review the home study, such review must occur and be documented before the home study is submitted to USCIS.[83]
2. Required Home Study Content
The home study preparer (or if the home study is prepared by an entity, the officer or employee who has authority to sign the home study for the entity) must personally sign the home study. The preparer must declare, under penalty of perjury under U.S. law, that:
- The home study was either conducted or supervised by the person signing as the home study preparer. If the home study preparer did not conduct the study, then the home study must identify the person who conducted the home study;[84]
- The factual statements in the home study are true and correct, to the best of the signer’s knowledge;[85] and
- The home study preparer has advised the PAP and any AMH of the duty of disclosure, and that their duty to disclose is ongoing until there is a final decision admitting the child to the United States with a visa, or if the PAP resides outside the United States and does not intend to immediately seek an immigrant visa for the child, until petition approval.[86]
The home study must indicate whether the PAP’s state of residence requires the state’s (child welfare) authorities to review the home study.[87]
3. Supporting Documentation
The home study preparer must attach evidence of:
- The home study preparer’s certification;
- Review of the home study by the state’s competent authority (to review home studies), if the PAP resides in a state which requires such review; and
- Review and approval by an accredited agency, if required.
Footnotes
[^ 1] See 8 CFR 204.311. See 22 CFR 96.47.
[^ 2] Regardless of whether the PAP resides within or outside of the United States, the home study must meet all applicable USCIS and U.S. Department of State (DOS) requirements. See 8 CFR 204.311. See 22 CFR 96.47.
[^ 3] See the Child Abuse Registries in Foreign Countries and Geographic Entities webpage.
[^ 4] See DOS’s Adoption Service Provider Search webpage.
[^ 6] See 8 CFR 204.311(b).
[^ 7] See 8 CFR 204.301 and 22 CFR 96.2 for definitions related to home study preparers. The Hague Adoption Convention and the DOS regulations at 22 CFR 96 distinguish between an agency (a private non-profit organization) and a person (an individual person or for-profit entity).
[^ 8] See 8 CFR 204.311(s). See 22 CFR 96. If the PAP resides outside the United States, the home study provider may first contact the central authority in a Hague Adoption Convention country, or the competent adoption authority in a non-Hague country, to determine what laws might apply in a particular jurisdiction outside the United States. If the foreign country does not have any laws on the subject, then the home study preparer need only comply with U.S. requirements and should indicate this in the statement. Since the home study preparer must be licensed or authorized to complete home studies in the jurisdiction where the home study is completed, the license or authorization in the foreign jurisdiction may require the home study preparer to also apply the local jurisdiction’s home study standards. For example, the home study might also evaluate suitability in accordance with the local standards where the PAP resides outside the United States.
[^ 10] See 8 CFR 204.311(g)(1). USCIS does not require that the home study preparer conduct more than one in-person interview or home visit unless the family has moved, the law of the jurisdiction requires it, or the home study preparer requires it. For information on requirements for updated home studies, see Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5]. If the PAP temporarily resides outside the United States during the adoption process, but intends to return to the United States after the adoption, it may be possible to facilitate the requirements of the home study by traveling to the United States or coordinating with the home study preparer to conduct a personal interview outside the United States.
[^ 11] See 8 CFR 204.311(c)(3). See 8 CFR 204.311(g)(2).
[^ 12] See 8 CFR 204.311(g)(2).
[^ 13] See 8 CFR 204.311(c)(7). See 8 CFR 204.311(g).
[^ 14] See 8 CFR 204.311(c)(3). See 8 CFR 204.311(g)(3).
[^ 15] See the definition of adult member of the household at 8 CFR 204.301 which includes a person under 18 years of age if USCIS determines the person impacts the suitability of the household.
[^ 16] See 8 CFR 204.311(c)(2).
[^ 17] See 8 CFR 204.311(g)(3).
[^ 18] For example, experience as a foster parent or kinship care provider.
[^ 19] See 8 CFR 204.311(o).
[^ 20] The applicant must be a U.S. citizen. For more information on immigration status eligibility requirements for the orphan process, see Chapter 2, Eligibility, Documentation and Evidence (Orphan Process) [5 USCIS-PM B.2]. For more information on immigration status eligibility requirements for the Hague process, see Chapter 3, Eligibility, Documentation and Evidence (Hague Process) [5 USCIS-PM B.3].
[^ 21] If married, the applicant’s spouse must be in lawful immigration status if residing in the United States. For more information on PAP immigration status eligibility requirements for the orphan process, see Chapter 2, Eligibility, Documentation and Evidence (Orphan Process) [5 USCIS-PM B.2]. For more information on PAP immigration status eligibility requirements for the Hague process, see Chapter 3, Eligibility, Documentation and Evidence (Hague Process) [5 USCIS-PM B.3].
[^ 22] See 8 CFR 204.307(a)(3).
[^ 23] See 8 CFR 204.311(h).
[^ 24] See 8 CFR 204.311(c)(15). See 8 CFR 204.311(m). See 8 CFR 204.311(d)(1)(iii).
[^ 25] For information on outside professional evaluations if a PAP’s or AMH’s history of psychiatric care or other abuse requires further assessment, see Section O, Specific Recommendation for Adoption [5 USCIS-PM B.4(O)].
[^ 26] For information on outside professional evaluations if a PAP’s or AMH’s criminal history or history of abuse or violence as an offender requires further assessment, see Section O, Specific Recommendation for Adoption [5 USCIS-PM B.4(O)].
[^ 27] See 8 CFR 204.311(j) and 8 CFR 204.311(k). See 8 CFR 204.311(d)(1)(ii).
[^ 28] See the Child Abuse Registries in Foreign Countries and Geographic Entities webpage.
[^ 29] See 8 CFR 204.311(i).
[^ 30] See 8 CFR 204.311(i)(1).
[^ 31] See 8 CFR 204.311(i)(2).
[^ 32] See 8 CFR 204.311(i)(3).
[^ 33] See 8 CFR 204.311(i)(4).
[^ 34] For more information on child abuse registry checks, see the Guidance on Determining Suitability of Prospective Adoptive Parents for Intercountry Adoption, PM-602-0165, issued November 9, 2018.
[^ 35] An unregulated custody transfer occurs when a parent places a child in the care of other persons with the intent to transfer permanent custody of the child, or receives a child with the intent to gain permanent custody, without involving child welfare authorities or following the law of their place of residence. USCIS considers unregulated custody transfers to be a form of child abuse or neglect. The Child Abuse Prevention and Treatment Act (CAPTA) identifies a minimum set of acts or behaviors that define child abuse and neglect, which include: “any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation” or “an act or failure to act which presents an imminent risk of serious harm.” See CAPTA Reauthorization Act of 2010, Pub. L. 111-320 (PDF) , 124 Stat. 3482 (December 20, 2010). See the Child Welfare Information Gateway’s Definitions of Child Abuse & Neglect webpage.
[^ 36] An adoption disruption occurs when a PAP (or a custodian escorting the child on the PAP’s behalf) is granted legal custody of the child, but the placement terminates before the PAP finalizes the adoption. An adoption dissolution occurs when the legal relationship between the child and the adoptive parent(s) is severed, either voluntarily or involuntarily, after the adoption is legally finalized.
[^ 37] See 8 CFR 204.311(c)(14).
[^ 38] See 21 U.S.C 802 for federal definition of “controlled substance.”
[^ 39] For information on when USCIS cannot make a favorable recommendation, see Chapter 6, Adjudication, Section B, USCIS Actions and Decisions, Subsection 4, Denials [5 USCIS-PM B.6(B)(4)].
[^ 40] See 8 CFR 204.311(l).
[^ 41] See 8 CFR 204.311(k).
[^ 42] See 8 CFR 204.311(j).
[^ 43] See 8 CFR 204.311(i).
[^ 44] See 8 CFR 204.311(d). See 8 CFR 204.311(j)(1)-(3). 8 CFR 204.311(k).
[^ 45] See 8 CFR 204.311(c)(14).
[^ 46] See 8 CFR 204.311(l).
[^ 47] See 8 CFR 204.311(j).
[^ 48] See 8 CFR 204.311(n).
[^ 49] See 22 CFR 96.48(a) (hours requirement). See 22 CFR 96.48(g) (exemption).
[^ 50] For information on required preparation and training, see 22 CFR 96.48.
[^ 51] See 8 CFR 204.311(c)(1).
[^ 52] See 8 CFR 204.311(c)(8).
[^ 53] The child’s country of origin determines how to apply its own adoption requirements in a given case.
[^ 54] See 8 CFR 204.311(c)(1). See 8 CFR 204.311(q).
[^ 55] For general information on other countries’ requirements, see DOS’s Country Information webpage.
[^ 56] See the Child Welfare Information Gateway’s State Laws Related to Adoption webpage.
[^ 57] See 8 CFR 204.311(e).
[^ 58] The PAP is also not required to provide a permanent or temporary address in the United States in order to complete a home study.
[^ 59] See 8 CFR 204.305. See 8 CFR 204.311(c)(8).
[^ 60] See 8 CFR 204.3(c)(1)(iv). See 8 CFR 204.305. See 8 CFR 204.310(a)(3)(vii). See 8 CFR 204.311(u)(1)(vii).
[^ 61] See 8 CFR 204.311(c)(8). See 22 CFR 96.50.
[^ 62] See 8 CFR 204.311(p).
[^ 63] See 8 CFR 204.311(p).
[^ 64] See 8 CFR 204.311(r).
[^ 65] See 8 CFR 204.311(c)(5).
[^ 66] See 8 CFR 204.311(g)(4).
[^ 67] See 8 CFR 204.311(r).
[^ 68] See 8 CFR 204.311(g)(4). See 8 CFR 204.311(c)(5). See 8 CFR 204.311(c)(9).
[^ 69] See 8 CFR 204.311(c)(5).
[^ 70] See 8 CFR 204.311(f)(3).
[^ 71] See 8 CFR 204.311(d)(ii). The fact that an arrest or conviction or other criminal history was expunged, sealed, pardoned, or the subject of any other amelioration does not relieve the PAP or additional member of the household of the obligation to disclose. See 8 CFR 204.309(a). See 8 CFR 204.3(h)(4).
[^ 72] See 8 CFR 204.309(a)(1).
[^ 73] See Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5].
[^ 74] See 8 CFR 204.311(d).
[^ 75] For a list of these significant events, see Chapter 5, Action on Pending or Approved Suitability Determinations, Section C, Significant Changes [5 USCIS-PM B.5(C)].
[^ 76] For a PAP who resides outside the United States, the duty of disclosure continues until the child has been admitted. However, if a PAP does not intend to immediately seek an immigrant visa for the child, this duty of disclosure will generally be limited to the petition approval.
[^ 77] For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)].
[^ 78] For a summary of suitability determination points, see Chapter 1, Purpose and Background, Section C, Background [5 USCIS-PM B.1(C)].
[^ 79] If the PAP resides outside the United States and immediately seeks an immigrant visa for the child, the PAP must notify USCIS and the home study provider of a significant change.
[^ 80] See 8 CFR 204.311(f)(3).
[^ 81] For information on how to search for accredited agencies and approved persons, see DOS’s Adoption Service Provider webpage. If home study review and approval is needed, the date of the home study preparer’s signature (and not the reviewer and approver’s signature) is the applicable date for the purposes of the requirement that the home study be no more than 6 months old at the time it is submitted to USCIS.
[^ 82] See 22 CFR 96.47(c).
[^ 83] See 8 CFR 204.311(t).
[^ 84] See 8 CFR 204.311(f)(1).
[^ 85] See 8 CFR 204.311(f)(2).
[^ 86] See 8 CFR 204.311(f)(3). For a PAP who resides outside the United States and does not intend to immediately seek an immigrant visa for the child, the notice requirement extends to the Form I-600 or Form I-800 approval. However, the duty of disclosure continues until the child is admitted to the United States with a visa. If circumstances change and a PAP seeks a visa for the admission of the child to the United States the PAP should notify USCIS and the home study provider of a significant change.
[^ 87] See 8 CFR 204.311(t).
Chapter 5 - Action on Pending or Approved Suitability Determinations
A. Overview
Throughout the intercountry adoption process, USCIS must be satisfied that the prospective adoptive parent (PAP) remains suitable to adopt a child. Therefore, it may be necessary for the PAP to request action on a pending or approved suitability determination.
The PAP must submit an updated home study[1] when any of the following occur before the child immigrates to the United States or before final approval of the child’s immigration petition if the child and PAP will reside outside the United States and do not seek an immigrant visa for the child:
- The PAP wants to request an extension of the suitability application approval or submit a new suitability application after the approval has expired; or
- There is a significant change (that was not previously assessed).[2]
USCIS does not limit the number of times a home study preparer can update a home study.
PAPs and adult members of the households (AMHs) also may need to update their biometrics throughout the intercountry adoption process.[3] PAPs and AMHs are not required to maintain continuous biometric validity. However, all biometric background check results must be valid for USCIS to approve a:
- Suitability application;
- Request for action on an approved suitability application; or
- Immigration petition (for the child).[4]
B. Validity Periods and Extensions
1. Home Study Validity
The home study, or the most recent update of the home study, cannot be more than 6 months old at the time of submission to USCIS.[5] If a home study will be more than 6 months old at the time of submission to USCIS, the PAP must ensure that it is updated by the home study preparer before submission.
USCIS considers a home study that is valid at the time of submission, to remain valid until the suitability application approval expires or there is a significant change (that was not previously assessed).[6]
2. Suitability Approval
Initial Approval
The initial approval of the suitability application[7] expires 15 months after the date of the approval unless approval is revoked.[8]
Extensions
PAPs seeking a first or second no-fee extension of their suitability application approval must submit a Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600 Supplement 3) (for the orphan process), or Request for Action on Approved Form I-800A (Form I-800A Supplement 3) (for the Hague Adoption Convention process) and an updated home study before their approval expires and may do so up to 90 days before its expiration. There is no fee for the first or second extension request, but there is a fee for subsequent extensions.[9]
USCIS does not limit the number of extensions that a PAP may request. However, if the PAP’s suitability application approval expires before the PAP submits the request, the PAP must file a new suitability application or combination filing (for orphan cases), with the appropriate fee.[10] To request an extension, the PAP files a Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600 Supplement 3) (for the orphan process) or Request for Action on Approved Form I-800A (Form I-800A Supplement 3) (for the Hague Adoption Convention process) in accordance with form instructions, with the applicable fee.
If USCIS does not approve a request for an extension of an approved suitability application, it does not serve as a revocation or denial of the original approval notice. However, the notice of approved suitability lapses 15 months from the approval of the application. The PAP cannot appeal or challenge the USCIS decision on the extension request. The PAP may file a new suitability application,[11] with the required fee and documentation even if USCIS denied the extension request.
Impact of Filing the Child’s Petition
Once a PAP files the child’s Petition to Classify Orphan as an Immediate Relative (Form I-600) or Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800), they do not need to continue to extend or file new suitability applications. However, the PAP and any adult household member have an ongoing duty of disclosure throughout the intercountry adoption process, and need to continue to notify USCIS and their home study preparer of any significant changes.
Duplicate Approval Notices
The PAP may obtain a duplicate approval notice by filing a Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600 Supplement 3) (for the orphan process) or Request for Action on Approved Form I-800A (Form I-800A Supplement 3) (for the Hague Adoption Convention process).[12]
C. Significant Changes
USCIS has the discretion to consider any new information or event that might affect a PAP’s suitability to be a significant change that necessitates an updated home study. PAPs must notify USCIS of any significant changes.[13] Significant changes include, but are not limited to, the following:
- A significant change in the PAP’s household such as a change of residence, marital status, criminal history, significant decrease in financial resources, or a change in the number or identity of children in the home or of AMHs;[14]
- A change in the number or characteristics of the child(ren) the PAP intends to adopt that was not previously assessed (such as age, sex, nationality, or special needs):[15]
- A change that requires that the home study preparer address state pre-adoption requirements or address a new state’s requirements if the child will be coming to the United States for adoption and the last home study submitted did not address these requirements;[16] or
- A change in the country from which the PAP seeks to adopt if the last home study submitted to USCIS did not recommend the PAP for the new country.[17]
If a significant change occurs, the PAP must notify USCIS and submit an updated home study that reflects the significant change, in accordance with the form instructions.[18]
1. Significant Change in the PAP’s Household
While the request for a suitability determination[19] is pending, the PAP must notify USCIS in writing of any significant change. After the request for a suitability determination is approved, the PAP must submit a Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600 Supplement 3) (for the orphan process) or Request for Action on Approved Form I-800A (Form I-800A Supplement 3) (for the Hague Adoption Convention process) to report a significant change with fee,[20] if applicable.
There is no fee associated with requesting an updated suitability approval due to a significant change before the approval of the suitability application. There is a fee for requesting an updated suitability determination based on a significant change after USCIS has made the suitability determination (unless being submitted at the same time as a first-time or second-time request for either an extension or change of country).[21] For any request for an updated suitability approval due to a significant change, the PAP must submit an updated home study.
Significant changes include, but are not limited to, a change in marital status, household composition, residence, financial resources, or criminal history.[22]
Change in Marital Status
If the significant change that occurs is a change in marital status, the PAP must submit a new suitability application with an updated home study. If the PAP is married, the spouse must also sign the new form. If the change in marital status takes place before USCIS approves the suitability application or combination filing, there is no fee. However, if the change in marital status takes place after USCIS has approved the suitability application, combination filing, or request, the PAP must submit a new version of the appropriate form or request with any appropriate fee.[23]
Household Composition
The PAP must submit an updated home study if there is any change in the number or identity of children or AMHs in the PAP’s household.
Financial Resources
USCIS generally only considers a change in financial resources to be a significant change if there is significant decrease in the PAP’s financial resources that causes reasonable concern about the PAP’s financial suitability. This includes, but is not limited to:
- Any decrease or loss of assets that impacts the PAP’s financial suitability or puts the PAP’s income below the U.S. Department of Health and Human Services’ (HHS) poverty guidelines; or
- A significant increase in debts or expenses that would impact the PAP’s financial suitability or put the family below the HHS poverty guidelines.[24]
Pregnancy
USCIS generally does not consider pregnancy a significant change unless it significantly impacts the household member’s physical, mental, emotional, or behavioral health or significantly decreases the PAP’s financial resources.
Once the household member gives birth, if the child is part of the household, USCIS considers this a change in household composition that counts as a significant change.
Miscarriage
USCIS generally does not consider miscarriage a significant change unless it significantly impacts the household member’s physical, mental, emotional, or behavioral health or significantly decreases the PAP’s financial resources.
Serious Health Conditions
USCIS considers a household member’s development of a serious health condition to be a significant change. Serious health conditions include, but are not limited to, heart attacks, heart conditions requiring operation, cancers, strokes, conditions requiring extensive therapy or surgical procedures, chronic obstructive pulmonary disease, severe respiratory conditions or nervous disorders, mental disorders or dementia, and severe injuries.
History as an Offender
USCIS considers any change in criminal history or the history of abuse or violence as an offender (substance use, sexual abuse, child abuse or neglect, or family violence), whether or not it resulted in an arrest or criminal charges, to be a significant change.
Child Placement or Adoption
If multiple children are adopted and enter the household at different times throughout the suitability application validity period, an updated home study addressing the addition of a child into the home and an updated suitability application approval is required.
2. Change of Country
A PAP must request an updated suitability approval to reflect a change of country if the PAP seeks to adopt from a country that is different than what the PAP indicated on the suitability application. A PAP may file for a change of country at any time. USCIS does not limit the number of change of country requests that the PAP may submit.
While the suitability application is pending, the PAP must notify USCIS in writing to request a change of country.[25] After the suitability application is approved, the PAP must submit a Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600 Supplement 3) (for the orphan process) or Request for Action on Approved Form I-800A (Form I-800A Supplement 3) (for the Hague Adoption Convention process) to request a change of country, with fee,[26] if applicable. There is no fee associated with changes of country before the approval of the suitability application or for the first or second change of country request after the suitability application is approved.[27] There is a fee for any subsequent change of country request.[28] The PAP must submit an updated home study if the prior home study submitted to USCIS did not recommend the PAPs for adoption of a child from the new country.
3. Summary of Change and Update Requirements
The following tables provide a summary of the change and update requirements associated with suitability determinations for either orphan or Hague cases.
Requested Action | Type of Request | PAP Submits to USCIS[29] | Fee Requirement |
---|---|---|---|
Extend the validity of an approved suitability application | First or second extension | A Request for Action on Approved Form I-600A/I-600 (Form I-600A/I-600 Supplement 3) (for the orphan process) or Request for Action on Approved Form I-800A (Form I-800A Supplement 3) (for the Hague Adoption Convention process)[30] | No fee |
Extend the validity of an approved suitability application | Third or subsequent extensions | A Form I-600A/I-600 Supplement 3 or Form I-800A Supplement 3 | With fee |
Change the country from which the PAP is approved to adopt | Before approval of suitability application | A written notification | No fee |
Change the country from which the PAP is approved to adopt[31] | After suitability application is approved – first or second request | A Form I-600A/I-600 Supplement 3 or Form I-800A Supplement 3 | No fee |
Change the country from which the PAP is approved to adopt[32] | After suitability application is approved – third or additional request | A Form I-600A/I-600 Supplement 3 or Form I-800A Supplement 3 | With fee |
Notify USCIS of a significant change | Before approval of suitability application or Form I-600 combination filing suitability determination | A written notification | No fee |
Notify USCIS of a significant change | After approval of suitability application or Form I-600 combination filing suitability determination | A Form I-600A/I-600 Supplement 3 or Form I-800A Supplement 3 | No fee |
Notify USCIS of a change in marital status | Before approval of suitability application or Form I-600 combination filing suitability determination | A new suitability application or Form I-600 combination filing | No fee |
Notify USCIS of a change in marital status | After approval of suitability application or Form I-600 combination filing suitability determination | A new suitability application or Form I-600 combination filing | With fee |
D. Home Study Update Requirements
1. Contact Requirements
USCIS does not require that the home study preparer conduct another home visit unless the PAP has moved,[33] the law of the jurisdiction requires it, or the home study preparer requires it. The home study preparer may conduct the home study update by any means of contact.
The home study update must describe the contacts made to update the home study, including the:
- Number of interviews and visits;
- Participants;
- Date(s); and
- Location and type of each contact (such as home visit, other location, telephonic, email, or video conference).
2. Format
USCIS does not prescribe a set format or length for home study updates. A home study update may be either:
- An update that just addresses the circumstance(s) that require the update; or
- A new and complete home study.
USCIS does not accept addendums or corrections that do not address all necessary requirements.
3. Required Screening and Assessments
The home study preparer must assess if anything has changed since the last home study or home study update. If so, the home study preparer must assess what changed, and any impact on suitability.
The home study preparer must update the required screenings,[34] which requires that the home study preparer:
- Re-ask the questions about abuse or violence;[35]
- Re-ask the questions about criminal history, and if applicable, rehabilitation;[36] and
- Update the child abuse registry checks.[37]
For a home study update, the home study preparer only needs the results of such child abuse registry checks for the current residence and any state or foreign country the PAP or any AMH has resided in since the prior home study or home study update. The home study preparer does not need to recheck child abuse registries for prior residences that were included in a prior home study or prior home study update unless the PAP or any AMH have resided in that state or foreign country since the last check was completed. Child abuse registry checks for the PAP’s state of residence and any place they have resided in since the prior home study (or home study update) must be current[38] at the time the home study preparer signs the home study update.
The home study update must:
- Include the dates and results of the required screenings and assessments (the updated child abuse registry check and responses to the questions on criminal history or history of abuse or violence);
- Fully address anything that has changed since the last home study or home study update; and
- Confirm that the other areas of the last home study or home study update have not changed.
4. Recommendation, Signature, and Attestations
The home study update must:
- Include a statement from the preparer that the preparer has reviewed the home study being updated and is personally and fully aware of its contents; and
- Address whether the preparer recommends the PAP and the specific reasons for the recommendation.
The home study preparer must sign and date the home study update. The home study preparer’s signature on an update must be original.[39]
5. Supporting Documentation
The home study update must be accompanied by a copy of the home study that is being updated.
E. Biometrics Validity and Updates[40]
PAP and AMH biometric-based background check results are valid for 15 months.
In its discretion, USCIS may update or refresh a biometric-based background check result one-time, without fee, for intercountry adoption cases if the 15-month validity period has or will expire before final adjudication of a PAP’s case.[41] When USCIS receives a no-fee extension or a one-time, no-fee biometrics request, USCIS first attempts to refresh PAP and AMH biometrics rather than requiring a new biometrics submission at an Application Support Center (ASC).[42] If, for any reason, USCIS is unable to update or refresh a biometric-based background check result, that person is required to submit biometrics again or failure to do so may result in a denial for abandonment.[43]
F. Hague Adoption Convention Transition Cases
When the Hague Adoption Convention enters into force for a country, cases that meet certain criteria are generally permitted by the new Convention country to proceed as transition cases under the non-Hague Adoption Convention process.[44] Provided that the new Convention country agrees with the transition criteria, USCIS will generally consider a case to be a transition case if, before the date the Convention entered into force for the country, the PAP:
- Filed an Application for Advance Processing of an Orphan Petition (Form I-600A) that designated the transition country as the intended country of adoption or did not designate a specific country and filed the Form I-600 while the Form I-600A approval was still valid;
- Filed a Form I-600 on behalf of a child from the transition country; or
- Completed the adoption in accordance with the country of origins laws and procedures of a child from the transition country.
If the case does not qualify as a transition case, the PAP will generally need to follow the Hague Adoption Convention process with the filing of an Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A) and Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800). There are certain limitations on when a Request for Action on an Approved Form I-600A/I-600 (Form I-600A/I-600 Supplement 3) can be used in the context of transition cases including:
- PAPs may only request a one-time extension of their suitability application approval as a qualified transition case;
- PAPs who designated a non-transition country on their Form I-600A or previously changed countries to a non-transition country generally may not change their Form I-600A approval to a transition country for purposes of being considered a transition case; and
- PAPs with transition cases generally may not request an increase in the number of children they are approved to adopt from a transition country.[45] However, unless prohibited by the new Convention country, PAPs may request an updated suitability approval notice to increase the number of children they are approved to adopt as a transition case only to pursue the adoption of a birth sibling, provided that birth siblings are identified and the Form I-600 petition is filed before the Form I-600A approval expires.[46]
Footnotes
[^ 1] This Part uses the term updated home study or home study update, rather than amended home study or home study amendment. See 8 CFR 204.311(u).
[^ 2] See Section C, Significant Changes [5 USCIS-PM B.5(C)].
[^ 3] For more information, see Chapter 5, Action on Pending or Approved Suitability Determinations, Section E, Biometrics Validity and Updates [5 USCIS-PM B.5(E)].
[^ 4] See the Petition to Classify Orphan as an Immediate Relative (Form I-600). See the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).
[^ 5] This means that no more than 6 months have passed since the home study preparer signed and dated the home study. For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)].
[^ 6] The jurisdiction where the PAP resides and the country from which they are adopting may have additional requirements for home study updates.
[^ 7] For the Hague Adoption Convention process, see the Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A). For the orphan process, see the Application for Advance Processing of an Orphan Petition (Form I-600A).
[^ 8] See 8 CFR 204.3(h)and 8 CFR 204.312(e).
[^ 9] See Fee Schedule (Form G-1055).
[^ 10] See 8 CFR 106.2(a)(32).
[^ 11] For the Hague Adoption Convention process, see the Form I-800A. For the orphan process, see the Form I-600A.
[^ 12] See 8 CFR 106.2(a)(32) and 8 CFR 106.2(a)(48).
[^ 13] See Chapter 4, Home Studies, Section P, Duty of Disclosure [5 USCIS-PM B.4(P)].
[^ 14] See 8 CFR 204.311(u)(1)(i)-(iii). See the Guidance on Determining Suitability of Prospective Adoptive Parents for Intercountry Adoption, PM-602-0165, issued November 9, 2018.
[^ 15] See 8 CFR 204.311(u)(1)(iv).
[^ 16] See 8 CFR 204.311(u)(1)(vii).
[^ 17] See 8 CFR 204.311(u)(1)(v).
[^ 18] See instructions for the Application for Advance Processing of an Orphan Petition (Form I-600A). See instructions for the Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A). See USCIS’ Updated Home Studies and Significant Changes webpage. See USCIS’ Change of Country webpage.
[^ 19] For the Hague Adoption Convention process, see the Form I-800A. For the orphan process, see the Form I-600A or the Form I-600 for combination filings.
[^ 20] See Fee Schedule (Form G-1055).
[^ 21] See Fee Schedule (Form G-1055).
[^ 22] See 8 CFR 204.311(u)(1).
[^ 23] See 8 CFR 204.312(e)(2)(i).
[^ 24] PAPs generally need to demonstrate income at 125 percent of the poverty level for their household size unless the 100 percent exemption applies. The HHS poverty guidelines are a key tool that USCIS uses when evaluating financial resources but are not the sole factor.
[^ 25] See the USCIS Adoption Contact Information webpage.
[^ 26] See Fee Schedule (Form G-1055).
[^ 27] See Fee Schedule (Form G-1055).
[^ 28] See Fee Schedule (Form G-1055).
[^ 29] For information on how to submit certain written requests and notifications that are not made on a specific USCIS form, see the USCIS Adoption Contact Information webpage.
[^ 30] For the Hague Adoption Convention process, see the Form I-800A Supplement 3. For the orphan process, see the Form I-600A/I-600 Supplement 3.
[^ 31] This refers to a change from one orphan country to another orphan country, or from one Hague Adoption Convention country to another Hague Adoption Convention country. Form I-600A/I-600 Supplement 3 and Form I-800A Supplement 3 cannot be used to request a change in suitability approval from an orphan country to a Hague Adoption Convention country, or vice versa. PAPs must file a Form I-600A to change from a Hague Adoption Convention country to an orphan country, or a Form I-800A to change from an orphan country to a Hague Adoption Convention country.
[^ 32] This refers to a change from one orphan country to another orphan country, or from one Hague Adoption Convention country to another Hague Adoption Convention country. Form I-600A/I-600 Supplement 3 and Form I-800A Supplement 3 cannot be used to request a change in suitability approval from an orphan country to a Hague Adoption Convention country, or vice versa. PAPs must file a Form I-600A to change from a Hague Adoption Convention country to an orphan country, or a Form I-800A to change from an orphan country to a Hague Adoption Convention country.
[^ 33] If the PAP has a new permanent residence outside the United States and the adopted child will reside with the PAP there, the home study preparer must complete at least one home visit. The home study update must include a detailed description of where the PAP resides at the time of the update. The primary provider may use a foreign supervised provider (holding any license or other authorization that may be required to conduct adoption home studies in that country) to prepare that portion of the updated home study. An accredited agency must review and approve that portion of the home study. Alternatively, a public foreign authority may complete the update in compliance with U.S. regulations.
[^ 34] See 8 CFR 204.311(i)-(l). For more information on required screenings, see Chapter 4, Home Studies, Section I, Criminal History and History of Abuse or Violence [5 USCIS-PM B.4(I)].
[^ 35] See 8 CFR 204.311(j).
[^ 36] See 8 CFR 204.311(k)-(l).
[^ 37] See 8 CFR 204.311(i).
[^ 38] For more information on child abuse registry checks, see the Guidance on Determining Suitability of Prospective Adoptive Parents for Intercountry Adoption, PM-602-0165, issued November 9, 2018.
[^ 39] For more information on home study review and signature requirements, see Chapter 4, Home Studies, Section Q, Review, Signature, and Attestation [5 USCIS-PM B.4(Q)].
[^ 40] USCIS follows standard operating procedures when refreshing biometric results.
[^ 41] For more information, see the Background Checks webpage.
[^ 42] Since there are no ASCs abroad, PAPs who reside abroad must submit a completed Applicant Fingerprint Card (Form FD-258) or appear for biometrics collection where available.
[^ 43] For information on unclassifiable prints for the orphan process, see Chapter 2, Eligibility, Documentation, and Evidence (Orphan Process) [5 USCIS-PM B.2]. For information on unclassifiable prints for the Hague process, see Chapter 3, Eligibility, Documentation, and Evidence (Hague Process) [5 USCIS-PM B.3]. For information on failure to appear for interview or biometrics capture, see 8 CFR 103.2(b)(13).
[^ 44] See the Form I-600A and the Form I-600.
[^ 45] See USCIS’ Transition Cases webpage.
[^ 46] See 8 CFR 106.2(a)(32).
Chapter 6 - Adjudication
A. Review and Independent Decision
The adjudicating officer must make an independent evaluation of the merits of the case. The officer who is adjudicating the suitability determination must be satisfied that proper care will be provided for the child.[1] This evaluation is based on review of the application or combination filing, home study, background checks, and any other evidence the officer is aware of.
1. Home Study Review
Although a favorable home study is required to establish eligibility, it is not the end of the officer’s review. If there is reason to believe that a favorable home study was based on inadequate or erroneous evaluation of all of the facts, the officer must attempt to resolve these issues with the home study preparer, the prospective adoptive parent (PAP), and the state agency that reviewed the home study (if any). Issues that may need to be addressed include, but are not limited to, PAP or adult member of the household (AMH): criminal history, history of abuse or violence as an offender, disabilities, financial issues, and inappropriate behavior when interacting with USCIS that raises questions about the PAP’s suitability.
2. Background Check Review
All background checks on the PAP and AMHs must be completed and current before the officer can make a final decision.[2] The officer must follow all required procedures regarding biometrics. USCIS issues a Request for Evidence (RFE) if:
- A PAP’s or AMH’s fingerprints are expired (and they already received their one-time, no fee fingerprints refresh); or
- An additional person needs to provide biometrics.
The officer must check the PAP’s and AMH’s responses from the home study on the questions on criminal history and history of abuse or violence as an offender against the background checks. USCIS may deny the suitability application if the PAP or AMH failed to disclose an arrest, conviction, or history of substance, sexual abuse, child abuse, or domestic violence to the agency conducting the home study and to USCIS.
B. USCIS Actions and Decisions
1. Communication
USCIS sends communication of its actions and decisions directly to the PAP for all case-related matters.
If a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) or Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) is completed by an attorney or by an accredited representative,[3] the officer also sends a copy of USCIS decision notices to such authorized attorney or accredited representative.[4] A person representing an organization such as non-profit or charitable organization must first be accredited by the Board of Immigration Appeals. In general, adoption agencies do not qualify as Accredited Representatives.
Information about the particulars of any case can only be given to the PAP, or to an attorney or accredited representative with a Form G-28 or Form G-28I on file. The Privacy Act forbids disclosing information about the case to anyone else unless the PAP has signed a written consent[5] to the disclosure or such disclosure is not prohibited by law.[6]
2. Requests for Evidence and Notices of Intent to Deny
The officer issues an RFE or Notice of Intent to Deny (NOID), as appropriate, if any of the required home study elements or other required evidence is missing or deficient.[7]
USCIS may issue an RFE if a PAP or AMH is on probation, parole, supervised release, or other similar arrangement for any conviction, or if criminal charges are pending or adjudication is deferred.[8] USCIS does not make a favorable suitability determination if there are pending criminal charges or deferred decisions against the PAP or any AMH. If the person completes the period of probation, parole, supervised release, or other arrangement, resolves the pending or deferred criminal adjudication, and the PAP provides a favorable home study recommending that the person has been appropriately rehabilitated within the RFE response period, USCIS may consider the person to have been appropriately rehabilitated.[9]
3. Approvals
If the officer approves the suitability application, the officer sends a notice of approval to the PAP and the PAP’s legal representative, if any.[10]
4. Denials
The officer denies the case if:[11]
- Any of the eligibility requirements are not met;[12]
- The officer is not satisfied that the PAP will provide proper care to the child;[13]
- The PAP or any AMH failed to disclose to the home study preparer or to USCIS, or concealed or misrepresented, any fact(s) about the PAP or any additional member of the household concerning the arrest, conviction, or history or substance abuse, sexual abuse, child abuse, or family violence, or any other criminal history as an offender;[14]
- The PAP or any AMH failed to cooperate in having available child abuse registries checked; or[15]
- The PAP or any AMH failed to disclose any prior home studies, whether completed or not, including those that did not favorably recommend for adoption or custodial care, the person(s) to whom the prior home study related.[16]
If the officer cannot approve the suitability application, the officer must explain in writing the specific reasons for denial.[17]
C. Revocations
USCIS may revoke an approved suitability application automatically or upon notice as described in corresponding regulations.[18]
D. Appeals and Motions to Reopen or Reconsider
A PAP may file a Notice of Appeal or Motion (Form I-290B) to request that USCIS reopen or reconsider an adverse decision.[19]
Footnotes
[^ 1] See 8 CFR 204.3(h)(2).
[^ 2] For information on submitting biometrics for the orphan process, see Chapter 2, Eligibility, Documentation, and Evidence (Orphan Process) [5 USCIS-PM B.2]. For information on submitting biometrics for the Hague process, see Chapter 3, Eligibility, Documentation, and Evidence (Hague Process) [5 USCIS-PM B.3]. For information on biometrics validity and updates, see Chapter 5, Action on Pending or Approved Suitability Determinations, Section E, Biometrics Validity and Updates [5 USCIS-PM B.5(E)].
[^ 3] See 8 CFR 292.2.
[^ 4] See 8 CFR 103.2(b)(19).
[^ 5] A PAP following the Hague Adoption Convention process may use the Form I-800, Supplement 1, Consent to Disclose Information (Supplement 1). USCIS does not have a disclosure form for the orphan process. A PAP following the orphan process who wishes to consent to the disclosure of information about the case may submit a signed, written waiver that specifies the information USCIS is explicitly authorized to release and to whom.
[^ 6] See Privacy Act of 1974, Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974) (codified at 5 U.S.C. 552a).
[^ 7] For more information on RFEs or NOIDs, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].
[^ 8] See 8 CFR 204.311(l).
[^ 9] Although a favorable home study is required to establish suitability and eligibility, USCIS is not bound by the recommendation in the home study and makes the ultimate decision whether a PAP is suitable and eligible to adopt. See Section A, Review and Independent Decision [5 USCIS-PM B.6(A)].
[^ 10] See the Notice of Favorable Determination Concerning Application for Advance Processing of Orphan Petition (Form I-171H) or Notice of Action (Form I-797). See the Form I-600 Notice of Suitability Determination (Form I-171S). For more information on approvals, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].
[^ 11] See 8 CFR 204.312(c). See 8 CFR 204.3(h).
[^ 12] See 8 CFR 204.3. See 8 CFR 204.3(h)(6). See 8 CFR 204 Subpart C. See 8 CFR 204.307.
[^ 13] See 8 CFR 204.312(c)(ii). See 8 CFR 204.3(h)(2). In order to help determine suitability, a home study is required. For Hague Adoption Convention cases, the PAP must submit the home study with the suitability application. For orphan cases, if the PAP does not submit the home study within 1 year of filing the suitability application, USCIS denies the case. See 8 CFR 204.3(h)(5).
[^ 14] A PAP cannot submit a new petition or application for reconsideration until a 1-year period has elapsed from a denial on this basis. See 8 CFR 204.309(a). See 8 CFR 204.3(h)(4). In Hague cases, the one-year bar also applies to a failure to disclose all prior home studies.
[^ 15] USCIS denies any new application or petition filed within a year of such denial. See 8 CFR 204.311. See 8 CFR 204.3(h)(4).
[^ 16] See 8 CFR 204.311.
[^ 17] See 8 CFR 103.3. For more information on denials, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].
[^ 18] See 8 CFR 204.312(e)(2)(i). See 8 CFR 204.3(h)(14). See 8 CFR 205.1. See 8 CFR 205.2. For more information on revocation, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].
[^ 19] For more information, see Volume 1, General Policies and Procedures, Part F, Motions and Appeals [1 USCIS-PM F]. See 8 CFR 204.314.
Part C - Child Eligibility Determinations (Orphan)
Chapter 1 - Purpose and Background
A. Purpose
In enacting legislation regarding orphans, Congress was primarily concerned with the welfare of the children. The orphan process is one of three different ways for a child to immigrate to the United States based on adoption.[1] The prospective adoptive parent (PAP) generally may pursue the orphan process[2] if:
- The child is not habitually resident in a Hague Adoption Convention Country;[3] and
- At least one of the PAPs is a U.S. citizen.
The orphan process involves a USCIS determination of the PAP’s suitability[4] and eligibility to adopt and a determination of the child’s eligibility to immigrate as an orphan.
B. Background
The Displaced Persons Act of 1948 contained the first laws relating to the immigration of orphans. Since then, Congress has enacted several acts and amendments related to orphans and intercountry adoption. Significant recent changes include the:
- Intercountry Adoption Universal Accreditation Act of 2012 (UAA),[5] which requires that adoption service providers (ASPs) providing adoption services in orphan cases follow the same accreditation or approval process required of ASPs providing such services in Hague Adoption Convention cases; and
- Consolidated Appropriations Act of 2014 (CAA),[6] which changed the Immigration and Nationality Act (INA) definition of an orphan so that only one adoptive parent in a married couple has to personally see and observe the orphan before or during the adoption proceedings in order for the adoption to be considered “full and final” for immigration purposes.[7]
C. Legal Authorities
- INA 101(b)(1)(F) – Definition of an orphan child
- INA 101(b)(2) – Definition of parent, father, or mother
- INA 201(b)(2)(A)(i) – Immediate relatives
- INA 204(d) – Recommendation of valid home study
- 8 CFR 204.1 – General information about immediate relative and family-sponsored petitions
- 8 CFR 204.3 – Orphan cases under section 101(b)(1)(F) of the Act
- 8 CFR 204.301 – Definitions
- 8 CFR 204.311 – Convention adoption home study requirements
- 8 CFR 205.1 – Automatic revocation
- 8 CFR 205.2 – Revocation on notice
Footnotes
[^ 1] See Part A, Adoptions Overview [5 USCIS-PM A] for information on determining which adoption process (Hague Adoption Convention, orphan, or family-based) a prospective adoptive parent (PAP) should follow.
[^ 2] See the Application for Advance Processing of an Orphan Petition (Form I-600A) or a Petition to Classify Orphan as an Immediate Relative (Form I-600).
[^ 3] For a list of countries that are party to the Hague Adoption Convention, see the U.S. Department of State (DOS)’s Convention Countries webpage.
[^ 4] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 5] See Pub. L. 112-276 (PDF) (January 14, 2013).
[^ 6] See Section 7083 of the CAA, Pub. L. 113-76 (PDF), 128 Stat. 5, 567 (January 17, 2014).
[^ 7] For more information, see 9 FAM 502.3-3(B)(3)(U)(1), Adoption or Intent to Adopt. See 9 FAM 502.3-3(B)(7)(U)(c), Immediate Relative (IR-3 vs. IR4) Orphan Classifications and the Child Citizenship Act.
Chapter 2 - Eligibility
A child[1] must qualify as an orphan[2] to be eligible to immigrate using the orphan process. The table below reflects the general eligibility criteria for the orphan process.
Requirement | For More Information |
---|---|
The prospective adoptive parents (PAPs) are suitable and eligible to adopt. | See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B]. |
The child meets age and identity requirements. | See Chapter 3, Identity and Age [5 USCIS-PM C.3]. |
The child meets specific requirements for eligibility as an orphan. | See Chapter 4, Eligibility Requirements Specific to Orphans [5 USCIS-PM C.4]. |
The child has a qualifying adoptive or custodial relationship as a child to a U.S. citizen parent. | See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5]. |
There must be no child-buying, fraud, misrepresentation, or non-bona fide intent. | See Chapter 6, Additional Requirements, Section A, No Child-Buying, Fraud, Misrepresentation, or Non-Bona Fide Intent [5 USCIS-PM C.6(A)]. |
The child must match the characteristics that the PAP has been approved to adopt. | See Chapter 6, Additional Requirements, Section B, Child Matches Characteristics that Prospective Adoptive Parent Is Approved For [5 USCIS-PM C.6(B)]. |
The PAP must have identified a primary adoption service provider (unless a limited exception applies). | See Chapter 6, Additional Requirements, Section C, Primary Provider [5 USCIS-PM C.6(C)]. |
Footnotes
[^ 1] To meet the definition of a child under INA 101(b)(1), the child must be unmarried and under the age of 21.
[^ 2] See INA 101(b)(1)(F).
Chapter 3 - Identity and Age
A. Identity
The child’s identity must be properly documented.[1]
B. Age
Even if the prospective adoptive parent (PAP) has not yet completed the adoption or obtained all of the required supporting documentation, the PAP must file the Petition to Classify Orphan as an Immediate Relative (Form I-600) before the child turns 16[2] unless one of the following exceptions apply.[3]
Sibling Exception
A child 16 years of age or older qualifies for the sibling exception if the child is under the age of 18 at the time the petition is filed and that child's birth[4] sibling:
-
Is or was previously classified as an orphan[5] while under the age of 16 and is coming to the United States to be adopted by the same PAP(s); or
-
Meets the definition of adopted child for a family-based adoption petition[6] and was under the age of 16 at the time of adoption by the same PAP(s).
Suitability Application Exception for Certain 15-Year-Olds
USCIS deems the suitability application[7] filing date to be the petition filing date if both of the following requirements are met:[8]
-
The PAP filed the suitability application after the child's 15th birthday, but before the child's 16th birthday (or, if the sibling exception applies, after the child's 17th birthday but before the child's 18th birthday); and
-
The PAP files the petition not more than 180 days after the initial approval of the suitability application.
Footnotes
[^ 1] See Chapter 7, Documentation and Evidence, Section B, Required Evidence [5 USCIS-PM C.7(B)].
[^ 2] For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)].
[^ 3] USCIS generally issues a Request for Evidence for the remaining supporting documentation. See Chapter 8, Adjudication, Section E, Decisions and Actions, Subsection 3, Requests for Evidence and Notices of Intent to Deny [5 USCIS-PM C.8(E)(3)].
[^ 4] In this Volume, USCIS uses birth and natural synonymously.
[^ 5] See INA 101(b)(1)(F).
[^ 6] See INA 101(b)(1)(E).
[^ 7] See Application for Advance Processing of an Orphan Petition (Form I-600A).
[^ 8] While regulations at 8 CFR 204.3 do not directly address the relationship between the separate filing of a Form I-600A and the statutory requirement to file the petition while the child is under the age of 16 (or, as permitted in INA 101(b)(1)(F)(ii), under the age of 18), this exception is consistent with the regulations for Hague Adoption Convention cases.
Chapter 4 - Eligibility Requirements Specific to Orphans
A. Eligibility Requirements
To meet the specific orphan eligibility requirements and meet the definition of orphan under the Immigration and Nationality Act (INA), a child must either have:
- No legal parents because of the death or disappearance of, abandonment or desertion by, or separation from or loss of both parents; or
- A sole or surviving legal parent who is incapable of providing proper care.[1]
The loss of each of the child’s parents must meet the definition of at least one of these terms under immigration law. The child is not required to have lost each parent in the same way. For example, one parent may have been separated from the child, while the other parent may have abandoned the child to an orphanage.
Generally, USCIS first evaluates whether the child has no legal parents because of abandonment, desertion, disappearance, loss, death, or separation. USCIS generally conducts a sole or surviving parent analysis only if a child does not meet any of those definitions and when:
- There has been a direct relinquishment of the child by the birth mother, or by the birth father as a surviving parent, to the prospective adoptive parent (PAP); or
- The child has been released or relinquished in anticipation of, or preparation for, adoption to a third party providing custodial care to the child who is not authorized to provide custodial care[2] under the child welfare laws of the foreign-sending country.[3]
Definitions
Foreign official documents and laws may use different terms from those used in U.S. immigration law or use the same terms but with different meanings. A child must meet the definition of an orphan as defined by U.S. immigration law.[4] To determine if the child meets one of the below definitions under U.S. immigration law, USCIS considers the laws of the child's country of origin and what actions the foreign competent authorities must take. USCIS also considers the actual facts and circumstances of the case as supported by the evidence of record.
B. No Legal Parent
1. Abandonment
Abandonment must include not only the intention to surrender all parental rights, obligations, and claims to the child, and control over and possession of the child, but also the actual act of surrendering such rights, obligations, claims, control, and possession. Abandonment means that the child’s parent(s):
- Willfully forsake all parental rights, obligations, and claims to the child, as well as all control over and possession of the child; and
- Acted without intending to transfer or without transferring these rights to any specific person(s).
If the parent(s) released the child to a third party to provide custodial care prior to the adoption, the third party was authorized under the child welfare laws of the foreign-sending country.
Abandonment does not include a release or relinquishment by one or both parents:
- Directly to the PAP;[5]
- To an authorized third party for a specific adoption;
- To a third party that is not authorized under the child welfare laws of the foreign-sending country to accept released or relinquished children in anticipation of or preparation for adoption; or
- For temporary placement in an orphanage if the parent(s) express an intention to retrieve the child, are contributing or attempting to contribute to the support of the child, or otherwise exhibit ongoing parental interest in the child.
Release to an Orphanage
U.S. immigration law generally considers a child whose parent(s) have unconditionally released him or her to an authorized orphanage to be abandoned.
It is not uncommon for parents in some countries to entrust their children to the care of orphanages temporarily without intending to abandon the child or for the child to be adopted. USCIS does not consider such releases to be unconditional, and they do not meet the definition of abandoned under U.S. immigration law.
Ongoing Contact
A child can still meet the abandonment definition even if the birth parent(s) show an interest in ongoing contact or the adoption service provider and the PAP commits to ongoing contact with birth parents. However, USCIS may further investigate if:
- There is any indication that the birth parent(s) did not understand the finality of adoption; or
- The release was not unconditional.
2. Desertion
Desertion means:
- The parent(s) have willfully forsaken the child;
- The parent(s) have refused to carry out their parental rights and obligations; and
- As a result, the child has become a ward of a competent authority in accordance with the laws of the foreign-sending country.
Desertion does not mean that the parents have disappeared, but rather that they refuse to carry out their parental rights and obligations towards the child. Desertion differs from abandonment in that the parents have not taken steps to divest themselves of parental duties, but the parents' inaction has caused a local authority to step in to assume custody of the child.
3. Disappearance
Disappearance means:
- The parent(s) have unaccountably or inexplicably passed out of the child's life;
- The parent(s)' whereabouts are unknown;
- There is no reasonable hope of the parent(s)’ reappearance; and
- A competent authority determined reasonable efforts were made to locate the parent(s) as required by the laws of the foreign-sending country.
4. Loss
Loss means the involuntary severance or detachment of the child from the child’s parents:
- In a manner that is permanent;
- That is caused by a natural disaster, civil unrest, or other calamitous events beyond the control of the parents; and
- Is verified by a competent authority in accordance with the laws of the foreign-sending country.
5. Death
Death means one or both parents are legally deceased. A child meets orphan requirements if:
- The child’s parent(s) are legally deceased; and
- The child has not acquired another parent (such as a stepparent or legal adoptive parent) as defined by U.S. immigration law.
6. Separation
Separation (commonly known as termination of parental rights) means:
- The involuntary severance of the child from the child’s parents by action of a competent authority for good cause (such as child abuse or neglect) and in accordance with the laws of the foreign-sending country;
- The competent authority properly notified the parents and granted the opportunity to contest such action; and
- The termination of all parental rights and obligations is permanent and unconditional.
C. Sole or Surviving Parent
1. Sole Parent
Only a birth mother can be a sole parent. The birth mother may qualify as a sole parent if:
- The birth mother was unmarried at the time of the child’s birth (child was born out of wedlock);[6]
- The child was not legitimated while in the legal custody of the birth father (as described in the legitimation section below);
- The birth father is unknown, or has disappeared, abandoned, or deserted the child, or irrevocably released the child for emigration and adoption (in writing), in accordance with the laws of the foreign-sending country;
- The child does not have any other legal parents within the meaning of U.S. immigration law;[7]
- The birth mother is incapable of providing proper care (is unable to provide for the child’s basic needs, consistent with the local standards of the foreign-sending country);[8]and
- The birth mother, in writing, irrevocably releases the child for emigration and adoption, in accordance with the laws of the foreign-sending country.
Legitimation
The birth mother cannot be a sole parent if the child was legitimated while in the legal custody of the birth father. Legitimation means “placing a child born out of wedlock in the same legal position as a child born in wedlock.”[9] The law of the child’s residence or domicile, or the law of the father’s residence or domicile, is the relevant law to determine whether a child has been legitimated. It is not necessary to consider whether a child has been legitimated unless the birth father ever had sole or joint legal custody of the child. [10]
An officer must evaluate legitimation, paternity, and legal custody separately under the laws of the particular country. It is possible for a child’s paternity to be established, but for the child to not be legitimated. It is also possible for a child’s paternity to be established, but for the child’s father to never have had legal custody. Legitimation, however, cannot be established unless paternity has been established.[11]
2. Surviving Parent
Surviving parent means a child's living parent when the child's other parent is dead and the child has not acquired another parent within the meaning of U.S. immigration law.[12]
Essential elements include:
- One living parent;
- One deceased parent;
- The child has not acquired a new legal parent;[13]
- The living parent is incapable of providing proper care;[14] and
- The living parent has, in writing, irrevocably released child for emigration and adoption in accordance with the laws of the foreign-sending country.
D. Other Legal Parents
USCIS considers a parent to include any person who is related to a child as the child’s legal parent, mother, or father as specified in the definition under U.S. immigration law.[15] The officer must determine for each parent whether the person has legal rights to the child in accordance with the laws of the foreign-sending country. If the officer determines a parent is a legal parent, the officer must determine whether the child has lost the parent.
Stepparents
USCIS must consider the existence of a stepparent in determining whether a child is an orphan.[16] The officer must determine whether the stepparent has legal rights to the child in accordance with the laws of the foreign-sending country.
If an officer determines that the child has a stepparent, the officer should request additional evidence from the PAP, including:
- A copy (with a certified English translation) of the relevant statutes, regulations, court judgments, or other legal authority from the foreign-sending country addressing whether a stepparent has a legal parent-child relationship to the stepchild; and
- A statement from the stepparent (with a certified English translation) indicating that the stepparent has neither adopted the stepchild nor obtained any other form of legal custody of the stepchild and has no interest in doing so.
USCIS considers a stepparent to be a parent for purposes of adjudication of an orphan petition if:
- The stepparent actually adopted the stepchild as specified in U.S. immigration law;[17]
- Under the law of the foreign-sending country, the marriage between the parent and stepparent creates a legal parent-child relationship between the stepparent and stepchild; or
- The stepparent has obtained legal custody of the stepchild so that the stepparent does have a legal relationship to the stepchild.
In some jurisdictions, a stepparent does not have a legal parent-child relationship to a stepchild and would therefore not have any legal standing to perform any action terminating the non-existent rights and duties. USCIS does not consider a stepparent to be a child's parent for purposes of an orphan petition if the PAP establishes that, under the law of the foreign-sending country, the stepparent has no legal parent-child relationship to a stepchild.
The burden is on the PAP to establish that a stepparent has no legal parent-child relationship to the child. The PAP may not simply assert that the stepparent has no legal parental rights in relation to the child.
If the officer determines the stepparent is a legal parent, the officer must determine whether the child has lost the stepparent (in addition to the birth father and birth mother).
Footnotes
[^ 1] See INA 101(b)(1)(F).
[^ 2] Custodial care prior to an adoption must be provided without transferring these rights to any specific person(s). USCIS considers placement of a child with a third party that is not authorized to provide custodial care in anticipation of, or preparation for, adoption, to be a direct relinquishment. Direct relinquishments are excluded from the definition of abandonment.
[^ 3] That is, the country of the child's citizenship, or if the child is not permanently residing in the country of citizenship, the country of the child's habitual residence. This excludes a country to which the child travels temporarily, or to which the child travels either as a prelude to, or in conjunction with, adoption or immigration to the United States. See 8 CFR 204.3(b).
[^ 4] See INA 101(b)(1)(F). See 8 CFR 204.3(b).
[^ 5] To be considered abandonment, a direct relinquishment by a sole or surviving parent must meet the requirements for an irrevocable release by a sole or surviving parent, as well as that the parent is incapable of providing proper care. See Section C, Sole or Surviving Parent [5 USCIS-PM C.4(C)].
[^ 6] In November 1995, a statutory amendment changed references in INA 101(b)(1)(A), (1)(D), and INA 101(b)(2) from “legitimate” and “illegitimate” children to “children born in wedlock” and “children born out of wedlock,” respectively. See Pub. L. No. 104-51 (PDF) (Nov. 15, 1995). Guidance was issued concerning the adjudication of orphan petitions in Immigration and Naturalization Service (INS) Cable HQ 204.21-P, 204.22-P. This INS guidance remains in effect for USCIS. The definition in 8 CFR 204.3 has not yet been updated to reflect the statutory amendment.
[^ 7] See INA 101(b)(2).
[^ 8] Incapable of providing proper care means that a sole or surviving parent is unable to provide for the child's basic needs, consistent with the local standards of the foreign-sending country. This determination is not limited to economic or financial concerns. A parent could be unable to provide proper care due to a number of reasons, including, but not limited to: extreme poverty; medical, psychological, or emotional difficulties; or long-term incarceration. See 8 CFR 204.3(b).
[^ 9] See Matter of Moraga (PDF), 23 I&N Dec. 195, 197 (BIA 2001).
[^ 10] The natural father of the child will be presumed to have had legal custody of that child at the time of legitimation, in the absence of affirmative evidence indicating otherwise. See Matter of Rivers (PDF), 17 I&N Dec. 419 (BIA 1980). However, it is possible for a child to have been legitimated by operation of law, but for the father to never have had legal custody.
[^ 11] However, the establishment of paternity may or may not result in the birth father having legal custody, depending on the laws where the child or birth father resides and any applicable court decisions.
[^ 12] See INA 101(b)(2).
[^ 13] See Section D, Other Legal Parents [5 USCIS-PM C.4(D)].
[^ 14] Incapable of providing proper care means that a sole or surviving parent is unable to provide for the child's basic needs, consistent with the local standards of the foreign-sending country. This determination is not limited to economic or financial concerns. A parent could be unable to provide proper care due to a number of reasons, including, but not limited to, extreme poverty; medical, psychological, or emotional difficulties; or long-term incarceration. See 8 CFR 204.3(b).
[^ 15] See INA 101(b)(2).
[^ 16] Under the law of some jurisdictions, a stepparent may adopt the stepparent’s spouse's children without terminating the legal parent-child relationship between the children and their other parent. The adoptive stepparent may then qualify as a parent through INA 101(b)(1)(E), as well as 101(b)(1)(B).
[^ 17] See INA 101(b)(1)(E).
Chapter 5 - Qualifying Adoptive or Custodial Relationship
A prospective adoptive parent (PAP) must have one of the following to petition for a child to immigrate based on an adoption:
-
A final adoption granted by the foreign-sending country, or
-
Legal custody of the child granted by the foreign-sending country for emigration and adoption in the United States.[1]
A. Final Adoption
A child may qualify to immigrate based on a final adoption if:
-
The adoption meets USCIS requirements for a final adoption (is valid under the law of the foreign-sending country, creates a legal permanent parent-child relationship, and terminates the prior legal parent-child relationship);[2]
-
The petitioner (and spouse, if married) adopted the child; and
-
The petitioner (or spouse, if married) personally saw and observed the child before or during the adoption proceedings abroad.
If these requirements are met, the child may qualify for an IR-3 visa (child adopted outside the United States by U.S. citizen)[3] based on a valid final adoption in accordance with the laws of the foreign-sending country. USCIS considers a final adoption that meets these requirements a “full and final” adoption.
A child does not, however, meet requirements to immigrate based on a “full and final” adoption if the petitioner is married and neither the petitioner nor the spouse actually saw and observed the child before or during the adoption proceedings.[4] Additionally, a child does not meet the requirements if only one parent of a married couple adopted the child. USCIS may, however, consider the final foreign adoption to have established legal custody for emigration and adoption and the child may be eligible for an IR-4 visa (child to be adopted in the United States by U.S. citizen).[5]
B. Legal Custody for Emigration and Adoption
Not all countries grant what USCIS considers final adoptions abroad for immigration purposes.[6] A child may, however, be eligible on the basis of legal custody for the purpose of emigration and adoption if the following criteria are met:
-
The PAP secured legal custody in accordance with the laws of the foreign-sending country;
-
The person, organization, or competent authority that has legal custody or control over the child irrevocably released the child for emigration and adoption;
-
The PAP is in compliance with all state pre-adoption requirements, if any; and
-
If there was an adoption outside the United States that did not meet the requirements for a “full and final” adoption for U.S. immigration purposes, the child’s proposed state of residence allows re-adoption or provides for judicial recognition of the foreign adoption.
If the child meets these requirements, the child may qualify for an IR-4 visa to come to the United States for adoption.[7]
Footnotes
[^ 1] Some countries will not allow a child to emigrate without a final adoption decree. To determine the specific laws of a foreign-sending country, see the U.S. Department of State’s Country Information webpage.
[^ 2] For more information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].
[^ 3] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child adopted abroad by a U.S. citizen.
[^ 4] An adoption in which neither adoptive parent actually saw and observed the child before or during the adoption is known as a proxy adoption. If the laws of the foreign-sending country allow proxy adoptions, U.S. citizen petitioners may complete an adoption abroad without ever traveling to a foreign-sending country or meeting the child before the child's entry into the United States. This type of adoption may be fully valid in the United States as a matter of domestic relations law, however, a child adopted through this process is not eligible to immigrate under the basis of a “full and final” adoption and receive an IR-3 visa. Instead, a child with a final adoption order that is not considered “full and final” may be eligible to immigrate and receive an IR-4 visa.
[^ 5] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child coming to be adopted in the United States by a U.S. citizen.
[^ 6] For example, guardianships, simple adoptions, or Kafala orders in countries that follow traditional Islamic law may not qualify as final adoptions abroad. Such guardianship, Kafala, or other custody orders may, however, be sufficient to establish that the PAPs have secured legal custody of the child. See 8 CFR 204.3(d)(1)(iv)(B)(1). If the legal custody is for emigration and adoption and all other requirements are met, such an order could support approval of an orphan petition.
[^ 7] For information on citizenship for adopted children, see Part F, Citizenship for Adopted Children [5 USCIS-PM F]. For more information, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens [12 USCIS-PM H]. A U.S. adoptive parent needs to take additional steps to secure U.S. citizenship for a child entering with an IH-4 visa because the adoption of the child has to be finalized in the United States or recognized under state law, unlike in cases of children entering with IH-3 visas on the basis of “full and final” adoptions.
Chapter 6 - Additional Requirements
In addition to meeting general eligibility requirements, the following requirements also must be met:
- There is no child-buying, fraud, misrepresentation, or non-bona fide intent;
- The child matches the characteristics that the prospective adoptive parent (PAP) has been approved to adopt; and
- The petitioner has identified a primary adoption service provider (unless a limited exception applies).
A. No Child-Buying, Fraud, Misrepresentation, or Non-Bona Fide Intent
The officer must determine whether there are allegations or indications of child-buying, fraud, misrepresentation, or non-bona fide intent (that is, the PAP does not intend to form a parent-child relationship).
1. Child-Buying
Child-buying is when the PAP(s) or a person or entity working on their behalf gave or will give money or other consideration, either directly or indirectly, to the child's parent(s), agent(s), other person(s), or entity as payment for the child or as an inducement to release the child.[1]
An orphan petition must be denied or revoked if there is evidence of child-buying demonstrating the PAP has not established eligibility by a preponderance of the evidence. Officers must review any allegations of child-buying or other evidence that indicates child-buying took place in the case and determine whether it constitutes child-buying.
Child-buying does not include reasonable payment for necessary activities such as administrative, court, legal, translation, or medical services related to the adoption proceedings. Foreign adoption services are sometimes expensive and the costs may seem disproportionately high in comparison with other social services. In many countries, there may be a network of legitimate adoption facilitators, each playing a transparent role in processing a case and reasonably expecting to be paid for their services.
The U.S. Department of State (DOS) works closely with foreign governments to identify costs related to intercountry adoption in particular countries.[2] In most intercountry adoption cases, the expenses incurred can be explained in terms of reasonable payments. Even cash given directly to a birth mother may be justifiable if it relates directly to expenses such as pre-natal or neo-natal care, transportation, lodging, or living expenses.
2. Fraud or Misrepresentation
Fraud in the adoption context typically involves concealment of a material fact to obtain an official document or judgment by a court or authorized entity (for example, an adoption decree). To meet the requirement of materiality, evidence of fraud must be documented and generally relate to the child’s eligibility as an orphan.
B. Child Matches Characteristics that Prospective Adoptive Parent Is Approved For
During the suitability application process (or orphan petition process, if there was no prior suitability application), the officer determined that the PAP was a suitable adoptive parent for a child with specific characteristics.[3] The child must match the characteristics that the PAP has been approved to adopt (such as age, sex, nationality, and special needs).
If the child does not match the characteristics for which USCIS has approved the PAP to adopt, then the officer should issue a Request for Evidence (RFE)[4] for an updated home study and any related documents.
1. Special Needs
The officer should review evidence to verify whether the child has any special needs (such as a significant disability or medical condition). The officer should:
- Ensure that any significant or serious disability or medical condition of the child is not excluded by special conditions established in the suitability application approval; and
- Verify that the PAP is aware of and accepts any significant medical, physical, or mental condition.
If an officer discovers that the child has a significant disability or medical condition that the PAP is not aware of, the officer must:
- Furnish the PAP with all pertinent details concerning the impairment, disability, or condition. This is especially important in cases where the PAP has not personally observed the child; and
- Halt adjudication of the case until the PAP submits an updated home study recommending the PAP to provide proper care for such child and USCIS determines the PAP is suitable to provide proper care for such child.[5]
2. Age
The child must meet the age range listed on the suitability application approval at the time the referral or match was accepted by the PAP, or if the accepted referral or match date cannot be established, the filing date of the orphan petition.[6] If the child does not match the age range for which USCIS has approved the PAP to adopt, then the officer should issue an RFE[7] for an updated home study and any related documents.
C. Primary Provider
The PAP must indicate a primary service provider on the orphan petition, unless a limited exception applies.[8] If the officer determines that the PAP has not sufficiently identified a primary adoption service provider on the orphan petition, the officer may issue an RFE.[9]
If an officer receives notice or learns that the PAP's primary adoption service provider has withdrawn from the PAP's case, the officer should issue an RFE for proof that either the current primary adoption service provider remains as such or the PAP has identified a new primary adoption service provider.[10]
Footnotes
[^ 1] See 8 CFR 204.3(i).
[^ 2] DOS posts general information about adoption-related costs on their Country Information webpage.
[^ 3] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 4] For more information on RFEs, see Chapter 8, Adjudication, Section E, Decisions and Actions [5 USCIS-PM C.8(E)].
[^ 5] See Part B, Adoptive Parent Suitability Determinations, Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5].
[^ 6] For example, if a suitability determination states that the PAP is approved to adopt a child aged 0-4 years old, then a child who is 4 years old but not yet 5 at the time the PAP accepted a match (or alternatively the filing date of the orphan petition) would meet this age range. This is true even if the child has turned 5 by the time the officer is adjudicating the application. See The Jurisdiction of Amended Home Studies and the Application of Home Study Age Restrictions for Prospective Adoptive Child(ren) in Intercountry Adoption Cases Policy Memo, PM-602-0071.1, issued November 5, 2012.
[^ 7] For more information on RFEs, see Chapter 8, Adjudication, Section E, Decisions and Actions [5 USCIS-PM C.8(E)].
[^ 8] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5].
[^ 9] For more information on RFEs, see Chapter 8, Adjudication, Section E, Decisions and Actions [5 USCIS-PM C.8(E)].
[^ 10] For more information see the If Your Adoption Service Provider Is No Longer Accredited or Approved webpage.
Chapter 7 - Documentation and Evidence
A. Filing
A prospective adoptive parent (PAP) files the Petition to Classify Orphan as an Immediate Relative (Form I-600) once the PAP has identified an orphan to adopt. The PAP must file the petition, required evidence, and any required supplements, in accordance with form instructions and any applicable fees.[1] The PAP may file an orphan petition in the United States, or outside the United States if the PAP meets certain criteria.[2] If the PAP files the petition while there is a suitability application[3] pending or within 15 months of a favorable decision on a suitability application, there is no new filing fee for one child or for more than one child if they are birth siblings.[4]
Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act)[5]
A petitioner who has been convicted of a specified offense against a minor is prohibited from filing a family-based petition[6] on behalf of any family-based beneficiary.[7]
B. Required Evidence
The PAP must submit the following evidence to petition for the PAP’s adopted child’s immigration into the United States:
- Evidence that must be submitted with a suitability application (if not previously submitted with an Application for Advance Processing of an Orphan Petition (Form I-600A));
- Evidence the PAP has a primary provider (unless a limited exception applies);[8]
- Proof of the child’s age and identity;
- Evidence the child is an orphan;
- Certified copy of the adoption or custody decree and certified translation; and
- Proof of compliance with pre-adoption requirements (if any).
1. Evidence to Support Suitability Application
If a PAP previously submitted a suitability application[9] with the required evidence, the PAP does not need to re-submit it (unless requested by USCIS).
If a PAP did not submit a suitability application before filing the petition, USCIS considers the PAP to be filing both the suitability application and petition as a combination filing.[10] This means the PAP must submit the following documents that USCIS requires for a suitability application,[11] in addition to the documents that USCIS requires for the orphan petition:
- Proof of the petitioner’s U.S. citizenship;
- Proof of the petitioner’s spouse’s U.S. citizenship or lawful immigration status (if married and the spouse resides in the United States);
- Proof of the marriage between the petitioner and the spouse (if married) and evidence of the termination of any prior marriages (if previously married); and
- Home study.
2. Evidence the Prospective Adoptive Parent has a Primary Provider
The PAP must identify a primary provider (unless a limited exception applies) and provide evidence that the PAP has a primary provider.[12]
If a home study is prepared by an accredited agency or approved person, or is reviewed and approved by an accredited agency, and the same agency or approved person is listed on the petition, the officer may accept this as evidence of a primary provider. If a different accredited agency or approved person is listed on the petition as the primary provider or the officer is uncertain as to who is serving as the primary provider, the officer must request additional evidence to establish that the accredited agency or approved person is acting as the primary provider.
Evidence of the PAP’s primary adoption service provider may include, but is not limited to:
- A letter from the primary adoption service provider stating that the accredited or approved adoption service provider is acting as the primary provider in the case, or demonstrating that the accredited or approved adoption service provider is involved in the provision of an adoption service if only one accredited agency or approved person is involved in providing adoption services in the case;
- A copy of the service plan (detailing the six adoption services); or
- A copy of the contract between the petitioner and the primary adoption service provider demonstrating that the accredited agency or approved person is acting as the primary provider in the case.
3. Proof of Orphan’s Identity and Age
The PAP must submit a copy of the orphan’s birth certificate, or if such a certificate is not available, an explanation together with other proof of the child’s identity and age.[13] Such secondary evidence could include medical records, school records, church records, entry in a family Bible, orphanage intake sheets, or affidavits from persons with first-hand knowledge of the event(s) to which they are testifying. If there is a doubt that the child is the birth child of the purported birth parent, USCIS may provide the PAP the option of submitting DNA evidence in compliance with USCIS standards to establish the claimed relationship.[14]
Delayed Birth Certificates
Generally, USCIS does not give the same weight to delayed birth certificates as birth certificates issued at the time of birth due to the potential for fraud.[15] Certain jurisdictions, however, may not issue birth certificates to children until they become involved in an intercountry adoption. An officer must determine the reliability of the facts contained in the delayed certificate, for an orphan child, in light of the other evidence in the record and should not reject the delayed certificate's evidentiary value simply because it was not issued at the time of the child's birth. Officers should check the U.S. Department of State (DOS)'s Country Reciprocity Schedule to determine a document's availability and reliability.
4. Evidence Child is an Orphan
The PAP must submit evidence that the child is an orphan as defined under U.S. immigration law:[16]
- No legal parent - If the child does not have a sole or surviving parent, the PAP must submit evidence that the child is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from the child’s parents. It is not necessary to establish that each parent is gone for the same reason.
- Sole parent - If the orphan is a child of a sole parent, the PAP must submit evidence that the birth mother[17] is a sole parent, is incapable of providing proper care for the child, and has irrevocably released the child for emigration and adoption in writing.
- Surviving parent - If the orphan is a child of a surviving parent, the PAP must submit evidence that the other parent is deceased, the surviving parent is incapable of providing proper care for the child, and the surviving parent has irrevocably released the child for emigration and adoption in writing.
Incapable of Providing Proper Care of the Child
Evidence that a parent is incapable of providing proper care of a child may consist of:
- Proof of the parent's wages in comparison to the local area's average wages for a family of the same size;
- Medical records of the child's or parent's psychological or physical difficulties;
- Court records or other proof that the parent is incarcerated and the duration of the sentence;
- A social welfare report submitted to the adoption authority in support of an adoption that discusses the background and living situation of the child;[18] or
- Any other documentation that demonstrates the inability of the parent to provide proper care for the child.
Irrevocable Release of Child for Emigration and Adoption
Proof that the sole or surviving parent has irrevocably (knowingly and voluntary) released the child for emigration and adoption must be a written release that is:
- In a language the parent is capable of reading and signing or marking (if the parent is illiterate, an interview can establish that the parent had full knowledge of the contents of the document and understood its irrevocable nature);
- Irrevocable; and
- Without stipulations or conditions.
The release may identify the person to whom the parent is releasing the child, even if that person is a PAP.[19]
Death
Primary evidence of death is a death certificate in the name of the deceased parent.[20]
If a death certificate is not available, an officer should consider the explanation of why such a certificate is unavailable, along with secondary evidence provided by the PAP, such as funeral details, obituaries, newspaper articles, church records, or affidavits from persons with first-hand knowledge of the parent’s death.[21] The officer may also consider the length of time since the child's parent(s) are reported to have died, and during which time, the parent has not been seen or heard from, and if relatives have cared for the child since the parent(s) died.
Abandonment, Disappearance, Desertion, Loss, or Separation
Primary evidence of abandonment, disappearance, desertion, loss, or separation is a decree from a court or other competent authority[22] unconditionally divesting the parent(s) of all parental rights over the child because of such abandonment, disappearance, desertion, loss, or separation.[23] A valid court order terminating parental rights over the objections of one or both parents is sufficient if the parents received notice and an opportunity to contest such action.
In the case of abandonment, primary evidence may also include a written release by the parent(s)[24] of a child to an authorized orphanage (or other third party authorized under the child welfare laws of the foreign-sending country to provide custodial care in anticipation of or preparation for adoption) demonstrating that the parent(s) gave up all parental rights to the child and physically gave up control and possession unconditionally to the orphanage or other third party.
5. Certified Copy of Adoption or Custody Decree and Certified Translation
If the PAP met the requirements for a “full and final” adoption of the child abroad,[25] the PAP must submit:
- A legible, certified copy of the final adoption decree showing that the PAP (and the PAP’s spouse, if married) adopted the child; and
- Evidence that the petitioner (or spouse, if married) personally saw and observed the child before or during the adoption proceedings.[26]
If the PAP did not meet the requirements for a “full and final” adoption of the child abroad, but did obtain a final adoption or legal custody, the PAP must submit:
- A certified copy of the adoption decree or custodial decree, showing that the PAP secured legal custody in accordance with the laws of the foreign-sending country; and
- Evidence that the person, organization, or competent authority that has legal custody or control over the child has irrevocably released the child for emigration and adoption. This may be evidenced by a court order or release by the previous legal custodian of the child giving the child up for adoption to the named PAP(s) with their U.S. residence clearly incorporated into the order.
6. Proof of Compliance with Pre-Adoption and State Requirements
If the PAP did not meet the requirements for a “full and final” adoption of the child abroad,[27] the PAP must submit:
- Evidence that the state of the child’s proposed residence allows (re)adoption or provides for judicial recognition of the adoption abroad; and
- Evidence of compliance with all state pre-adoption requirements, if any. If state law prevents the PAP from complying with any pre-adoption requirements before the child's arrival in the United States, the PAP must note the missing requirements and provide an explanation. USCIS does not, however, approve orphan petitions for a specific child without evidence of compliance with requirements or an explanation why the PAP cannot meet the requirements before the child’s arrival.
C. Primary and Secondary Evidence
A PAP should submit primary evidence when available. Primary evidence is evidence that, on its face, proves a fact. For example, primary evidence of death is a death certificate.
Not all countries, however, have the same kind of documentary practices as the United States. If primary evidence is not available, a PAP must demonstrate its unavailability and should submit secondary evidence.[28] If both primary and secondary evidence are unavailable, the PAP must demonstrate the unavailability of the primary and secondary evidence and submit two or more affidavits that are sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances.[29]
Footnotes
[^ 1] See 8 CFR 103.2. See Fee Schedule (Form G-1055). See instructions for Petition to Classify Orphan as an Immediate Relative (Form I-600). For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)].
[^ 2] See 8 CFR 204.3(g). See the Filing Instructions for Form I-600, Petition to Classify Orphan as an Immediate Relative webpage.
[^ 3] See Application for Advance Processing of an Orphan Petition (Form I-600A).
[^ 4] See Fee Schedule (Form G-1055).
[^ 5] See Pub. L. 109-248 (PDF) (July 27, 2006).
[^ 6] This includes the Petition to Classify Orphan as an Immediate Relative (Form I-600).
[^ 7] See INA 204(a)(1)(A)(i). See INA 204(a)(1)(B)(i). See INA 101(a)(15)(K). See Volume 6, Immigrants, Part C, Adam Walsh Act [6 USCIS-PM C].
[^ 8] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5].
[^ 9] See the Application for Advance Processing of an Orphan Petition (Form I-600A).
[^ 10] See Part B, Adoptive Parent Suitability Determinations, Chapter 2, Eligibility, Documentation and Evidence (Orphan Process), Section B, Filing, Subsection 2, Combination Filing [5 USCIS-PM B.2(B)(2)].
[^ 11] See instructions for the Petition to Classify Orphan as an Immediate Relative (Form I-600).
[^ 12] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5].
[^ 13] See 8 CFR 204.3(d)(1)(ii). When possible, the PAP should submit the birth certificate showing the child’s birth parent(s), and not only a new birth certificate issued after the adoption.
[^ 14] See DNA Evidence of Sibling Relationships, PM-602-0106.1, issued April 17, 2018.
[^ 15] See Matter of Bueno-Almonte (PDF), 21 I&N Dec. 1029, 1032-33 (BIA 1997). See Matter of Ma (PDF), 20 I&N Dec. 394 (BIA 1991). See Matter of Serna (PDF), 16 I&N Dec. 643 (BIA 1978).
[^ 16] See Chapter 4, Eligibility Requirements Specific to Orphans [5 USCIS-PM C.4].
[^ 17] The father of an orphan is ineligible for classification as a sole parent as defined in 8 CFR 204.3(b).
[^ 18] See Matter of Rodriguez (PDF), 18 I&N Dec. 9, 11 (Reg. Comm. 1980) which cites a social welfare agency study as evidence of a sole parent's inability to provide proper care.
[^ 19] This is different from the definition of abandonment, which does not allow a release to be made directly to a PAP.
[^ 20] To determine whether a document may be available in a particular country, see DOS’s Country Reciprocity Schedule webpage.
[^ 21] See 8 CFR 103.2(b)(2)(i).
[^ 22] This could be a separate decree or incorporated into the adoption decree itself.
[^ 23] In the case of desertion or disappearance, the decree must also make the child a ward of the state because of such disappearance or desertion.
[^ 24] This includes a subsequent guardian who becomes the legal adoptive parent of the child.
[^ 25] For information on “full and final” adoptions for orphan cases, see Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5]. For general information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].
[^ 26] If the petitioner is married, only one spouse needs to have seen and observed the child before or during the adoption proceedings.
[^ 27] See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5].
Chapter 8 - Adjudication
A. General Guidelines for Adjudication
The following table outlines steps an officer uses to make a decision on an orphan petition.
General Guidelines for Adjudication of Orphan Petition |
---|
|
|
|
|
|
|
|
|
|
B. Burden and Standard of Proof
In matters involving immigration benefits, the petitioner always has the burden of proving eligibility for the immigration benefit sought.[6] This determination may include questions of foreign law. When a PAP relies on foreign law to establish eligibility for the beneficiary, the application of the foreign law is a question of fact, which must be proved by the PAP. Therefore, the burden of proof is on the PAP to establish that the child is eligible.[7]
The standard of proof relates to the persuasiveness of the evidence necessary to meet the eligibility requirements for a particular benefit.[8]
The standard of proof for establishing eligibility for orphan petitions is that of a preponderance of the evidence.[9] The PAP meets this standard if the evidence permits a reasonable person to conclude that the claim that the child is an orphan is probably true.[10]
The PAP satisfies the standard of proof if: | The PAP does not satisfy the standard of proof if: |
---|---|
The PAP submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is probably true or more likely than not to be true.[11] | USCIS can articulate a material doubt based on the evidence that leads USCIS to believe that the claim is probably not true.[12] |
C. Weight and Reliability of Evidence
1. Weight of Evidence
In applying the preponderance of the evidence standard (to determine whether it is more likely than not that the child is eligible for orphan classification), an officer must consider all the evidence and make a determination based on the totality of the evidence.
If there are inconsistencies in the record, the officer should investigate and request more information[13] to resolve any inconsistencies and give appropriate weight to the evidence in question. The officer must determine whether:
- The court or local authority was aware of any potentially derogatory information;[14]
- Gaps or inconsistencies in the record are material; and
- The inconsistencies are overcome by other evidence in the record indicating the child meets the definition of an orphan.
If the inconsistencies or omissions are… | Then the inconsistencies or omissions… |
---|---|
Minor and not material to the determination of orphan status | Generally do not support a denial or make an otherwise approvable orphan petition not clearly approvable. |
Not minor (such as multiple inconsistences or omissions) and are material to the determination of orphan status | May lead to a denial or a not clearly approvable finding. |
If additional investigative steps do not reasonably explain an inconsistency or omission or no plausible explanation exists, then the officer should issue an additional Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), as appropriate.[15]
2. Reliability of Evidence
Officers should carefully weigh the evidence and may assign differing weight to evidence in the record, depending on the reliability of that evidence.
An officer should consider all evidence regarding the circumstances of the child’s eligibility, not just a foreign court order, decree, or certificate. For example, an officer should consider secondary evidence, such as police reports or administrative or lower court documents that led to the foreign government's decision to terminate parental rights.
USCIS generally accepts a foreign decree or order on its face as primary evidence of a determination by a foreign court. Absent specific material information that a court decree is legally invalid[16] or was obtained by fraud, an officer may generally rely on such authentic decrees as evidence of a determination by a foreign government. An officer may, however, question the validity of a decree or order for various reasons, such as:
- Lack of jurisdiction by the foreign court or authority;
- Lack of parental consent to the adoption;
- No or improper notice of termination of parental rights;
- Evidence of corruption, fraud, or material misrepresentation;
- Lack of due process or appropriate safeguards in the country or jurisdiction issuing the order; or
- Other credible and probative evidence to question the reliability of the documentation.
If there is reason to doubt the validity of the decree or order, the officer may request additional evidence.
D. Orphan Determination
1. Purpose
The Determination on Child for Adoption (Form I-604) (also known as an orphan determination or Form I-604) must be completed in every orphan case.[17] The Form I-604 determination:
- Verifies that the child meets the eligibility criteria to be classified as an orphan under U.S. immigration law; and
- Ensures that the PAP meets all the immigration-related legal requirements to petition for a child to immigrate to the United States.
Generally, DOS completes the Form I-604 orphan determinations on behalf of USCIS in the child’s country of origin or where the adoption or grant of legal custody is completed to provide integrity in the orphan adjudication and to ensure that foreign documents submitted to support the orphan petition are sufficient.
2. U.S. Government Agency Roles
Domestically-Filed Petitions with USCIS
When a PAP files an orphan petition domestically (in the United States), the orphan determination is normally completed after USCIS has approved the orphan petition. However, if USCIS has articulable concerns that can only be resolved through the orphan determination, then the adjudicating officer may request that the orphan determination be completed before the final adjudication of the orphan petition.[18] Generally, a consular officer in the child's country of origin completes the orphan determination.
Petitions Filed Outside the United States with U.S. Department of State
If the petitioner filed the orphan petition outside the United States with the U.S. Department of State (DOS) at a U.S. embassy or consulate, the consular officer completes the orphan determination before completing the adjudication of the orphan petition and visa.
E. Decisions and Actions
1. Federal Agency Roles
The adjudication of orphan petitions and the completion of orphan determinations are the exercise of the DHS Secretary's authority, delegated to USCIS.[19] DHS further delegated authority to DOS consular officers to approve orphan petitions and to complete orphan determinations under certain circumstances.[20]
Under this delegated authority, a consular officer has the authority to approve, but not deny, an orphan petition. In addition, while consular officers may ask PAPs for additional information, a consular officer is not authorized to issue an RFE, a NOID, or a Notice of Intent to Revoke (NOIR). If the consular officer believes that an orphan petition filed at the post is not clearly approvable, the consular officer must refer the orphan petition to USCIS.[21]
2. Approvals
USCIS may approve an orphan petition if:
- The petition was properly filed;
- The PAP meets suitability determination and eligibility requirements;[22]
- All security checks are current at the time of approval;[23] and
- The PAP has met the PAP’s burden of proving by a preponderance of the evidence that the beneficiary is eligible for classification as an orphan.
If the officer approves the petition, the officer sends a notice of approval[24] to the PAP and the PAP’s legal representative, if any.[25]
3. Requests for Evidence and Notices of Intent to Deny
If USCIS is adjudicating the orphan petition and any of the required evidence is missing, deficient, or adverse, or the eligibility requirements have otherwise not been demonstrated,[26] the officer issues an RFE or NOID, as appropriate.
4. Not Clearly Approvable Cases
If the consular officer reviews the record and it does not establish by a preponderance of the evidence the child meets the U.S. immigration definition of an orphan, the consular officer must refer the petition to USCIS as a not clearly approvable case.
A case is not clearly approvable if the record does not establish the child is eligible for classification as an orphan. This may happen when:
- There is a change that necessitates an RFE for an updated home study;[27]
- Any state pre-adoption requirements have not been met for IR-4 cases;
- There is not enough information in the record to meet the preponderance of evidence standard and make a favorable determination;
- There is materially inconsistent or conflicting information in the record that must be reconciled; or
- There is adverse information in the record, such as evidence of child-buying, fraud (including fraudulent documentation), misrepresentation, or non-bona fide intent.
Consular officers cannot issue RFEs or NOIDs. A consular officer must refer any orphan petition that is not clearly approvable to the USCIS office with jurisdiction over its adjudication, along with the supporting documents, the completed orphan determination, and any other relevant documentation.[28] Consular officers may contact USCIS before referring a case as not clearly approvable. This may be especially important in circumstances where there is a compelling medical or humanitarian need.
Once USCIS receives a not clearly approvable case, USCIS consults with the consular post and DOS’s Visa Office as necessary to understand the consular officer's concerns before proceeding. Then the USCIS officer does one of the following:
- If the available evidence is sufficient to establish that the child is an orphan by a preponderance of the evidence, the officer approves the petition and returns the petition to the consular post for visa adjudication.
- If the evidence is insufficient, the officer issues an RFE or NOID.[29] The PAP has the opportunity to respond to the RFE or NOID with additional information. The officer must then assess the totality of the evidence in the record to determine if the PAP has met the burden of proving that the child beneficiary qualifies as an orphan.
- If there is no possibility that the petitioner can rebut the reason for the denial, the officer issues a denial.[30]
5. Consular Returns
In some cases, after USCIS approves the orphan petition, a consular officer discovers adverse information during the orphan determination or visa process. If a consular officer discovers probative evidence[31] that would have led USCIS to deny the petition had USCIS been aware of the information at the time of adjudication, the consular officer returns the petition to USCIS for possible revocation. A consular officer cannot revoke an approved orphan petition or issue a NOIR.
The DOS Foreign Affairs Manual contains DOS policies related to consular returns. In general, to recommend revocation of an orphan petition, the consular officer sends the orphan petition to USCIS, via the National Visa Center, along with a revocation memo, case-specific evidence, the completed orphan determination, and any other relevant documentation. Consular officers may contact USCIS to enhance coordination.
Once USCIS receives a consular return case, a USCIS officer consults with the consular post as necessary to understand the consular officer's concerns. USCIS may then:
- Issue a NOIR;[32] or
- Reaffirm the orphan petition and send the case back to the appropriate U.S. consulate or embassy, via the National Visa Center, for visa adjudication.
If USCIS reaffirms a petition but the consular officer believes that the applicant is not eligible for a visa or discovers new evidence that the consular officer believes would result in a revocation request, the DOS’s Foreign Affairs Manual guides the consular officer’s next steps.[33]
6. Revocation
Automatic Revocation
An approved suitability application or orphan petition is automatically revoked as of the date of approval if any one of the circumstances below occurs before the final decision on a child’s application for admission with an immigrant visa or for adjustment of status:
- A change in the PAP’s marital status;[34] or
- Any of the circumstances for automatic revocation of an immediate relative or family-sponsored petitions applies.[35]
USCIS issues a notice to the petitioner of such revocation.[36]
Revocation on Notice
An orphan petition must be revoked when information is discovered that would have resulted in denial had it been known at the time of adjudication.[37] Only USCIS officers have authority to revoke approval of an orphan petition.[38]
Before revoking an orphan petition, an officer generally must provide the PAP with a NOIR.[39] USCIS can properly issue a NOIR when:
- There is good and sufficient cause; and
- The evidence of record at the time of the NOIR issuance, if unexplained and unrebutted, would warrant denial of the petition based upon the PAP's failure to meet the PAP’s burden of proof.[40]
A NOIR gives the petitioner an opportunity to submit evidence sufficient to overcome the intended revocation. If USCIS has properly issued a NOIR, the PAP bears the burden of establishing that the child qualifies for the benefit sought.[41] If the PAP fails to overcome the grounds for revocation stated in the NOIR in the PAP’s response, or the PAP fails to respond, USCIS may revoke the approval of the orphan petition if USCIS establishes good and sufficient cause for revocation.
Good and sufficient cause for revocation must be based upon adverse information, including errors of fact or law, which would have resulted in a denial had the information been known to USCIS at the time the petition was adjudicated because the PAP would have failed to meet the burden of proof at that time.[42] Generally, such adverse information must be specific and material to the case and based upon detailed evidence. Concerns that are conclusory, speculative, equivocal, and irrelevant to eligibility do not warrant revocation.[43] Only factual allegations that are supported by probative evidence[44] in the record and that call the beneficiary's eligibility into question can support revocation.[45]
7. Denials
If the officer cannot approve the orphan petition, the officer must explain in writing the specific reasons for denial.[46] A NOID is not required unless an intended denial is based upon information or evidence of which the applicant is unaware.[47] The denial notice must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.[48]
8. Communication and Correspondence
USCIS sends communication of its actions and decisions directly to the PAP for all case-related matters.
If a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) or Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) is completed by an attorney or by an accredited representative,[49] the officer also sends a copy of USCIS decision notices to such authorized attorney or accredited representative.[50] A person representing an organization such as a non-profit or charitable organization must first be accredited by the Board of Immigration Appeals. In general, adoption agencies do not qualify as accredited representatives.
Information about the particulars of any case can only be given to the PAP, or to an attorney or accredited representative with a Form G-28 or Form G-28I on file. The Privacy Act forbids disclosing information about the case to anyone else, unless the PAP has signed a written consent[51] to the disclosure or such disclosure is not prohibited by law.[52]
Footnotes
[^ 1] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 2] The officer examines the actual circumstances to determine whether the child meets the conditions for an orphan under U.S. immigration law. See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5].
[^ 3] See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5].
[^ 4] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5].
[^ 5] See Section D, Orphan Determination [5 USCIS-PM C.8(D)].
[^ 6] See INA 291. See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 7] See Matter of Kodwo (PDF), 24 I& N Dec. 479, 482 (BIA 2008) (citing Matter of Fakalata (PDF) 18 I&N Dec. 213 (BIA 1982) and Matter of Annang (PDF), 14 I&N Dec. 502 (BIA 1973)).
[^ 8] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 9] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375 (AAO 2010).
[^ 10] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). See Matter of E-M- (PDF), 20 I&N Dec. 77, 80 (Comm. 1989).
[^ 11] See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), which defines more likely than not as a greater than 50 percent probability of something occurring.
[^ 12] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010).
[^ 13] If USCIS is adjudicating the case, see Section E, Decisions and Actions, Subsection 3, Requests for Evidence and Notices of Intent to Deny [5 USCIS-PM C.8(E)(3)]. If a consular officer is adjudicating the case, see Section E, Decisions and Actions, Subsection 4, Not Clearly Approvable Cases [5 USCIS-PM C.8(E)(4)] and Subsection 5, Consular Returns [5 USCIS-PM C.8(E)(5)].
[^ 14] If there are any indicators of fraud, see Chapter 6, Additional Requirements, Section A, No Child-Buying, Fraud, Misrepresentation, or Non-Bona Fide Intent [5 USCIS-PM C.6(A].
[^ 15] For a full discussion on RFEs and NOIDs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 16] An order may be legally invalid if the order was issued by an entity without proper authority to issue such orders or if the court invalidated its order.
[^ 17] See 8 CFR 204.3(k)(1).
[^ 18] See 8 CFR 204.3(k)(1).
[^ 19] See INA 103(a). See INA 204(b).
[^ 20] See 8 CFR 204.3(k)(2).
[^ 21] See 8 CFR 204.3(k)(2).
[^ 22] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 23] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 24] See Notice of Approval of Relative Visa Petition (Form I-171) or the Notice of Action (Form I-797).
[^ 25] For more information on approvals, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].
[^ 26] See Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].
[^ 27] See Part B, Suitability Determinations, Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5].
[^ 28] See 8 CFR 204.3(h)(11).
[^ 29] See Subsection 3, Requests for Evidence and Notices of Intent to Deny [5 USCIS-PM C.8(E)(3)].
[^ 30] See Subsection 7, Denials [5 USCIS-PM C.8(E)(7)].
[^ 31] Probative evidence is evidence which proves or helps prove a fact or issue.
[^ 32] See Subsection 6, Revocation [5 USCIS-PM C.8(E)(6)].
[^ 33] For more information, see 9 FAM 502.3-3(C)(7), Orphan Visa Applications.
[^ 34] See 8 CFR 204.3(h)(14).
[^ 36] See 8 CFR 205.1(b).
[^ 37] See 8 CFR 205.2. See 8 CFR 204.3(h)(14). For more information on revocations, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].
[^ 38] See 8 CFR 205.2(b).
[^ 39] See 8 CFR 205.2(b). A NOIR is not required when the petitioner or beneficiary dies or when some other automatic ground for revocation applies. See 8 CFR 205.1. See 8 CFR 205.2(b).
[^ 40] See INA 205. See 8 CFR 205.2. See 8 CFR 204.3(h)(14). See Matter of Estime (PDF), 19 I&N Dec. 450 (BIA 1987).
[^ 41] See Matter of Cheung (PDF), 12 I&N Dec. 715 (BIA 1968).
[^ 42] See Matter of Estime (PDF), 19 I&N Dec. 450, 451 (BIA 1987).
[^ 43] See Matter of Arias (PDF), 19 I&N Dec. 568, 570-51 (BIA 1988).
[^ 44] Probative evidence is evidence which proves or helps prove a fact or issue.
[^ 45] See Matter of Estime (PDF), 19 I&N Dec. 450, 451 (BIA 1987).
[^ 46] A DOS consular officer does not have the authority to deny an orphan petition. For more information on denials, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].
[^ 47] See 8 CFR 103.2(b)(16).
[^ 48] For more information on appeals and motions, see Volume 1, General Policies and Procedures, Part F, Motions and Appeals [1 USCIS-PM F].
[^ 49] Under 8 CFR 292.2.
[^ 50] See 8 CFR 103.2(b)(19).
[^ 51] See Consent to Disclose Information (Supplement 2 for Form I-600A and I-600).
[^ 52] See Privacy Act of 1974, Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974) (codified at 5 U.S.C. 552a).
Chapter 9 - Pre-Adoption Immigration Review Programs
In certain countries, USCIS and the U.S. Department of State (DOS) have implemented Pre-Adoption Immigration Review (PAIR) programs, which require the orphan determination to be completed before the final adoption or grant of custody in the child's country of origin. The sections below outline when the orphan determination is conducted and who conducts it in each country that has a PAIR program.
A. Ethiopia
USCIS may accept orphan petitions filed on behalf of a child from, and physically located in, Ethiopia who is not yet the subject of a final legal custody order or final adoption by a prospective adoptive parent (PAP).[1] PAPs adopting such children may file[2] the orphan petition for a preliminary determination before traveling to and adopting a child in Ethiopia.
B. Taiwan
USCIS accepts orphan petitions filed on behalf of a child from, and physically located in, Taiwan who is not yet the subject of a final legal custody order or final adoption by a PAP.[3] PAPs adopting such children are encouraged to file[4] the orphan petition with USCIS in the United States before traveling to and adopting a child in Taiwan. The American Institute in Taiwan (AIT) may accept orphan petitions but forwards such petitions to USCIS in the United States for a preliminary determination of eligibility.
A PAP should file with USCIS a completed orphan petition together with all required evidence, except the adoption decree or grant of legal custody.[5] In addition, a PAP adopting from Taiwan should submit:
- Evidence of availability for intercountry adoption generated by the Taiwan island-wide database;
- Signed adoption agreement between birth parents and PAPs for use in Taiwan district family courts; and
- Power of attorney appointing the Taiwan adoption service provider to represent the PAPs.
A USCIS officer reviews the petition and supporting evidence and requests that AIT conduct the necessary orphan determination to determine whether the child appears to qualify as an orphan and is otherwise likely eligible to immigrate to the United States based on the orphan petition. If USCIS makes a favorable preliminary determination that the child appears to meet the definition of an orphan[6] and otherwise appears eligible to immigrate, USCIS issues a PAIR letter. This preliminary eligibility determination is not a final adjudication of the orphan petition and is not binding on USCIS. USCIS then forwards the file to AIT.
After the adoption or grant of legal custody is completed, the PAP submits the adoption decree or legal custody order and required identity documents for the child to AIT. AIT then issues the final approval of the orphan petition, if approvable. If AIT determines that the orphan petition is not clearly approvable at that time, AIT returns the orphan petition to USCIS for further processing.[7]
Footnotes
[^ 1] For information on the current viability of intercountry adoption from Ethiopia, see DOS’s Ethiopia webpage. The PAP may be residing in the United States, overseas, or have traveled overseas to complete an adoption.
[^ 2] For filing instructions, see the Petition to Classify Orphan as an Immediate Relative (Form I-600) webpage.
[^ 3] The PAP may be residing in the United States, overseas, or have traveled overseas to complete an adoption.
[^ 4] For filing instructions, see the Form I-600 webpage.
[^ 5] See 8 CFR 103.2.
[^ 6] See INA 101(b)(1)(F) for the definition of an orphan.
[^ 7] See Chapter 8, Adjudication, Section E, Decisions and Actions, Subsection 4, Not Clearly Approvable Cases [5 USCIS-PM C.8(E)(4)].
Part D - Child Eligibility Determinations (Hague)
Chapter 1 - Purpose and Background
A. Purpose
The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption[1] is an international treaty that provides a framework of safeguards to protect the best interests of children and families involved in intercountry adoptions. By setting clear procedures and prohibiting improper financial gain, the Convention provides greater security, predictability, and transparency for all parties to the adoption, including children, birth parents, and adoptive parents.
The Convention also ensures the appropriate authorities in a child’s country of origin deem a child eligible for adoption and give due consideration to an adoption placement within the child’s country of origin, before placing the child for intercountry adoption.
The Convention applies to the adoption of a child who:
- Is habitually resident in one Convention country (the country of origin) and is being adopted by a U.S. citizen habitually resident in another Convention country (the receiving country); and
- Has been, is being, or is to be moved from the country of origin to the receiving country, either after the adoption or for the purposes of emigration and adoption.[2]
A prospective adoptive parent (PAP)[3] must generally follow the Convention process[4] if the PAP:
- Is a U.S. citizen[5] who is habitually resident[6] in the United States;[7] and
- Seeks to adopt a child who is habitually resident in a Convention country[8] (other than the United States) on or after April 1, 2008, and on or after the date the Convention entered into force for the other country.[9]
B. Background
The United States signed the Hague Adoption Convention in 1994, signaling support for the principles and standards set forth in the Convention. In 2000, Congress consented to the ratification of the Convention and enacted implementing legislation, the Intercountry Adoption Act of 2000 (IAA).[10] In 2006, the Department of State (DOS) published regulations to establish the regulatory framework for accreditation and approval of adoption service providers required under the Convention and the IAA.[11] In 2007, DHS published Hague Adoption Convention regulations to implement the IAA.[12] The United States ratified the Convention in December 2007 and the Convention subsequently entered into force for the United States on April 1, 2008. On the same day, DHS Hague Adoption Convention regulations noted above also took effect.
Although the United States implemented Convention procedures for intercountry adoptions in 2008, the orphan intercountry adoption process and family-based immigration process for adopted children are also available for eligible children, depending on their country of habitual residence.[13]
Key Aspects of Hague Adoption Convention Process
The Convention and U.S. implementing regulations increase accountability and transparency in the intercountry adoption process by generally requiring the accreditation and approval of adoption service providers.[14] The Convention safeguards against the trafficking, abduction, or sale of children and against the unintentional adoption and emigration of a child who is not eligible to be adopted or whose best interests may not be served through intercountry adoption.
U.S. procedures for Convention cases are aimed at identifying any potential eligibility issues under U.S. immigration law before a PAP adopts the child (or obtains legal custody for the purpose of emigration and adoption) in the child’s country of origin so that every eligible child adopted through the Convention process can enter and reside permanently in the United States.
Before a PAP adopts (or obtains legal custody of) a child in the country of origin, USCIS determines whether the child appears eligible to be classified as a Convention adoptee under the Immigration and Nationality Act (INA), and DOS determines whether the child appears to meet the criteria for visa eligibility if immigrating to the United States.[15]
After the PAP adopts the child (or obtains legal custody), the child’s country of origin certifies that the adoption complied with the Hague Adoption Convention and DOS reviews the documents again for Convention compliance before making a final decision and issuing a Hague Adoption Certificate and immigrant visa.[16]
C. Scope
For the Convention process, the PAP must first file an application to determine the PAP’s suitability and eligibility as an adoptive parent[17] and then file a petition to determine the child’s eligibility as a Convention adoptee.[18] This Part D addresses the requirements for petitions used to determine children’s eligibility as Convention adoptees.
USCIS guidance does not address other adoption-related requirements, such as those of the child’s country of origin, state of proposed residence, or other federal agencies, such as DOS, or the U.S. Department of Health and Human Services (HHS).[19]
Additionally, this part does not address the specific requirements for adopted children to obtain U.S. citizenship.[20]
D. Legal Authorities
- The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (PDF) (Hague Adoption Convention)
- The Intercountry Adoption Act of 2000 (PDF) (IAA)
- INA 101(b)(1)(G) – Definition of child (for Convention adoptee)
- INA 201(b) – Immediate relatives
- INA 204 – Procedure for granting immigrant status
- 8 CFR 204 Subpart C – Intercountry adoption of a Convention adoptee
- 22 CFR Part 96 – Intercountry adoption accreditation and approval standards and process
Footnotes
[^ 1] This Convention (PDF) is referred to in this part as the Hague Adoption Convention or Convention.
[^ 2] See Hague Adoption Convention (PDF), Article 2(1).
[^ 3] USCIS uses the term PAP in this part to refer to the applicant or petitioner and the applicant or petitioner’s spouse (if any) as applicable.
[^ 4] For more information on determining the applicability of the Hague Adoption Convention see Part A, Adoptions Overview, Chapter 2, Adoption Processes, Section A, Hague Adoption Convention, Subsection 1, Applicability [5 USCIS-PM A.2(A)(1)].
[^ 5] In the case of a married couple, this applies if either of the PAPs is a U.S. citizen. However, only one PAP must be a U.S. citizen.
[^ 6] For more information on habitual residence determinations, see part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2].
[^ 7] If the PAP is a U.S. citizen residing outside of the United States and seeks to adopt a child residing in a Hague Adoption Convention country, the PAP may be able to use the U.S. Convention process (even if the PAP does not intend to immediately immigrate the child to the United States), provided the country of origin allows the PAP to complete the Convention process from the Convention country and the PAP can obtain the Hague Adoption Certificate or Hague Custody Certificate to complete the process. The PAP may also be required to follow the law and procedures for immigration and adoption in the country where the PAP resides. For information on determining which U.S. immigration process applies, see Part A, Adoptions Overview [5 USCIS-PM A].
[^ 8] For a list of countries that are party to the Hague Adoption Convention, see the U.S. Department of State (DOS)’s Convention Countries webpage.
[^ 9] The Hague Adoption Convention entered into force for the United States on April 1, 2008. For information on the entry into force date for each country, see the Hague Conference on Private International Law’s Status Table webpage.
[^ 10] See Pub. L. 106-279 (PDF), 114 Stat. 825 (October 6, 2000).
[^ 11] See 71 FR 8064 (Feb. 15, 2006). See 22 CFR Part 96.
[^ 12] See 72 FR 56832 (Oct. 4, 2007). See 8 CFR 204 Subpart C.
[^ 13] See Part A, Adoptions Overview [5 USCIS-PM A] for information on determining which adoption process (Hague Adoption Convention, orphan, or family-based) applies, depending on the PAP’s circumstances.
[^ 14] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5]. See 22 CFR 96.2. See DOS’s Convention Adoption Process webpage for additional information.
[^ 15] For information on the role of DOS as the U.S. Central Authority for the Hague Adoption Convention and the role of USCIS, see Part A, Adoptions Overview, Chapter 1, Purpose and Background, Section C, Background, Subsection 2, Federal Agency Roles [5 USCIS-PM A.1(C)(2)].
[^ 16] See Hague Adoption Convention (PDF), Article 23.
[^ 17] See the Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A). For information on suitability applications, see Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 18] See the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).
[^ 19] For general information on other countries’ requirements, see DOS’s Country Information webpage. For more information on requirements of the state of proposed residence, see HHS’ Child Welfare Information Gateway’s State Laws Related to Adoption webpage. For DOS guidance, see 9 FAM 502.3, Adoption-based Classifications and Processing.
[^ 20] For more information on citizenship for adopted children, see Part F, Citizenship for Adopted Children [5 USCIS-PM F].
Chapter 2 - Eligibility
A child must qualify as a Convention adoptee to be eligible to immigrate through the Hague Adoption Convention process.[1] The table below lists general eligibility criteria for the Hague Adoption Convention process, with references to where each individual criterion is discussed in further detail.
Eligibility Requirement | For More Information |
---|---|
USCIS determines the prospective adoptive parent (PAP) is suitable and eligible to adopt. | See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B]. |
The child meets identity and age requirements. | See Chapter 3, Identity and Age [5 USCIS-PM D.3]. |
The child meets specific requirements for eligibility as a Convention adoptee. | See Chapter 4, Eligibility Requirements Specific to Convention Adoptees [5 USCIS-PM D.4]. |
The child has been adopted by a U.S. citizen (and spouse, if married) or is under the legal custody of the U.S. citizen PAP for purposes of emigration and adoption. | See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM D.5]. |
The PAP must have identified an accredited or approved primary adoption service provider (unless a limited exception applies). | See Chapter 6, Additional Requirements [5 USCIS-PM D.6]. |
There must be no evidence of improper inducement, fraud or misrepresentation of material fact, or non-bona fide intent. | See Chapter 6, Additional Requirements [5 USCIS-PM D.6]. |
The child must match the characteristics that the PAP has been approved to adopt. | See Chapter 6, Additional Requirements [5 USCIS-PM D.6]. |
The PAP must not have engaged in prohibited contact with the child’s birth parent(s), legal custodian(s), or caregiver(s). | See Chapter 6, Additional Requirements [5 USCIS-PM D.6]. |
The PAP must have met any pre-adoption requirements of the child’s jurisdiction of proposed residence. | See Chapter 6, Additional Requirements [5 USCIS-PM D.6]. |
The PAP completed any required pre-placement preparation and training. | See Chapter 8, Documentation and Evidence [5 USCIS-PM D.8]. |
Footnotes
[^ 1] See INA 101(b)(1)(G). To meet the definition of a child under INA 101(b)(1), the child must be unmarried and under the age of 21.
Chapter 3 - Identity and Age
The child’s identity must be properly documented,[1] and the child must meet applicable age requirements. The prospective adoptive parent (PAP) must file the petition[2] before the child turns 16 unless the child qualifies for the sibling exception or the suitability application[3] exception.[4]
Sibling Exception
A child who is age 16 or older at the time the petition is filed qualifies for the sibling exception if the child is under age 18 at the time the petition is filed, and that child’s birth[5] sibling:
- Has been or will be adopted by the same parent or parents; and
- Is or was previously classified as an orphan while under age 16;
- Is or was previously classified as a Convention adoptee while under age 16; or
- Meets the definition of adopted child for a family-based adoption petition and was under age 16 at the time of adoption.[6]
Suitability Application Exception
USCIS deems the suitability application filing date to be the petition filing date if both of the following requirements are met:[7]
- The PAP filed the suitability application after the child's 15th birthday, but before the child's 16th birthday (or, if the sibling exception also applies, after the child's 17th birthday, but before the child's 18th birthday); and
- The PAP files the petition not more than 180 days after the initial approval of the suitability application.
Footnotes
[^ 1] See Chapter 8, Documentation and Evidence, Section B, Required Evidence [5 USCIS-PM D.8(B)].
[^ 2] In this part, the term petition refers to the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).
[^ 3] In this part, the term suitability application refers to the Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A).
[^ 4] This chapter describes age-related requirements that a child must meet for their Form I-800 to be approved. This chapter does not discuss age-related requirements for citizenship purposes. For information about the age of child applicants and immigrant visa eligibility, see 9 FAM 502.1-1(D), Child Status Protection Act. For information on age requirements related to citizenship for adopted children, see Part F, Citizenship for Adopted Children [5 USCIS-PM F].
[^ 5] In this volume, USCIS uses birth and natural synonymously. The terms natural siblings and birth siblings are not defined in the public law that provides for the sibling exception. USCIS interprets these terms to include children sharing one or both biological parents. The PAP must show through evidence that the children are birth siblings. The applicant may provide birth certificates, custody, or adoption decrees from the foreign court, death certificates, marriage certificates, and other official documentation to establish the children are birth siblings. USCIS may suggest DNA testing of the siblings if there are any questions regarding the sibling relationship. All expenses incurred to prove relationship must be borne by the PAP.
[^ 6] See INA 101(b)(1)(G)(iii).
[^ 7] See 8 CFR 204.313(b)(3).
Chapter 4 - Eligibility Requirements Specific to Convention Adoptees
To be eligible under the Convention process, the child must be habitually resident in a Convention country and meet the definition of a Convention adoptee.[1] To be eligible as a Convention adoptee, the Central Authority of the child’s country of origin must also have determined that the child is eligible and available for intercountry adoption.[2]
A Convention adoptee must meet the eligibility requirements under U.S. immigration law as described below.[3] A child can have:
- Two living parents or legal custodians who release the child for emigration and adoption (if there is a direct relinquishment by the birth parents, the birth parents must be incapable of providing proper care); or
- A sole or surviving parent who releases the child for emigration and adoption and the other parent has died, disappeared, abandoned, or deserted the child.
Definitions
Foreign official documents and laws may use different terms from those used in U.S. immigration law or use the same terms but with different meanings to define eligibility criteria for Convention adoptees. To determine if a definition or requirement under U.S. immigration law is met, USCIS considers the laws of the child's country of origin and the required actions by the foreign Central Authority.
USCIS also considers the facts and circumstances of the particular case given the totality of the record. While some of the terms used in the Convention adoptee definition are the same as those used in the orphan definition, they often have different meanings or requirements.
A. Two Living Birth Parents or Legal Custodians
1. Irrevocable Consent
The child's birth parents or other persons or institutions who retain legal custody of the child must have freely given their written irrevocable consent to the termination of their legal relationship with the child and to the child's emigration and adoption.[4]
2. Incapable of Providing Proper Care
In the case of a child released for adoption by two living birth parents directly to an individual (rather than to an orphanage or institution authorized under the Convention country's child welfare laws to act in such a capacity), the petitioner must demonstrate that the birth parents are incapable of providing proper care.[5] Incapable of providing proper care means that in light of all the relevant circumstances, including economic or financial concerns, extreme poverty, medical, mental, or emotional difficulties, or long term incarceration, the child's two living birth parents are not able to provide for the child's basic needs, consistent with the local standards of the Convention country.[6]
If two living birth parents release a child for adoption to an orphanage or institution that is authorized under the Convention country's child welfare laws to act in such a capacity, the petitioner does not need to establish that the birth parents are incapable of providing proper care. However, irrevocable consent by the birth parents and legal custodian is still required.
B. Sole Parent or Surviving Legal Parent
1. Sole or Surviving Parent
A birth parent may be a sole parent or a surviving parent if:[7]
- The other parent is deceased (for a surviving parent), or the competent authority has determined that the other parent disappeared, abandoned, or deserted the child (for a sole parent); and
- The child has not acquired a new legal parent under the law.[8]
The sole or surviving parent must irrevocably consent to the adoption in writing. However, the petitioner does not have to demonstrate that a sole or surviving parent is incapable of providing proper care for the child.
2. Disappearance
Disappearance means that a child's parent has unaccountably or inexplicably passed out of the child's life so that their whereabouts are unknown, there is no reasonable expectation of their reappearance, and there has been a reasonable effort to locate them, as determined by a competent authority in accordance with the laws of the Convention country.[9]
A stepparent who is deemed to be a child's legal parent may be found to have disappeared if it is established that the stepparent either never knew of the child's existence, or never knew of their legal relationship to the child.
3. Abandonment
Abandonment means that a child’s parent:
- Has willfully forsaken all parental rights, obligations, and claims to the child, as well as all custody of the child without intending to transfer, or without transferring, these rights to any specific individual or entity; and
- Surrendered such rights, obligations, claims, control, and possession.
Knowledge that a specific person may adopt a child does not void an abandonment; however, abandonment cannot be conditioned on the child's adoption by that specific person. If the parent entrusted the child to a third party for custodial care in anticipation of, or preparation for, adoption:
- The third party (such as a governmental agency, court of competent jurisdiction, adoption agency, or orphanage) must have been authorized under the Convention country's child welfare laws to act in such a capacity; and
- The transfer must have been permanent and unconditional with the intent to terminate the legal parent-child relationship.
To meet the definition of abandonment, the petitioner must establish by a preponderance of evidence that the child’s parent abandoned the child.[10] If a written document is used to help establish this, the document must:
- Specify whether the parent(s) who signed the document were able to read and understand the language in which the document is written; or
- If the parent(s) are not able to read or understand the language in which the document is written, then the document must be accompanied by a declaration by an identified person, establishing that the identified person is competent to translate the language in the document into a language that the parent(s) understand and that the identified person, on the date and at the place specified in the declaration, read and explained the document to the parent(s) in a language that the parent(s) understand. The declaration must also indicate the language used to provide this explanation.
4. Desertion
Desertion means that a child's parent has willfully forsaken the child, refused to carry out their rights and obligations, and that, as a result, the child has become a ward of a competent authority in accordance with the laws of the Convention country.[11]
Desertion does not mean that the parent has disappeared, but rather that they refuse to carry out their parental rights and obligations towards the child. Desertion differs from abandonment in that the parent has not taken steps to divest themselves of parental duties, but the parent’s inaction has caused a local authority to step in to assume custody of the child.
C. Other Legal Parents
USCIS considers a parent to include any person who is related to a child in any of the ways specified in the definition under U.S. immigration law.[12] The officer must determine for each parent whether the person has legal rights to the child in accordance with the Convention country’s laws. If the officer determines that a person is a legal parent, the officer must determine whether the child still meets the Convention adoptee definition in light of the legal parent.
Stepparents
USCIS must consider the existence of a stepparent in determining whether a child is a Convention adoptee.[13] The officer must determine whether the stepparent has a legal parent-child relationship with the child under the Convention country’s laws.[14]
If an officer determines that the child has a stepparent, the officer should request additional evidence from the prospective adoptive parent (PAP), including:
- A copy (with a certified English translation, if applicable) of the relevant statutes, regulations, court judgments, or other legal authority from the country of origin addressing whether a stepparent has a legal parent-child relationship to the stepchild; and
- A statement from the stepparent (with a certified English translation, if applicable) indicating that the stepparent has neither adopted the stepchild nor obtained any other form of legal custody of the stepchild and does not intend to do so.
USCIS considers a stepparent to be a parent for purposes of adjudication of a petition if:
- The stepparent adopted the stepchild as specified in U.S. immigration law;[15]
- Under the Convention country’s laws, the marriage between the parent and stepparent creates a legal parent-child relationship between the stepparent and stepchild; or
- The stepparent has obtained legal custody of the stepchild establishing a legal relationship to the stepchild.
In some jurisdictions, a stepparent does not have a legal parent-child relationship to a stepchild and would, therefore, not have any legal standing to perform any action terminating parental rights and duties.
USCIS does not consider a stepparent to be a child's parent for purposes of a petition if the PAP establishes that the stepparent has no legal parent-child relationship to the stepchild under the Convention country’s laws. The burden of establishing this rests with the PAP. The PAP cannot simply assert without evidence that the stepparent has no legal parental rights to the child.
If the officer determines the stepparent is a legal parent, the PAP must establish the child still meets the Convention adoptee definition in light of the stepparent and that the stepparent has consented to the adoption, in the same manner that would apply to any other legal parent.
Footnotes
[^ 1] See 8 CFR 204.301 for the definition of a Convention adoptee. For information on habitual residence determinations, see Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2]. See 8 CFR 204.303.
[^ 2] The Central Authority of the child’s country of origin will affirm the child’s eligibility and availability for intercountry adoption in accordance with the country of origin’s laws when referring the child to the PAP and sending an Article 16 report. An Article 16 report is an official report on the child. For more information on the Article 16 report, see Chapter 8, Documentation and Evidence, Section B, Required Evidence, Subsection 2, Article 16 Report and Accompanying Evidence [5 USCIS-PM D.8(B)(2)].
[^ 3] See INA 101(b)(1)(G). See 8 CFR 204.301.
[^ 4] See INA 101(b)(1)(G)(i)(II). See 8 CFR 204.301. For more information on irrevocable consent requirements, see Chapter 8, Documentation and Evidence, Section B, Required Evidence, Subsection 2, Article 16 Report and Accompanying Evidence [5 USCIS-PM D.8(B)(2)].
[^ 5] See INA 101(b)(1)(G)(i)(III). See 8 CFR 204.301.
[^ 6] See 8 CFR 204.301.
[^ 7] See the definitions of sole parent, surviving parent, abandonment, deserted or desertion, and disappeared or disappearance at 8 CFR 204.301.
[^ 8] See Section C, Other Legal Parents [5 USCIS-PM D.4(C)].
[^ 9] See definition of disappeared or disappearance at 8 CFR 204.301.
[^ 10] See definition of abandonment at 8 CFR 204.301. For information on standards of proof for immigration petitions, see Chapter 9, Adjudication, Section B, Burden and Standards of Proof [5 USCIS-PM D.9(B)].
[^ 11] See 8 CFR 204.301.
[^ 12] See INA 101(b)(2).
[^ 13] Under the law of some jurisdictions, a stepparent may adopt their spouse's child without terminating the legal parent-child relationship between the child and their other parent. The adoptive stepparent may then qualify as a parent through INA 101(b)(1)(E), as well as INA 101(b)(1)(B).
[^ 14] For information on resources on foreign law, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity, Section A, Determining the Validity and Effect of an Adoption, Subsection 7, Evidence About the Applicable Adoption Law [5 USCIS-PM A.4(A)(7)].
[^ 15] See INA 101(b)(1)(E).
Chapter 5 - Qualifying Adoptive or Custodial Relationship
A prospective adoptive parent (PAP) must have one of the following for a child to be classified as a Convention adoptee:
- A final adoption in the Convention country; or
- Legal custody of the child under the law of the Convention country for purposes of emigration and adoption in the United States.[1]
A. Final Adoption
A child may qualify as a Convention adoptee based on a final adoption if:
- The adoption meets USCIS requirements for a final adoption (is valid under the law of the country of origin, creates a legal permanent parent-child relationship,[2] and terminates the prior legal parent-child relationship); and
- The petitioner (and spouse, if married) adopted the child.
If these requirements are met, the child may qualify for an IH-3 visa[3] based on a valid final adoption. USCIS considers an adoption that meets these requirements to be a final adoption.
A child does not, however, have a final adoption if only one parent of a married couple adopted the child. USCIS may, however, consider the foreign adoption by one parent in a married couple to have established legal custody for purposes emigration and adoption, and the child may be eligible for an IH-4 visa.[4]
B. Legal Custody for Emigration and Adoption
Not all countries grant what USCIS considers a final adoption abroad for immigration purposes.[5] A child may, however, be eligible based on legal custody for the purpose of emigration and adoption if the following criteria are met:[6]
- The PAP secured legal custody in accordance with the laws of the country of origin;
- The person, organization, or competent authority that has legal custody or control over the child irrevocably released the child for emigration and adoption;[7]
- The PAP has complied with any pre-adoption requirements; and
- If there was an adoption abroad that did not meet the requirements for a final adoption, the child’s proposed jurisdiction of residence allows re-adoption or provides for judicial recognition of the foreign adoption.
If the child meets these requirements, the child may qualify for an IH-4 visa to come to the United States for adoption.[8]
Footnotes
[^ 1] Some countries will not allow a child to emigrate without a final adoption decree. To determine a Convention country’s specific laws, see the U.S. Department of State (DOS)’s Country Information webpage.
[^ 2] For more information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].
[^ 3] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child from a Convention country adopted abroad by a U.S. citizen.
[^ 4] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child from a Convention country coming to be adopted in the United States by a U.S. citizen.
[^ 5] For example, guardianships, simple adoptions, or Kafala orders in countries that follow traditional Islamic law generally do not qualify as a final adoption abroad. Such guardianship, Kafala, or other custody orders may, however, be sufficient to establish that the PAP has secured legal custody of the child. If the legal custody is for emigration and adoption and all other requirements are met, such an order could support approval of a petition. See 8 CFR 204.313(h)(1)(ii)(A).
[^ 6] See the definition of custody for purposes of emigration and adoption at 8 CFR 204.301.
[^ 7] The Central Authority of the country of a child's habitual residence must have, by a judicial or administrative act, expressly authorized the petitioner, or an individual or entity acting on the petitioner's behalf, to take the child out of the child's country of habitual residence and bring the child to the United States for adoption in the United States. See 8 CFR 204.301.
[^ 8] See Volume 5, Adoptions, Part F, Citizenship for Adopted Children [5 USCIS-PM F] for information on citizenship for adopted children. A PAP needs to take additional steps to secure U.S. citizenship for a child entering with an IH-4 visa because the adoption of the child has to be finalized in the United States or recognized by operation of law, unlike in cases of children entering with IH-3 visas on the basis of a final adoption.
Chapter 6 - Additional Requirements
In addition to meeting general eligibility requirements, the following requirements must also be met:
- The Department of State (DOS) has determined that the United States can partner with the Convention country and is able to issue Hague Certificates for children from the Convention country;[1]
- There is no improper inducement, fraud, misrepresentation, or non-bona fide intent;
- The child matches the characteristics that the prospective adoptive parent (PAP) has been approved to adopt;
- The PAP met any pre-adoption requirements of the child’s jurisdiction of proposed residence;[2]
- The petitioner has identified and uses the services of an accredited or approved primary adoption service provider;[3] and
- There has not been any prohibited contact between the PAP, or any adult member of the household, and the child’s birth parents, legal custodians, or caregivers.
A. No Child-Buying, Fraud, Misrepresentation, or Non-Bona Fide Intent
The officer must determine whether there are allegations or indications of improper inducement, fraud, misrepresentation, or non-bona fide intent that would prevent the child from being classified as a Convention adoptee.
1. Improper Inducement
A petition must be denied or revoked if there is improper inducement or a prohibited payment. A prohibited payment is when the PAP or a person or entity working on their behalf paid, gave, offered to pay or offered to give, receive, or accept money or other consideration, either directly or indirectly, to a child's parent, agent, other person, or entity to induce or influence any decision about:
- The child’s placement for adoption;
- The consent to adoption;
- Relinquishment of the child for the purpose of adoption; or
- The performance of any act that makes the child a Convention adoptee.[4]
Prohibited payments do not include paying for reasonable costs incurred for permissible services such as administrative, court, legal, translation, or medical services related to the adoption proceedings.[5]
A payment is not reasonable if it is prohibited under the law of the country in which the payment is made or if the amount of the payment is not commensurate with the costs for professional and other services in the country in which any particular service is provided.
Permissible services are:
- The services of an adoption service provider in connection with an adoption;
- Expenses incurred in locating a child for adoption;
- Medical, hospital, nursing, pharmaceutical, travel, or other similar expenses incurred by a mother or her child in connection with the birth or any illness of the child;
- Counseling services for a parent or a child for a reasonable time before and after the child's placement for adoption;
- Expenses, in an amount commensurate with the living standards in the country of the child's habitual residence, for the care of the birth mother while pregnant and immediately following the birth of the child;
- Expenses incurred in obtaining the home study;
- Expenses incurred in obtaining required reports on the child;[6]
- Legal services, court costs, and travel or other administrative expenses connected with an adoption, including any legal services performed for a parent who consents to the adoption of a child or relinquishes the child to an agency; and
- Any other service the payment for which the officer finds, on the basis of the facts of the case, was reasonably necessary.
2. Fraud or Misrepresentation
Fraud is the willful misrepresentation of a material fact. In the adoption context, this typically involves concealment of a material fact to obtain an official document or judgment by a court or authorized entity (for example, an adoption decree). To meet the requirement of materiality, evidence of the misrepresentation must be documented and generally relate to the child’s eligibility as a Convention adoptee.
3. Non-Bona Fide Intent
The PAP must establish that the purpose of the adoption (or legal custody for adoption) is for the PAP to form a bona fide parent-child relationship with the child.[7] The intent to create a legal permanent parent-child relationship requires the intent to raise the child as their own child, with the same mutual rights and obligations that exist between a birth parent and birth child.
Intent in this case implies the provision of care, support, and direction to the Convention adoptee, without the intent to profit financially or otherwise from the presence of the child. The PAP must also establish that the parent-child relationship between the child and the birth or other prior legal parent(s) has been terminated. USCIS evaluates the petition to determine if the intent of the adoption is for the PAP to form a genuine parent-child relationship and not solely for immigration purposes.
USCIS generally does not consider PAPs who intend to terminate the adoption or transfer physical or legal custody of the child after the child enters the United States to meet the bona fide relationship requirement.
B. Child Matches Characteristics that Prospective Adoptive Parent is Approved For
During the suitability and eligibility application process, USCIS determined that the evidence submitted established the PAP was a suitable adoptive parent for a child with specific characteristics.[8] The child must match the characteristics that the PAP has been approved to adopt (such as age, sex, nationality, special needs, and number of children).
If the child does not match the characteristics for which USCIS has approved the PAP to adopt, then the officer should issue a Request for Evidence (RFE)[9] for an updated home study, any related documents, and a Form I-800A, Supplement 3, Request for Action on an Approved Form I-800A (Form I-800A, Supplement 3).
1. Special Needs
The officer should review evidence, generally found in the Article 16 report,[10] to verify whether the child has any significant physical or mental impairment, disability, or condition. The officer should:
- Ensure that the suitability application approval does not exclude any such significant or serious medical condition of the child; and
- Verify that the PAP is aware of and accepts any significant medical, physical, or mental condition.
If an officer discovers that the child has a significant medical condition that the PAP is not aware of, the officer must:
- Provide the PAP with all available pertinent details concerning the impairment, disability, or condition; and
- Halt adjudication of the case until the PAP submits a notarized statement indicating awareness of the child's impaired health or disability and a willingness to proceed and an updated home study addressing the PAP’s ability to provide proper care for such child.[11]
2. Age
The child must meet the age range listed on the suitability application approval at the time the referral or match was accepted by the PAP, or if the accepted referral or match date cannot be established, the filing date of the petition.[12] If the child does not match the age range for which USCIS has approved the PAP to adopt, then the officer should issue an RFE for an updated home study.
C. Primary Provider
The PAP must use an authorized adoption service provider for the provision of adoption services and identify on the petition which accredited or approved adoption service provider is the primary provider if using multiple accredited or approved adoption service providers.[13] If the officer determines that the PAP has not sufficiently identified a primary adoption service provider on the petition, the officer may issue an RFE.[14]
If an officer learns that the PAP's primary adoption service provider has withdrawn from the PAP’s case, is no longer providing any remaining adoption services, or has lost accreditation or approval, the officer should issue an RFE requesting evidence that either the current primary adoption service provider remains as such, or the PAP has identified a new primary adoption service provider.[15]
Reporting Adoption Service Provider Concerns to Department of State
If the officer uncovers information that suggests the primary provider is failing to comply with DOS accreditation regulations, the officer can report the adoption service provider through the DOS complaint registry or to DOS.[16] If an officer suspects adoption service provider misconduct, the officer should consult with their supervisor before making a report.
D. No Prohibited Contact
The PAP, and any adult member of the household, must not have had any prior contact with a child’s birth parent, legal custodian, or caregiver (including an entity) unless contact is permitted because: [17]
- The first contact occurred after USCIS approved the suitability application, and after the Central Authority of the child’s country of origin determined that the child is eligible for intercountry adoption and that the required consents to the adoption were given;
- The Central Authority of the child’s country of origin permitted earlier contact, either in the particular instance or through laws or rules of general application, and the contact occurred in compliance with the authorization or generally applicable laws or rules;[18] or
- The PAP was related to the child before the adoption through certain familial relationships.[19]
Footnotes
[^ 1] If DOS has determined the United States cannot process Convention cases from a certain country, USCIS publishes this information on the USCIS Country-Specific Processing webpage.
[^ 2] See INA 101(b)(1)(G)(i)(V)(bb).
[^ 3] See 22 CFR 96.2 and 22 CFR 96.14.
[^ 4] See 8 CFR 204.304.
[^ 5] DOS works closely with foreign governments to identify all costs related to intercountry adoption in particular countries. DOS posts general information about adoption-related costs on DOS’s Country Information webpage.
[^ 6] See the reports described in 8 CFR 204.313(d)(3) and 8 CFR 204.313(d)(4).
[^ 7] See INA 101(b)(1)(G)(i)IV).
[^ 8] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 9] For more information on RFEs, see Chapter 9, Adjudication, Section D, Decisions and Actions [5 USCIS-PM D.9(D)].
[^ 10] An Article 16 report is an official report on the child. For more information on the Article 16 report, see Chapter 8, Documentation and Evidence, Section B, Required Evidence, Subsection 2, Article 16 Report and Accompanying Evidence [5 USCIS-PM D.8(B)(2)].
[^ 11] See Part B, Adoptive Parent Suitability Determinations, Chapter 5, Action on Pending or Approved Suitability Determinations [5 USCIS-PM B.5].
[^ 12] For example, if a suitability determination states that the PAP is approved to adopt a child aged 0-4 years old, then a child who is 4 years old but not yet 5 would meet this age range. This is true even if the child has turned 5 by the time the officer is adjudicating the application.
[^ 13] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5]. See 22 CFR 96.2 definition of adoption services.
[^ 14] For more information on RFEs, see Chapter 9, Adjudication, Section D, Decisions and Actions [5 USCIS-PM D.9(D)].
[^ 15] An adoption service provider is not allowed to act as a primary provider if it loses its accreditation or approval or allows its accreditation or approval to lapse. For more information, see the If Your Adoption Service Provider is No Longer Accredited or Approved webpage.
[^ 16] See DOS’s Complaint Registry webpage.
[^ 17] See 8 CFR 204.309(b)(2).
[^ 18] If the PAP first adopted the child without complying with the Hague Adoption Convention, the competent authority's decision to permit the adoption to be vacated, and to allow the petitioner to adopt the child again after complying with the Hague Adoption Convention, also constitutes approval of any prior contact. See 8 CFR 204.309(b)(2)(ii).
[^ 19] For information on qualifying relationships, see 8 CFR 204.309(b)(2)(iii).
Chapter 7 - Required Order of Immigration and Adoption Steps
A. General
The prospective adoptive parent (PAP) must follow the adoption and U.S. immigration process in a specific order.[1] Specifically, a PAP should not adopt or obtain legal custody of a child for purposes of emigration and adoption before completing certain steps in the Hague Adoption Convention process.[2] The list below highlights the key steps and the order in which they must generally be completed.[3]
Step | Description |
---|---|
Step 1 | The PAP chooses a U.S. accredited or approved adoption service provider. |
Step 2 | The PAP obtains a home study from a home study preparer authorized to complete an intercountry adoption home study.[4] |
Step 3 | The PAP files a suitability application with USCIS to be found suitable and eligible to adopt a child from a Convention country.[5] |
Step 4 | The PAP obtains a proposed adoptive placement for a child who is eligible for intercountry adoption with the Central Authority of the child’s country of origin. |
Step 5 | The Central Authority of the child’s country of origin matches the child with the PAP, issues an Article 16 letter,[6] and the PAP accepts the match. |
Step 6 | The PAP files a petition[7] with USCIS to have the child found provisionally eligible to be classified as a Convention adoptee under U.S. immigration law.[8] |
Step 7 | After USCIS provisionally approves the petition, the PAP applies to the U.S. Department of State (DOS) for an immigrant visa for the child. |
Step 8 | DOS reviews the petition and visa application to determine whether there appear to be any visa ineligibilities and whether the placement took place in compliance with the Intercountry Adoption Act of 2000 and with the Hague Adoption Convention. |
Step 9 | DOS notifies the Central Authority of the child’s country of origin of the Step 8 determination by issuing an Article 5/17 letter, indicating that the adoption may be proceed and the child appears authorized to enter and reside permanently in the United States.[9] |
Step 10 | After DOS issues the Article 5/17 letter, the PAP completes the adoption or obtains legal custody of the child for the purposes of emigration and adoption. |
Step 11 | The Central Authority of the child’s country of origin certifies that the adoption or grant of custody occurred in accordance with the Convention.[10] |
Step 12 | After the PAP completes the adoption or obtains legal custody of the child, DOS reviews and issues a Hague Adoption Certificate or a Hague Custody Certificate and issues final approval of the petition if it is clearly approvable. If DOS cannot issue final approval, the DOS consular officer returns the case to USCIS as not clearly approvable. |
Step 13 | If the PAP resides in the United States, the PAP obtains a U.S. immigrant visa and brings the child to the United States.[11] |
B. Out-of-Order Adoption or Legal Custody Order
1. Obtaining Legal Custody or Adoption Out of Order
If the PAP adopts or obtains legal custody of the child out of order, before the required immigration processing steps take place, USCIS considers the adoption or custody order to be premature. If the PAP obtained an adoption or custody order prematurely, USCIS generally must deny the petition.[12] USCIS considers an adoption or custody order to be premature when the PAP adopted the child, or obtained custody for purposes of emigration and adoption, before USCIS provisionally approved the petition or before DOS issues the Article 5/17 letter.
The PAP must show that an order obtained prematurely was voided, vacated, annulled, or otherwise terminated, for USCIS to provisionally approve a petition.[13] USCIS may provisionally approve the petition if the PAP can establish that an order obtained prematurely was terminated[14] (no longer in effect) at the time of filing the petition or that laws of the jurisdiction where they obtained the order prevent an adoptive family from terminating a previously finalized adoption.
2. Additional Evidence
If the PAP obtained an order prematurely, the officer should send a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) asking the PAP to submit:
- A copy of the applicable law governing the termination of adoption and custody orders, as well as a certified English translation of that law; and
- Evidence showing the following:
- The order is no longer in effect, as demonstrated by an order from a competent authority terminating the adoption or custody order; or
- Why the order cannot be terminated (order is still in effect) and why the PAP did not follow the proper sequence.
The PAP may demonstrate the order cannot be terminated by providing both:
- A statement from the Central Authority of the child’s country of origin indicating that, under the law of that country, the petitioner is not able to obtain an order terminating the adoption or custody order; and
- A statement from the PAP, signed under penalty of perjury under U.S. law, explaining why, despite the clearly stated requirements[15] and the warnings on the form instructions,[16] the PAP obtained the adoption or custody order before receiving provisional approval of the (immigration) petition.
If the PAP submits evidence that the order obtained prematurely was terminated, the officer may provisionally approve[17] the petition, if it is otherwise approvable.
Some countries may not have readily available legal mechanisms for terminating adoption or custody orders. If the PAP’s response establishes that the PAP is not able to obtain an order terminating the adoption or custody order obtained prematurely, USCIS adjudicates the petition in light of the fact that the adoption or custody order appears to have been obtained without compliance with the Hague Adoption Convention requirements and related U.S. laws[18] and regulations.
The officer must deny the petition if the evidence of record establishes that the PAP knowingly obtained the adoption or custody order before filing the petition with the specific intent to circumvent the Convention’s requirements, U.S. immigration laws, and the implementing regulations.[19]
Footnotes
[1] If the child is in the United States and will apply for adjustment of status instead of consular processing, also see Volume 7, Adjustment of Status [7 USCIS-PM].
[2] See Articles 4, 5, 16, 17, and 23 of the Hague Adoption Convention (PDF).
[3] For more information, see DOS’s Convention Adoption Process webpage.
[4] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5].
[5] See the Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A)
[6] See Article 16 of the Hague Adoption Convention (PDF).
[7] See the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).
[8] The PAP must have an approved Form I-800A before they can file a Form I-800.
[9] See Articles 5 and 17 of the Hague Adoption Convention (PDF).
[10] See Article 23 of the Hague Adoption Convention (PDF).
[11] However, if the child is in the United States and will apply for adjustment of status instead of consular processing, see Volume 7, Adjustment of Status [7 USCIS-PM].
[12] See 8 CFR 204.309(b)(1).
[13] See 8 CFR 204.309(b)(1).
[14] For purposes of this section, the terms terminated, terminating, and termination all refer to adoption or custody orders that are voided, vacated, annulled, or otherwise terminated under the Convention country’s laws.
[15] See 8 CFR 204.309(b)(2).
[16] See instructions for Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A) and Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800).
[17] USCIS may only deem the premature order voiding requirement at 8 CFR 204.309(b)(1) to be met for purposes of provisional approval.
[18] See Section 301(b) of the Intercountry Adoption Act, Pub. L. 106-279 (PDF), 114 Stat. 825, 837 (October 6, 2000).
[19] See 8 CFR 204.309(b)(1).
Chapter 8 - Documentation and Evidence
A. Filing
To request a determination of a child’s eligibility for classification as a Convention adoptee, a prospective adoptive parent (PAP) files a Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800), and any required fee, supplements, or supporting forms in accordance with form instructions.[1]
Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act)[2]
A petitioner who has been convicted of a specified offense against a minor is prohibited from filing a family-based petition,[3] including adoption petitions, on behalf of any family-based beneficiary.[4]
B. Required Evidence
The PAP must submit required evidence in accordance with form instructions.[5] The table below summarizes what evidence is required for petitions and what additional evidence is required for certain cases.
Evidence the PAP Submits | When Applicable |
---|---|
Evidence of valid Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A) approval (or of a Form I-800A, Supplement 3, suitability approval extension) | All Form I-800 petitions |
The report required under Article 16 of the Hague Adoption Convention (and all accompanying evidence) regarding the child’s identity, adoptability, background, family history, medical history, and any special needs | All Form I-800 petitions |
A statement from the primary provider certifying the Article 16 report | All Form I-800 petitions |
A statement from the primary adoption service provider that the PAP meets training requirements | All Form I-800 petitions |
Application for Waiver of Grounds of Inadmissibility (Form I-601) | If the child is inadmissible to the United States |
Additional evidence and supporting forms for children coming to the United States for adoption, such as a post-placement service plan provided by the adoption service provider and evidence of compliance with any state pre-adoption requirements | If the child will not have an adoption abroad that USCIS considers final |
Certified copy of the adoption or legal custody order or decree | To obtain final approval from the U.S. Department of State (DOS) of a provisionally approved Form I-800[6] |
If the Central Authority matches the PAP with a child more than 6 months after the child’s 15th birthday, but before the child’s 16th birthday (or for a qualifying sibling, 6 months after the child’s 17th birthday, but before the child’s 18th birthday), the PAP may file the petition without all of the applicable supporting evidence. The PAP must submit a statement from the primary provider, under penalty of perjury, confirming that the Central Authority made the adoption placement on the date specified in the statement.[7]
1. PAP is Suitable and Eligible to Adopt
To show that USCIS found the PAP suitable and eligible to adopt, the PAP must submit a copy of a valid unexpired Form I-800A or Form I-800A, Supplement 3 approval notice.[8] The approval notice must be valid at the time the PAP files Form I-800.
The Form I-800A or Form I-800A, Supplement 3 approval does not need to remain valid while the Form I-800 is pending, but the PAP’s duty of disclosure remains ongoing.[9] The PAP cannot request an updated suitability determination or make any additional petition filings without a valid suitability approval.
2. Article 16 Report and Accompanying Evidence
An Article 16 report is an official report from the Central Authority on the child’s identity, adoptability, background, family history, medical history, and any special needs. The PAP must submit an Article 16 report that meets all the requirements of the Hague Adoption Convention.[10]
The report may consist of more than one document, as long as the documents address all of the required elements. The report must specify the child’s name and date of birth, indicate the reasons for making the adoption placement, and establish that the Central Authority:
- Determined that the child is eligible for intercountry adoption;
- Considered placing the child for adoption within the child’s country of origin, and determined that intercountry adoption is in the child’s best interests;
- Ensured that any identifiable birth parent or legal custodian freely consented to the child’s adoption in writing after appropriate counseling;
- Ensured the child has freely consented in writing to the adoption after appropriate counseling (if the child is of an age that the Convention country’s laws require the child’s consent) and considered the child’s wishes and opinion; and
- Ensured that no payment or inducement of any kind has been given to obtain the necessary consents.
The following evidence must accompany the Article 16 report:[11]
- A copy of the child’s birth certificate that includes the name of the child’s birth parent or parents, or secondary evidence of the child’s age and identity (if a birth certificate is not available);
- A copy of any needed irrevocable consents;[12]
- A statement from the primary provider certifying the report is a true, correct, and complete copy of the report from the Central Authority; and
- A summary of the information provided to the PAP concerning the child’s medical and social history.[13]
This summary, or a separate document, must include:
- A statement as to whether there is reason to believe the child has any medical condition that makes the child inadmissible.[14] If the medical information available at the provisional approval stage is not sufficient to assess whether the child may be inadmissible, the PAP may submit the information to DOS before seeking final approval of the petition.
- The factual basis for being unable to provide proper care (if both of the child’s birth parents were the child’s legal custodians and signed the irrevocable consent).
- Information about the parent’s or legal custodian’s death and a copy of the death certificate (if applicable).
- The circumstances leading to the determination that a parent or legal custodian is a sole parent (if applicable).
- The circumstances leading to the custodian's acquisition of custody of the child and the legal basis of that custody (if the legal custodian was any individual or entity other than the child’s birth parent or parents).
Delayed Birth Certificates
Generally, USCIS does not give the same weight to delayed birth certificates as birth certificates issued at the time of birth due to the potential for fraud.[15] Certain jurisdictions, however, may not issue birth certificates to children until they become involved in an intercountry adoption.
An officer must determine the reliability of the facts contained in the delayed certificate in light of the other evidence in the record and should not reject the delayed certificate's evidentiary value simply because it was not issued at the time of the child's birth.
Officers should check the DOS’s U.S. Visa: Reciprocity and Civil Documents by Country Schedule[16] to determine a document's availability and reliability. If the officer determines that reliability is a concern, the officer should request additional evidence.
Written Irrevocable Consent
The irrevocable consent must meet the following requirements:[17]
- Establish that the legal custodian freely consents to the termination of the legal custodian's legal relationship with the child;
- Indicate the place and date the document was signed by a child's legal custodian;
- If signed by the child's birth mother or any legal custodian other than the birth father,[18] have been signed after the child's birth;
- Specify whether the legal custodian is able to read and understand the language in which the consent is written;
- If the legal custodian is not able to read or understand the language in which the document is written, then the document does not qualify as an irrevocable consent unless the document is accompanied by a declaration signed by an identified person who meets the following requirements:
- Establish that the identified person is competent to translate the irrevocable consent into a language that the legal custodian understands;
- Establish that the person, on the date and at the place specified in the declaration, read and explained the consent to the legal custodian in a language that the legal custodian understands and indicates the language used to provide this explanation; and
- Certify the truth of the facts stated in the declaration, if the person who signed the declaration is an officer or employee of the Central Authority (but not of an agency or entity authorized to perform a Central Authority function by delegation) or any other governmental agency. Any other person who signs a declaration must sign the declaration under penalty of perjury under U.S. law.
3. Pre-Placement Training Statement
The PAP must submit a statement from the primary adoption service provider verifying that the PAP met required pre-placement preparation and training requirements provided for under federal regulations.[19]
4. Application for Waiver of Grounds of Inadmissibility (Form I-601)
If a PAP knows that the child is inadmissible for an inadmissibility ground for which a waiver is available (such as for certain medical conditions), the PAP must submit an Application for Waiver of Grounds of Inadmissibility (Form I-601).[20] The PAP must submit the application in accordance with form instructions.[21]
5. Additional Evidence for Children Coming to the United States for Adoption
USCIS considers a Convention adoptee to be coming to the United States for adoption if the PAP does not complete a final adoption abroad, or if only one parent of a married couple completes the adoption abroad.[22] If a child is coming to the United States for adoption, the PAP must submit the following in addition to the evidence outlined above:
- Affidavit of Support Under Section 213A of the INA (Form I-864);
- Evidence that the PAP met any pre-adoption requirements; and
- A statement on post-placement services.
Affidavit of Support
If the child is coming to the United States for adoption, the PAP must include a completed and signed Affidavit of Support Under Section 213A of the INA (Form I-864) with their petition unless the child is otherwise exempt.[23]
Evidence the PAP Met the Pre-Adoption Requirements
If the child is coming to the United States for adoption, the PAP must meet any pre-adoption requirements of the jurisdiction where they will reside. Pre-adoption requirements vary by jurisdiction and the PAP must describe them on the petition.[24] The PAP must describe:
- Which pre-adoption requirements have been met;
- When and how the PAP intends to complete the child’s adoption; and
- When and how the PAP intends to satisfy any requirements that can be satisfied only after the child arrives in the United States.[25]
Post-Placement Services Statement
If the child is coming to the United States for adoption, the PAP must submit a written report from the primary provider, signed under penalty of perjury by the primary provider (or an authorized representative of the primary adoption service provider) detailing the primary adoption service provider’s plan for post-placement services.[26]
C. Primary and Secondary Evidence
A PAP should submit primary evidence when available.[27] Primary evidence is evidence that, on its face, proves a fact. For example, primary evidence of death is a death certificate issued by the appropriate authority.
Not all countries, however, have the same kind of documentary practices as the United States. If primary evidence is not available, a PAP must demonstrate its unavailability and should submit secondary evidence.[28]
If both primary and secondary evidence are unavailable, the PAP must demonstrate the unavailability of the primary and secondary evidence and submit two or more affidavits that are sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances.[29]
Footnotes
[^ 1] See instructions for Form I-800. For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)]. See Fee Schedule (Form G-1055) to determine if a fee is needed for Form I-800 and its supplements.
[^ 2] See Pub. L. 109-248 (PDF) (July 27, 2006). For more information, see Volume 6, Immigrants, Part C, Adam Walsh Act [6 USCIS-PM C].
[^ 3] This includes Form I-800.
[^ 4] See INA 204(a)(1)(A)(i), INA 204(a)(1)(B)(i), and INA 101(a)(15)(K).
[^ 5] See instructions for Form I-800. See 8 CFR 103.2(b).
[^ 6] The PAP does not submit the adoption or custody order with the Form I-800 petition, but rather as part of the final approval process. For more information, see Chapter 9, Adjudications, Section D, Decisions and Actions, Subsection 2, Approvals [5 USCIS-PM D.9(D)(2)].
[^ 7] See 8 CFR 204.313(c)(2).
[^ 8] See 8 CFR 204.313(d)(1). For information on extensions of approval periods, see 8 CFR 204.312(e).
[^ 9] See Part B, Adoptive Parent Suitability Determinations, Chapter 4, Home Studies, Section P, Duty of Disclosure [5 USCIS-PM B.4(P)].
[^ 10] See 8 CFR 204.313(d)(3). See the Hague Adoption Convention (PDF).
[^ 11] See 8 CFR 204.313(d)(4).
[^ 12] For information on when irrevocable consent is required, see Chapter 4, Eligibility Requirements Specific to Convention Adoptees [5 USCIS-PM D.4]. If the laws of the country prohibit providing the identity of the parent or legal custodian, then they do not need to provide the consent documentation. However, the Central Authority must certify in its report that the documents exist, and that they establish the child’s age and availability for intercountry adoption.
[^ 13] See 22 CFR 96.49 and 8 CFR 204.313(d)(4).
[^ 14] See INA 212(a).
[^ 15] See Matter of Bueno-Almonte (PDF), 21 I&N Dec. 1029, 1032-33 (BIA 1997). See Matter of Ma (PDF), 20 I&N Dec. 394 (BIA 1991). See Matter of Serna (PDF), 16 I&N Dec. 643 (BIA 1978).
[^ 16] See DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage.
[^ 17] See 8 CFR 204.301.
[^ 18] The birth father may sign an irrevocable consent before the child's birth if permitted by the law of the country of the child's habitual residence. See 8 CFR 204.301.
[^ 19] See 22 CFR 96.48 and 8 CFR 204.313(d)(2).
[^ 20] See 8 CFR 204.313(d)(5). For information on inadmissibility provisions, see INA 212(a).
[^ 21] See instructions for Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800). See instructions for Form I-601. For more information on inadmissibility waivers, see Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].
[^ 22] For more information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].
[^ 23] See 8 CFR 204.313(d)(6). See Volume 8, Admissibility, Part G, Public Charge Ground of Inadmissibility, Chapter 6, Affidavit of Support Under Section 213A of the INA [8 USCIS-PM G.6].
[^ 24] The home study must also provide details about any required pre-adoption requirements. See Part B, Adoptive Parent Suitability Determinations, Chapter 4, Home Studies, Section M, State-Specific Requirements [5 USCIS-PM B.4(M)].
[^ 25] See 8 CFR 204.313(h)(1)(ii)(C).
[^ 26] See 8 CFR 204.313(d)(6). For information on post-placement duties, see 22 CFR 96.5.
[^ 27] Officers should check DOS's U.S. Visa: Reciprocity and Civil Documents by Country webpage to determine a document's availability and reliability.
[^ 28] See 8 CFR 103.2(b)(2)(i). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section B, Primary and Secondary Evidence [1 USCIS-PM E.6(B)].
Chapter 9 - Adjudication
Both USCIS and the U.S. Department of State (DOS) have roles in the adjudication of the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800), but their roles and authorities differ.[1] USCIS may issue:
- A provisional approval;
- A Request for Evidence (RFE) or Notice of Intent to Deny (NOID);
- A final denial;
- A Notice of Intent to Revoke (NOIR); or
- A final revocation.
DOS may issue a final petition approval, but cannot issue an RFE, NOID, NOIR, final revocation, or denial. In the case of a child who will apply for adjustment of status, the USCIS officer with jurisdiction over the adjustment application has authority to grant this final approval upon receiving the Secretary of State's certificate.[2]
A. General Guidelines for Adjudication
The following table outlines the main steps a USCIS officer uses to make a provisional decision on whether a child will qualify as a Convention adoptee.
General Guidelines for Adjudication of Form I-800 Petitions |
---|
Ensure the petition was properly filed.[3] |
Verify the petitioner has identified an accredited or approved primary adoption service provider.[4] |
Ensure the prospective adoptive parent (PAP) meets suitability determination and eligibility requirements.[5] |
Ensure security checks are current.[6] |
Verify the child’s identity.[7] |
Determine if the child meets age requirements.[8] |
Confirm the child matches the characteristics that the PAP has been approved to adopt.[9] |
Determine if it appears the child likely meets specific requirements for eligibility as a Hague Convention adoptee.[10] |
Determine if there is evidence of a final adoption or legal custody for emigration and adoption in the United States.[11] |
Verify there is no material evidence of fraud, improper inducement, other misrepresentation, or non-bona fide intent that impacts eligibility.[12] |
Ensure the petition does not meet any grounds for denial, such as the PAP not meeting order of adoption and immigration steps requirements.[13] |
Provisionally approve the petition, issue an RFE, issue a NOID, deny the petition, or refer for investigation.[14] |
Notify DOS if USCIS provisionally approves the petition, so DOS can determine if final approval is appropriate following the final adoption or grant of legal custody. |
B. Burden and Standards of Proof
In matters involving immigration benefits, the petitioner always has the burden of proving eligibility for the immigration benefit sought.[15] This determination may include questions of foreign law. When a PAP relies on foreign law to establish eligibility for the child, the application of the foreign law is a question of fact, which must be proved by the PAP. The burden of proof is on the PAP to establish that the child is eligible as a Convention adoptee.[16]
The standard of proof relates to the persuasiveness of the evidence necessary to meet the eligibility requirements for a particular benefit.[17] The standard of proof for establishing eligibility for petitions is that of a preponderance of the evidence.[18] The PAP meets this standard if the evidence permits a reasonable person to conclude that the claim that the child is eligible as a Convention adoptee is probably true.[19] The standard of proof for Form I-800 petitions is that of a preponderance of the evidence.[20] The PAP meets this standard if the evidence permits a reasonable person to conclude that the claim that the child is eligible as a Convention adoptee is probably true.[21]
C. Weight and Reliability of Evidence
1. Weight of Evidence
In applying the preponderance of the evidence standard (to determine whether it is more likely than not that the child is eligible as a Convention adoptee), an officer must consider all the evidence and determine eligibility based on the totality of the evidence in the record.
If there are inconsistencies in the record, the officer should request more information[22] to resolve any inconsistencies and give appropriate weight to the evidence in question. The officer must determine whether:
- The court or local authority was aware of any potentially derogatory information;[23]
- Gaps or inconsistencies in the record are material; and
- The inconsistencies are overcome by other evidence in the record indicating the child appears to meet requirements as a Convention adoptee.
If the inconsistencies or omissions are… | Then they… |
---|---|
Minor and not material to the determination of eligibility | Generally do not support a denial or make an otherwise approvable petition not clearly approvable. |
Not minor (such as multiple inconsistences or omissions) and are material to the determination of eligibility | May lead to a denial or a not clearly approvable[24] finding. |
If additional investigative steps do not reasonably explain a material inconsistency or omission or no plausible explanation exists, then the officer should issue an RFE or a NOID, as appropriate.[25]
Officers should carefully weigh the evidence and may assign differing weight to evidence in the record, depending on the reliability of that evidence.
An officer should consider all evidence regarding the circumstances of the child’s eligibility, including documents from the Central Authority in the child’s country of origin. For example, an officer should consider secondary evidence, such as police reports or administrative or lower court documents that led to the foreign government's decision to terminate parental or custodial rights.
Although USCIS would generally not see a foreign adoption decree at the provisional approval stage, USCIS generally accepts foreign decrees or orders on their face as primary evidence of a determination by a foreign court. Absent specific material information that a court decree is legally invalid[26] or was obtained by fraud, an officer may generally rely on such authentic decrees as evidence of a determination by a foreign government. An officer may, however, question the validity of a decree or order for various reasons, such as:
- Lack of jurisdiction by the foreign court authority;
- Lack of parental or custodial consent to the adoption or legal custody decree;
- No or improper notice of termination of parental or custodial rights;
- Evidence of corruption, fraud, or material misrepresentation;
- Lack of due process or appropriate safeguards in the country or jurisdiction issuing the order; or
- Other credible and probative evidence to question the reliability of the documentation.
If there is reason to doubt the validity of the decree or order, USCIS may request additional evidence.
D. Decisions and Actions
1. Federal Agency Roles
The adjudication of Form I-800 petitions is the exercise of the DHS Secretary's authority, delegated to USCIS.[27] DHS further delegated authority to DOS consular officers to approve petitions.[28] However, consular officers cannot deny or revoke petitions. In addition, a consular officer is not authorized to issue an RFE, a NOID, or a NOIR. If the consular officer believes that a petition is not clearly approvable or recommends revocation, the consular officer must refer the petition to USCIS.[29]
2. Approvals
Provisional Approval
USCIS may provisionally approve a petition if:[30]
- The petition was properly filed;
- The PAP meets suitability determination and eligibility requirements;[31]
- All security checks are current at the time of approval and there is no unresolved derogatory information;[32] and
- The PAP has met the burden of proving by a preponderance of the evidence that the child qualifies as a Convention adoptee.[33]
If the officer provisionally approves the petition, the officer sends a Provisional Approval of Form I-800 notice to:
- The PAP;
- The PAP’s legal representative, if any; and
- The adoption service provider, if the PAP authorized disclosure in the Form I-800, Supplement 1, Consent to Disclose Information (Form I-800, Supplement 1).[34]
The officer forwards the notice of provisional approval and all supporting evidence to DOS.[35]
Final Approval
If USCIS provisionally approves the petition, the PAP may continue on with the next steps in the Hague Adoption Convention process, which include DOS issuance of the Article 5/17 letter,[36] final adoption or custody of the child, and applying for an immigrant visa for the child.[37]
The PAP must submit a legible, certified copy of the adoption decree or legal custody for purposes of emigration and adoption order to obtain final approval of a provisionally approved petition.[38] The PAP submits the order to DOS as part of the visa application process, or to the USCIS officer who has jurisdiction of the child’s adjustment of status application.
As part of the final approval process, DOS issues the Hague Adoption Certificate or Hague Custody Certificate.[39] This certification establishes that the final adoption of the child, or the grant of custody of the child for the purpose of emigration and adoption, was done in accordance with the Hague Adoption Convention and the Intercountry Adoption Act of 2000. Such a certified final adoption is entitled to recognition in the United States as a valid adoption order. DOS may then grant final approval of the petition.[40]
If DOS cannot issue final approval, the consular officer returns the case to USCIS as not clearly approvable.
3. Request for Evidence, Notice of Intent to Deny, and Referral
If USCIS is adjudicating the Convention adoption petition and any of the required evidence to determine the child’s eligibility is missing, deficient, or adverse, or the eligibility requirements have otherwise not been demonstrated, the officer issues an RFE or NOID, as appropriate.[41]
USCIS is required to issue a NOID before denying a Form I-800 petition based on any mandatory denial grounds in 8 CFR 204.309(b).[42]
Referrals for Investigation
If USCIS determines, on the basis of specific facts, that completing an investigation will aid in the provisional or final adjudication of the Form I-800, USCIS can refer a case to DOS for investigation before Form I-800 adjudication.[43]
If the officer suspects fraud beyond the scope of the review conducted by DOS concerning the child’s status as a Convention adoptee, or that national security or public safety concerns exist, the officer should refer the case to the Fraud Detection and National Security Directorate (FDNS).
4. Not Clearly Approvable Cases
For provisionally approved petitions, if derogatory information is subsequently discovered by DOS, DOS returns the petition to USCIS as not clearly approvable. DOS may return a petition as not clearly approvable for various reasons, including:
- The child does not meet the definition of a Convention adoptee;
- The child is not eligible to immigrate to the United States;
- The child does not meet the characteristics that USCIS and the home study preparer approved;
- The child was adopted or a grant of legal custody occurred before the Article 5/17 letter was issued; or
- There is evidence that prohibited payments were made by or on behalf of the applicant or petitioner to directly or indirectly influence decisions related to any stage of the Hague Adoption Convention process.
After USCIS receives the petition, the officer should review all of the information and determine the appropriate next step. The officer may then:
- Issue an RFE;
- Issue a NOID;
- Deny the petition;[44] or
- Affirm the original provisional approval.
If USCIS issues a RFE and either the PAP does not respond or the information is insufficient, the officer may deny the petition or issue a NOID. If the officer issues a NOID, and the PAP does not overcome the reasons for denial, the officer denies the petition. If the officer issues an RFE or NOID and the PAP overcomes the reasons for ineligibility, the provisional approval stands, and the officer returns the petition to DOS for continued processing.
5. Denials
USCIS must deny a petition that does not meet the requirements for a provisional approval.[45] This includes denial if any of the below conditions apply.
- The petitioner completed the adoption of the child or acquired legal custody of the child for purposes of emigration and adoption before the provisional approval of the petition (unless the petitioner meets requirements for this restriction to not apply).[46]
- The petitioner, or any additional adult member of the household, met with, or had any other form of contact with, the child's parents, legal custodian, or other individual or entity who was responsible for the child's care when the contact occurred (unless the contact qualifies as a permitted contact).[47]
- The petitioner, or any individual or entity acting on behalf of the petitioner, engaged in any conduct related to the adoption or immigration of the child that is prohibited as an improper inducement, or that the petitioner has concealed or misrepresented any material facts concerning payments made in relation to the adoption.[48]
- The child is already present in the United States (unless the petitioner meets requirements for this restriction to not apply).[49]
- The petitioner files the petition before the approval of a suitability application, after the denial of a suitability application; or after the expiration of the approval of a suitability application.[50]
- The petitioner is currently barred from filing a petition.[51]
If the officer cannot provisionally approve the petition, the officer must explain in writing the specific reasons for denial.[52] The denial notice must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.
6. Appeals, Revocation, and Withdrawals
Appeals
A PAP may appeal the denial of a petition unless:[53]
- The petitioner filed the petition before USCIS approved a suitability application or after the expiration of the approval of a suitability application; or
- The petition was filed during any period in which the petitioner is barred from filing a petition.[54]
A PAP may choose to file a motion to reopen or reconsider rather than an appeal.[55]
Revocation
USCIS may revoke the provisional or final approval of a petition if there is good and sufficient cause for revocation. Good and sufficient cause exists where information is discovered concerning the child’s status as a Convention adoptee that would have warranted the denial of the petition had it been known at the time of adjudication.[56]
Withdrawals
A PAP (or their attorney or accredited representative of record) may withdraw their petition at any point up until the child is admitted to the United States by submitting a written request to USCIS.
7. Communication and Correspondence
USCIS sends communication of its actions and decisions directly to the PAP for all case-related matters. If a Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) or Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) is completed by an attorney or by an accredited representative,[57] the officer also sends a copy of USCIS decision notices to such authorized attorney or accredited representative.[58]
A person representing an organization such as a non-profit or charitable organization must first be accredited by the Board of Immigration Appeals. In general, individuals who work for adoption agencies do not qualify as accredited representatives.
Information about the particulars of any case can only be given to the PAP, or to an attorney or accredited representative with a Form G-28 or Form G-28I on file. The Privacy Act forbids disclosing information about the case to anyone else unless the PAP has signed a written consent[59] to the disclosure or such disclosure is not prohibited by law.[60]
Footnotes
[^ 1] See INA 103(a) and INA 204(b).
[^ 2] See INA 204(d)(2). See 8 CFR 204.313(h)(2).
[^ 3] See Chapter 8, Documentation and Evidence [5 USCIS-PM D.8].
[^ 4] See Chapter 6, Additional Requirements, Section C, Primary Provider [5 USCIS-PM D.6(C)].
[^ 5] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 6] See Part B, Adoptive Parent Suitability Determinations, Chapter 3, Eligibility, Documentation, and Evidence (Hague Process), Section C, Documentation and Evidence, Subsection 5, Biometrics [5 USCIS-PM B.3(C)(5)].
[^ 7] See Chapter 3, Identity and Age [5 USCIS-PM D.3].
[^ 8] See Chapter 3, Identity and Age [5 USCIS-PM D.3].
[^ 9] See Chapter 6, Additional Requirements, Section B, Child Matches Characteristics that Prospective Adoptive Parent is Approved For [5 USCIS-PM D.6(B)].
[^ 10] See Chapter 4, Eligibility Requirements Specific to Convention Adoptees [5 USCIS-PM D.4].
[^ 11] See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM D.5].
[^ 12] See Chapter 6, Additional Requirements, Section A, No Child-Buying, Fraud, Misrepresentation, or Non-Bona Fide Intent [5 USCIS-PM D.6(A)].
[^ 13] See Chapter 7, Required Order of Immigration and Adoption Steps [5 USCIS-PM D.7)].
[^ 14] See Section D, Decisions and Actions [5 USCIS-PM D.9(D)].
[^ 15] See INA 291. See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 16] See Matter of Kodwo (PDF), 24 I&N Dec. 479, 482 (BIA 2008) (citing Matter of Fakalata (PDF), 18 I&N Dec. 213 (BIA 1982) and Matter of Annang (PDF), 14 I&N Dec. 502 (BIA 1973)).
[^ 17] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 18] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375 (AAO 2010).
[^ 19] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). See Matter of E-M- (PDF), 20 I&N Dec. 77, 80 (Comm. 1989).
[^ 20] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375 (AAO 2010).
[^ 21] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010). See Matter of E-M- (PDF), 20 I&N Dec. 77, 80 (Comm. 1989).
[^ 22] If USCIS is adjudicating the case, see Section D, Decisions and Actions, Subsection 3, Request for Evidence, Notice of Intent to Deny, and Referral [5 USCIS-PM D.9(D)(3)]. If a consular officer is adjudicating the case, see Section D, Decisions and Actions, Subsection 4, Not Clearly Approvable Cases [5 USCIS-PM D.9(D)(4)].
[^ 23] If there are any indicators of fraud, see Chapter 6, Additional Requirements, Section A, No Child-Buying, Fraud, Misrepresentation, or Non-Bona Fide Intent [5 USCIS-PM D.6(A)].
[^ 24] See Section D, Decisions and Actions, Subsection 4, Not Clearly Approvable Cases [5 USCIS-PM D.9(D)(4)].
[^ 25] For a full discussion on RFEs and NOIDs, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 26] An order may be legally invalid if the order was issued by an entity without proper authority to issue such orders or if the court invalidated its order.
[^ 27] See INA 103(a) and INA 204(b).
[^ 28] For information on DOS processing of Form I-800 petitions, see 9 FAM 502.3, Adoption-based Classifications and Processing.
[^ 29] See 8 CFR 204.3(k)(2).
[^ 30] See 8 CFR 204.313(g).
[^ 31] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 32] See Part B, Adoptive Parent Suitability Determinations [5 USCIS-PM B].
[^ 33] USCIS cannot approve a petition if it meets grounds for denial under 8 CFR 204.309(b). For more information, see Subsection 5, Denials [5 USCIS-PM D.9(D)(5)].
[^ 34] For more information on approvals, see Volume 1, General Policies and Procedures [1 USCIS-PM].
[^ 35] If the child will apply for adjustment of status, USCIS retains the record of proceeding. For information on adjustment of status, see Volume 7, Adjustment of Status [7 USCIS-PM].
[^ 36] If DOS determines that the child appears eligible to immigrate to the United States and that the information provided indicates that the adoption process thus far has complied with the Hague Adoption Convention and the Intercountry Adoption Act, DOS notifies the Central Authority of the child’s country of origin by issuing an Article 5/17 letter. The Article 5/17 letter informs the Central Authority that U.S. competent authorities have determined the PAP is eligible and suitable to adopt, that the child may enter and reside permanently in the United States, and that the U.S. Central Authority agrees that the adoption may proceed.
[^ 37] See 22 CFR 42.24.
[^ 38] See 8 CFR 204.313(h)(1).
[^ 39] See INA 204(d)(2).
[^ 40] See 22 CFR 42.24.
[^ 41] See 8 CFR 204.309(c). For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 42] See Subsection 5, Denials [5 USCIS-PM D.9(D)(5)].
[^ 43] See 8 CFR 204.313(f).
[^ 44] See Subsection 5, Denials [5 USCIS-PM D.9(D)(5)].
[^ 45] See Subsection 2, Approvals [5 USCIS-PM D.9(D)(2)].
[^ 46] See Chapter 7, Required Order of Immigration and Adoption Steps [5 USCIS-PM D.7].
[^ 47] For information on permitted contacts, see 8 CFR 204.309(b)(2)(i)-(iii).
[^ 48] See 8 CFR 204.304.
[^ 49] See 8 CFR 204.309(b)(4).
[^ 50] See 8 CFR 204.309(b)(5).
[^ 51] There is a 1-year bar for from filing a subsequent adoption petition in certain circumstances. For more information, see 8 CFR 204.307(c). A petitioner who has been convicted of a specified offense against a minor is prohibited from filing a family-based petition on behalf of any family-based beneficiary. See Adam Walsh Act, Pub. L. 109-248 (PDF) (July 27, 2006).
[^ 52] A DOS consular officer does not have the authority to deny a Form I-800 petition. For more information on denials, see Volume 1, General Policies and Procedures [1 USCIS-PM].
[^ 53] See 8 CFR 204.314.
[^ 54] See 8 CFR 204.307(c).
[^ 55] See Notice of Appeal or Motion (Form I-290B). For more information, see Volume 1, General Policies and Procedures, Part F, Motions and Appeals [1 USCIS-PM F].
[^ 56] See 8 CFR 204.313(f). For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 10, Post-Decision Actions, Section D, Revocation, Rescission, or Termination [1 USCIS-PM E.10(D)].
[^ 57] See 8 CFR 292.2.
[^ 58] See 8 CFR 103.2(b)(19).
[^ 59] See Consent to Disclose Information (Form I-800, Supplement 1).
[^ 60] See Privacy Act of 1974, Pub. L. 93-579 (PDF), 88 Stat. 1896 (December 31, 1974) (codified at 5 U.S.C. 552a).
Part E - Family-Based Adoption Petitions
Chapter 1 - Purpose and Background
A. Purpose
The family-based petition process is one of the three processes for a beneficiary to immigrate to the United States based on adoption.[1] Unlike the Hague Adoption Convention[2] or orphan processes, eligibility for the family-based process generally requires the adoptee beneficiary to have been in the legal custody of and jointly resided with the adoptive parent for at least 2 years (amongst other requirements),[3] and it does not require a USCIS determination of the adoptive parent’s suitability.
There are certain restrictions for U.S. citizens on using the family-based petition process for an adoptee beneficiary from a Hague Adoption Convention country. USCIS can only approve a family-based petition filed by a U.S. citizen for an adoptee beneficiary from a Hague Adoption Convention country under limited circumstances.[4]
B. Background
The family-based petition process describes the process by which a U.S. citizen or lawful permanent resident (LPR) petitions for an adopted child, son, or daughter. The petition process establishes the petitioner’s[5] relationship to an adopted child, son, or daughter so that the adoptee beneficiary can apply to become an LPR.[6]
Filing a family-based petition[7] is the first step for an adopted child, son, or daughter to become an LPR. The filing or approval of the petition does not give the adoptee beneficiary any immigration status or benefit. Generally, if the petition is approved, the adoptee beneficiary will need to take additional steps to become an LPR.
C. Scope
This Part discusses the requirements for a qualifying family member to file a Petition for Alien Relative (Form I-130) on behalf of an adoptee beneficiary.
This Policy Manual does not address other adoption-related requirements, such as those of the adoptee beneficiary’s country of origin,[8] state of proposed residence,[9] or other federal agencies, such as the U.S. Department of State.[10]
Additionally, this Part does not discuss how to obtain U.S. citizenship for an adoptee beneficiary.[11]
D. Legal Authorities
-
INA 101(b)(1)(E) – Definition of an adopted child
-
8 CFR 204.1 – General information about immediate relative and family-sponsored petitions
-
8 CFR 204.2 – Petitions for relatives, widows and widowers, and abused spouses and children
-
8 CFR 204.303 – Determination of habitual residence
Footnotes
[^ 1] See Part A, Adoptions Overview [5 USCIS-PM A] for information on determining which adoption process (Hague Adoption Convention, orphan, or family-based) applies.
[^ 2] The Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (PDF) is referred to as the Hague Adoption Convention.
[^ 3] See INA 101(b)(1)(E).
[^ 4] For general information on when a U.S. citizen can file a family-based petition for a child from a Hague Adoption Convention country, see Part A, Overview and Guiding Principles [5 USCIS-PM A]. For information on how restrictions apply if the child is physically present in the United States, see Chapter 3, Hague Restrictions on Family-Based Petitions [5 USCIS-PM E.3].
[^ 5] Petitioner refers to the petitioning adoptive parent in this Part.
[^ 6] A person can apply for lawful permanent residence through either consular processing outside of the United States or adjustment of status within the United States. See Volume 7, Adjustment of Status [7 USCIS-PM]. Additional eligibility requirements apply to applicants seeking adjustment as opposed to consular processing.
[^ 7] See Petition for Alien Relative (Form I-130).
[^ 8] For general information on other countries’ requirements, see the U.S. Department of State (DOS)’s Country Information webpage.
[^ 9] See the Child Welfare Information Gateway’s State Laws Related to Adoption webpage.
[^ 10] For DOS guidance, see their Foreign Affairs Manual.
[^ 11] For information on acquisition of citizenship for the adopted children of a U.S. citizen, see Part F, Citizenship for Adopted Children [5 USCIS-PM F]. For more information, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens [12 USCIS-PM H]. For information on naturalization, see Volume 12, Citizenship and Naturalization [12 USCIS-PM].
Chapter 2 - Eligibility
The following table outlines the main eligibility factors USCIS considers when adjudicating a family-based adoption petition.[1]
Eligibility Requirements | For More Information |
---|---|
The adoptee beneficiary must meet requirements for age and marital status and the petitioner[2] must be a U.S. citizen or lawful permanent resident (LPR). | See Section A, Age, Marital Status, and Immigration Status Requirements [5 USCIS-PM E.2(A)]. |
The petitioner must establish that the petitioner has a qualifying adoptive relationship with the adoptee beneficiary. | See Section B, Qualifying Relationship [5 USCIS-PM E.2(B)]. |
The petition is compliant with the Hague Adoption Convention, if applicable. | See Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2]; and See Chapter 3, Hague Restrictions on Family-Based Petitions [5 USCIS-PM E.3]. |
Derivatives
The children and spouse of certain adoptee beneficiaries can accompany or follow to join the adoptee beneficiary.[3]
A. Age, Marital Status, and Immigration Status Requirements
The adoptee beneficiary must meet requirements for age[4] and marital status[5] and the petitioner must meet immigration status requirements.
1. Adoptee Beneficiary Age and Marital Status
Child Beneficiary (Unmarried and Under 21)
To qualify under the definition of an adopted child under immigration law, the adoptee beneficiary must be unmarried and under 21 years of age.[6] A U.S. citizen or LPR may file a petition on behalf of an adoptee beneficiary who meets the definition of a child under immigration law.[7]
Son or Daughter Beneficiary (Married or Age 21 or Over)
An adoptee beneficiary who no longer meets the definition of an adopted child (because the beneficiary is currently married or age 21 or over) may still be eligible as a son or daughter, if the beneficiary previously met the definition of adopted child as set forth in immigration law.[8]
2. Immigration Status of Petitioner
The following persons are eligible to file a petition on behalf of an adoptee beneficiary:
- A U.S. citizen; or
- An LPR of the United States (unless the adoptee beneficiary is married).[9]
U.S. Citizen Petitioner
A U.S. citizen may file a petition on behalf of an adopted son or daughter who is now 21 years of age or over, or who is currently married, if the adoptee beneficiary previously met the definition of adopted child as set forth in immigration law.[10]
Lawful Permanent Resident Petitioner
An LPR may file a petition for an adopted son or daughter who is 21 years of age or older, if the adoptee beneficiary previously met the definition of child as set forth in immigration law.[11] However, USCIS must deny a petition filed by an LPR if the adoptee beneficiary is married at the time of filing or adjudication (unless the beneficiary can demonstrate the marriage was terminated).[12]
B. Qualifying Relationship
The petitioner must establish that the petitioner has a qualifying adoptive relationship with the adoptee beneficiary. To satisfy the requirements for a qualifying relationship, the petitioner must establish the:
- Adoptee beneficiary’s age at time of adoption; and
- Validity of relationship between the petitioner and the adoptee beneficiary.
1. Age at Time of Adoption
The petitioner must have adopted the adoptee beneficiary while the beneficiary was under the age of 16, unless the sibling exception applies.[13] This means that the court or other entity must have entered the adoption order before the adoptee beneficiary’s 16th birthday.
Sibling Exception
An adoptee beneficiary who was adopted on or after the beneficiary’s 16th birthday, but before the beneficiary’s 18th birthday, meets the age at time of adoption requirement if the beneficiary is the birth sibling of another child who:
- Was adopted by the same petitioning parent(s) before the beneficiary’s 16th birthday; and
- Immigrated, or is immigrating, as an adopted child or orphan based on an adoption by the same petitioning parent(s).[14]
Retroactive Adoption Orders
A retroactive adoption order (known as a nunc pro tunc order) entered on or after the adoptee beneficiary’s 16th birthday (or 18th birthday if the sibling exception applies) does not meet the age at time of adoption requirement unless the petitioner establishes that:
- The petitioner initiated the adoption proceeding before the adoptee beneficiary’s 16th birthday (or 18th birthday if the sibling exception applies);[15]
- The law of the jurisdiction where the order was issued expressly permits an adoption decree to be dated retroactively; and
- The court’s order grants the adoption with an effective date before the adoptee beneficiary’s 16th birthday (or 18th birthday if the sibling exception applies).[16]
Amended Orders
An order entered to correct an error in an order that actually was entered before the adoptee beneficiary’s 16th birthday (or 18th birthday if the sibling exception applies) may also establish eligibility. For example, if a court intended to enter an adoption order but mistakenly entered a guardianship order, an amended order correcting the earlier order would support approval of the petition.[17] In these circumstances, the petitioner should submit both the original order and the later order correcting the original order.
2. Validity of the Relationship
Bona fide Adoption
USCIS assesses whether the adoptive relationship is bona fide. USCIS evaluates the petition to determine if the intent of the adoption was to form a genuine parent-child relationship and not solely for immigration purposes.[18]
Legal Custody and Joint Residence
In order to establish the validity of the relationship, the petitioner must establish that the adoptee beneficiary has been in the legal custody of and jointly resided[19] with the adoptive parent(s) for at least 2 years.[20] The legal custody and joint residence requirement may be met by custody and residence before or after the final adoption, but any pre-adoption custody must be based on a formal grant of custody from a court or authorized governmental entity according to the law of the country where it was obtained.
The 2-year time period does not need to be continuous and multiple periods of time can be added together to accrue the 2 years. The legal custody and joint residence requirements are reviewed independently. If the adoptive parents are a married couple who jointly adopted, the 2 years of legal custody and joint residence cannot be split between the parents. However, only one adoptive parent needs to establish 2 years of legal custody and joint residence. The two years the child was in the legal custody of the adoptive parent do not have to be the same two years the child jointly resided with the adoptive parent.
In order to establish that the adoptee beneficiary jointly resided with the adoptive parent(s) in a familial relationship, the petitioner must establish that the adoptive parent(s) exercised parental control over the adoptee beneficiary.[21] Specifically, if an adopted child continues to reside in the same household as the birth parent(s) during the period in which the adoptive parent petitioner seeks to establish compliance with this requirement, the petitioner must establish that an adoptive parent exercised primary parental control during that period of residence despite joint residence with the birth parents.
Once the petitioner submits evidence to establish compliance with parental control requirements, USCIS generally presumes the relationship is bona fide,[22] absent any evidence indicating otherwise.
A petitioner who is a stepparent who adopted the petitioner’s stepchild also has to meet the 2-year legal custody and 2-year joint residence requirements and obtain a final adoption before the child’s 16th birthday (or 18th birthday if the sibling exception applies) before the petitioner can be considered an adoptive parent under immigration law.[23]
Final Adoption Requirements
In order for an adoption to meet USCIS requirements for a final adoption, the adoption must:
- Be valid under the law of the jurisdiction where it was issued;
- Create a permanent legal parent-child relationship; and
- Terminate the prior legal parent-child relationship.[24]
Footnotes
[^ 1] See Petition for Alien Relative (Form I-130).
[^ 2] Petitioner refers to the adoptive parent.
[^ 3] See INA 203(d). For more information, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].
[^ 4] There are also requirements related to the age of the adoptee beneficiary at the time of the adoption. See Section B, Qualifying Relationship, Subsection 1, Age at Time of Adoption [5 USCIS-PM E.2(B)(1)].
[^ 5] Unmarried means never been married or has terminated any and all prior marriages.
[^ 6] See INA 101(b)(1)(E). For information on how a beneficiary’s age at the time of filing the petition impacts eligibility for an immigrant visa, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act [7 USCIS-PM A.7].
[^ 7] See INA 101(b)(1)(E).
[^ 8] See INA 101(b)(1)(E).
[^ 9] See INA 101(b)(1)(E). See INA 203(a)(2)(A). See 8 CFR 204.2(d).
[^ 10] See INA 101(b)(1)(E).
[^ 11] See INA 101(b)(1)(E).
[^ 12] See INA 203(a)(2)(A). See 8 CFR 204.2(d).
[^ 13] See INA 101(b)(1)(E).
[^ 14] See INA 101(b)(1)(E)(ii). See INA 101(b)(1)(F). Note that the sibling exception does not apply to someone whose sibling immigrated as a Hague Convention adoptee.
[^ 15] The petitioner must submit evidence that the adoptive parent filed a formal petition or application to adopt the child with the court or other competent authority to grant the adoption before the beneficiary’s 16th (or 18th) birthday.
[^ 16] Overruling Matter of Drigo and Matter of Cariaga in part, the Board of Immigration Appeals held in Matter of Huang, 26 I&N Dec. 627 (BIA 2015), that a nunc pro tunc adoption can support approval of a Form I-130 if the petitioner establishes that the adoptive parent initiated the adoption proceeding before the adoptee’s 16th birthday; and the law of the forum “expressly” permits the court to give retroactive effect to an adoption decree. In the Fourth Circuit, in Ojo v. Lynch, 813 F.3d 533 (4th Cir. 2016), the court concluded that Matter of Huang is not sufficiently deferential to a court’s authority to determine the scope of its own jurisdiction. The court held that the term “adopted” while under the age of 16 for purposes of INA 101(b)(1)(E) is the date the state court rules the adoption is effective, without regard to the date on which the act of adoption occurred. Therefore, in the Fourth Circuit, Ojo imposes no requirement that the adoption proceeding have been initiated prior to the beneficiary’s 16th or 18th birthday and defers to a state court’s facially valid nunc pro tunc order.
[^ 17] See Allen v. Brown, 953 F. Supp. 199 (N.D. Ohio 1997).
[^ 18] See Matter of Marquez (PDF), 20 I&N Dec. 160 (BIA 1990). Matter of Marquez rejects a strict statutory interpretation of INA 101(b)(1)(E) and relies instead upon the legislative history of the statute which indicates that Congress did not intend to recognize ad hoc adoptions designed to circumvent the immigration laws. This decision found that an adoptive relationship to be more akin to marital relationships than to step-relationships, and therefore, USCIS may evaluate the bona fides of adoptions.
[^ 19] The legal custody must have been the result of a formal grant of custody from a court or other governmental entity. The regulations incorporate the definitions for both legal custody and joint residence in paragraphs (vii)(A), (vii)(B), and (vii)(C) of 8 CFR 204.2(d)(2).
[^ 20] Exceptions may apply for certain battered children. See INA 101(b)(1)(E)(ii). For more information, see Volume 3, Protection and Parole, Part D, Violence Against Women Act [3 USCIS-PM D].
[^ 21] See 8 CFR 204.2(d)(2)(vii)(B) for types of evidence of that may be submitted to establish such parental control.
[^ 22] USCIS may further evaluate the bona fides of the relationship. See Matter of Marquez (PDF), 20 I&N Dec. 160 (BIA 1990).
[^ 23] See INA 101(b)(1)(E). Note that 2 years of legal custody and joint residence is not required to establish a qualifying step-relationship under INA 101(b)(1)(B). For information on (non-adoptions based) family-based petitions, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].
[^ 24] For more information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].
Chapter 3 - Hague Restrictions on Family-Based Petitions
There are restrictions on approving a family-based adoption petition if the petitioner is a U.S. citizen and the adoptee beneficiary is from a Hague Adoption Convention country.[1] USCIS cannot approve a family-based adoption petition[2] filed by a U.S. citizen who is habitually resident in the United States on behalf of an adoptee beneficiary who is habitually resident in a Hague Adoption Convention country[3] unless the petitioner establishes that the Hague Adoption Convention does not apply because either:
- The U.S. citizen adoptive parent is not habitually resident in the United States;[4] or
- The child is not habitually resident in the other Hague Adoption Convention country.[5]
A. Adoptee Beneficiary in the United States
U.S. regulations state that if a child is a citizen of a Hague Adoption Convention country (other than the United States) and is present in the United States based on an adoption, the child should generally be deemed to be habitually resident in the child’s country of citizenship, even though the child is already in the United States.[6] Therefore, a U.S. citizen petitioner generally must adopt such child by following the Hague Adoption Convention process for the child to acquire lawful permanent residence based on the adoption.[7]
A child is generally deemed to be habitually resident in a Hague Adoption Convention country if they are a citizen of that Convention country. A child’s country of citizenship is usually the child’s country of origin. However, a child living outside the country of the child’s citizenship may be deemed habitually resident in the child’s country of actual residence based on a determination by the Central Authority[8] or another competent authority[9] of the country where the child actually physically resides.[10]
USCIS is a competent authority that can make a factual determination of habitual residence when a child is present in the United States. Accordingly, USCIS may determine that a child living in the United States is habitually resident in the United States. If USCIS makes such a determination, the Hague Adoption Convention would not apply to the adoption of the child.[11]
Language in the adoption order alone is not sufficient to establish that the Hague Adoption Convention does not apply to a particular case. Although an adoption order issued by a court in the United States may contain language indicating that the adoptee beneficiary was not habitually resident in the adoptee beneficiary’s country of origin or that the adoption is not governed by the Hague Adoption Convention, such language is not determinative. Only USCIS can determine whether the Hague Adoption Convention applies when adjudicating the family-based petition.
USCIS must generally know whether the Central Authority of the child’s country of origin still considers the child habitually resident in that country before USCIS can determine if a child is habitually resident in the United States. USCIS denies any family-based petition filed for an adoptee beneficiary in the United States if the Central Authority of the adoptee beneficiary’s country of origin advises the U.S. government, the petitioner, or the U.S. court with jurisdiction over the adoption that it considers an adoptee beneficiary to remain habitually resident in the adoptee beneficiary’s country of origin, despite the adoptee beneficiary’s presence in the United States.
If the Central Authority of the adoptee beneficiary’s country of origin states that it considers the adoptee beneficiary to be habitually resident in that country, the petitioner(s) must follow the Hague Adoption Convention process.[12]
If the child is present in the United States, the petitioner may establish the child is not habitually resident in the Hague Adoption Convention country by providing either:
- A written statement from the child’s country of origin indicating the child is no longer deemed habitually resident in that country;[13] or
- If the petitioner cannot obtain such written statement, evidence that the petitioner meets intent, actual residence, and notice criteria.[14]
B. Written Statement for Adoptee Beneficiary Physically Present in United States
In order to establish that the child is not habitually resident in the Hague Adoption Convention country, the petitioner may submit:
- An adoption order or an amended adoption[15] order that expressly states that the Central Authority of the other Hague Adoption Convention country advised the adoption court in the United States in a written statement that the Central Authority is aware of the adoptee beneficiary’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined that the adoptee beneficiary is not habitually resident in that country; and
- A copy of the written statement from the Central Authority.[16]
C. No Written Statement for Adoptee Beneficiary Physically Present in United States
A petitioner may be unable to obtain a written statement regarding the adoptee beneficiary’s habitual residence because the Central Authority of the adoptee beneficiary’s country of origin:
- Does not issue statements concerning habitual residence, as confirmed by the U.S. Department of State;[17]
- Has informed the petitioner in writing that it will not make a determination on habitual residence upon the petitioner’s request; or
- Has not issued a statement of habitual residence for at least 120 days following the petitioner’s request to obtain such a statement.
In these situations, USCIS may approve a family-based petition if:[18]
- At the time the adoptee beneficiary entered the United States, the purpose(s) of the entry was (or were) for reasons other than adoption (see intent criteria below);
- Before the U.S. domestic adoption, the adoptee beneficiary actually resided in the United States for a substantial period of time, establishing compelling ties in the United States (see actual residence criteria below); and
- For any adoption decrees issued after February 3, 2014,[19] the decree confirms that the Central Authority of the adoptee beneficiary’s country of origin was notified of the adoption or amended adoption proceedings in a manner satisfactory to the court and that the Central Authority did not object to the proceeding with the court within 120 days after receiving notice or within a longer period of time determined by the court (see notice criteria below).
1. Intent Criteria
USCIS reviews the petition to determine whether the adoptee beneficiary entered the United States for adoption purposes.[20]
Evidence
USCIS considers the following evidence regarding intent:
- An affidavit, made under penalty of perjury, from the petitioning adoptive parent(s), which should include a:
- Description of the adoptee beneficiary’s circumstances before entering the United States (such as where the adoptee beneficiary lived or went to school, who cared for the adoptee beneficiary, what events led to the adoptee beneficiary’s travel to the United States, and the reason for the adoptee beneficiary’s travel to the United States);
- List of people who have cared for the adoptee beneficiary since the beneficiary entered the United States and their relationships to the beneficiary;
- Description of any contact the petitioning adoptive parent(s) had with the adoptee beneficiary, the birth parents, or any adoption or child welfare agency or nongovernmental organization (in the United States or abroad) related to the adoptee beneficiary that took place either before the adoptee beneficiary came to the United States or after the adoptee beneficiary’s arrival but before a court placed the adoptee beneficiary with the petitioning adoptive parent(s); and
- Petitioning adoptive parent(s)’s declaration that on the date the adoptee beneficiary entered the United States, the petitioner did not intend to adopt the adoptee beneficiary or circumvent the Hague Adoption Convention procedures.
- Evidence establishing the timeline and course of events that led to the adoptee beneficiary’s availability for adoption by the petitioner, which may include one or more of the following:
- An order from a court with jurisdiction over the adoptee beneficiary that includes express findings related to the adoptee beneficiary’s purpose for entering the United States, such as a finding that the adoptee beneficiary did not enter the United States for the purpose of adoption. (However, this information in a court order is not, by itself, determinative.);
- Addresses where the birth parents have resided since the adoptee beneficiary’s date of birth (if known), and any time periods the birth parents resided with the adoptee beneficiary;
- Any other evidence to support the statements made in the affidavit (such as informal consent documentation) or to document that the petitioner did not intend to adopt the adoptee beneficiary when the beneficiary entered the United States;
- Method of arrival, as indicated in visa records or other government system checks; specifically, any records related to the adoptee beneficiary’s stated purpose of travel to the United States or whether the adoptee beneficiary had any intent to immigrate;
- Evidence that the adoptee beneficiary was a ward of a U.S. state or state court before the adoption. In such cases, the evidence should establish that the adoptee beneficiary was in state care due to the adoptee beneficiary’s bona fide need for state managed care and was not abandoned in order for the petitioner to adopt the adoptee beneficiary;
- Evidence of the birth parents’ inability to provide proper care for the adoptee beneficiary;
- Evidence to establish one or both birth parents are deceased;
- Evidence to establish any living birth parents freely consented to the proposed adoption or the birth parents’ parental rights were fully and properly terminated; or
- Any other evidence to establish that entry into the United States was for purposes other than adoption.
Adverse Factors
USCIS considers the following adverse factors in determining if the adoptee beneficiary entered the United States for the purpose of adoption:
- A prior adoption of the adoptee beneficiary in the country of origin by the adoptive parent(s) in the United States. (This is a significant adverse factor.)
- Prior contact between the adoptive parent(s) and the adoptee beneficiary. (This could be an adverse factor if the contact was related to the adoption.) USCIS considers present and prior family relationships when reviewing the intent criteria. Prior contact between the adoptive parent(s) and the adoptee beneficiary may not be an adverse factor if the adoptee beneficiary is a relative, but USCIS reviews the case based on the totality of the evidence.
- Any evidence that suggests that the entry was for the purpose of adoption.
2. Actual Residence Criteria
If the adoptee beneficiary was physically present in the United States for 2 years or more before the adoption, USCIS presumes that the adoptee beneficiary has actually and physically resided in the United States for a substantial period of time, establishing compelling ties in the United States prior to the U.S. domestic adoption (and that the adoptee beneficiary meets actual residence criteria). However, if the adoptee beneficiary has been present in the United States for less than 2 years, the officer considers the length of time that the adoptee beneficiary has spent in the United States before the adoption and supporting evidence establishing the adoptee beneficiary’s actual residence and compelling ties in the United States before the adoption.
Evidence
Documentation from the time period before the adoption may include, but is not limited to, the following:
- Evidence of ongoing medical care in the United States;
- Statement from the petitioners explaining the adoptee beneficiary’s social interactions, including family and peer relationships;
- School records;
- Registration for extra-curricular activities;
- Affidavits from knowledgeable people (such as the adoptee beneficiary’s doctor or teacher, day care provider, landlord, or neighbors) attesting to the adoptee beneficiary’s actual residence in the United States;
- Evidence that the adoptee beneficiary’s birth parent(s), guardian, or caretaker resided in the United States;
- An order from a court with jurisdiction over the adoptee beneficiary if that order includes express findings that the adoptee beneficiary actually resided in the United States for a substantial period of time or had compelling ties in the United States before the adoption (The information in a court order does not in itself guarantee that USCIS will determine that the adoptee beneficiary is no longer habitually resident in the country of origin.); or
- Evidence that the adoptee beneficiary was a ward of the state or court before the adoption.
Adverse Factors
If there is evidence that the adoptee beneficiary lived outside of the United States shortly before the adoption, USCIS may consider it as an adverse factor.
3. Notice Criteria
The notice criteria is required in any case where the adoption took place on or after February 3, 2014.
If the petitioner cannot obtain a written statement addressing an adoptee beneficiary’s habitual residence from the Central Authority of the adoptee beneficiary’s country of origin in 120 days, the petitioner still must notify the Central Authority of the adoption in a manner satisfactory to the court. The Central Authority then has an additional 120 days to object to the adoption.
Notification Process
When notifying the Central Authority in the adoptee beneficiary’s country of origin of the adoption proceedings, the petitioner must follow the court’s rules of procedure or the instructions in a specific order from the court. If permitted by the court, the petitioner can send both the request for a habitual residence statement and the notice of the court proceeding to the Central Authority at the same time. The notification can take the form of a court order or another document authorized by the court. Notice by email or fax is generally not sufficient unless the court rules clearly allow for email or fax notifications.
The notice must include a copy of the adoption petition or the motion for amended adoption order and must clearly specify:
- The name of the adoptee beneficiary, together with the place and date of birth of the adoptee beneficiary, and the name(s) of the birth parent(s), if known;
- The country of the adoptee beneficiary’s nationality;
- The name of the agency or person who is the Central Authority in the adoptee beneficiary’s country of origin;
- The names of the adopting parents;
- The date of the adoptee beneficiary’s departure from the adoptee beneficiary’s country of origin, if known;
- The date of the adoptee beneficiary’s arrival in the United States, if known;
- The court name and the date, time, and place of the court’s hearing on the adoption petition or motion for amended adoption order; and
- An indication that the Central Authority should notify the court if the Central Authority does not intend to object or requires additional time beyond 120 days.
Both the request for a statement addressing the adoptee beneficiary’s habitual residence (if applicable) and the notice of the court proceeding must be provided directly to the Central Authority. Notice to another competent authority or an embassy or consulate of the country of origin in the United States is generally insufficient. If a country has a different Central Authority for different parts of the country (such as a regional or state Central Authority), the petitioner must provide the request for a statement addressing the adoptee beneficiary’s habitual residence and the notice of the court proceeding to the Central Authority for the place where the adoptee beneficiary last resided in that country.
The petitioner does not need to give 120-day notice of the court hearing on the adoption proceeding more than once. If the Central Authority does not respond to the notice of the court hearing on the adoption proceeding within the 120-day period, there is no need to give additional notice, even if the court grants a continuance in the adoption proceeding and the adoption hearing takes place at a later date than what was stated in the notice provided to the Central Authority.
Evidence
USCIS considers the following evidence regarding notice:
- Copy of the notice provided to the Central Authority of the adoptee beneficiary’s country of origin informing it of the pending adoption and providing the Central Authority with 120 days to object;
- Any and all responses received from the Central Authority;
- If the Central Authority of the adoptee beneficiary’s country of origin does not reply to the notice, an adoption order (or amended adoption order) containing language regarding the:
- Petitioner’s request for a statement of habitual residence (if applicable);
- Indication the Central Authority did not respond to the court notice; and
- The court’s confirmation that the court required the petitioner(s) and their representatives (if any) to provide all correspondence from the Central Authority to the court, even responses stating the adoptee beneficiary is considered habitually resident in the country of origin; and
- Copies of the request for a statement of habitual residence (if applicable) and court notice in the language used for official proceedings in the adoptee beneficiary’s country of origin and a certified English translation of each document and proof of service in the manner specified by the court.
Central Authority Response
If the Central Authority informs the court in writing that it does not consider the adoptee beneficiary to be habitually resident in that country before the expiration of the 120-day period, there is no need to delay the hearing for the 120-day period. USCIS does not apply the intent, residence, and notice criteria when adjudicating a family-based petition if requirements are met for a written statement from the adoptee beneficiary’s country of origin.
D. Amended Orders
If the petitioner does not obtain a written statement from the Central Authority in the adoptee beneficiary’s country of origin until after the adoption is finalized, the petitioner must submit an amended order that contains the required language and the Central Authority’s written statement.
For purposes of the age, custody, and joint residence requirements,[21] the date of the adoption is the date of the original order, not the amended order.
If a court amends an order after February 3, 2014 to meet the notice criteria, USCIS considers the amended order not as the adoption order itself, but as a confirmation that the state court had jurisdiction to make the original order when the court did so. The notice and amended order may therefore be issued after an adoptee beneficiary’s 16th birthday as long as the original adoption order took place before the adoptee beneficiary’s 16th birthday (or 18th birthday in the case of a qualifying sibling).
If the petitioner(s) cannot obtain an amended order within the standard Request for Evidence (RFE) response period, the petitioner must:
- Submit all other requested evidence by the RFE response date, including a copy of the written notice provided to the Central Authority of the country of origin; and
- Request in writing that USCIS administratively close the family-based petition for up to 1 year.
USCIS may or may not grant the petitioner’s request, depending on the circumstances of the case and the evidence provided.
If the petition is administratively closed, once the petitioner obtains the amended order, the petitioner may ask USCIS to reopen the case administratively without being required to file a Notice of Appeal or Motion (Form I-290B). If the petitioner does not request to reopen the case within 1 year, USCIS denies the petition.
Footnotes
[^ 1] For a list of countries that are party to the Hague Adoption Convention, see the U.S. Department of State (DOS)’s Convention Countries webpage. For general information about determining if the Hague Adoption Convention applies, see Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2]. For information about determining if the Hague Adoption Convention applies specifically when the adoptee beneficiary is from a Hague Adoption Convention country and is present in the United States based on an adoption, see Section A, Adoptee Beneficiary in the United States [5 USCIS-PM E.3(A)].
[^ 2] See Petition for Alien Relative (Form I-130).
[^ 3] For information on determinations of habitual residence, see 8 CFR 204.303.
[^ 4] For information on habitual residence determinations for U.S. citizens who reside outside of the United States, see Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2].
[^ 5] For information on how and when the petitioner may establish that the Hague Adoption Convention does not apply, see Part A, Adoptions Overview, Chapter 2, Adoption Processes [5 USCIS-PM A.2].
[^ 6] See 8 CFR 204.2(d)(2)(vii)(F) and 8 CFR 204.303(b).
[^ 7] See 8 CFR 204.309(b)(4), which specifically provides that a Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800) can be filed, even if the child is in the United States, if the other Hague Adoption Convention country is willing to complete the Hague Adoption Convention process with respect to the child.
[^ 8] Central Authority means the entity designated as such under Article 6(1) of the Hague Adoption Convention by any Convention country, or, in the case of the United States, DOS. See 22 CFR 96.2.
[^ 9] Competent authority means a court of governmental authority of a foreign country that has jurisdiction and authority to make decisions in matters of child welfare, including adoption. See 22 CFR 96.2.
[^ 10] See 8 CFR 204.303.
[^ 11] If there is a sufficient basis for saying that the Hague Adoption Convention and the implementing regulations no longer apply to a child who came to the United States from another Hague Adoption Convention country, then USCIS can conclude that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of the Form I-130.
[^ 12] See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D].
[^ 13] See Section B, Written Statement for Adoptee Beneficiary [5 USCIS-PM E.3(B)].
[^ 14] See Criteria for Determining Habitual Residence in the United States for Children from Hague Convention Countries, PM-602-0095, issued November 20, 2017. See Section C, No Written Statement for Adoptee Beneficiary Physically Present in United States [5 USCIS-PM E.3(C)].
[^ 15] If the petitioner did not obtain a written statement from the Central Authority of the adoptee beneficiary’s country of origin until after the adoption was finalized, the petitioner must submit an amended order that contains the required language.
[^ 16] See 8 CFR 204.303.
[^ 17] Currently, Mexico is the only country DOS has confirmed does not issue such statements. For more information, see DOS’s Mexico webpage.
[^ 18] USCIS denies the petition if these criteria are not met.
[^ 19] The notice criteria applies to adoptions issued on or after February 3, 2014.
[^ 20] Restrictions on approving a Form I-130 for a child from a Hague Adoption Convention country do not apply to children admitted as refugees or in asylee status because the child did not travel to the United States in connection with an adoption, and because children admitted as refugees or granted asylum as they are no longer considered habitually resident in their country of citizenship or residence.
[^ 21] See INA 101(b)(1)(E).
Chapter 4 - Documentation and Evidence
A. Filing
The petitioner must file the Petition for Alien Relative (Form I-130) with the proper fee, in accordance with the applicable form instructions.[1]
Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act)
A petitioner who has been convicted of a specified offense against a minor is prohibited from filing a family-based petition[2] on behalf of any family-based beneficiary.[3]
B. Required Evidence
The petitioner must submit all required evidence[4] in accordance with the form instructions.[5]
The officer must carefully evaluate the evidence and adoption order to determine eligibility. The officer should be aware that evidence regarding an adopted child’s birth and parentage may vary with the circumstances and the jurisdiction. For example, some jurisdictions annotate birth certificates issued for adopted children to indicate the adoption, while others do not. Officers should consult on questions of foreign and state laws through appropriate USCIS channels, including with USCIS counsel.
Footnotes
[^ 1] For current information about filing locations, fees, and other information about how to file, see instructions for Petition for Alien Relative (Form I-130). See 8 CFR 103.2. See Fee Schedule (Form G-1055).
[^ 2] This includes the Petition for Alien Relative (Form I-130).
[^ 3] See Adam Walsh Act, Pub. L. 109-248 (PDF) (July 27, 2006). See INA 204(a)(1)(A)(i). See INA 204(a)(1)(B)(i). See INA 101(a)(15)(K). See Volume 6, Immigrants, Part C, Adam Walsh Act [6 USCIS-PM C].
[^ 4] See 8 CFR 103.2. See 8 CFR 204.2(d)(2)(vii) for information regarding primary evidence for an adopted child or son or daughter. See Matter of Cuello (PDF), 20 I&N Dec. 94 (BIA 1989) and Matter of Marquez (PDF), 20 I&N Dec. 160 (BIA 1990). See 8 CFR 204.1(g) for evidence to establish the petitioner’s status as a U.S. citizen or lawful permanent resident.
[^ 5] See form instructions for Petition for Alien Relative (Form I-130).
Chapter 5 - Adjudication
A. Evidentiary Standards
In matters involving immigration benefits, the burden of proof in establishing eligibility rests with the petitioner.[1]
The standard of proof for establishing eligibility for an adoption petition is that of a preponderance of the evidence.[2] USCIS reviews petitions on a case-by-case basis and based on the totality of the evidence.
However, if the petitioner failed to disclose a relationship to the adoptee beneficiary in a previous immigration application or petition, USCIS applies the higher standard of proof of clear and convincing evidence.[3]
B. Requests for Evidence
USCIS generally issues a Request for Evidence or Notice of Intent to Deny, as appropriate, if any of the requirements or required evidence are missing or deficient.[4]
C. Approval
An officer approves a family-based adoption petition[5] if:
- The petition was properly filed;
- The petitioner has met the petitioner’s burden of proving by a preponderance of the evidence that the beneficiary is eligible; and
- Any adverse information is resolved.
If the officer approves the petition, USCIS notifies the petitioner and the petitioner’s legal representative, if any, of the approval.[6]
The approval of the petition only means that USCIS recognizes the relationship for immigration purposes; the approval does not provide any immigration status by itself. If the petition is approved, the adoptee beneficiary can generally go on to apply to become a lawful permanent resident based on the recognized relationship. The adoptee beneficiary still, however, needs to meet the requirements for lawful permanent residence.[7]
D. Denial
If the petitioner fails to establish eligibility, the officer denies the petition and notifies the petitioner in writing of the reasons for the denial. The denial notice must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.[8]
The petitioner may appeal the denial of a family-based petition to the Board of Immigration Appeals.[9]
Footnotes
[^ 1] See INA 291. See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof, Section A, Burden of Proof [1 USCIS-PM E.4(A)].
[^ 2] The person who bears the burden of proof must submit evidence to satisfy the applicable standard of proof. For more information on standards of proof, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof, Section B, Standards of Proof [1 USCIS-PM E.4(B)].
[^ 3] See Matter of Ma (PDF), 20 I&N Dec. 394 (BIA 1991).
[^ 4] For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 5] See Petition for Alien Relative (Form I-130).
[^ 6] See 8 CFR 103.2(b)(19). For additional information on approvals, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 9, Rendering a Decision [1 USCIS-PM E.9].
[^ 7] See Volume 7, Adjustment of Status [7 USCIS-PM].
[^ 8] See 8 CFR 103.3. For additional information on denials, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 9, Rendering a Decision [1 USCIS-PM E.9].
[^ 9] See 8 CFR 1003.1(b)(5).
Chapter 6 - Post-Adjudication Actions
Revocation
USCIS may revoke an approved family-based petition[1] automatically or upon notice.[2]
The petitioner may appeal the revocation of a family-based petition to the Board of Immigration Appeals.[3]
Footnotes
[^ 1] See Petition for Alien Relative (Form I-130).
[^ 2] See 8 CFR 205.1 (automatic revocation). See 8 CFR 205.2 (revocation upon notice).
[^ 3] See 8 CFR 1003.1(b)(5).
Part F - Citizenship for Adopted Children
Chapter 1 - Purpose and Background
A. Purpose
Under U.S. laws, children may obtain U.S. citizenship other than through birth in the United States.[1] Persons born outside of the United States, including adopted children, may obtain U.S. citizenship after birth, before the age of 18, through a U.S. citizen adoptive parent.[2] Some children immigrating based on adoption automatically acquire U.S. citizenship upon their admission to the United States as lawful permanent residents. Others do not, and their adoptive parents need to take additional steps before the adopted child turns 18 years of age for the child to obtain U.S. citizenship through the adoptive parent(s).
Adopted children who do not obtain citizenship through their adoptive parents before turning 18 may be eligible to apply for naturalization as an adult.[3]
B. Background
The law under which an adopted child may have obtained citizenship is the law in effect while the adopted child was under the age of 18.[4] Citizenship laws for children have changed over time with the most recent major change taking effect in 2001.
1. The Child Citizenship Act of 2000
The Child Citizenship Act of 2000 (CCA) took effect on February 27, 2001, and was not retroactive.[5] The CCA amended INA 320 and removed INA 321 to create only one method for children in the United States to automatically acquire citizenship after birth.
Children, including adopted children, who were under the age of 18 on February 27, 2001 (that is, born on or after February 28, 1983), may automatically acquire U.S. citizenship from a U.S. citizen parent if the statutory requirements are satisfied before the child’s 18th birthday. The CCA also amended INA 322 to provide for applications for naturalization on behalf of foreign-born children who did not automatically acquire citizenship under INA 320 and who generally reside outside the United States with a U.S. citizen parent.
2. Before the Child Citizenship Act of 2000
Although adoptees do not qualify under the CCA if they were 18 years of age or older on February 27, 2001 (that is, were born on or before February 27, 1983), they may have obtained citizenship under a different law.[6]
C. Scope
This Part F clarifies how current citizenship provisions apply to adopted children. Volume 12, Citizenship and Naturalization, contains detailed guidance on the requirements for citizenship and naturalization, including for adopted children.[7]
D. Legal Authorities
-
INA 101(c) – Definition of child for citizenship and naturalization
-
INA 320; 8 CFR 320 – Children residing permanently in the United States
-
INA 322; 8 CFR 322 – Children residing outside the United States
Footnotes
[^ 1] See INA 301, INA 309, INA 320, and INA 322. See Volume 12, Citizenship and Naturalization [12 USCIS-PM].
[^ 2] See INA 320 and INA 322.
[^ 3] See Volume 12, Citizenship and Naturalization, Part D, General Naturalization Requirements [12 USCIS-PM-D].
[^ 4] Adoptees who need more information about determining their immigration status may see the Adult Adoptees and U.S. Citizenship webpage.
[^ 5] See the Child Citizenship Act of 2000, Pub. L. 106-395 (PDF) (October 30, 2000).
[^ 6] For information on prior provisions, see Appendix: How Previous Citizenship Provisions Apply to Adopted Children [5 USCIS-PM F, Appendices Tab].
[^ 7] See Volume 12, Citizenship and Naturalization [12 USCIS-PM].
Chapter 2 - Definitions
A. Child
The Immigration and Nationality Act (INA) provides two different definitions of “child.”[1] One definition of child applies to immigrant petitions and applications for lawful permanent residence.[2] The other definition of child applies to citizenship and naturalization.[3]
The definition of child for purposes of immigrant petitions and applications for lawful permanent residence includes certain children who have not yet been adopted or whose adoption is not considered final.[4] However, an adopted child for citizenship and naturalization purposes is a child who has met the applicable adoption-based immigration requirements[5] and has been adopted through a full, final, and complete adoption.[6]
B. Adoption
To meet the definition of adoption for immigration purposes, an adoption must create a legal status comparable to that of a natural legitimate child between the adopted child and the adoptive parent.[7]
For an adoption to be considered full, final, and complete for citizenship and naturalization purposes,[8] the adoption must meet the additional requirements described below if the child is qualifying under the orphan[9] or Hague Adoption Convention[10] provisions.[11]
Orphan and Hague Adoption Convention Provisions
For the foreign adoption of an orphan to be considered full, final, and complete for citizenship and naturalization purposes:
-
The child must have been adopted by a U.S. citizen and spouse jointly (if married), or by an unmarried U.S. citizen who is at least 25 years of age; and
-
At least one of the adoptive parents must have personally seen and observed the child before or during the foreign adoption proceedings.[12]
For the foreign adoption of a Hague Convention adoptee to be considered full, final, and complete for citizenship and naturalization purposes, the child must have been adopted by a U.S. citizen and their spouse jointly (if married) or by an unmarried U.S. citizen who is at least 25 years of age.[13]
For children residing in the United States, if the foreign adoption is not considered full and final, or the child immigrated with a custody order for purposes of emigration and adoption, the child must be readopted or adopted in the United States to meet the definition of adopted.[14] However, USCIS may waive readoption requirements if the adoptive parent(s)’ U.S. jurisdiction of residence recognizes (judicially or by operation of law) the foreign adoption as full and final under that state's adoption laws before the child is age 18.[15]
For children residing outside of the United States, if the foreign adoption in the child’s country of origin is not considered full and final, or the child was issued a custody order for purposes of emigration and adoption, the child must be readopted or adopted through a full, final, and complete adoption before age 18 to naturalize under INA 322.[16]
The table below outlines the different immigrant visa classifications[17] issued to a child depending on whether the parents completed a final adoption or obtained legal custody for emigration and adoption.
Code | Classification Name | Application Process |
---|---|---|
IR-3 | Orphan – “full and final” adoption abroad | Consular processing |
IR-4 | Orphan – coming to the United States to be adopted | Consular processing |
IR-8 | Orphan – “full and final” adoption abroad | Adjustment of status |
IR-9 | Orphan – coming to the United States to be adopted | Adjustment of status |
IH-3 | Hague adoptee – final adoption abroad | Consular processing |
IH-4 | Hague adoptee – coming to the United States to be adopted | Consular processing |
IH-8 | Hague adoptee – final adoption abroad | Adjustment of status |
IH-9 | Hague adoptee – coming to the United States to be adopted | Adjustment of status |
Footnotes
[^ 1] See INA 101(b) and INA 101(c).
[^ 2] See INA 101(b).
[^ 3] See INA 101(c). See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM-H.2].
[^ 4] See INA 101(b)(1)(F) and INA 101(b)(1)(G).
[^ 5] The child must meet the requirements for family-based adoption at INA 101(b)(1)(E), orphans at INA 101(b)(1)((F), or Hague Convention adoptees at INA 101(b)(1)(G). See Part E, Family-Based Adoption Petitions [5 USCIS-PM E]. See Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C]. See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D].
[^ 6] See 8 CFR 320.1 and 8 CFR 322.1. For information on requirements for an adoption to be considered valid for immigration purposes see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].
[^ 7] See Matter of Mozeb (PDF), 15 I&N Dec. 430 (BIA 1975). For the definition of adoption, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].
[^ 8] See 8 CFR 320.1 and 8 CFR 322.1.
[^ 9] For information on the orphan provision, see INA 101(b)(1)(F). See Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C].
[^ 10] For information on the Hague Adoption Convention provision, see INA 101(b)(1)(G). See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D].
[^ 11] The additional requirements described in the “Orphan and Hague Adoption Convention Provisions” section for an adoption to be considered full, final, and complete for citizenship and naturalization purposes do not apply if a child meets the requirements of the family-based adoption provision at INA 101(b)(1)(E).
[^ 12] See INA 101(b)(1)(F).
[^ 13] See INA 101(b)(1)(G).
[^ 14] The child must be adopted and meet all eligibility requirements before the age of 18 to acquire citizenship under INA 320. See the definition of adopted at 8 CFR 320.1.
[^ 15] See 8 CFR 320.1. For additional information on state readoption and recognition, see the Child Welfare Information Gateway’s State Laws Related to Adoption webpage.
[^ 16] See 8 CFR 322.1.
[^ 17] Children who reside abroad who naturalize through the Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K) process are only required to be temporarily lawfully present, and typically are not issued immigrant visas.
Chapter 3 - Eligibility, Documentation, and Evidence
A. General Eligibility
Current provisions under INA 320 or INA 322 apply if the child was born on or after February 28, 1983, and meets the required conditions on or after February 27, 2001. The following table outlines the applicability of current citizenship and naturalization provisions to adopted children.
Where the Child Resides | Provision | Adoption Requirements for U.S. Citizenship | Additional Requirements[1] |
---|---|---|---|
In the United States (INA 320 may also apply to certain children of U.S. military members, U.S. government employees, and their U.S. citizen spouses, who are residing outside of the United States) | INA 320 | Must satisfy INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G) requirements. | A child born outside of the United States automatically becomes a U.S. citizen when all the following requirements have been met on or after February 27, 2001:
|
Outside the United States | INA 322 | Must satisfy INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101 (b)(1)(G) requirements. | Applies to certain children under 18 years of age residing outside of the United States in the legal and physical custody of the U.S. citizen parent.[3] The child generally must be temporarily present in the United States after being lawfully admitted and be maintaining their status, amongst other requirements.[4] The child must have an application filed on their behalf and take the Oath of Allegiance, unless waived. |
B. Child Residing in the United States
1. Eligibility
An adopted child born outside of the United States becomes a U.S. citizen by operation of law at the time the adopted child satisfies all requirements on or after February 27, 2001, and before turning 18 years of age.[5] These requirements include that the adopted child:[6]
- Satisfies the requirements applicable to adopted children;[7]
- Has at least one adoptive parent who is a U.S. citizen (by birth or naturalization);
- Is an LPR;[8] and
- Resides in the United States in the legal and physical custody of the U.S. citizen adoptive parent (or parents).[9]
Adopted children of U.S. armed forces members or U.S. government employees (or their spouses) who are residing outside the United States may also acquire citizenship under INA 320 upon meeting the eligibility criteria.[10]
Children who meet all requirements of INA 320 (including having a final adoption)[11] at the time of their admission as LPRs automatically acquire citizenship upon their admission as LPRs. Children who do not meet all requirements of INA 320 upon their admission as LPRs do not acquire citizenship upon their admission, but may automatically acquire citizenship at a later point (provided they satisfy all conditions before they turn 18). This includes children who do not have an adoption considered final under U.S. immigration law and children who do not otherwise meet the requirements of INA 320 upon their admission. Their adoptive parents may need to take additional steps, such as obtaining a final adoption, before the child turns 18 years of age for the child to obtain U.S. citizenship through an adoptive parent.
2. Certificate of Citizenship
A person who automatically acquires U.S. citizenship is not required to file an Application for Certificate of Citizenship (Form N-600).
Certain adopted children automatically receive a Certificate of Citizenship without filing Form N-600. Other children immigrating based on adoption do not, and must submit Form N-600 if they seek to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. passport with the U.S. Department of State to serve as evidence of U.S. citizenship.
Certificate of Citizenship Issued without an Application
Generally, USCIS automatically issues a Certificate of Citizenship to adopted children who are admitted to the United States with an IR-3 visa[12] or IH-3 visa,[13] if the child meets all INA 320 requirements.[14] In order to be issued a Certificate of Citizenship, if the child is over the age of 14, the child must take the Oath of Allegiance, unless otherwise waived.[15]
Thus, children over 14 at the time of their admission who are eligible for automatic issuance of a Certificate of Citizenship generally collect their Certificate of Citizenship at a USCIS field office after taking the oath. Children under 14 years of age who are eligible for automatic issuance of a Certificate of Citizenship generally receive their certificate by mail.[16]
Certificate of Citizenship with Application
USCIS does not automatically issue Certificates of Citizenship to adopted children who are admitted to the United States with a different visa classification (such as IR-2 visas) or who do not acquire citizenship upon their admission as LPRs (such as IR-4s[17] and IH-4s[18]).
If an adoptee did not automatically receive a Certificate of Citizenship and would like to obtain documentation of their citizenship status from USCIS, they (or their parent or legal guardian if the adoptee is under age 18) must submit Form N-600.[19] A person may also apply for a U.S. passport with the U.S. Department of State to serve as evidence of U.S. citizenship.[20]
An applicant (person seeking the Certificate of Citizenship) must submit, with their application, all required documentation and evidence in accordance with form instructions,[21] including a copy of the full, final adoption decree or order.[22] If the child did not have a foreign adoption that is considered full, final, and complete, the applicant must submit:
- Evidence of the final adoption decree or order; or
- If the U.S. jurisdiction of the adoptive parent’s or parents’ residence recognizes the foreign adoption decree or order as full and final, evidence establishing this under state law together with the foreign adoption order.[23]
To determine if the adopted child meets the requirements applicable to adopted children, USCIS reviews the file, including any evidence indicating that the child was admitted to the United States as an LPR through an adoption-based petition.[24]
In order to be issued a Certificate of Citizenship, if the child is over the age of 14, the child must take the Oath of Allegiance, unless otherwise waived.[25]
C. Child Residing Outside of the United States
1. Eligibility
An adopted child who regularly resides outside of the United States[26] is eligible for naturalization under INA 322 if all of the following conditions have been met before the child turns 18 years of age:[27]
- The child satisfies the requirements applicable to adopted children;[28]
- The child has at least one adoptive parent who is a U.S. citizen by birth or through naturalization;
- The child’s U.S. citizen adoptive parent or U.S. citizen grandparent has been physically present in the United States or an outlying possession for 5 years, at least 2 of which were after reaching the age of 14;[29]
- The child is residing outside of the United States in the legal and physical custody of the U.S. citizen parent, or of a person who does not object to the application if the U.S. citizen parent is deceased; and
- The child is lawfully admitted, physically present, and maintaining a lawful status in the United States at the time the application is approved and the time of naturalization.
Children of U.S. Armed Forces Members or U.S. Government Employees (or their Spouses)
Children are not eligible to naturalize under INA 322 if they already acquired citizenship. Adopted children of U.S. armed forces members or U.S. government employees (or their spouses) who are residing outside the United States may acquire citizenship under INA 320 upon meeting the eligibility criteria.[30]
2. Application for Citizenship and Issuance of Certificate
To apply for a child to become a U.S. citizen and obtain a Certificate of Citizenship, the U.S. citizen parent, or if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian, files an Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K) on behalf of the child.[31]
An applicant (person seeking a Certificate of Citizenship) must submit with their application all required documentation and evidence in accordance with form instructions.[32] The adoption-specific required evidence that applicants must submit depends on the type of case. The table below describes the adoption-specific evidence that is required by case type.
Type of Case | Adoption-Specific Required Evidence |
---|---|
Hague Convention Adoption Case | A copy of the full, final adoption decree or order; and a copy of the notice of approval of the Petition to Classify Convention Adoptee as an Immediate Relative (Form I-800), and supporting documentation for the petition, or evidence the child has been admitted for lawful permanent residence on an IH-3 or IH-4 visa.[33] |
Orphan Case | A copy of the full, final adoption decree or order; and a copy of the notice of approval of the Petition to Classify Orphan as an Immediate Relative (Form I-600), and supporting documentation for the petition (except the home study), or evidence the child has been admitted for lawful permanent residence on an IR-3 or IR-4 visa.[34] |
Family-based Adoption Petitions | A copy of the full, final adoption decree or order; and evidence that the child meets the requirements of INA 101(b)(1)(E), including adoption before age 16 (or age 18 if the sibling exception applies) and 2 years of legal custody and joint residence with the adoptive parent.[35] |
To determine if the adopted child meets the requirements applicable to adopted children, USCIS reviews the file, including any evidence indicating that an adoption-based petition was approved for the child, and has not been revoked.[36]
If an adoption-based petition was not approved for the child, the applicant must submit the following to show that they meet the requirements of a family-based adoption:[37]
- A full, final adoption decree or order showing that the child was adopted before the child’s 16th birthday (or before the child’s 18th birthday if the sibling exception applies);[38]
- Documentation that the child has been in the legal custody of the adoptive U.S. citizen parent for at least 2 years (at the time of filing); and
- Documentation that the child has been jointly residing with the adoptive parent(s) for at least 2 years (at the time of filing).
In order to be issued a Certificate of Citizenship, if the child is over the age of 14, the child must take the Oath of Allegiance, unless otherwise waived, before the age of 18.[39]
Footnotes
[^ 1] Adopted children who did not acquire citizenship through their adoptive parent(s) or naturalize before the age of 18 may also apply for naturalization when eligible. See Volume 12, Citizenship and Naturalization, Part D, General Naturalization Requirements [12 USCIS-PM D].
[^ 2] For more information, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320) [12 USCIS-PM H.4].
[^ 3] If the parent is deceased, the child may be residing in the legal and physical custody of a person who does not object to the application.
[^ 4] For information on requirements, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 5, Child Residing Outside the United States (INA 322) [12 USCIS-PM H.5].
[^ 5] These provisions were created by the Child Citizenship Act of 2000 (CCA), Pub. L. 106-395 (PDF) (October 30, 2000), which amended earlier provisions of the Immigration and Nationality Act (INA) regarding acquisition of citizenship after birth for foreign-born children who have U.S. citizen parent(s). These CCA amendments became effective on February 27, 2001.
[^ 6] See INA 320. See 8 CFR 320.2. For more information on requirements, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship After Birth (INA 320) [12 USCIS-PM H.4].
[^ 7] The child must meet the requirements for family-based adoption at INA 101(b)(1)(E), orphans at INA 101(b)(1)(F), or Hague Convention adoptees at INA 101(b)(1)(G).
[^ 8] A person is generally considered to be a LPR once USCIS approves the adjustment application or once the person is admitted to the United States with an immigrant visa. See INA 245(b).
[^ 9] See INA 101(a)(33). For the definition of residence, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section E, Definitions of U.S. Residence and Physical Presence [12 USCIS-PM H.2(E)]. For the definition of legal and physical custody, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320), Section B, Child in Legal and Physical Custody of U.S Citizen Parent [12 USCIS-PM H.4(B)].
[^ 10] See INA 320(c), which applies to children who were under 18 on March 26, 2020. For more information, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320), Section C, Children of Armed Forces Members or U.S. Government Employees (or their Spouses) [12 USCIS-PM H.4(C)].
[^ 11] For information on final adoption requirements, see Chapter 2, Definitions [5 USCIS-PM F.2].
[^ 12] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child adopted abroad by a U.S. citizen.
[^ 13] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as the adopted child from a Hague Adoption Convention country adopted outside the United States by a U.S. citizen.
[^ 14] Before January 1, 2004, USCIS did not automatically issue a Certificate of Citizenship to adopted children who came to the United States. If a child met all the INA 320 requirements but did not automatically receive a Certificate of Citizenship, they can still submit an Application for Certificate of Citizenship (Form N-600) to obtain a Certificate of Citizenship.
[^ 15] See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320), Section G, Decision and Oath of Allegiance [12 USCIS-PM H.4(G)]. See Volume 12, Citizenship and Naturalization, Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].
[^ 16] For information on contacting USCIS if your child was admitted to the United States on an IR-3 or IH-3 visa and did not receive a Certificate of Citizenship within 60 days, see the Certificate of Citizenship for Your Internationally Adopted Child webpage.
[^ 17] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as a child coming to be adopted in the United States by a U.S. citizen.
[^ 18] Visa category for an immediate relative under INA 201(b) and INA 204(a)(1), as the adopted child from a Hague Adoption Convention country adopted in the United States by a U.S. citizen.
[^ 19] See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320) [12 USCIS-PM H.4]. See Volume 12, Citizenship and Naturalization, Part K, Certificates of Citizenship and Naturalization, Chapter 2, Certificate of Citizenship [12 USCIS-PM K.2].
[^ 20] See U.S. Department of State’s U.S. Passports webpage.
[^ 21] For a full list of required evidence, see instructions for Form N-600.
[^ 22] For more information on required evidence, see 8 CFR 320.3(b). See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320), Section E, Documentation and Evidence [12 USCIS-PM H.4(E)].
[^ 23] For example, a certificate of recognition of adoption from the state court, or a copy of the state statute indicating that the state recognizes all foreign adoptions.
[^ 24] See Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C]. See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D]. See Part E, Family-Based Adoption Petitions [5 USCIS-PM E].
[^ 25] See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320), Section G, Decision and Oath of Allegiance [12 USCIS-PM H.4(G)]. See Volume 12, Citizenship and Naturalization, Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].
[^ 26] See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section E, Definition of U.S. Residence [12 USCIS-PM H.2(E)].
[^ 27] See INA 322. For more information on requirements, see Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 5, Child Residing Outside the United States (INA 322) [12 USCIS-PM H.5].
[^ 28] The child must meet the requirements for family-based adoption at INA 101(b)(1)(E), orphans at INA 101(b)(1)((F), or Hague Convention adoptees at INA 101(b)(1)(G).
[^ 29] See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 5, Child Residing Outside the United States (INA 322), Section C, Physical Presence of U.S. Citizen Parent or Grandparent [12 USCIS-PM H.5(C)].
[^ 30] See INA 320(c). For more information, see USCIS Policy Manual Volume 12, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320), Section C, Children of Armed Forces Members or U.S. Government Employees (or their Spouses) [12 USCIS-PM H.4(C)]. Such children may submit Form N-600. See Section B, Child Residing in the United States [5 USCIS-PM F.3(B)].
[^ 31] See Form N-600K. See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 5, Child Residing Outside the United States (INA 322) [12 USCIS-PM H.5] and Part K, Certificates of Citizenship and Naturalization, Chapter 3, Certificate of Naturalization [12 USCIS-PM K.3].
[^ 32] See instructions for Form N-600K. For more information on required evidence, see 8 CFR 322.3(b) and Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 5, Child Residing Outside the United States (INA 322), Section G, Documentation and Evidence [12 USCIS-PM H.5(G)].
[^ 33] See INA 101(b)(1)(G). See 8 CFR 322.3(b). See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D].
[^ 34] See INA 101(b)(1)(F). See 8 CFR 322.3(b). See Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C].
[^ 35] See INA 101(b)(1)(E). See 8 CFR 322.3(b). See Part E, Family-Based Adoptions [5 USCIS-PM E].
[^ 36] See Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C]. See Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D]. See Part E, Family-Based Adoptions [5 USCIS-PM E].
[^ 37] See INA 101(b)(1)(E). See Part E, Family-Based Adoptions [5 USCIS-PM E].
[^ 38] See INA 101(b)(1)(E)(ii).
[^ 39] See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 5, Child Residing Outside the United States (INA 322), Section I, Decision and Oath of Allegiance [12 USCIS-PM H.5(I)].
Chapter 4 - Citizenship Following a Disrupted or Dissolved Adoption
A. Disruption of Adoption
A disruption means an adoption process that ends after the prospective adoptive parents obtain legal custody and before the adoption is legally finalized, which may result in the child’s return to (or entry into) foster care or placement with new adoptive parents.[1]
A child who has not acquired U.S. citizenship[2] before such a disruption may be eligible to obtain citizenship and documentation if later adopted by different U.S. citizen parent(s). The child must meet all requirements of INA 320 or INA 322 through the new U.S. citizen parent, including the requirements applicable to adopted children under INA 101(b)(1).
However, the adopted child does not have to establish eligibility under the same specific statutory provision as under the original petitioning parents. For example, an adopted child who immigrated as an orphan under INA 101(b)(1)(F) with the original adoptive parent(s), may be able to meet the requirements with the new adoptive parents for a family-based petition under INA 101(b)(1)(E), if eligible.[3]
The child may also seek naturalization when eligible.[4]
B. Dissolution of Adoption
A dissolution means an adoption in which the legal relationship between the adoptive parent(s) and adopted child is severed, either voluntarily or involuntarily, after the adoption is legally finalized.[5]
In the event of a dissolution, an adopted child who has already obtained U.S. citizenship through the original petitioning adoptive parent(s),[6] does not lose their U.S. citizenship as a result of the dissolution.[7] If the U.S. citizen adopted child does not have documentation demonstrating their U.S. citizenship,[8] a Certificate of Citizenship based on the original adoption may be requested.[9] A person may also apply for a U.S. passport with the Department of State to serve as evidence of U.S. citizenship.
The new adoptive parents may also make a Freedom of Information Act (FOIA) request on behalf of the child to determine if the child was previously issued a Certificate of Citizenship.[10]
Footnotes
[^ 1] See the U.S. Citizenship for an Adopted Child webpage for more information on citizenship of a foreign-born child following a disrupted or dissolved adoption. See also 22 CFR 96.2.
[^ 2] For example, a child whose adoption disrupts before the adoptee fulfills all requirements for citizenship (including having an adoption that is considered full, final, and complete).
[^ 3] For information on INA 101(b)(1)(E) requirements, see Part E, Family-Based Adoption Petitions [5 USCIS-PM E]. To petition for an adopted child under INA 101(b)(1)(E), see Petition for Alien Relative (Form I-130).
[^ 4] See Volume 12, Citizenship and Naturalization [12 USCIS-PM].
[^ 5] See the Child Welfare Information Gateway’s Adoption Disruption and Dissolution (PDF) webpage.
[^ 6] See INA 320 and INA 322.
[^ 7] A dissolution in and of itself does not generally impact an adoptee’s U.S. citizenship status.
[^ 8] For example, a Certificate of Citizenship (USCIS Form N-560A) or a valid, unexpired U.S. passport.
[^ 9] See instructions for the Application for Certificate of Citizenship (Form N-600). See instructions for the Application for Replacement Naturalization/Citizenship Document (Form N-565).
[^ 10] See the Request Records through the Freedom of Information Act or Privacy Act webpage.
Volume 6 - Immigrants
Part A - Immigrant Policies and Procedures
Part B - Family-Based Immigrants
Chapter 1 - Purpose and Background
A. Purpose
The Immigration and Nationality Act (INA) provides that U.S. citizens and lawful permanent residents (LPRs) may petition for certain alien relatives to immigrate to the United States.[1] If the petitioners and the beneficiaries of such petitions meet the eligibility requirements, beneficiaries may then pursue LPR status by applying for an immigrant visa at a U.S. embassy or consulate (otherwise known as consular processing), or, if already in the United States, by applying for adjustment of status.[2]
B. Background [Reserved]
[Reserved]
C. Legal Authorities
- INA 201 – Worldwide level of immigration
- INA 202 – Numerical limitations on individual foreign states
- INA 203 – Allocation of immigrant visas
- INA 204; 8 CFR 204 – Procedure for granting immigrant status
Footnotes
[^ 1] In addition, Congress provided that certain alien relatives may self-petition in limited circumstances.
[^ 2] For more information, see Volume 7, Adjustment of Status [7 USCIS-PM].
Chapter 2 - Principles Common to Family-Based Petitions [Reserved]
Chapter 3 - Filing
A U.S. citizen or lawful permanent resident (LPR) may file a petition on behalf of a relative using the Petition for Alien Relative (Form I-130), in accordance with the form’s instructions. In certain cases, alien relatives may self-petition by filing the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).[1] Benefit requestors must file a Form I-130 petition for certain beneficiaries within a specific period, such as filing before the age of 21 for certain children.[2]
Generally, family-sponsored petitions must be filed with USCIS.[3] However, there are some limited circumstances in which the U.S. Department of State (DOS) may accept and adjudicate Form I-130. USCIS no longer accepts and adjudicates routine Form I-130 petitions at its remaining international field offices.[4]
A. When Department of State is Authorized to Accept and Adjudicate Form I-130
USCIS has delegated authority to DOS to accept and adjudicate a Form I-130 filed by a U.S. citizen petitioner for an immediate relative[5] if the petitioner establishes exceptional circumstances or falls under blanket authorization criteria defined by USCIS. This policy applies even in countries with a USCIS presence. Without such delegation, DOS has no authority to permit a U.S. embassy or consulate to accept a local Form I-130 filing abroad.
If a consular officer in a U.S. embassy or consulate encounters an individual case that the officer believes has need of immediate processing of a Form I-130, the consular officer may, but is not required to, accept the local filing in exceptional circumstances, in accordance with the guidance below.
Exceptional Circumstances
Examples of exceptional circumstances include:
- Military emergencies – A U.S. service member, who is abroad but who does not fall under the military blanket authorization for U.S. service members stationed abroad on military bases, becomes aware of a new deployment or transfer with little notice. This exception generally applies in cases where the U.S. service member is provided with exceptionally less notice than normally expected.
- Medical emergencies – A petitioner or beneficiary is facing an urgent medical emergency that requires immediate travel.
- Threats to personal safety – A petitioner or beneficiary is facing an imminent threat to personal safety. For example, a petitioner and beneficiary may have been forced to flee their country of residence due to civil strife or natural disaster and are in precarious circumstances in a different country outside of the United States.
- Close to aging out – A beneficiary is within a few months of aging out of eligibility.
- Petitioner has recently naturalized – A petitioner and family member(s) have traveled for the immigrant visa interview, but the petitioner has naturalized and the family member(s) requires a new petition based on the petitioner’s citizenship.
- Adoption of a child – A petitioner has adopted a child abroad and has an imminent need to depart the country. This type of case should only be considered if the petitioner has a full and final adoption decree on behalf of the child and the adoptive parent(s) has had legal custody of and jointly resided with the child for at least 2 years.
- Short notice of position relocation – A U.S. citizen petitioner, living and working abroad, has received a job offer in or reassignment to the United States with little notice for the required start date.
Discretion
The list of examples provided above is not exhaustive. DOS may exercise its discretion to accept local Form I-130 filings for other emergency or exceptional circumstances of a non-routine nature, unless specifically noted below. However, such filings must be truly urgent and otherwise limited to situations when filing with USCIS online or domestically with an expedite request would likely not be sufficient to address the time-sensitive and exigent nature of the situation.
DOS may consider a petitioner’s residency within the consular district when determining whether to accept a filing, but it is not required.[6]
B. When Department of State is Not Authorized to Accept and Adjudicate Form I-130
DOS may not exercise discretion to accept local filings in certain scenarios. USCIS does not authorize DOS to accept a local filing abroad when a petitioner based in the United States seeks to travel and file abroad in order to expedite processing. DOS acceptance of Form I-130s abroad is intended to assist petitioners living abroad who demonstrate exceptional circumstances as described above.
In addition, USCIS does not authorize DOS to accept a local filing abroad if the petitioner has already filed a Form I-130 domestically for the same beneficiary. If exigent circumstances exist, the petitioner should request expedited processing for an electronic or domestically-filed petition. Local consular or USCIS staff should inform the petitioner of the process to request expedited adjudication.[7]
C. Blanket Filing Authorizations
USCIS[8] may issue a blanket authorization for DOS to exercise its discretion to accept locally-filed Form I-130 immediate relative petitions for certain filing categories. Petitioners in these categories do not need to reside in the country of the U.S. embassy or consulate, but they must meet the blanket exception criteria described below in order to file a Form I-130 with DOS.
Temporary Blanket Authorizations
In instances of prolonged or severe civil strife or a natural disaster, USCIS may authorize a blanket exception for DOS to accept Form I-130 immediate relative petitions from petitioners directly affected by such events.
Temporary blanket authorizations do not require DOS to accept a filing, but rather allow DOS to use its discretion to accept a Form I-130 filed at a U.S. embassy or consulate. Although DOS may accept a local filing by a petitioner who does not reside within the post’s jurisdiction, the intent of the temporary blanket authorization is to assist those directly affected by the disruptive event, not to speed up the process for those petitioners who are not directly affected.
U.S. Military Assigned to Military Bases Abroad
USCIS has granted DOS blanket authorization to accept Form I-130 immediate relative petitions filed by U.S. citizen military service members stationed abroad even in countries with a USCIS presence. This blanket authorization does not apply to service members assigned to non-military bases, such as U.S. embassies, international organizations, or civilian institutions, or to service members on temporary duty orders. Qualifying petitioners do not need to establish exceptional circumstances. This blanket authorization is not time-limited, but USCIS may revoke the authorization if warranted.
D. Procedures for Local Filings
DOS may accept and adjudicate a local Form I-130 filing by a U.S. citizen petitioner for an immediate relative if the petitioner establishes exceptional circumstances or meets blanket authorization criteria defined by USCIS.
If DOS declines to accept a local filing, DOS should inform the petitioner of its decision and of the process for filing the Form I-130 at a USCIS lockbox or online in accordance with the USCIS filing instructions.
The petitioner does not have the right to appeal, motion, or otherwise request reconsideration of a USCIS or DOS decision to decline acceptance of a local filing. Although this local filing process is designed to facilitate expedited processing of cases abroad in exceptional circumstances, it is not the only way to file a petition or seek expedited adjudication. If not permitted to file locally abroad, a petitioner may still file a Form I-130 petition with a USCIS lockbox or online and may request expedited processing for that petition in accordance with the published USCIS expedite process and criteria.[9]
DOS may approve only those Form I-130 petitions that are clearly approvable. If DOS determines a petition is not clearly approvable, DOS forwards the petition to the USCIS office designated to adjudicate the not clearly approvable petitions. This USCIS office is generally a USCIS service center.[10]
If DOS approves a Form I-130 petition but that U.S. embassy or consulate does not issue immigrant visas, the Consular Section coordinates with the appropriate embassy or consulate with jurisdiction to issue a visa in accordance with DOS guidelines.
Although USCIS has delegated authority to DOS to accept Form I-130 petitions in all locations abroad in the limited instances described above, USCIS retains authority to accept and adjudicate a local Form I-130 filing abroad or conduct an in-person interview abroad as warranted, regardless of where or how the petition was filed.
Footnotes
[^ 1] For more information on self-petitioner categories, see the instructions to Form I-360. Form I-360 is also used for a number of other (non-relative) special immigrant classifications, which are discussed in other Policy Manual parts.
[^ 2] For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)].
[^ 3] See instructions to the Petition for Alien Relative (Form I-130).
[^ 4] The USCIS field offices in Accra, Ghana and London, United Kingdom will continue to accept and adjudicate Form I-130 petitions filed by U.S. citizens residing in-country who are filing on behalf of their spouse, unmarried child under the age of 21, or parent (if the U.S. citizen is 21 years of age or older) through March 31, 2020.
[^ 5] Immediate relative refers to a U.S. citizen’s spouse, unmarried child under the age of 21, or parent (if the U.S. citizen is over the age of 21). See INA 201(b)(2)(A)(i). Other Form I-130 filing categories, which may be filed by either U.S. citizens or LPRs and are also referred to as preference category petitions, must be filed with a domestic USCIS lockbox or online in accordance with the filing instructions. See 8 CFR 103.2(a)(1).
[^ 6] See 9 Foreign Affairs Manual (FAM) 504.2-4(B)(1)(b), Adjudicating Exceptional Circumstance I-130 Cases.
[^ 7] See Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 5, Expedite Requests [1 USCIS-PM A.5]. See the Expedite Requests webpage.
[^ 8] Currently, this is handled by the Refugee, Asylum and International Operations Directorate.
[^ 9] For more information, see Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 5, Expedite Requests [1 USCIS-PM A.5]. See the Expedite Requests webpage.
[^ 10] See 9 Foreign Affairs Manual (FAM) 504.2-4(B)(1)(b), Adjudicating Exceptional Circumstance I-130 Cases.
Chapter 4 - Documentation and Evidence for Family-Based Petitions [Reserved]
Chapter 5 - Adjudication of Family-Based Petitions
A. Petition Review [Reserved]
B. Interviews [Reserved]
C. Derogatory Information [Reserved]
D. Decision
1. Approvals
If the petitioner properly files the petition in accordance with regulations and the form instructions and demonstrates they meet eligibility requirements, then USCIS must approve the petition.[1] Generally, there is no discretionary analysis as part of the adjudication of a family-based immigrant petition, and USCIS cannot deny these petitions as a matter of discretion.[2]
The beneficiary’s history or character is also usually not relevant to the adjudication.[3] However, if during the adjudication the officer encounters grounds of inadmissibility that are relevant for adjustment of status or consular processing, the officer should document the specific grounds or factors for USCIS or the U.S. Department of State (DOS) to review during the beneficiary’s application for adjustment of status or an immigrant visa.
USCIS approves a Petition for Alien Relative (Form I-130)[4] if the petitioner establishes that they are a U.S. citizen, U.S. national or lawful permanent resident (LPR) and a qualifying relationship exists between the petitioner and the beneficiary.
A beneficiary may apply to immigrate to the United States and become an LPR if there is an available visa[5] and they are the beneficiary of an approved Form I-130 or an approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).[6]
Notice of Approval
USCIS notifies the petitioner of the approval on a Notice of Action (Form I-797).[7] The approval notice generally acknowledges the petitioner’s declaration regarding the beneficiary’s intent to immigrate to the United States through consular processing with DOS or to adjust status to lawful permanent residence in the United States, if eligible.
When approving the petition, the USCIS officer ensures that the notice accurately reflects the correct priority date, the proper section of law with the beneficiary’s designated immigration classification, and whether USCIS will forward the petition to the DOS National Visa Center (NVC) for consular processing or retain the petition for the beneficiary to seek adjustment of status if eligible.
Correcting Errors in a Notice of Approval
The petitioner may request a corrected notice from USCIS if the approval notice is missing information, such as the correct priority date or the proper section of law with the beneficiary’s designated immigration classification, or has a mistake because of USCIS error.[8]
If a mistake is related to the beneficiary’s classification or the priority date, the consular officer who is adjudicating the visa application may return the petition for corrective action. Similarly, the USCIS officer adjudicating the adjustment of status application may review the petition for corrective action. This may delay the beneficiary’s immigrant visa processing or adjustment of status.
To prevent these errors and delays, the petitioner should ensure they provide the correct information in the petition and notify USCIS of any changes or corrections needed.
Consular Processing or Adjustment of Status
Generally, if the petitioner indicates the beneficiary intends to adjust status in the United States, and the beneficiary is in the United States and eligible to adjust, USCIS retains the petition for adjustment of status processing.[9] If the petitioner indicates that the beneficiary intends to consular process, USCIS sends the approved petition to the NVC.[10] When an immigrant visa becomes available, the NVC forwards the approved petition to the consulate the petitioner or USCIS designated.[11]
It is important for the petitioner to answer the questions completely and accurately on the petition about the beneficiary’s location and whether the beneficiary intends to adjust status in the United States or consular process with DOS outside of the United States. If applicable, it is also important that the petitioner identify the embassy or consulate where the beneficiary intends to consular process. If the petitioner does not provide this information on the petition or does not contact USCIS to update this information prior to final adjudication, further action on the approved petition may be delayed and there may be additional fees.[12]
If the petitioner leaves the relevant questions on the petition blank or the petitioner selects both the option to consular process and the option to adjust status in the United States on Form I-130,[13] USCIS exercises discretion to determine whether to send the approved petition to the NVC or retain the petition for adjustment of status processing by reviewing evidence of the beneficiary’s most recent location, including the beneficiary’s physical address on the petition.
USCIS generally retains the approved Form I-130 when:
- The petitioner indicates on the Form I-130 that the beneficiary is in the United States and will apply for adjustment of status in the United States;
- The beneficiary’s physical address on the petition is in the United States and the petitioner indicates both adjustment of status and consular processing on the Form I-130;
- The beneficiary’s physical address on the petition is in the United States and the petitioner indicates neither adjustment of status nor consular processing on the Form I-130; or
- The beneficiary filed an Application to Register Permanent Residence or Adjust Status (Form I-485) and the beneficiary’s physical address on the petition is in the United States.
USCIS generally sends the approved Form I-130 to the NVC when:
- The petitioner indicates on the Form I-130 that the beneficiary will not apply for adjustment of status and will apply for an immigrant visa through consular processing on the Form I-130;[14]
- The beneficiary’s physical address on the petition is outside the United States and the petitioner indicates both adjustment of status and consular processing on the Form I-130; or
- The beneficiary’s physical address on the petition is outside the United States and the petitioner indicates neither adjustment of status nor consular processing on the Form I-130.
Prior to final adjudication of the petition, the petitioner may provide updates on the petition, including whether the beneficiary intends to adjust status or consular process, the preferred embassy or consulate for visa processing, and the beneficiary’s address. To provide updated information on a pending petition, petitioners should contact the office indicated on the Form I-130 receipt notice.[15]
If USCIS has approved the petition, a petitioner must file an Application for Action on an Approved Application or Petition (Form I-824) with a fee, if applicable,[16] to change from adjustment of status to consular processing, or update the preferred embassy or consulate.[17] If the petitioner seeks to change from consular processing to adjustment of status, USCIS works with the NVC to return the petition for adjustment of status processing.
2. Denials
Generally, USCIS may only deny a family-based immigrant visa petition if the petitioner fails to establish status as a U.S. citizen, U.S. national, or LPR, or the petitioner fails to establish a qualifying relationship to the beneficiary.[18]
USCIS may deny without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if there is no legal basis for approval and no additional information could establish a legal basis for approval (for example, a petition submitted on behalf of a relative who does not fall under a category provided for in the Immigration and Nationality Act, such as a grandparent).[19]
If USCIS denies a petition, USCIS explains in writing the specific reasons for the denial, and the right to appeal if applicable.
3. Requests for Evidence and Notices of Intent to Deny
When USCIS determines that the evidence is not sufficient to establish eligibility, the officer should generally first issue an RFE or NOID to request evidence of eligibility.[20]
E. Post Decision Actions [Reserved]
Footnotes
[^ 1] In this section, petition refers to the Petition for Alien Relative (Form I-130) and the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360), where an alien filed Form I-360 as a self-petitioner seeking to immigrate as an abused spouse, child, or parent; as an Amerasian; or as a widow or widower of a U.S. citizen. See Volume 3, Humanitarian Protection and Parole, Part D, Violence Against Women Act [3 USCIS-PM D]. See Volume 7, Adjustment of Status, Part P, Other Adjustment Programs, Chapter 9, Amerasian Immigrants [7 USCIS-PM P.9]. See the USCIS Widower webpage. As used in this section, the term beneficiary may also refer to these Form I-360 self-petitioners.
[^ 2] See INA 204(b). If the petitioner establishes the claimed relationship with the beneficiary, USCIS does not have discretion to deny the petition, unless the petition is subject to the Adam Walsh Act or is subject to relief under INA 204(l).
[^ 3] See Matter of O– (PDF), 8 I&N Dec. 295 (BIA 1959) (admissibility of beneficiary is not relevant to decision of visa petition). However, if the beneficiary previously entered into a marriage for the purpose of evading immigration laws, such conduct would be relevant to the adjudication of the petition. See INA 204(c).
[^ 4] For information on Form I-360 approvals where the applicant filed Form I-360 as a self-petitioner seeking to immigrate as an abused spouse, child, or parent; as an Amerasian; or as a widow or widower of a U.S. citizen, see Volume 3, Humanitarian Protection and Parole, Part D, Violence Against Women Act, Chapter 5, Adjudication, Section C, Decision, Subsection 2, Approvals [3 USCIS-PM D.5(C)(2)]. See Volume 7, Adjustment of Status, Part P, Other Adjustment Programs, Chapter 9, Amerasian Immigrants, Section D, Petition for Amerasian, Subsection 3, Decision [7 USCIS-PM P.9(D)(3)]. See the USCIS Widower webpage.
[^ 5] See the USCIS Visa Availability and Priority Dates webpage.
[^ 6] For information on additional requirements following the approval of a family-based immigrant visa petition, see the USCIS Consular Processing webpage and USCIS Adjustment of Status webpage.
[^ 7] See 8 CFR 103.2(b)(19) and 8 CFR 204.2.
[^ 8] For additional information, see the Form I-130 webpage.
[^ 9] See 8 CFR 204.2(a)(3), 8 CFR 204.2(b)(3), 8 CFR 204.2(c)(3), 8 CFR 204.2(e)(3), 8 CFR 204.2(f)(3), and 8 CFR 204.2(g)(3).
[^ 10] See 8 CFR 204.2(a)(3), 8 CFR 204.2(b)(3), 8 CFR 204.2(c)(3), 8 CFR 204.2(e)(3), 8 CFR 204.2(f)(3), and 8 CFR 204.2(g)(3).
[^ 11] For additional information on NVC visa processing see step two of the DOS’s Immigrant Visa Process webpage.
[^ 12] For additional information about requesting action on an approved petition, see the USCIS Form I-824 webpage.
[^ 13] Form I-360 does not contain the option to select either consular processing or to adjust status in the United States. However, the form does ask for information about the U.S. consulate at which the self-petitioner prefers to apply for an immigrant visa if they are outside the United States, ineligible to adjust status in the United States, or they do not wish to adjust status. If the self-petitioner provides the U.S. consulate information, or fails to provide the information but provides an address outside the United States, USCIS forwards the Form I-360 to the NVC. Otherwise, USCIS retains the Form I-360.
[^ 14] See the DOS’s Visa Issuing Posts webpage. If the consulate designated on the petition does not issue immigrant visas, officers may use the beneficiary’s country of birth as indicated on the petition. If the beneficiary is unable to return to the country of birth or if a U.S. consulate is not present in the beneficiary's country of birth, the petitioner may request another U.S. consulate through the first designated consulate. If the new consulate accepts jurisdiction, officers annotate the petition accordingly before forwarding the petition to the NVC.
[^ 15] See the Form I-130 webpage for additional instructions on how to contact USCIS to provide updated information on a pending petition.
[^ 16] Certain individuals may be eligible for a fee exemption. For information on fees, see the Fee Schedule (Form G-1055).
[^ 17] See 8 CFR 103.9. See Form I-824.
[^ 18] See INA 204(b). See 8 CFR 204.2.
[^ 19] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
[^ 20] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].
Chapter 6 - Post-Adjudication of Family-Based Petitions [Reserved]
Chapter 7 - Spouses [Reserved]
Chapter 8 - Children, Sons, and Daughters
A. Definition of a Child[1]
In general, a child for immigration purposes is an unmarried person under 21 years of age who is:
-
A child born in wedlock[2] to a U.S. citizen or lawful permanent resident (LPR) parent;
-
The legitimated[3] child of a U.S. citizen or LPR parent who is under 18 and in the legal custody of the legitimating parent or parents at the time of legitimation;
-
The stepchild of a U.S. citizen or LPR parent who is under 18 at the time of the marriage, creating the step-relationship;
-
A child adopted while under age 16 (or 18 if the sibling exception applies) who has jointly resided with and been in the legal custody of the adopting U.S. citizen or LPR parent for at least 2 years;[4]
-
An orphan who has been adopted abroad by a U.S. citizen or who is coming to the United States for adoption by a U.S. citizen;[5]
-
A Hague Convention adoptee who has been adopted abroad by a U.S. citizen or who is coming to the United States for adoption by a U.S. citizen;[6] or
-
A child born out of wedlock to a natural[7] U.S. citizen or LPR parent. If the petitioning parent is the natural father and the child has not been legitimated, the natural father and child must have had a bona-fide parent-child relationship before the child reached the age of 21 or married.
1. Child Born In or Out of Wedlock
USCIS considers a child to be born in wedlock when the child’s legal parents are married to one another at the time of the child’s birth and at least one of the legal parents has a genetic or gestational relationship to the child.[8] Therefore, a child born in wedlock may be:
-
A genetic child of a married U.S. citizen or LPR parent if both married parents are recognized by the relevant jurisdiction as the child’s legal parents;
-
The child of a married non-genetic gestational U.S. citizen or LPR parent (person who carried and gave birth to the child) if both married parents are recognized by the relevant jurisdiction as the child’s legal parents; or
-
A child of a U.S. citizen or LPR who is married to the child’s genetic or gestational parent at the time of the child’s birth, if both married parents are recognized by the relevant jurisdiction as the child’s legal parents.[9]
If a child does not meet this definition of born “in wedlock,” USCIS considers the child to have been born out of wedlock. While the petitioning U.S. citizen or LPR parent may be the natural mother or natural father, if the petitioning parent is the natural father and the child has not been legitimated, the natural father and child must have had a bona-fide parent-child relationship before the child reached the age of 21 or married. A “natural” parent may be a genetic or a gestational parent (who carries and gives birth to the child) who is recognized by the relevant jurisdiction as the child’s legal parent.
2. Legitimated Child [Reserved]
[Reserved]
3. Assisted Reproductive Technology (ART)[10]
The child of a gestational parent who is also the child’s legal parent may be considered a “child” for immigration purposes. A person who is the gestational and legal parent of a child under the law of the relevant jurisdiction at the time of the child’s birth may file a Petition for Alien Relative (Form I-130) for the child if all other eligibility requirements are met.
In addition, a non-genetic, non-gestational legal parent may file a Form I-130 on behalf of the child if the parent is married to the child’s genetic or gestational parent at the time of the child’s birth and both parents are recognized by the relevant jurisdiction as the child’s legal parents. Under those circumstances, the child is considered born in wedlock.[11]
Legal parentage is generally determined under the laws of the jurisdiction in which the child was born, but there may be circumstances in which the law of the jurisdiction of residence applies, such as when a post-partum act of legitimation occurs in the jurisdiction of residence.
4. Stepchild [Reserved]
[Reserved]
B. Eligibility Requirements for Child Petitions [Reserved]
[Reserved]
C. Documentation and Evidence [Reserved]
[Reserved]
D. Adjudication [Reserved]
[Reserved]
Footnotes
[^ 1] See INA 101(b). The Immigration and Nationality Act (INA) provides different definitions of “child” for immigrant visa petitions and for citizenship and naturalization. One significant difference is that a stepchild is not included in the definition relating to citizenship and naturalization. For more information, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].
[^ 2] See Subsection 1, Child Born in or Out of Wedlock [6 USCIS-PM B.8(A)(1)].
[^ 3] A child can be legitimated under the laws of the child’s residence or domicile or under the laws of the father’s residence or domicile. See INA 101(b)(1)(C). A person’s “residence” is the person’s place of general abode, that is, the principal, actual dwelling place without regard to intent. See INA 101(a)(33). A person’s “domicile” refers to a “person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.” See Black’s Law Dictionary (11th ed. 2019). In most cases, a person’s residence is the same as a person’s domicile. Legitimated child includes a child of a U.S. citizen or LPR who is the child’s genetic or gestational parent at the time of the child’s birth, if the parent(s) are recognized by the relevant jurisdiction as the child’s legal parents.
[^ 4] See INA 101(b)(1)(E).
[^ 5] See INA 101(b)(1)(F).
[^ 6] See INA 101(b)(1)(G).
[^ 7] A “natural” parent may be a genetic or a gestational parent (who carries and gives birth to the child) who is recognized by the relevant jurisdiction as the child’s legal parent.
[^ 8] The term “genetic child” refers to a child who shares genetic material with the parent. The term “gestational parent” refers to the person who carriers and gives birth to the child.
[^ 9] The law of the relevant jurisdiction governs whether the non-genetic parent is the legal parent for purposes of U.S. immigration law. A non-genetic U.S. citizen parent, who is not a legally recognized parent of the child, may not be considered a parent for immigration purposes. USCIS follows any applicable court judgment of the relevant jurisdiction if parentage is disputed. In addition, USCIS does not adjudicate cases involving children whose legal parentage remains in dispute unless there has been a determination by a proper authority.
[^ 10] For additional background and eligibility criteria for Assisted Reproductive Technology see Volume 12, Part H, Children of U.S. Citizens, Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section D, Assisted Reproductive Technology [12 USCIS-PM-H.2(D)].
[^ 11] See INA 101(b)(1)(A).
Chapter 9 - Parents of U.S. Citizens [Reserved]
Chapter 10 - Siblings of U.S. Citizens [Reserved]
Part C - Adam Walsh Act
Part D - Surviving Relatives
Part E - Employment-Based Immigration
Chapter 1 - Purpose and Background
A. Purpose
Congress provided several classifications for employment-based immigration to allow a limited number of aliens to become lawful permanent residents (LPRs) based on certain skillsets.
B. Background
For a person to immigrate on an employment basis, his or her employer or intending employer must file a petition for an employment-based immigrant classification using a Petition for Alien Workers (Form I-140). The petitioning employer must demonstrate to USCIS that the beneficiary is qualified for the immigrant classification sought.[1]
If the petition is based on an underlying approved permanent labor certification application, then the immigrant petition must be filed during the validity period of the permanent labor certification established by the U.S. Department of Labor (DOL). The petitioner must demonstrate that the beneficiary is qualified for the position certified by DOL. Not all employment-based immigrant classifications require the petitioner to first obtain permanent labor certification. In addition, in certain classifications, the beneficiary can self-petition for the classification sought.
This Part E provides general information relating to employment-based immigrant petitions. Part F provides a more detailed discussion of the specific immigrant classifications.[2]
Visa Classifications
The following table lists the categories of employment-based immigrant visa classifications, the corresponding codes of admission, and where to find additional guidance about the classifications.
Employment-Based Immigrant | Code of Admission | For More Information |
---|---|---|
Person of Extraordinary Ability | E11 | Part F, Employment-Based Classifications, Chapter 2, Extraordinary Ability [6 USCIS-PM F.2] |
Outstanding Professor Outstanding Researcher | E12 | See Part F, Employment-Based Classifications, Chapter 3, Outstanding Professor or Researcher [6 USCIS-PM F.3] |
Multinational Executive Multinational Manager | E13 | See Part F, Employment-Based Classifications, Chapter 4, Multinational Executive or Manager [6 USCIS-PM F.4] |
Professional Holding Advanced Degree Person of Exceptional Ability | E21 | See Part F, Employment-Based Classifications, Chapter 5, Advanced Degree or Exceptional Ability [6 USCIS-PM F.5] and Chapter 6, Physician [6 USCIS-PM F.6] |
Skilled Worker | E31 | See Part F, Employment-Based Classifications, Chapter 7, Skilled Worker, Professional, or Other Worker [6 USCIS-PM F.7] |
Professional Holding Baccalaureate Degree | E32 | See Part F, Employment-Based Classifications, Chapter 7, Skilled Worker, Professional, or Other Worker [6 USCIS-PM F.7] |
Other Worker | EW3 | See Part F, Employment-Based Classifications, Chapter 7, Skilled Worker, Professional, or Other Worker [6 USCIS-PM F.7] |
C. Legal Authorities
- INA 203(b)(1), (2), (3) – Preference allocation for employment-based immigrants
- 8 CFR 204.5 – Petitions for employment-based immigrants
- 20 CFR 656 – Labor certification process for permanent employment of aliens in the United States
Footnotes
[^ 1] This Part generally uses the simplified terms petition, petitioner, and beneficiary. The term petition refers to the Immigrant Petition for Alien Workers (Form I-140). The term petitioner generally refers to the petitioning employer, though in some circumstances the petitioner may be a self-petitioning alien. The term beneficiary refers to the alien who is the beneficiary of the petition, who in some cases may also be a self-petitioner.
[^ 2] See Part F, Employment-Based Classifications [6 USCIS-PM F].
Chapter 2 - Eligibility Requirements
The employment-based immigrant classifications are comprised of the following categories of workers:
- First preference workers, including persons of extraordinary ability, outstanding professors or researchers, and multinational executives or managers (EB-1);[1]
- Second preference workers, including members of the professions holding advanced degrees and persons of exceptional ability (EB-2);[2] and
- Third preference workers, including skilled workers, professionals, and other workers (EB-3).[3]
The following table outlines the eligibility requirements that must be met in order for an alien to obtain permanent residence in the United States based on employment.
General Eligibility Requirements for Employment-Based Immigration |
---|
If a job offer is required, the petitioning employer meets the classification-specific requirements and has the ability to pay the proffered wage.[4] |
The beneficiary qualifies under one of the employment-based immigrant classifications.[5] |
Where applicable, the beneficiary has an individual permanent labor certification application approved by the U.S. Department of Labor or seeks a Schedule A blanket labor certification.[6] |
Footnotes
[^ 1] See INA 203(b)(1).
[^ 2] See INA 203(b)(2).
[^ 3] See INA 203(b)(3).
[^ 4] For more information about employer requirements, see Part F, Employment-Based Classifications [6 USCIS-PM F]. For information about employers that are successors to the entity that filed the labor certification application, see Chapter 3, Successor-in-Interest in Permanent Labor Certification Cases [6 USCIS-PM E.3]. For information on ability to pay, see Chapter 4, Ability to Pay [6 USCIS-PM E.4]. Finally, see Business Structures.
[^ 5] See Part F, Employment-Based Classifications [6 USCIS-PM F].
[^ 6] See INA 212(a)(5). This requirement only applies to EB-2 and EB-3 classifications. See INA 212(a)(5)(D). For individual applications, see Chapter 6, Labor Certification [6 USCIS-PM E.6]. For Schedule A blanket certification, see Chapter 7, Schedule A Designation Petitions [6 USCIS-PM.E.7].
Chapter 3 - Successor-in-Interest in Permanent Labor Certification Cases
A. Successor Requests to Use a Predecessor’s Approved Permanent Labor Certification
When a company is bought, merged, changes corporate structure, or significantly changes owners, the new or reorganized company may demonstrate to USCIS that it can be considered a successor in interest (successor) of the original company to assume the predecessor’s prior immigrant benefits requests.
If such a successor company acquires all or some of a business from a predecessor company, it may file a petition that requests to use the approved permanent labor certifications that the predecessor filed with the U.S. Department of Labor (DOL). Such successor may also file a new or amended petition if the predecessor has already filed a petition.
The employer must file such petitions within the validity period of the permanent labor certification and must submit the following evidence:
-
Documentation to establish the qualifying transfer of the ownership of the predecessor to the successor;
-
Documentation from an authorized official of the successor that evidences the transfer of ownership of the predecessor; the organizational structure of the predecessor prior to the transfer; the current organizational structure of the successor; and the job title, job location, rate of pay, job description, and job requirements for the permanent job opportunity for the beneficiary;
-
Documentation to demonstrate that the beneficiary possesses the requisite minimum education, licensure, and work experience requirements specified on the permanent labor certification;
-
The original approved permanent labor certification; and
-
Documentation to establish the ability to pay the proffered wage by the predecessor and the successor.
B. Situations Not Requiring a New or Amended Petition
Not every change to the petitioner’s name or, in certain cases, the location where the beneficiary is to be employed requires a new or amended petition. Specifically, the petitioner does not need to file a new or amended Immigrant Petition for Alien Workers (Form I-140) due to:
-
A legal change in the name of the petitioner, including a petitioner’s “doing business as” (DBA) name, if the ownership and legal business structure of the petitioner remains the same; or
-
A new job location, if the new business location and job are within the same metropolitan statistical area of intended employment stated on the permanent labor certification.
When the beneficiary files an Application to Register Permanent Residence or Adjust Status (Form I-485) with USCIS or applies for an immigrant visa with the U.S. Department of State, the beneficiary may need to document that the petitioner is the same petitioner that filed the petition or that the job opportunity is still located in the area of intended employment specified on the permanent labor certification.[1]
C. Change in Employer Due to Transfer of Ownership to a Successor
Successor-in-interest entities that wish to rely on the approval of a petition and the permanent labor certification filed by a predecessor entity must file an amended petition that demonstrates that a qualifying successor-in-interest relationship exists in accordance with the three successor-in-interest factors.[2]
The petitioner must submit the following evidence with each amended petition:
-
Documentation, such as a copy of the Form I-797 approval or receipt notice, that provides the previously filed petition’s receipt number and the petitioner’s name and address;
-
Documentation to establish the ability to pay the proffered wage by the predecessor and the successor;
-
Documentation to establish the qualifying transfer of ownership of the predecessor to the successor; and
-
Documentation from an authorized official of the successor evidencing the transfer of ownership of the predecessor, the organizational structure of the predecessor before the transfer; the current organizational structure of the successor; and the job title, job location, rate of pay, job description, and job requirements for the permanent job opportunity for the beneficiary.
D. Consolidated Processing of Multiple Successor-In-Interest Petitions
Each successor-in-interest petition must be evaluated according to the three factors and is adjudicated on its own merits with regard to eligibility for the visa preference classification requested in the petition.[3] However, multiple filings based on the same transfer and assumption of the ownership of the predecessor by the successor may have duplicative evidence provided in each case to establish the transfer and assumption of the ownership of the predecessor by the successor.
In the interest of efficiency and consistency, USCIS may elect to accept consolidated evidence (for example, one copy of the U.S. Securities and Exchange Commission Form 10-K for 20 petitions instead of 20 copies of the SEC Form 10-K). Additionally, USCIS may coordinate the adjudication of multiple pending successor petitions so that the petitions are adjudicated at a single USCIS office or at the same time or both, to the extent that other pressing work priorities permit.
Petitioners can initiate a request for the consolidated processing of multiple successor-in-interest cases affected by the same transfer of ownership through the USCIS Contact Center or, if applicable, the appropriate Premium Processing mailbox.[4] USCIS reviews the submitted request and any related documentation when determining whether USCIS may accept the consolidated evidence.
The decision to grant a request for consolidated case processing rests solely with USCIS.
E. Successor-In-Interest Determinations
Interpretation of Matter of Dial Auto Repair Shop, Inc.
The legacy Immigration and Naturalization Service (legacy INS) Commissioner in Matter of Dial Auto Repair Shop, Inc. (PDF), examined a petitioner (the successor) who had taken over some functions of the employer who filed the permanent labor certification (the predecessor).[5] The Commissioner found that the petitioner failed to adequately describe how it had acquired its predecessor, Elvira Auto Body’s, business. As a result, Dial Auto Repair Shop failed to meet its burden and was not eligible to claim continued validity of the original permanent labor certification.
The Commissioner stated that if Dial Auto Repair Shop’s “claim of having assumed all of Elvira Auto’s rights, duties, obligations, etc., is found to be untrue, then grounds would exist for invalidation of the labor certification . . . . Conversely, if the claim is found to be true, and it is determined that an actual successorship exists, the petition could be approved if eligibility is otherwise shown . . . .” [6] Notably, the Commissioner did not state that a valid successor relationship could only be established through the assumption of all the predecessor entity’s rights, duties, and obligations.
The definition of a successor is “someone who succeeds to the office, rights, responsibilities, or place of another; one who replaces or follows a predecessor.”[7] Similarly, the term “successor” with reference to corporations is defined as “a corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation.”[8]
These definitions are consistent with the determinations made in Matter of Dial Auto Repair Shop, Inc., which highlight three factors that should be considered when determining if a previously approved or pending permanent labor certification remains valid for successor-in-interest petition adjudications.
F. Factors for Successorship Determinations
The three successor-in-interest factors are:
-
The job opportunity offered by the successor must be the same as the job opportunity originally offered on the permanent labor certification;
-
The successor bears the burden of proof to establish all elements of eligibility as of the priority date, including the provision of required evidence from the predecessor entity, such as evidence of the predecessor’s ability to pay the proffered wage; and
-
For a valid successor-in-interest relationship to exist between the successor and the predecessor that filed the permanent labor certification, the petition must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.
If a business can establish these three factors, an officer may find a valid successor-in-interest relationship even in situations where a successor does not wholly assume a predecessor entity’s rights, duties, and obligations.
1. Same Job Opportunity
The job opportunity offered by the successor must be the same as the job opportunity originally offered on the permanent labor certification.
The job offered in the successor-in-interest petition by the successor must remain unchanged with respect to the rate of pay, metropolitan statistical area, job description, and job requirements specified on the permanent labor certification. USCIS denies successor-in-interest claims where the position with the successor is changed such that the rate of pay, job description, or requirements specified on the permanent labor certification no longer relate to the labor market test.[9]
In other words, officers should deny any successor claim where the changes to the rate of pay, job description, or job requirements, as stated on permanent labor certification, if made at the time that the permanent labor certification was filed with DOL, could have affected the number or type of available U.S. workers who applied for the job opportunity. However, an increase in the rate of pay due to the passage of time does not affect the successor-in-interest claim.
The job opportunity must also remain valid and available from the time of the filing of the permanent labor certification with DOL until the issuance of an immigrant visa abroad or the beneficiary's adjustment of status to lawful permanent resident while in the United States.[10] Otherwise, a new test of the labor market and new permanent labor certification application by the successor employer is required.
The original job opportunity ceases to exist if, at any time before the transfer of ownership, the predecessor ceases business operations entirely or even partially so that the beneficiary's services are no longer required or the business operation in which the job opportunity was originally offered has a substantial lapse in business operations after the transfer of ownership.
Example
A predecessor was involved in the operation of a restaurant, and the job opportunity specified on the permanent labor certification is for a specialty cook. The successor acquires the business and closes the restaurant for extensive renovations. The restaurant reopens 6 months later. In this case, the original job opportunity is no longer valid, as there was a substantial lapse in business operations after the transfer of ownership.
The successor would have to conduct a new test of the labor market for the job opportunity through the filing of a permanent labor certification application with DOL. Conversely, if, in the example described above, the restaurant did not close during the renovations to the property but continued business operations in a manner that would require the beneficiary's services as a specialty cook, then the job offer would remain valid during the business transition and no new permanent labor certification would be required.
2. Successor’s Burden of Proof
The successor bears the burden of proof to establish all elements of eligibility as of the priority date, including the provision of required evidence from the predecessor entity, such as evidence of the predecessor’s ability to pay the proffered wage.
In order to establish its eligibility as a successor-in-interest petitioner and the beneficiary's eligibility for the visa classification, the successor must demonstrate that the beneficiary met all the criteria for the visa classification. This includes the predecessor's ability to pay the proffered wage from the date of the filing of the permanent labor certification with DOL until the date of the transfer of the ownership of the predecessor to the successor.
The successor must meet the definition of "employer" and demonstrate the ability to pay the proffered wage as of the date of the transfer of ownership of the predecessor to the successor, continuing until the time of immigrant visa issuance or the beneficiary's adjustment of status in the United States.[11] In cases of sales of discrete operational divisions or units of the predecessor,[12] the predecessor's ability to pay the proffered wage should be analyzed by considering the financial data relating to the predecessor entity, not just the business unit.
The evidence in the petition must also show that the beneficiary possessed the minimum education and work experience requirements specified on the permanent labor certification, as of the filing date of the permanent labor certification with DOL.
Example
A petitioner files and obtains a DOL-approved permanent labor certification for an architect. The petitioner then becomes insolvent in the following year and is unable to meet its existing financial obligations. The firm is ultimately acquired by another architectural firm, which files a successor petition on the beneficiary's behalf.
In this case the second factor is not met because the predecessor entity did not possess the ability to pay the beneficiary's wage from the time of filing of the permanent labor certification until the acquisition of the predecessor by the successor.
The successor would have to conduct a new test of the labor market for the job opportunity through the filing of a permanent labor certification application with DOL. Conversely, if the predecessor had remained solvent until the time that it was acquired by the successor, then the second factor may be met if all other areas of eligibility are established.
3. Transfer and Assumption of Ownership
For a valid successor-in-interest relationship to exist between the successor and the predecessor that filed the permanent labor certification, the petition must fully describe and document the transfer and assumption of the ownership of the predecessor by the successor.
For successor-in-interest purposes, the transfer of ownership may occur at any time after the filing or approval of the original permanent labor certification with DOL.[13]
Evidence of business transactions resulting in the transfer of ownership may include, but is not limited to:
-
Legal agreements evidencing the merger, acquisition, or other reorganization of the predecessor;
-
Mortgage closing statements;
-
An SEC Form 10-K, Form 10-Q, Form 8-K or other relevant filing;
-
Audited financial statements of the predecessor and successor for the year in which the transfer occurred;
-
Documentation of the transfer or other assumption of real property, business licenses and other assets and interests from the predecessor to the successor;
-
Copies of the financial or other legal instruments used to execute the transfer of ownership; and
-
Newspaper articles or other media reports announcing the merger, acquisition, or other reorganization effecting the change between the predecessor and the successor.
The evidence provided must show that the successor not only acquired the predecessor's assets but also that the successor acquired the essential rights and obligations of the predecessor necessary to carry on the business in the same manner as the predecessor. The successor must continue to operate the same type of business as the predecessor, and the way the business is controlled and carried on by the successor must remain substantially the same as it was before the ownership transfer.
However, a valid successor-in-interest relationship may still be established in certain instances where liabilities unrelated to the original job opportunity are not assumed by the successor (for example, where the successor does not assume the liability of pending or potential sexual harassment litigation or other tort obligations unrelated to the job opportunity in the permanent labor certification).
Contractual agreements or other arrangements in which two or more business entities agree to conduct business together or agree to provide services to each other without the transfer of the ownership of the predecessor to the successor do not create a valid successor-in-interest relationship.
Example
Company A filed a permanent labor certification application with DOL for a computer systems analyst, which is ultimately approved. Company A subsequently signs a contract with Company B for the provision of computer systems analyst services to Company A by Company B, effectively outsourcing the computer systems analyst duties that were to be performed by the beneficiary to Company B.
A valid successor-in-interest relationship between Company A and Company B does not exist in this instance. The contractual agreement between the companies did not result in the transfer of the ownership of Company A to Company B in a manner so that its business interests are carried on and controlled in the same manner by Company B.
Conversely, in the example above, Company A sells its computer software development unit to Company B and the computer systems analyst position specified within the approved permanent labor certification is located within that business unit. A valid successor-in-interest relationship may exist between Company A and Company B if the sale of the business unit results in the transfer of the ownership of relevant assets and other interests of the business unit of Company A to Company B in a manner so that its business interests are carried on and controlled in the same manner by Company B.
Transfers in Whole or Part
The transfer of the ownership of the predecessor to the successor may occur through a merger, acquisition, or reorganization. These business transactions may involve business entities with differing organizational structures, such as:
-
General partnerships;
-
Limited partnerships;
-
Limited liability partnerships (LLPs);
-
Limited liability companies (LLCs); or
-
Corporations (including subchapter C and S corporations).
The structure of business transactions resulting in the transfer of ownership of the predecessor to the successor varies from case to case. Frequently, the acquiring entity (successor) purchases a discrete operational division or unit, resulting in the sale of only a part of the predecessor (often structured to only transfer ownership of the assets or other interests comprising the division or unit to the successor without transferring ownership of the predecessor entity itself).
For successor-in-interest petition purposes, the operational division or unit of the business entity that is being transferred to the successor must be a clearly defined unit within the predecessor entity, and that unit must be transferred as a whole to the successor, with the exception of certain unrelated liabilities such as those previously outlined.
The job offered to the beneficiary in the successor petition must have been, and must continue to be, located within the operational division or unit that is transferred from the predecessor to the successor. The three successor-in-interest factors must also be met.
Example
The manufacturing division of a chemical wholesale corporation, which uses plant facilities and equipment, management, accounting, and operational structures that are readily divisible from the general structure of the predecessor entity might qualify if the manufacturing division (including all relevant divisible assets) is transferred to another business entity that continues to engage in chemical manufacturing.
Example
Another example might involve the sale of a branch office of a bank to another entity engaged in the provision of banking services as a member organization in the banking industry.
Conversely, the sale of a patented chemical formula by Company A to Company B, which allows Company B to manufacture a product using the chemical formula, does not create a successor-in-interest relationship between the two companies, even if Company A ceases to manufacture the product and starts to purchase the product from Company B.
This transaction did not result in the transfer of a clearly defined business unit. Rather, Company A merely sold the manufacturing rights for a given product to Company B without the transfer of the other related assets located within its business unit.
Requests for Evidence
USCIS may issue a Request for Evidence (RFE) to the petitioner if the petitioner has failed to demonstrate a qualified successor-in-interest relationship. The RFE explains why the permanent labor certification that was originally provided in support of the petition is not valid for the proffered position, based on one or more of the reasons outlined above, and other reasons, if any. If the petitioner does not provide a new original permanent labor certification that was valid at the time of filing of the petition or sufficient evidence to overcome the concerns outlined in the RFE, then USCIS denies the petition.
G. Portability on Successor-In-Interest Filing Requirements
The American Competitiveness in the 21st Century Act (AC21)[14] allows for certain petitions to remain valid even if the beneficiary is no longer seeking to adjust status based on employment with the petitioner that originally filed the petition on that beneficiary’s behalf.
In cases where a beneficiary is eligible for portability based on AC21, a successor entity need not file a new petition on the beneficiary's behalf, provided that all the AC21 requirements have been met.[15] For instance, the beneficiary would have to show for purposes of adjustment that the successor job opportunity is the "same or similar" as the job opportunity on the permanent labor certification, according to applicable guidance on AC21.[16]
H. Relevance to Permanent Labor Certification Application
Successor-in-interest determinations are principally relevant to the continuing validity of a permanent labor certification. Successor-in-interest petitions are not required to reaffirm the validity of the initial petition requesting visa preference categories that do not require a permanent labor certification, such as the employment-based 1st preference persons of extraordinary ability and certain employment-based 2nd preference national interest waiver cases.
A new or successor employer seeking to classify the beneficiary as an employment-based 1st preference multi-national executive or manager or employment-based 1st preference outstanding professor or researcher must file a new petition and establish the beneficiary’s eligibility under the requested category’s specific eligibility requirements.
Footnotes
[^ 1] In situations where the beneficiary eligible for portability based on the American Competitiveness in the 21st Century Act (AC21), the area of intended employment is not relevant at the adjustment stage. See Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment, Chapter 5, Job Portability after Adjustment Filing and Other AC21 Provisions [7 USCIS-PM E.5] and the Form I-485 Supplement J webpage.
[^ 2] See Section F, Factors for Successorship Determinations [6 USCIS-PM E.3(F)].
[^ 3] See Section F, Factors for Successorship Determinations [6 USCIS-PM E.3(F)].
[^ 4] See the Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Worker webpage.
[^ 5] See Matter of Dial Auto Repair Shop, Inc. (PDF), 19 I&N Dec. 481 (Comm. 1986).
[^ 6] See Matter of Dial Auto Repair Shop, Inc. (PDF), 19 I&N Dec. 481, 482 (Comm. 1986).
[^ 7] See Black's Law Dictionary (11th ed. 2019).
[^ 8] See Black’s Law Dictionary (11th ed. 2019).
[^ 9] An exception to this general rule is if a beneficiary is eligible for portability based on AC21. See Pub. L. 106-313 (PDF) (October 17, 2000). See INA 204(j). For more information, see Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment, Chapter 5, Job Portability after Adjustment Filing and Other AC21 Provisions [7 USCIS-PM E.5]
[^ 10] In situations where the beneficiary eligible for portability based on AC21, the area of intended employment is not relevant at the adjustment stage. See Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment, Chapter 5, Job Portability after Adjustment Filing and Other AC21 Provisions [7 USCIS-PM E.5] and the Form I-485 Supplement J webpage.
[^ 11] See Matter of Dial Auto Repair Shop, Inc. (PDF), 19 I&N Dec. 481, 482 (Comm. 1986).
[^ 12] For more information on transfers in whole or in part, see Subsection 3, Transfer and Assumption of Ownership [6 USCIS-PM E.3(F)(3)].
[^ 13] Where the succession occurred during the pendency of the labor certification application before DOL, including during the pre-filing recruitment phase, prior to filing the permanent labor certification application with DOL, DOL would have the jurisdiction to review the successor claim. See DOL FAQs Round 10 (PDF). In this instance, USCIS will consider tax returns or other documentation pertaining to ability to pay that relate to the predecessor(s).
[^ 14] See Pub. L. 106-313 (PDF) (October 17, 2000). See INA 204(j).
[^ 15] See INA 204(j).
[^ 16] See Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment, Chapter 5, Job Portability after Adjustment Filing and Other AC21 Provisions [7 USCIS-PM E.5] and the Form I-485 Supplement J webpage.
Chapter 4 - Ability to Pay
An employer filing an Immigrant Petition for Alien Workers (Form I-140) must establish that the job offered to the beneficiary is realistic.[1] The petitioner’s ability to pay the proffered wage indicated on Form I-140 is one of the essential elements in evaluating whether the job offer is realistic.[2]
Accordingly, for immigrant petitions that require an offer of employment,[3] the employer must demonstrate its continuing ability to pay the required wage as of the priority date through the time the beneficiary becomes a permanent resident.[4]
Many employers satisfy the ability to pay requirement by submitting the initial required evidence described below together with payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage.
A. Initial Required Evidence
In order to establish ability to pay, the petition must include copies of the petitioner’s annual reports, federal tax returns, or audited financial statements for each available year from the priority date.[5] The only exception to this requirement is if a U.S. employer employs 100 or more workers, it may instead include a financial officer statement.[6]
1. Annual Reports
Publicly traded companies of a certain size are required to submit annual reports to the U.S. Securities and Exchange Commission (SEC) on Form 10-K. The SEC Form 10-K provides an overview of the company’s business and includes its audited financial statements. These companies must also issue an annual report to shareholders, which contains the company’s audited financial data and is often a simplified version of the SEC Form 10-K. Either the SEC Form 10-K or the annual report to shareholders constitute an annual report under 8 CFR 204.5(g)(2). Annual reports of private companies are also acceptable but are most persuasive to establish a petitioner’s ability to pay when they contain audited financial data.
2. Federal Tax Returns
The petitioner’s business structure or entity classification election determines the applicable Internal Revenue Service (IRS) tax return form and filing deadline. Submitted tax returns should be complete, including all required schedules. At times, USCIS may request schedules, statements, attachments, and other supporting documentation when the submitted evidence does not establish the petitioner’s ability to pay. In addition, USCIS may request the submission of IRS-issued certified copies or transcripts of tax returns in certain circumstances, such as when the petitioner has amended its tax returns in the middle of USCIS’ adjudication of the petition or when there is a question about the information contained on the returns.
The Business Structures overview provides more information on the most common business forms or structures and the tax forms they file with the IRS.
3. Audited Financial Statements
If the petitioner relies on financial statements to demonstrate ability to pay as initial evidence, the financial statements must be audited. Audited financial statements are financial statements that have been examined under an acceptable standard by an accountant authorized by the jurisdiction to perform the audit; for example, by a certified public accountant in accordance with generally accepted accounting principles (GAAP).[7] Audited financial statements must be accompanied by an auditor’s report that states that the financial statements have been audited.[8]
Audited financial statements are distinct from compiled or reviewed financial statements. Compiled and reviewed financial statements are less rigorous reviews of a client’s financial statements and therefore the petitioner may only use them to establish ability to pay when accompanied by the other initial required forms of evidence required by the regulation. The auditor’s report accompanying the financial statements states whether the financial statements have been audited, compiled, or reviewed.
There are four types of auditor’s reports that accompany audited financial statements: unqualified opinion, qualified opinion, adverse opinion, and disclaimer of opinion. Reports including an unqualified opinion are generally the most credible, reliable, and probative.
- An unqualified opinion states that, in the opinion of the auditor, the financial statements are free of material misstatements and are presented fairly in accordance with GAAP.
- A qualified opinion report states that, in the opinion of the auditor, the financial statements are presented fairly in accordance with GAAP, except for a specified qualification. A qualified opinion is generally issued when the auditor identifies a departure from GAAP or when the auditor could not audit one or more areas of the financial statements. Audited financial statements with a qualified opinion report may be credible, reliable, and probative to establish ability to pay, especially if the qualification does not relate to the net income or net current assets figures on the financial statements.[9]
- An adverse opinion report states that, in the opinion of the auditor, the financial statements are materially misstated and do not conform with GAAP. A disclaimer of opinion report states that the accountant is unable to form an opinion on the financial statements. Officers should review financial statements with adverse or disclaimer of opinion reports along with other ability to pay evidence to determine whether all of the evidence submitted establishes a petitioner’s ability to pay.
The mere submission of annual reports, federal tax returns, or audited financial statements does not establish ability to pay. USCIS must analyze the financial information contained in these documents to determine whether they present persuasive information demonstrating that the petitioner possessed the ability to pay the proffered wage on the priority date and continuing until the beneficiary obtains lawful permanent residence.
4. Financial Officer Statement
If the petitioner employs 100 or more workers, a statement from a financial officer of the organization may serve to establish ability to pay the proffered wage.[10] The financial officer statement may be submitted in place of annual reports, federal tax returns, or audited financial statements.[11] Detailed letters that explain the basis of the financial officer’s conclusion in terms of the company’s finances are the most probative. USCIS has the discretion to determine whether the statement is, by itself, sufficient to establish ability to pay.
Examples of when a statement from a financial officer alone might not be sufficient to establish ability to pay include, but are not limited to:
- The petitioner has filed petitions on behalf of multiple beneficiaries to the extent that the ability to pay all of the salary obligations may be in question;[12]
- Evidence in the record reflects that the petitioner may have fewer than 100 employees;
- The document is a copy of a letter dated several years before the filing date and has been submitted in support of other previously-filed petitions;
- The letter is inconsistent with other evidence in the record or publicly available information, such as when the petition (or financial documentation if submitted) shows large losses or the petitioner is in bankruptcy proceedings;
- The petition is filed by a successor-in-interest to the company that obtained the labor certification and the only evidence is a letter from a financial officer of the predecessor company to establish the successor’s ability to pay; and
- The statement does not indicate that the signatory is a financial officer of the petitioner.
B. Examples of Other Evidence of Ability to Pay
The petitioner has the burden of establishing its continuing ability to pay the proffered wage. Ultimately, USCIS considers all evidence relevant to the petitioner’s financial strength and the significance of its business activities, whether listed in the regulation or related to other metrics.[13]
In certain circumstances, the petitioner may submit or USCIS may request additional evidence, such as profit and loss statements, bank account records, or personnel records. For example, in a case involving a general partnership where the general partners are personally liable for the partnership’s obligations, additional evidence relating to the general partners, such as the partners’ personal tax returns, may be relevant.
The following subsections describe examples of evidence commonly submitted by petitioners to establish ability to pay.
Bank Account Statements
Bank statements show the amount in an account on a given date and do not identify if any funds may already be obligated for other purposes. Bank statements often reflect funds that were included on the tax return, annual report, or audited financial statements, such as taxable income or cash used in determining net current assets. If the petitioner submits all monthly statements since the priority date, the petitioner must establish that the amounts reported on the bank statements have not already been considered elsewhere, such as in a calculation of the petitioner’s net current assets, and must establish that such amounts reported on the bank statements reflect sufficient cash to establish ability to pay under the totality of the circumstances.
In the limited cases where USCIS may consider the personal assets and liabilities of an owner of the petitioner (for example, petitions filed by sole proprietors, general partners, or other natural persons), bank account statements may be probative of the petitioner’s ability to pay the proffered wage.
Personnel Records
Although not required initial evidence, USCIS may accept personnel records as corroborating evidence of an employee’s dates of employment and salary, and the petitioner’s number of employees and overall payroll. Personnel records may include, but are not limited to, employment contracts, salary and payroll documents, and attendance records. USCIS does not, however, consider wages paid to other employees as available to pay the proffered wage unless the beneficiary is replacing a former employee.
Income and Assets of Others
A legal entity generally has a separate existence from its shareholders, members, managers, officers, or owners. Generally, USCIS does not consider the financial resources of persons or entities that have no explicit legal obligation to pay the proffered wage, including a parent company, shareholders and officers of a corporation, members or managers of a limited liability company (LLC) (even if the LLC is taxed as a partnership or disregarded entity), and limited partners.[14] An annual report, audited financial statement, or tax return of a parent company is more probative of a subsidiary’s ability to pay the proffered wage where the subsidiary’s financial data is presented separately within the document.
For sole proprietors and individual employers of domestic workers, there is no separate legal entity.[15] Therefore, USCIS considers the employer’s adjusted gross income, minus their personal expenses, when determining net income; and their personal liquid assets, minus any financial encumbrances on those assets, when determining net current assets.
In addition, although certain partnerships have a separate legal entity from their partners, general partners (as opposed to limited partners) are personally liable for the debts of the business. Therefore, if a petitioning partnership does not have sufficient net income or net current assets to establish ability to pay the proffered wage, USCIS may also consider whether a general partner of the partnership is individually willing and able to pay the proffered wage using the same analysis of income and assets for sole proprietors and individual employers detailed above.
The Business Structures overview provides more information on the most common business forms or structures, including information on how they are formed, their fundamental characteristics, and the tax forms they file with the IRS.
Credit Limits, Bank Lines, or Lines of Credit
Lines of credit and other forms of debt are an integral part of any business operation. Documentation demonstrating a petitioner’s access to credit may establish a baseline of creditworthiness, and under the totality of circumstances, may be considered as one piece of evidence in consideration of whether the petitioner has the ability to pay the proffered wage. In instances where a petitioner is relying upon credit limits, bank lines, or lines of credit to establish ability to pay, USCIS must evaluate the overall financial position of the petitioner to determine whether the employer is making a realistic job offer and has the overall financial ability to satisfy the proffered wage.[16]
Comparable to the limit on a credit card, a line of credit that has not been drawn upon cannot be treated as cash or as a cash asset and would not be added to the petitioner’s net income or net current asset calculations. Any cash drawn upon from a line of credit or any other credit used should be reflected in the balance sheet provided in the tax return or audited financial statement (if available) and would be fully considered in the evaluation of the petitioner’s net current assets. If the petitioner wishes to rely on a line of credit as evidence of ability to pay, the petitioner should submit evidence that demonstrates the amount of the line of credit available and that the line of credit augments rather than weakens its overall financial position. Relevant evidence could include monthly statements.
C. Analysis
USCIS considers all evidence relevant to the petitioner’s financial strength and the significance of its business activities, whether listed in the regulation or related to other metrics.[17]
1. Employment of the Beneficiary
If the petitioner establishes by documentary evidence that it has paid the beneficiary a salary equal to or greater than the proffered wage for each year from the priority date, the evidence may establish the petitioner’s ability to pay.
The wage paid to the beneficiary is generally established with:
- Wage and Tax Statement (IRS Forms W-2);
- Miscellaneous Income (IRS Forms 1099-MISC); or
- State wage and withholding reports that list the individual employee.
Even if the petitioner establishes that it has paid the beneficiary a salary that meets or exceeds the proffered wage, the petition must still contain an annual report, federal tax return, or audited financial statements for each year from the priority date or, for petitioners who employ 100 or more workers, a financial officer statement.[18] Payments that do not compensate the beneficiary through wages, such as those made to health insurers for benefits or housing allowances (unless on the labor certification and advertised), are not part of the wages paid to the beneficiary.
2. Net Income and Net Current Assets
Net income (also called net profit or ordinary income, depending on the corporate structure) consists of revenues less all expenses[19] over a period of time. Where the petitioner’s net income over the relevant period is equal to or exceeds the proffered wage, the petitioner generally demonstrates its ability to pay that wage. USCIS does not add back depreciation.[20]
As a separate consideration, net current assets are the difference between the petitioner’s current assets and current liabilities. Current assets consist of items having (in most cases) a life of 1 year or less, such as cash, marketable securities, inventory and prepaid expenses.[21] Current liabilities are obligations payable (in most cases) within 1 year, such as accounts payable, short-term notes payable, and accrued expenses.[22] Where the petitioner shows net current assets during the relevant period that are equal to or exceed the proffered wage, the petitioner has generally demonstrated its ability to pay that wage. USCIS generally does not consider total assets because total assets must be balanced by the petitioner’s liabilities and total assets may include assets that are not easily converted into cash in order to pay the proffered wage.
USCIS does not add net income to net current assets in determining a petitioner’s ability to pay since net income represents the sum of income remaining after all expenses were paid over a period of time, such as a fiscal year, whereas net current assets denote a specific moment in time. Therefore, the two metrics cannot be combined to establish a petitioner’s ability to pay the proffered wage.
If the petitioner has paid the beneficiary an amount that is less than the proffered wage, then the petitioner need only demonstrate that its net income or net current assets are equal to or greater than the difference between the proffered wage and the actual wage paid.
Net income and net current assets are generally calculated using a petitioner’s federal income tax returns. The Business Structures overview provides more information on the most common business forms or structures and the tax forms they file with the IRS.
Example
The priority date is January 1, 2009. The proffered wage is $50,000. In addition to the petitioner’s federal tax returns, the record contains IRS Forms W-2 demonstrating that the petitioner paid the beneficiary a $40,000 salary in 2009 and 2010. The petitioner can establish its ability to pay for 2009 and 2010 if its federal tax returns show either net income or net current assets equal to or greater than $10,000 for each year.
3. Other Factors
The ability to pay analysis is more nuanced than simply reviewing wages paid, net income, and net current assets. The petitioner may submit, or USCIS may request, additional evidence of the petitioner’s ability to pay the proffered wage, including, but not limited to, profit or loss statements, bank account records, or personnel records.[23] Any additional evidence submitted must establish, when considered with the required initial evidence, the petitioner’s ability to pay. Additional evidence of the petitioner’s ability to pay the proffered wage must be credible and relevant.
Sometimes companies operate at a loss for a period to improve their business position in the long run. For example, a company may not expect research and development costs on a product line to generate revenue for several years. In those instances, the documentation should fully explain the sources of funding for the entity (or unit) and the expected profit potential. Whether the petitioner can demonstrate it has the ability to pay the beneficiary the wages described in the petition depends on the specific facts presented and consideration of all of the circumstances.
The following factors are among the others USCIS may consider in its totality of the circumstances analysis:
- The petitioner’s gross sales and gross revenues;
- The total wages paid to the petitioner’s current employees during the most recent fiscal years;
- Media accounts about the petitioner’s business;
- The number of years the petitioner has been doing business;
- The historical growth of the petitioner’s business;
- Any recent changes that may have disrupted or interrupted its business (for example, reorganization, merger, bankruptcy);
- The petitioner’s number of employees;
- The occurrence of any uncharacteristic business expenditures or losses from which the petitioner has since recovered (for example, extensive fire or flood damage); and
- The petitioner’s overall reputation within its industry.
In some cases, such as when a petitioner has one unprofitable year despite a history of profitability, these factors may establish a petitioner’s ability to pay the proffered wage despite a shortfall in net income or net current assets. As another example, USCIS may also take into account that the beneficiary is replacing a former employee or outsourced service or that an officer of the petitioning employer is willing and able to forego compensation specifically to cover the wage.
D. Additional Ability to Pay Issues
1. Prorating the Proffered Wage in the Priority Date Year
The petitioner may request that the proffered wage be prorated for the applicable portion of the priority date year. In addressing such a request, USCIS does not consider 12 months of net income towards its ability to pay the proffered wage for a period of less than 12 months. In this scenario, USCIS may prorate the proffered wage if the record contains evidence of net income or payment of the beneficiary’s wages specifically covering the portion of the year that occurred after the priority date, or both. USCIS may also consider the petitioner’s net current assets at the end of the priority date year towards the prorated wage.[24]
Example
The priority date is July 1, 2021. The annual proffered wage is $100,000. The petitioner established that it paid the beneficiary wages between July 1, 2021 and December 31, 2021 in the amount of $15,000. The petitioner also documented that its net income between July 1, 2021 and December 31, 2021 is $25,000. The net current assets shown on balance sheet of the petitioner’s 2021 federal tax return is $40,000.
Based on the above facts, the prorated wage is $50,000. If the petitioner requests that USCIS consider the prorated wage, it would have to show its ability to pay the prorated wage deficiency of $35,000, which is the difference between the prorated wage and the wages paid by the petitioner to the beneficiary during the prorated period from July 1, 2021 to December 31, 2021. Its net income of $25,000 during the prorated period is insufficient to pay the wage deficiency. USCIS does not combine prorated net income with net current assets. However, on December 31, 2021, the petitioner had sufficient net current assets to pay the prorated wage deficiency. USCIS does not prorate net current assets. Therefore, the petitioner in this example could establish its ability to pay the prorated wage deficiency of $35,000 for the priority date year based on its net current assets of $40,000.
2. Multiple Beneficiaries
If the petitioner has filed Form I-140 petitions on behalf of other beneficiaries, there may be a question as to whether the petitioner can meet the ability to pay obligation on all petitions. However, this analysis may not be necessary if the petitioner has paid the beneficiary of the petition a salary equal to or greater than the proffered wage since the priority date, and submitted the required regulatory evidence.[25] Conversely, if the petitioner cannot demonstrate an ability to pay the beneficiary of the petition under review, the officer does not need to consider the issue of an ability to pay multiple beneficiaries.
In cases with multiple Form I-140 beneficiaries, where a petitioner with 100 or more employees provides a letter from a financial officer,[26] the officer balances the evidence in the record to determine whether to use discretion to accept the letter as evidence of a petitioner’s ability to pay the proffered wages.
In cases necessitating analysis of the ability to pay multiple beneficiaries, the petitioner must demonstrate its ability to pay the proffered wages for each beneficiary for each year starting from the priority date of the petition under review. However, USCIS does not consider the petitioner’s ability to pay the proffered wage of another Form I-140 beneficiary:
- After the other beneficiary obtains lawful permanent residence;
- If the employer withdrew the Form I-140 petition filed on behalf of the other beneficiary;
- If USCIS denied or revoked the approval of the Form I-140 petition filed on behalf of the other beneficiary without a pending appeal or motion; or
- Before the priority date of the Form I-140 petition filed on behalf of the other beneficiary.
The analysis to determine the ability to pay the combined wages is the same as that for a single beneficiary, including taking into account wages paid to any of the beneficiaries.
Evidence to support a petitioner’s ability to pay the proffered wage for multiple beneficiaries may include, but is not limited to, the following:
- A list of all receipt numbers for the Form I-140 petitions that were pending, or approved as of, or filed after, the priority date of the current petition;
- The name of each beneficiary;
- The proffered wage for each beneficiary;
- The priority date of each petition;
- The status of each petition and the date of any status change (that is, pending, approved, denied, withdrawn, revoked, on appeal or motion, beneficiary obtained lawful permanent residence); and
- Documentary evidence of any wages paid to each beneficiary for each year starting from the priority date of the current Form I-140 petition or the priority date of the Form I-140 petition filed on behalf the other beneficiary, whichever is later. Such evidence may include:
- Wage and Tax Statement (IRS Form W-2);
- Miscellaneous Income (IRS Form 1099-MISC);
- State wage and withholding reports; and
- Pay vouchers or payroll records that specify the length of the pay periods and show gross or net pay, year-to-date income, income tax deductions, and tax withheld.
Officers should also conduct a totality of the circumstances analysis in each case where ability to pay involves multiple beneficiaries.[27]
3. Successors-in-Interest
A petition filed by a successor-in-interest must establish, among other things, that the predecessor entity possessed the ability to pay the proffered wage from the priority date until the transfer of ownership to the successor, and the successor has possessed the ability to pay the proffered wage from the date of the transfer of ownership onwards.[28]
4. Nonprofit Organizations
Certain nonprofit organizations are exempt from income taxation under the Internal Revenue Code. Nonetheless, tax-exempt nonprofit organizations are generally required to file annual returns of their income and expenses on a Return of Organization Exempt from Income Tax (IRS Form 990 or IRS Form 990EZ). Churches and certain church-related organizations may be exempt from filing IRS Form 990. If a nonprofit organization does not have tax returns, it must still provide annual reports, audited financial statements, or, for organizations with 100 or more employees, a financial officer statement, to establish its ability to pay the proffered wage.
The Business Structures overview provides more information on nonprofit organizations.
5. Establishing Ability to Pay When the Beneficiary Ports to a New Job Under AC21
The American Competitiveness in the Twenty-First Century Act of 2000 (AC21)[29] allows certain employment-based adjustment of status applicants to change jobs or employers without the filing of a new Form I-140 petition. Specifically, if an Application to Register Permanent Residence or Adjust Status (Form I-485) is based on a Form I-140 petition, and the application has been pending for 180 days or more, the petition may remain valid after the individual transfers (or ports) to a new job that is in the same or a similar occupational classification as the original job offer.[30]
When a beneficiary ports to a new employer under AC21 while the Form I-140 is pending, USCIS still examines whether the petitioner meets the ability to pay requirement. Under AC21, when the beneficiary has ported to a new employer, USCIS only considers the facts existing at the time of filing when making the ability to pay determination.[31] Therefore, USCIS reviews any initial evidence of ability to pay submitted with the petition (and any responses to Requests for Evidence, Notices of Intent to Deny, or any other requests for more information that may have been issued) to determine whether the petitioner established its ability to pay the proffered wage from the priority date until the filing date of the petition.[32]
Footnotes
[^ 1] See Matter of Great Wall (PDF), 16 I&N Dec. 142, 144 (Acting Reg. Comm. 1977).
[^ 2] See Matter of Great Wall (PDF), 16 I&N Dec. 142, 144-45 (Acting Reg. Comm. 1977).
[^ 3] Immigrant petitions that require an offer of employment include outstanding professor or researcher, multinational executive or manager, advanced degree professional or person of exceptional ability (except when seeking a national interest waiver of the job offer and, thus, the labor certification), skilled worker, professional, and other worker. For additional information on these classifications, see Part F, Employment-Based Classifications [6 USCIS-PM F].
[^ 4] See 8 CFR 204.5(g)(2). The petitioner’s ability to pay is separate from the statutory affidavit of support requirements in family-based petitions. See INA 213A. Therefore, any executed Affidavit of Support Under Section 213A of the INA (Form I-864 or Form I-864EZ), is not required as supporting evidence for a Form I-140, and does not document the petitioner’s ability to pay the proffered wage.
[^ 5] See 8 CFR 204.5(g)(2). USCIS reviews ability to pay as part of the Form I-140 petition adjudication, but can reexamine ability to pay in post-adjudication proceedings, given the employer’s obligation to maintain their ability to pay until the beneficiary obtains lawful permanent residence. In the event that a tax return, annual report, or audited financial statement is not available for the priority date year at the time of filing, USCIS may consider one of these three documents for the year before the priority date as part of the totality analysis discussed in Section C, Analysis [6 USCIS-PM E.4(C)].
[^ 6] See Subsection 4, Financial Officer Statement [6 USCIS-PM E.4(A)(4)].
[^ 7] See the Federal Accounting Standards Advisory Board Standards & Guidance webpage.
[^ 8] The Financial Accounting Standards Board and the Governmental Accounting Standards Board are responsible for ensuring that GAAP is a high-quality benchmark of financial reporting. See the Financial Accounting Foundation’s About GAAP webpage.
[^ 9] See the Financial Accounting Foundation’s About GAAP webpage.
[^ 10] See 8 CFR 204.5(g)(2).
[^ 11] Any employee authorized to manage and oversee the financial actions of an organization, or delegate if within the financial hierarchy of the organization, may be a financial officer. The formal title of such financial officer depends on the organization. Common names that identify a company’s financial officer include, but are not limited to, chief financial officer, principal financial officer, vice president of finance, chief accounting officer, treasurer, comptroller, or financial director.
[^ 12] For more information as to how officers balance all of the evidence, including relevant factors, see Section D, Additional Ability to Pay Issues, Subsection 2, Multiple Beneficiaries [6 USCIS-PM E.4(D)(2)].
[^ 13] See Matter of Sonegawa (PDF), 12 I&N Dec. 612 (Reg. Comm. 1967). For information on how USCIS analyzes additional evidence, see Section C, Analysis [6 USCIS-PM E.4(C)].
[^ 14] See Matter of Aphrodite Investments Limited (PDF), 17 I&N Dec. 530 (Comm. 1980) (finding that a corporation is a separate and distinct legal entity from its owners or stockholders). In addition, see Sitar Restaurant v. Ashcroft, No. CIV.A.02-30197-MAP (D. Mass. Sept. 18, 2003) (finding that nothing in the governing regulation requires USCIS to consider the financial resources of persons or entities who have no legal obligation to pay the wage).
[^ 15] An LLC with only one member is generally not considered separate from its owner for income tax purposes. See IRS’s Single Member Limited Liability Companies webpage. However, since the single member of the LLC is not personally liable for for the debts of the business, they do not have a legal obligation to pay the proffered wage. For this reason, USCIS does not consider the personal assets and liabilities of the member of a single-member LLC.
[^ 16] See Matter of Great Wall (PDF), 16 I&N 142, 144-45 (Acting Reg. Comm. 1977).
[^ 17] See Matter of Sonegawa (PDF), 12 I&N Dec. 612 (Reg. Comm. 1967).
[^ 18] See 8 CFR 204.5(g)(2).
[^ 19] See Joel G. Siegel and Jae K. Shim, Barron’s Dictionary of Accounting Terms (Barron’s Educational Series, Inc. 2000), p. 293.
[^ 20] See River Street Donuts, LLC v. Napolitano, 558 F.3d 111 (1st Cir. 2009) (holding that USCIS did not abuse its discretion in excluding employer’s depreciation deductions from its net income in determining that it did not have financial ability to employ a foreign skilled worker).
[^ 21] See Joel G. Siegel and Jae K. Shim, Barron’s Dictionary of Accounting Terms (Barron’s Educational Series, Inc. 2000), p. 117.
[^ 22] See Joel G. Siegel and Jae K. Shim, Barron’s Dictionary of Accounting Terms (Barron’s Educational Series, Inc. 2000), p. 118.
[^ 23] See 8 CFR 204.5(g)(2).
[^ 24] USCIS does not prorate net current assets. Net current assets on a balance sheet are a snapshot of a business’ current assets and current liabilities on a specific date. This amount represents what a petitioner could liquidate on that date to pay the prorated proffered wage. In contrast, net income covers a specific period of time and therefore must be prorated for the same period as the prorated proffered wage. As an example, when prorating net income, USCIS may consider monthly income statements. Stated another way, unlike with income statements, the accounts on the balance sheet (for example, assets and liabilities) are not closed out at the end of the accounting period. Instead, they are carried forward and become the starting balances at the beginning of the next period.
[^ 25] A substantially increased total labor expense of multiple beneficiaries may potentially impact the petitioner’s ability to continue to pay existing employees.
[^ 26] See 8 CFR 204.5(g)(2). See Section A, Initial Required Evidence, Subsection 4, Financial Officer Statement [6 USCIS-PM E.4(A)(4)].
[^ 27] See Matter of Sonegawa (PDF), 12 I&N Dec. 612 (Reg. Comm. 1967).
[^ 28] For more information, see Chapter 3, Successor-in-Interest in Permanent Labor Certification Cases [6 USCIS-PM E.3].
[^ 29] See AC21, Pub. L. 106-313 (PDF), 114 Stat. 1251, 1254 (October 17, 2000). In 2002, AC21 was amended by the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273 (PDF) (November 2, 2002). See INA 204(j).
[^ 30] See Section 106(c) of AC21, Pub. L. 106-313 (PDF), 114 Stat. 1251, 1254 (October 17, 2000). See INA 204(j). See 8 CFR 245.25. For more information about AC21 portability, see Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment, Chapter 5, Job Portability after Adjustment Filing and Other AC21 Provisions [7 USCIS-PM E.5].
[^ 31] See 8 CFR 204.5(g)(2). See 8 CFR 245.25(a)(2)(ii)(B)(1). See 81 FR 82398, 82420 (PDF) (Nov. 11, 2016) (final rule).
[^ 32] For Form I-140 petitions accompanied by a labor certification from the Department of Labor (DOL), the priority date is the date that the labor certification was accepted for processing by the DOL. For immigrant petitions that do not require a labor certification certified by DOL (such as first preference petitions, second preference national interest waivers, and Schedule A, Group I occupations), the priority date is the same as the filing date of the petition. See 8 CFR 204.5(d).
Chapter 5 - Reserved
Chapter 6 - Permanent Labor Certification
A. Employer Requirements
A significant percentage of Immigrant Petitions for Alien Workers (Forms I-140) are based on permanent labor certification applications approved by the U.S. Department of Labor (DOL). When adjudicating a permanent labor certification application, DOL does not generally review the beneficiary’s qualifications for the position; this authority and responsibility rests with USCIS. Therefore, officers must assess these petitions to ensure that the position offered is the same or similar to the position that the DOL certified and that the beneficiary meets the qualifications for the position.
1. Applicability
Employment-based 1st preference (EB-1)[1] beneficiaries are not required to be the beneficiaries of approved permanent labor certifications issued by the DOL. Beneficiaries seeking employment-based 2nd preference (EB-2)[2] or 3rd preference (EB-3)[3] immigrant visas, however, generally must be the beneficiaries of approved permanent labor certifications.
2. Individual Permanent Labor Certifications
In general, petitioners filing EB-2 and EB-3 petitions must first obtain an approved permanent labor certification application from DOL on behalf of the beneficiary. An approved permanent labor certification application demonstrates that:
-
The petitioner tested the labor market in the geographic area where the permanent job offer is located to establish that there are no able, qualified, and available U.S. workers who are willing to accept the permanent job offer; and
-
The employment of the beneficiary will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Transition to the PERM Labor Certification System
DOL implemented the permanent labor certification system (PERM) on March 28, 2005, effectively eliminating the previous permanent labor certification system, whereby petitioners had an option to file permanent labor certification applications under supervised recruitment or reduction in recruitment rules.
The DOL PERM final rule, published on December 27, 2004 and effective on March 28, 2005, amended the procedures for obtaining permanent labor certification.[4] DOL approves and issues permanent labor certification applications only after the petitioner has complied with DOL advertising and recruiting requirements and has established that there are no able, qualified, and available U.S. workers for the position and has rejected any U.S. job applicants for valid job-related reasons.
Permanent Labor Certifications filed with DOL on or after March 28, 2005[5]
The Application for Permanent Employment Certification (ETA Form 9089 (PDF)) replaced the Application for Alien Employment Certification (ETA Form 750) in most cases, effective March 28, 2005.[6] ETA Form 9089 details the specifics of the job offer and the beneficiary that were contained in the ETA Form 750 Part A and Part B. The ETA Form 9089 can be filed electronically or by mail.[7]
For the application to be valid, the petitioner, the beneficiary, and the form preparer (if any) must sign the ETA Form 9089. It must also contain the DOL certification stamp and bear the DOL certifying officer’s signature and the certification date.
An approved permanent labor certification is not evidence that DOL has certified that the beneficiary named on the permanent labor certification qualifies for the position. Only USCIS has the authority to determine qualifications for nonimmigrant and immigrant classifications.[8] An approved permanent labor certification means that the petitioner made a good faith effort to test the labor market and demonstrated to DOL that there were no qualified, able, and available U.S. workers for the position.
USCIS determines whether the beneficiary met the minimum education, training, and experience requirements of the permanent labor certification at the time the petitioner filed the application for permanent labor certification with DOL. An immigrant petition for a preference classification is not approvable if the beneficiary was not fully qualified for the classification by the filing date of the permanent labor certification (the petition’s priority date).[9]
B. Validity of Approved Permanent Labor Certifications
1. Validity Period
The validity period for individual permanent labor certifications approved on or after July 16, 2007, is 180 days.[10] Petitioners have 180 calendar days after the date of the approval of the permanent labor certification application by DOL within which to submit the permanent labor certification in support of a petition with USCIS.[11]
USCIS rejects petitions that require an approved permanent labor certification if the permanent labor certification has expired or if the petition is filed without the approved permanent labor certification. USCIS denies a petition that was inadvertently accepted without a required, valid permanent labor certification.
2. Exceptions
USCIS continues to accept amended or duplicate petitions that are filed with a copy of a permanent labor certification that is expired at the time the amended or duplicate petition is filed, if the original permanent labor certification was submitted in support of a previously filed petition during the permanent labor certification's validity period. These filings may occur when:
-
There is a successor-in-interest employer change, which requires a new or amended petition;
-
The petitioner wishes to file a new petition subsequent to the denial, revocation, or abandonment of the previously filed petition, and the permanent labor certification was not invalidated due to material misrepresentation or fraud relating to the labor certification application;
-
The petitioner files an amended petition to request a different immigrant visa classification than the classification requested in the previously filed petition; or
-
USCIS or U.S. Department of State (DOS) determines that the previously filed petition has been lost.
Petitioners may not appeal a USCIS decision to deny a petition that is filed with an expired permanent labor certification issued by DOL.[12]
3. Validity Periods Ending on Weekends or Federal Holidays
The petitioner must file a petition supported by an approved permanent labor certification during the certification’s validity period as established by DOL. Where the last day of a validity period falls on a Saturday, Sunday, or federal holiday, USCIS considers the petition to be timely if USCIS receives it by the end of the next business day.[13] As such, when the last day of the filing period falls on a Saturday, Sunday, or federal holiday, the deadline is extended until the end of the next business day that is not a Saturday, Sunday, or federal holiday.
USCIS considers electronically-filed petitions to be received immediately upon submission; therefore, these filings are not affected by USCIS mailroom closures.
C. Original and Duplicate Permanent Labor Certification Requirements
While photocopies of other initial supporting documents are generally acceptable, the petitioner must submit the original permanent labor certification unless it has already been filed with another petition.[14]
Issuance of a Duplicate Permanent Labor Certification
If the original permanent labor certification has been lost, DOL does not issue a duplicate permanent labor certification to the petitioner but issues a duplicate directly to DOS or USCIS for ETA Form 9089 permanent labor certifications.[15] DOL only issues these duplicates for permanent labor certifications filed on or after March 28, 2005[16] and only at the request of DOS or USCIS.
A beneficiary, petitioner, or a beneficiary’s or petitioner’s attorney or agent must therefore explain the need for a duplicate to USCIS and USCIS may then request that DOL issue a duplicate. DOL retains permanent labor certification information for 5 years and can only issue duplicates during that time frame. The USCIS request must include documentary evidence that a visa application or petition has been filed and must include the U.S. embassy or consulate or USCIS case tracking number that is associated with the visa application or petition.
DOL only sends the duplicate permanent labor certification to DOS or USCIS, regardless of who makes the request.[17] An officer should only make the request to DOL if it is in conjunction with a petition filed with USCIS where the original permanent labor certification has been irretrievably lost or destroyed. The duplicate permanent labor certification must be retained as part of the record of the petition after it is received from DOL and should not be forwarded to the petitioner or the petitioner’s representative.
An officer should not make such a request to DOL if the petitioner’s attorney requested a duplicate permanent labor certification in general correspondence to USCIS, merely because he or she would like a copy for his or her records.
If another beneficiary has used or been substituted on a permanent labor certification that the petitioner claims has been lost or denied, the officer should deny the request for a duplicate permanent labor certification.
D. New Approval of Permanent Labor Certification Required
1. In General
The list of conditions that require the submission of a new original permanent labor certification in support of the petition includes, but is not limited to:
- The successor entity (petitioner) has not established that a successor-in-interest relationship exists between the successor and the predecessor in accordance with the three successor-in-interest factors;[18]
- The permanent labor certification is not valid for the new geographic area of the beneficiary’s proposed employment; or
- There has been any other material change in the job opportunity covered by the original permanent labor certification.
2. Permanent Labor Certification Substitution Changes
As of July 16, 2007, DOL regulations prohibit the alteration of any information contained in the permanent labor certification after the permanent labor certification application is filed with DOL, including the substitution of beneficiaries on permanent labor certification applications and resulting certifications.[19]
E. Revocation of a Permanent Labor Certification
DOL may take steps to revoke the approval of a permanent labor certification if a subsequent finding is made that the certification was not justified.[20] In such instances, DOL provides notice to the employer in the form of a Notice of Intent to Revoke (NOIR) that contains a detailed statement of the grounds for the revocation of the approved permanent labor certification and the time period allowed for the petitioner’s rebuttal.[21]
The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. If rebuttal evidence is not filed by the petitioner, the NOIR becomes the final decision of DOL.
If the petitioner files rebuttal evidence and DOL determines the certification should nonetheless be revoked, the petitioner may file an appeal within 30 days of the date of the adverse determination.[22] If the permanent labor certification is revoked, DOL also sends a copy of the notification to USCIS and DOS.
Permanent labor certifications remain valid unless and until they are revoked. Officers should provide notice to the petitioner in the form of a Notice of Intent to Deny (NOID) or NOIR if the record reflects that the underlying permanent labor certification has been revoked.[23] This notice gives the petitioner an opportunity to supplement the petition with a valid permanent labor certification. If the rebuttal evidence provided in response to the NOID or NOIR does not include a valid permanent labor certification, USCIS denies or revokes the approval of the petition.
Footnotes
[^ 1] See INA 203(b)(1).
[^ 2] See INA 203(b)(2).
[^ 3] See INA 203(b)(3).
[^ 4] See 20 CFR 656.
[^ 5] Before the new PERM regulation became effective on March 28, 2005, U.S. employers filed the Application for Alien Employment Certification (ETA Form 750) in order to obtain an approved labor certification. Petitioners still use the ETA Form 750 for professional athletes and may submit an uncertified ETA Form 750 or 9089 with a petition seeking a national interest waiver of the labor certification. See Part F, Employment-Based Classifications, Chapter 5, Advanced Degree or Exceptional Ability [6 USCIS-PM F.5] and Chapter 6, Physician [6 USCIS-PM F.6]. The ETA Form 750 has two parts. Part A focuses on the details of the position being certified and describes the name and address of the petitioner, the location of the job opportunity, the proffered wage for the position and the minimum education, training, or experience requirements to successfully perform the duties of the position. Part B focuses on the beneficiary and contains his or her name, date of birth, address, and describes his or her education, training and work history. A valid, approved ETA Form 750 must be signed by the petitioner in Part A and the beneficiary in Part B, contain the DOL certification stamp, and be signed and dated by the DOL certifying officer in the endorsements section on the front page on Part A of the form.
[^ 6] See 20 CFR 656.17.
[^ 7] For more information about filing ETA Form 9089, see the Foreign Labor Certification webpage.
[^ 8] See K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006, 1008-09 (9th Cir. 1983).
[^ 9] See Matter of Katigbak (PDF), 14 I&N Dec. 45 (Reg. Comm. 1971). See Matter of Wing's Tea House (PDF), 16 I&N Dec. 158 (Act. Reg. Comm. 1977). See the discussions of priority dates at 8 CFR 204.5(d) and 20 CFR 656.30(a).
[^ 10] DOL amended its regulations at 20 CFR part 656 on May 17, 2007, with an effective date of July 16, 2007. See 72 FR 27904 (PDF) (May 17, 2007).
[^ 11] See 20 CFR 656.30(b).
[^ 12] The Administrative Appeals Office (AAO) lacks appellate jurisdiction to review denials based on the lack of a labor certification. See DHS Delegation No. 0150.1 para. (2)(U) (Mar. 1, 2003), which delegated the AAO’s jurisdiction over the decisions listed in 8 CFR 103.1(f)(3)(iii)(B) (PDF) (as the regulations appeared February 28, 2003).
[^ 13] For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)].
[^ 14] See 8 CFR 204.5(g)(1). In addition, this regulation provides that an officer may request that other original documents be provided when necessary.
[^ 15] DOL also issues duplicates of lost ETA Form 750 permanent labor certification applications directly to USCIS, upon USCIS’ request. DOL replaced ETA Form 750 with ETA Form 9089 on March 28, 2005, however, ETA Form 750 is still used in certain situations. For more information, see Section A, Employer Requirements, Subsection 2, Individual Permanent Labor Certifications [6 USCIS-PM E.6(A)(2)].
[^ 16] Before March 28. 2005, DOL provided duplicate labor certifications only in response to a written request by USCIS.
[^ 17] See 20 CFR 656.30(e).
[^ 18] See Chapter 3, Successor-in-Interest in Permanent Labor Certification Cases, Section F, Factors for Successorship Determinations [6 USCIS-PM E.3(F)].
[^ 19] See 20 CFR 656.11. Before July 16, 2007, USCIS and DOL allowed U.S. employers to substitute a beneficiary named on a pending or approved labor certification with another prospective beneficiary while maintaining the previously established “priority date.” Labor certification substitution could occur either while the labor certification application was pending at DOL or while a petition, filed with an approved labor certification, was pending with USCIS. Starting July 16, 2007, USCIS began rejecting all petitions requesting labor certification substitution. In the event USCIS inadvertently accepts such a petition, it denies the petition based on being filed without a valid approved labor certification naming the beneficiary.
[^ 20] See 20 CFR 656.32.
[^ 21] See 20 CFR 656.32(b).
[^ 22] See 20 CFR 656.26.
[^ 23] USCIS also provides the NOIR or a Notice of Revocation to beneficiaries who are otherwise eligible and have properly requested to port to a new employer as USCIS considers them affected parties. For more information, see Chapter 8, Decision and Post-Adjudication, Section C, Revocation [6 USCIS-PM E.8(C)].
Chapter 7 - Schedule A Designation Petitions
A. Background
The U.S. Department of Labor (DOL) adjudicates Applications for Permanent Employment Certification (ETA Form 9089 (PDF)), also referred to as permanent labor certifications. For certain occupations, DOL has predetermined there are not sufficient U.S. workers who are able, willing, qualified, and available pursuant to regulation.[1] These occupations are referred to as Schedule A occupations. DOL has also determined that sheepherders are eligible for special processing.[2]
For these two types of cases, the U.S. employer submits an uncertified application for permanent labor certification to USCIS at the time of filing the Immigrant Petition for Alien Workers (Form I-140), and USCIS reviews the application for permanent labor certification during the adjudication of the petition. USCIS applies DOL’s regulations to the application for permanent labor certification regarding whether or not the employer and beneficiary have met certain requirements, and USCIS’ regulations to the petition.
DOL requirements for Schedule A occupations and sheepherders are different from the normal requirements for other employment-based immigrant visa classifications. The fact that a petitioner can establish eligibility under DOL’s regulations only means that the permanent labor certification requirement is met. It does not mean that the beneficiary is eligible for the requested immigrant visa classification.[3]
B. Eligibility for Schedule A Designation
In order to obtain an employment-based visa classification based on a Schedule A occupation, the petitioning employer must meet the eligibility requirements outlined in the table below.[4]
Requirement | For More Information |
---|---|
The employer must offer full-time permanent employment to the beneficiary. | 20 CFR 656.3 (definitions of employer and employment) |
The employment must be in one of the occupations categorized as a Schedule A occupation. | Section C, Schedule A Occupations [6 USCIS-PM E.7(C)] |
The employer must offer the beneficiary at least the prevailing wage. | Section D, Prevailing Wage Determinations and Notices of Filing [6 USCIS-PM E.7(D)] |
The employer must provide notice of the position(s) it seeks to fill to the employer’s bargaining representative, if applicable, or its employees. | Section D, Prevailing Wage Determinations and Notices of Filing [6 USCIS-PM E.7(D)] |
The beneficiary must meet the specific USCIS eligibility requirements.[5] | 8 CFR 204.5 |
C. Schedule A Occupations
For certain occupations, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available. These occupations are referred to as Schedule A occupations, and the process to satisfy the permanent labor certification requirement is referred to as “blanket” labor certification. DOL has predetermined that the wages and working conditions of U.S. workers similarly employed will not be adversely affected by the employment of aliens in those occupations.
The following occupations comprise Schedule A:[6]
- Group I – physical therapists and professional nurses; and
- Group II – immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts.
Because of the occupational shortage of these U.S. workers, DOL has “pre-certified” Schedule A occupations. This means that an employer who wishes to hire a person for a Schedule A occupation is not required to conduct a test of the labor market and apply for a permanent labor certification with DOL. Rather, this employer must apply for Schedule A designation by submitting an application for permanent labor certification to USCIS in conjunction with the petition.
D. Prevailing Wage Determinations and Notices of Filing
1. Prevailing Wage Determination
An employer must obtain a valid prevailing wage determination from DOL’s National Prevailing Wage Center (NPWC) before it can file the petition with USCIS.[7] The prevailing wage determination ensures that the wages offered to the beneficiary are reflective of the wages offered for comparable positions at the location where the job offer exists before the petitioner files the petition. In situations where there are multiple worksites (for example, the employer is a staffing agency), if the employer knows where they will place the beneficiary, the prevailing wage is the wage applicable to the area of intended employment where the worksite is located. If an employer with multiple clients does not know where they will place the beneficiary among its multiple clients, the prevailing wage is derived from the area of its headquarters.[8] The wage offered to the beneficiary must be no less than 100 percent of the prevailing wage.
To obtain a prevailing wage determination, the employer must file an Application for Prevailing Wage Determination (Form ETA-9141 (PDF)) with the NPWC. The NPWC processes prevailing wage determination requests under DOL regulations and guidance and provides the employer with an appropriate prevailing wage rate on Form ETA-9141.
Form ETA-9141 must contain the NPWC’s determination date, as well as the validity period of the prevailing wage determination. The validity period may not be less than 90 days or more than 1 year from the determination date. An employer must file a petition within the validity period in order to use the prevailing wage rate provided by the NPWC.[9]
2. Notice of Filing[10]
Notice to Employees
Before an employer can file a petition, it must have also provided a notice of the position(s) it is seeking to fill under Schedule A, Group I or II, to the employer’s bargaining representative.[11] Alternatively, if there is no such representative, then the employer must provide notice to its employees.[12] Such notice must be posted for at least 10 consecutive business days[13] in a clearly visible location at the facility or location of employment.[14]
Notice for Every Occupation or Job Classification
An employer must post a separate notice for every occupation or job classification that is the subject of a request for Schedule A designation. However, regulations do not require a separate notice for every petition seeking designation under Schedule A. For example, an employer would post separate notices for a home health nurse and an emergency room nurse because the nurses have different job duties and wage rates. An employer can satisfy the notice of posting requirements with respect to several persons in each job classification with a single notice of posting, if the title, wage, requirements, and job location are the same for each person.[15]
Applications Filed by Private Households
In the case of a private household, notice of filing is required only if the household employs one or more U.S. workers at the time the ETA Form 9089 is filed.[16]
Evidence of Compliance
An employer must be able to document that it complied with the notice of posting requirements.[17]
If the employer notified its bargaining representative, then it may submit as evidence a copy of both the letter and the ETA Form 9089 sent to the bargaining representative(s). If the employer notified its employees, the documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted, and by providing copies of all the in-house media, whether electronic or print, that were used to distribute notice of the application in accordance with the procedures used for similar positions within the employer's organization.[18]
3. Notice of Filing: Posting Requirements[19]
Visible and Unobstructed
During the requisite posting period, a notice to the employees must be clearly visible and unobstructed while it is posted, and it must be posted in conspicuous places where the employer’s U.S. workers can easily read the posted notice on their way to or from their place of employment. Appropriate locations include locations in the immediate vicinity of DOL-required wage and hour notices or occupational safety and health notices.[20]
Description of Job and Rate of Pay
The notice must contain a description of the job and rate of pay and indicate that it is provided as a result of the filing of an application for permanent employment certification for the relevant position.[21] The rate of pay must meet or exceed the prevailing wage at the time of posting. If the notice contains a range of wages, the lowest wage rate must meet or exceed the prevailing wage at the time of posting.[22]
DOL Certifying Officer Contact Information
In addition, a notice to the employees must also state that any person may provide documentary evidence bearing on the Schedule A labor certification application to the appropriate DOL Certifying Officer holding jurisdiction over the location where the beneficiary would be physically working.[23] The notice must also provide the address of the appropriate Certifying Officer.[24]
Period of Posting
Finally, the notice must be posted for at least 10 consecutive business days (including weekend days and holidays if these days are regular business days for the employer, that is, the employer is “open for business” on these days). In all cases, the burden is on the employer not only to establish that they posted the notice for 10 consecutive business days, but also that it was in an area that was accessible to its employees on each of these business days.
The notice must have been posted between 30 days and 180 days before the employer filed the petition.[25] The last day of the posting must fall at least 30 days before filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application to DOL. Officers should deny the petition and any concurrently filed Form I-485 if the notice was not posted between 30 and 180 days before the petition’s filing.
“Business Day” for Purposes of Notice
The term “business day” typically means Monday through Friday, except for federal holidays. However, where an employer is open for business on Saturdays, Sundays, or holidays, the employer may include the Saturday, Sunday, or holiday in its count of the 10 consecutive business day period required for the posting of the notice of filing.[26]
The employer, however, must demonstrate that it was open for business on those days and employees had access to the area where they could view the notice. Similarly, where an employer is not open for business on any day of the week, including Monday through Friday, the employer should not include any such days in its count of the 10 consecutive business days period required for the posting of the notice.
“Open for Business” for Purposes of Notice
If an employer must demonstrate that it was open for business on a Saturday, Sunday, or a holiday at the time of posting, the employer must provide documentation which establishes that on those days:
- Employees were working on the premises and engaged in normal business activity;
- The worksite was open and available to clients or customers, if applicable, as well as to employees; and
- Employees had access to the area where the notice of filing was posted.
4. Notice of Filing: Posting Locations[27]
Posting at Worksite
If the employer knows where the beneficiary will be placed, then the employer must post the notice at the worksite(s) where the beneficiary will perform the work, and publish the notice internally using in-house media (whether electronic or print) according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice is the wage applicable to the area of intended employment where the worksite is located.
If the employer currently employs relevant workers at multiple locations and does not know where the beneficiary will be placed, then the employer must post the notice at the worksite(s) of all of its locations or clients where relevant workers currently are placed, and publish the notice of filing internally using in-house media (whether electronic or print) according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question.
The situation of multiple work locations may arise in, but is not limited to, a scenario when the employer is a staffing agency which has clients under contract at the time that the employer seeks to post a timely notice of filing. In support of the petition, the employer may provide a copy of one posting notice supported by a list of all locations where the notice was posted and dates of posting in each location. The employer does not have to submit a copy of each notice.[28]
Officers might encounter cases in which the employment is not full-time, permanent employment[29] or where the worksite(s) is unknown and the employer has no current locations or clients. In those cases, the officer may deny the petition because no bona fide job opportunity exists.[30]
In-house Media
An employer is required to publish the notice in all in-house media, whether electronic or print, that the employer normally uses to announce similar positions within its organization.[31] The employer must submit as evidence a copy of all in-house media that was used to distribute notice of the application according to the procedures used for similar positions within the employer's organization.
E. Physical Therapists and Registered Nurses (Group I)
1. General Eligibility
A physical therapist is a person who applies the art and science of physical therapy to the treatment of patients with disabilities, disorders, and injuries to relieve pain, develop or restore function, and maintain performance, using physical means, such as exercise, massage, heat, water, light, and electricity, as prescribed by a physician (or a surgeon).[32]
A professional nurse is a person who applies the art and science of nursing which reflects comprehension of principles derived from the physical, biological, and behavioral sciences. Professional nursing generally includes making clinical judgments involving the observation, care and counsel of persons requiring nursing care; administering of medicines and treatments prescribed by the physician or dentist; and participation in the activities for the promotion of health and prevention of illness in others.
A program of study for professional nurses generally includes theory and practice in clinical areas such as obstetrics, surgery, pediatrics, psychiatry, and medicine.[33] Officers should compare the duties of the proffered position with the duties stated in the definition of “professional nurse” in determining whether the proffered position qualifies as that of a professional nurse.[34] The classification for which the nurse is eligible depends on whether the position requires, and the beneficiary has, an advanced degree.
2. Bona Fide Job Offer
For Schedule A petitions, the petitioner must demonstrate that it is more likely than not that the petitioner is offering a bona fide full-time, permanent position.[35] When considering this question, however, officers may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth in the regulations.[36] Specifically, there is no evidentiary requirement in the relevant and guiding statute or regulations that requires the petitioner to provide all contracts between the petitioner and its third-party clients for petitions generally and for Schedule A cases specifically.[37] Officers may, however, review the terms of the job offer and documentation relevant to the other requirements.
The terms of the job offer are derived from the petition and ETA Form 9089. The headquarters’ worksite location and all of the potential client worksites to which the beneficiary could be assigned should be evident from the prevailing wage request and posting notice and other descriptive materials the petitioner voluntarily submits.
Other evidence related to the bona fide nature of the job offer includes that submitted to document the petitioner’s ability to pay the proffered wage.[38] The record should also contain evidence of the beneficiary’s qualifications for the classification[39] and any special requirements required by the job offer on the ETA Form 9089.[40] Such evidence should illustrate that it is more likely than not that there is a bona fide job offer. An officer should be able to articulate a reasonable concern based on evidence either within or outside of the record to form the basis for a fraud referral for further investigation.
F. Evidence
1. Group I Occupations
For Group I, registered nurse occupations, the employer must submit evidence to establish that the beneficiary currently has (and had at the time of filing):
- A full, unrestricted permanent license to practice nursing in the state of intended employment;
- A certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); or
- Evidence that the beneficiary has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN) as of the date of filing.[41]
For Group I, physical therapist occupations, the employer must submit evidence to establish that the beneficiary currently has (and had at the time of filing) a permanent license to practice in the state of intended employment. Minimum requirements must meet all state licensure requirements. In the alternative, the employer may submit a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment. This letter must indicate that the beneficiary is qualified to take the written licensing examination for physical therapists.[42]
2. Group II Occupations
Immigrants of Exceptional Ability in the Sciences or Arts
To show that a beneficiary is of exceptional ability in the sciences or arts (excluding performing arts), the employer must submit documentary evidence showing the widespread acclaim and international recognition accorded to the beneficiary by recognized experts in the beneficiary’s field.[43] DOL defines a science or art as any field of knowledge or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill.[44]
In addition, the employer must submit documentation showing that the beneficiary’s work in that field during the past year did, and the intended work in the United States will, require exceptional ability.
Finally, the employer must submit documentation concerning the beneficiary from at least two of the following seven categories,[45] where “field” refers to the one in which the petitioner seeks certification for the beneficiary:
- Documentation of the beneficiary's receipt of internationally recognized prizes or awards for excellence in the field;
- Documentation of the beneficiary's membership in international associations, in the field, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;
- Published material in professional publications about the beneficiary, about the beneficiary's work in the field, which must include the title, date, and author of such published material;
- Evidence of the beneficiary's participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization;
- Evidence of the beneficiary's original scientific or scholarly research contributions of major significance in the field;
- Evidence of the beneficiary's authorship of published scientific or scholarly articles in the field, in international professional journals or professional journals with an international circulation; and
- Evidence of the display of the beneficiary's work, in the field, at artistic exhibitions in more than one country.[46]
Immigrants of Exceptional Ability in the Performing Arts
To show that an alien is of exceptional ability in the performing arts, the employer must submit documentary evidence that the beneficiary’s work experience during the past 12 months did, and the intended work in the United States will, require exceptional ability.[47]
Finally, the employer must submit sufficient documentation to show that the beneficiary has this exceptional ability,[48] such as:
- Documentation attesting to the current widespread acclaim and international recognition accorded to the beneficiary, and receipt of internationally recognized prizes or awards for excellence;
- Published material by or about the beneficiary, such as critical reviews or articles in major newspapers, periodicals, or trade journals (the title, date, and author of such material must be indicated);
- Documentary evidence of earnings commensurate with the claimed level of ability;
- Playbills and star billings;
- Documents attesting to the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the beneficiary has appeared or is scheduled to appear; or
- Documents attesting to the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the beneficiary has performed during the past year in a leading or starring capacity.[49]
G. Eligibility for Employment-based Immigrant Visa Classification
1. Physical Therapists and Professional Nurses (Group I)
For Schedule A, Group I occupations, an employer may seek to classify the beneficiary as a skilled worker or professional (employment-based 3rd preference or EB-3 category).[50] Occasionally, an employer may seek to classify the position as an advanced degree professional (employment-based 2nd preference or EB-2 category).[51]
The minimum requirement for professional nursing occupations is generally less than a bachelor’s degree and these occupations are therefore considered under the skilled worker classification.[52] However, the minimum requirement for certain advanced or specialized professional nursing occupations may be a bachelor’s degree.
These occupations may be properly considered under the professional classification. In some cases, the minimum requirements may even be an advanced degree. Those occupations may be properly considered under the advanced degree classification. Officers may refer to The Occupational Information Network (O*NET)[53] to determine the minimum educational requirements for professional nursing occupations.
According to O*NET, most physical therapist occupations require graduate school. O*NET classifies the position as a “Job Zone Five” with “extensive preparation needed.” Based on the state where the beneficiary will practice, these occupations may require a master’s degree, and some may even require a Doctor of Physical Therapy (DPT). Therefore, physical therapist occupations may be properly considered under the advanced degree professional classification if the employer can show that, based on the duties and education requirements on the ETA Form 9089, the position requires an advanced degree.
EB-2 classification is appropriate even if the state of intended employment issues physical therapist licenses to those persons who possess less than an advanced degree based on when the therapist obtained the degree (sometimes referred to as “grandfathering”).
As explained below, some states will license a person who only possess a minimum of a bachelor’s degree (and not an advanced degree) as a physical therapist based on the date the person obtained that degree.[54] As long as an employer can show that the position requires, at a minimum, an advanced degree (including the regulatory equivalence of a bachelor of physical therapy followed by 5 years of progressive experience),[55] for a worker to satisfactorily perform the job duties, and the physical therapist holds an advanced degree or its equivalent, then a petition may be properly considered under the advanced degree professional classification.
It is not unusual for an employer to require that the position’s duties and requirements exceed the state’s minimum licensing requirements. For example, the employer may require that the beneficiary possess an advanced degree even though the state only requires a bachelor’s degree to obtain licensure as a physical therapist. In this case, a petition may be properly considered under the advanced degree professional classification.
It is possible that the employer does not require that the position’s duties and requirements exceed the state’s minimum licensing requirements. For example, the employer may only require that the beneficiary possess a bachelor’s degree since the state only requires a bachelor’s degree to obtain licensure as a physical therapist. Since the minimum requirements are less than an advanced degree, a petition may be properly considered under the professional classification (and not under the advanced degree classification). However, the employer cannot require that the position’s duties and requirements be less than the state’s minimum licensing requirements.
An advanced degree is commonly the minimum requirement for licensure for the occupation of physical therapist. Previously, a bachelor’s degree was the minimum requirement for licensure in the occupation. As noted above, many states have “grandfathering” clauses that allow those who obtained a bachelor’s degree under the previous licensing requirements to continue working in the field. If a “grandfathered” beneficiary can show that he or she has 5 years of progressive experience following receipt of the bachelor’s degree, then he or she may be able to qualify under the advanced degree professional classification.
USCIS defines an advanced degree as any U.S. academic or professional degree or a foreign equivalent degree above that of a bachelor’s degree. USCIS considers an academic or professional degree above that of a bachelor’s degree an advanced degree if the occupation requires that degree.
Therefore, a U.S. or foreign equivalent bachelor’s degree would not qualify a beneficiary for the advanced degree professional classification, unless the beneficiary also possesses 5 years of progressive experience following the award of the bachelor’s degree.
The beneficiary must have obtained both the bachelor’s degree and the 5 years of progressive experience before the filing date of the permanent labor certification. In addition, USCIS does not consider training certifications and similar documents that are not academic or professional as advanced degrees.[56]
2. Immigrants of Exceptional Ability (Group II)
For Schedule A, Group II occupations, an employer may seek to classify the position as an advanced degree professional or immigrant of exceptional ability.[57] However, it is possible that an employer may seek to classify the position as a skilled worker or professional if the position does not require an advanced degree or a person of exceptional ability.
Officers should not confuse the requirements to designate a beneficiary under Schedule A, Group II (immigrants of exceptional ability in the sciences or arts, including performing arts) with the requirements to classify someone under the EB-2 category (for immigrants of exceptional ability in the sciences, arts, or business). Though both DOL and USCIS regulations refer to aliens of “exceptional ability,” each regulation defines the term “exceptional ability” differently.
DOL defines “exceptional ability” for Schedule A, Group II designation as “widespread acclaim and international recognition accorded the alien by recognized experts in the alien’s field.” USCIS defines exceptional ability for purposes of the EB-2 category as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.”[58]
DOL’s standard for Schedule A, Group II designation is therefore somewhat similar to that used to classify a person under the employment-based 1st preference (EB-1A) category (for immigrants of extraordinary ability). Despite this similarity, the standard for the EB-1A category is different than the standard for Schedule A, Group II designation. Therefore, officers should take care not to erroneously apply the standard for the EB-1A category to a request for Schedule A, Group II designation.[59]
The granting of Schedule A, Group II designation is separate from the adjudication of the immigrant visa petition. Eligibility for Schedule A, Group II designation does not guarantee approval of the petition itself, which must be adjudicated under the relevant regulations. Meeting the requirements for Schedule A designation only means that the petition met the permanent labor certification requirement. Officers must still make a separate determination on whether the position and the beneficiary meet the requirements for the requested classification. Conversely, meeting the eligibility requirements for the classification under the USCIS definition does not establish eligibility for Schedule A, Group II designation under DOL’s regulations.
Minimum Job Requirements
Officers should ensure that the actual education, training, and experience needed to perform the job listed in Item H of ETA Form 9089 reflect the true minimum requirements of the position.
For Schedule A positions, the petitioner submits an uncertified ETA Form 9089 concurrently with the petition directly with USCIS. Therefore, in Schedule A cases, USCIS, and not DOL, reviews the ETA Form 9089 using DOL regulations. The duties shown on the permanent labor certification should be appropriate for a Schedule A occupation (such as a position that requires licensure as a professional nurse, licensure as a physical therapist, or performance of a worker of exceptional ability). If necessary, the officer may issue a Request for Evidence to confirm the precise minimum job requirements.
Self-Petitions Not Allowed
An alien may not self-petition for Schedule A, Group II designation. Each request for Schedule A designation requires a job offer, and a petition that includes a request for such designation filed by a U.S. employer.
H. Filing Requirements
For all Schedule A occupations, an employer must apply for permanent labor certification with USCIS. A USCIS denial is conclusive and is not reviewable by the Board of Alien Labor Certification Appeals (BALCA) under the review procedures provided in regulations.[60]
DOL does not certify any occupation that is a Schedule A, Group I occupation under the basic permanent labor certification process.[61] However, if USCIS denies a permanent labor certification application filed by an employer for a Schedule A, Group II occupation, the employer may then apply for a permanent labor certification from DOL using the basic permanent labor certification process.[62]
Required Documentation
In order to apply for Schedule A designation for petitions filed on or after March 28, 2005,[63] the petitioning employer must complete and submit:[64]
- A properly filed Immigrant Petition for Alien Workers (Form I-140), with appropriate filing fees;[65]
- An uncertified Application for Permanent Employment Certification (ETA Form 9089 (PDF)), with the employer and beneficiary’s original signatures (along with any representative’s signature, if relevant);
- A prevailing wage determination issued by DOL’s NPWC, in which the validity period is not less than 90 days or more than 1 year from the determination date and the petition is filed during that validity period;[66]
- A copy of the notice sent to an appropriate collective bargaining unit, if applicable, or a copy of the notice posted at the facility or location of the employment,[67] documenting posting for at least 10 consecutive business days and within the period between 30 and 180 days before the employer filed the petition;
- Copies of all in-house media, whether electronic or printed, in accordance with the normal procedures used in the employer’s organization for the recruitment of positions similar to that specified on ETA Form 9089;
- Evidence that the beneficiary meets the specific DOL requirements for Schedule A designation;[68] and
- All other documentation required to show eligibility for the employment-based immigrant visa classification sought, such as evidence of its ability to pay and evidence that the beneficiary meets any additional requirements specified on the ETA Form 9089.
An employer must offer full-time permanent employment to a beneficiary. If USCIS has a reasonable and articulable reason to believe that it is more likely than not that the petitioning employer is not offering a bona fide job offer, officers may request additional evidence, such as copies of the employer’s contracts with worksites or clients.[69] An employer that cannot offer full-time permanent employment as a beneficiary’s actual employer is ineligible to petition for the beneficiary.[70]
I. Adjudication
If an employer meets all requirements for Schedule A designation and the petition is approvable, USCIS retains the ETA Form 9089 with the petition. If an employer did not meet all requirements for Schedule A designation, or the petition is not approvable, USCIS retains the permanent labor certification application with the petition. The officer does not complete Section O of the permanent labor certification.
The petitioner retains the right to file an appeal of USCIS’ decision with the Administrative Appeals Office (AAO).[71] In addition, an employer which cannot meet the requirements for Schedule A, Group II may then apply for a permanent labor certification from DOL using the basic permanent labor certification process.[72] However, DOL does not consider applications for permanent labor certifications for Schedule A, Group I occupations under the basic permanent labor certification process.[73]
Footnotes
[^ 1] See 20 CFR 656.15. See INA 212(a)(5) for the general labor certification standard.
[^ 2] See 20 CFR 656.16.
[^ 3] See 20 CFR 656. For more information, see Chapter 2, Eligibility Requirements [6 USCIS-PM E.2].
[^ 4] See 20 CFR 656.10. See 20 CFR 656.15. These requirements are in addition to the general eligibility requirements for employment-based visa classification. See Chapter 2, Eligibility Requirements [6 USCIS-PM E.2].
[^ 5] The employer must also submit all other documentation required to show eligibility for the employment-based immigrant visa classification sought, such as evidence of its ability to pay, that the beneficiary and position qualify for the classification sought, and that the beneficiary meets the job requirements of the blanket labor certification.
[^ 6] See 20 CFR 656.5.
[^ 7] Before January 1, 2010, the State Workforce Agency (SWA) having jurisdiction over the area of intended employment processed prevailing wage determinations.
[^ 8] See the Office of Foreign Labor Certification (OFLC)’s Frequently Asked Questions and Answers webpage.
[^ 9] While the Schedule A regulations require that the employer obtain a prevailing wage determination that is valid at the time the employer files the petition, there is no requirement that the prevailing wage determination be obtained before the employer posts a notice of the position. In addition, there is no requirement that the wage on the posting notice must match the proffered wage, only that both must meet the prevailing wage.
[^ 10] See 20 CFR 656.10(d).
[^ 11] See 20 CFR 656.10(d)(1)(i).
[^ 12] See 20 CFR 656.10(d)(1)(ii).
[^ 13] See Period of Posting section below.
[^ 14] See 20 CFR 656.10(d)(1)(ii).
[^ 15] See generally OFLC’s Frequently Asked Questions and Answers webpage regarding the notice of filing.
[^ 16] See 20 CFR 656.10(d)(2).
[^ 17] See 20 CFR 656.15(b)(2). See Section H, Filing Requirements [6 USCIS-PM E.7(H)].
[^ 18] See 20 CFR 656.10(d)(1)(ii).
[^ 19] See Appendix: Sample Notice of Filing [6 USCIS-PM E.7, Appendices Tab].
[^ 20] See 20 CFR 656.10(d)(1)(ii).
[^ 21] See 20 CFR 656.10(d)(6). See 20 CFR 656.10(d)(3)(i).
[^ 22] See 69 FR 77325 (Dec. 27, 2004).
[^ 23] See 20 CFR 656.10(d)(3)(ii).
[^ 24] See 20 CFR 656.10(d)(3)(iii). Before June 1, 2008, there were two addresses depending on the location of the petitioning business: Atlanta or Chicago. On or after June 1, 2008, the employer must list the address of the Atlanta Processing Center on the posting notice. See DOL Employment and Training Administration (ETA) OFLC’s National Federal Processing Centers Contact webpage for the current mailing address for the appropriate Certifying Officer.
[^ 25] See 20 CFR 656.10(d)(3)(iv).
[^ 26] See Matter of Il Cortile Restaurant, 2010-PER-00683 (BALCA Oct. 12, 2010).
[^ 27] For all petitions filed after March 20, 2006 (or motions to reopen filed after March 20, 2006 to reopen a petition that was filed and denied after March 28, 2005), employers must comply with these posting requirements.
[^ 28] USCIS established a policy for officers to issue a Request for Evidence (RFE) to provide an employer with the opportunity to comply with the posting requirements if the petition was pending on March 20, 2006 (or was denied and a timely filed motion to reopen or reconsider was pending on March 20, 2006), and the employer timely posted a notice but not in the correct location(s) of intended employment as described above. If all posting requirements are met and the notice was posted the requisite 10 business days before the date of the RFE response, USCIS considers the notice of posting timely for adjudication purposes.
[^ 29] See 20 CFR 656.3.
[^ 30] See Section B, Eligibility for Schedule A Designation [6 USCIS-PM E.7(B)]. See OFLC’s Frequently Asked Questions and Answers webpage.
[^ 31] See 20 CFR 656.10(d)(1)(ii).
[^ 32] See 20 CFR 656.5(a)(3)(i).
[^ 33] See 20 CFR 656.5(a)(3)(i). DOL’s use of the term “professional” in 20 CFR 656.5(a)(3)(ii) has no bearing on the determination of whether a nurse qualifies as a professional or skilled worker under 8 CFR 204.5(l)(2).
[^ 34] See 20 CFR 656.5(a)(3)(ii). See Adjudication of H-1B Petitions for Nursing Occupations, PM-602-0104, issued February 18, 2015.
[^ 35] See 20 CFR 656.20(c)(10). See 20 CFR 656.3.
[^ 36] See Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). See Kazarian v. INS, 596 F.3d 1115, 1121 (9th Cir. 2010).
[^ 37] Even for Schedule A staffing agency scenarios, the applicable regulatory criteria do not include employment contracts as required evidence. See OFLC’s Frequently Asked Questions and Answers webpage, which explains that petitioners are not required to submit employment contracts. For the situation of nurse staffing agencies and “roving” employees (for example, foreign health care workers the petitioner will assign to work at third-party client worksites still to be determined as of the date of filing), DOL advised only that the petitioner should submit a prevailing wage determination for the headquarters location and posting notices at all of its clients’ worksites.
[^ 38] See Chapter 8, Documentation and Evidence [6 USCIS-PM E.8].
[^ 39] See Part F, Employment-Based Classifications [6 USCIS-PM F].
[^ 40] The requirements on the ETA Form 9089 should line up with those reflected on the Application for Prevailing Wage Determination (Form ETA-9141 (PDF)) and posting notice.
[^ 41] See 20 CFR 656.15(c)(2). The NCLEX-RN is administered by the National Council of State Boards of Nursing.
[^ 42] See 20 CFR 656.15(c)(1).
[^ 43] See 20 CFR 656.15(d)(1).
[^ 44] See 20 CFR 656.5(b)(1). The beneficiary, however, does not need to have studied at a college or university in order to qualify for Schedule A, Group II designation. See 20 CFR 656.5(b)(1).
[^ 45] See 20 CFR 656.15(d)(1). See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality.”).
[^ 46] See 20 CFR 656.15(d)(1).
[^ 47] See 20 CFR 656.15(d)(2). See Matter of Allied Concert Services, Inc., 88–INA–14 (BALCA 1988), which provides an example of how the Board of Alien Labor Certification Appeals (BALCA) evaluated the evidence for a Schedule A, Group II case. In Matter of Allied Concert Services, Inc., BALCA stated, “. . . [T]he ultimate fact to be proven is that the alien has exceptional ability as compared with others in the same field; and that the various kinds of documentation mentioned in the regulation are suggested as possible methods of proof.”
[^ 48] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality.”).
[^ 49] See 20 CFR 656.15(d)(2).
[^ 50] See INA 203(b)(3).
[^ 51] See INA 203(b)(2).
[^ 52] Skilled worker positions require 2 years of training or experience, which can include relevant post-secondary education, such as an associate’s degree. See 8 CFR 204.5(l)(2) (definition of skilled worker).
[^ 53] O*NET Online is sponsored by DOL’s Employment and Training Administration, and developed by the National Center for O*NET Development.
[^ 54] Officers must differentiate “grandfathering” for purposes of obtaining licensure and the requirements for obtaining EB-2 classification. States that permit a person to obtain licensure with less than an advanced degree specify the date by which the person would have had to obtain his or her baccalaureate degree to be considered “grandfathered.” In order to be eligible for EB-2 preference classification, even a grandfathered alien would have to demonstrate that he or she obtained the baccalaureate degree and has at least 5 years of progressive post-baccalaureate experience in the field.
[^ 55] See 8 CFR 204.5(k)(2) (definition of advanced degree).
[^ 56] Evidence of a degree is the official academic record. See 8 CFR 204.5(k)(3)(i)(A). See 8 CFR 204.5(l)(3)(ii)(C).
[^ 57] See INA 203(b)(2).
[^ 58] See 8 CFR 204.5(k)(2) (definition of exceptional ability).
[^ 59] For example, Schedule A, Group II designation requires an employer to file the petition and does not allow for the submission of comparable evidence in place of the regulatory criteria.
[^ 60] See 20 CFR 656.26. See 20 CFR 656.15(e). See 20 CFR 656.15(e). For information on appeals to the USCIS Administrative Appeals Office, see Section I, Adjudication [6 USCIS-PM E.7(I)].
[^ 61] See 20 CFR 656.17. See 20 CFR 656.15(f). See DOL ETA’s Foreign Labor Certification webpage.
[^ 62] See 20 CFR 656.17. See Chapter 6, Permanent Labor Certification [6 USCIS-PM E.6] for further discussion of the basic permanent labor certification process.
[^ 63] On December 27, 2004, DOL published a final rule entitled Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, which significantly restructured the permanent labor certification process. See 69 FR 77325 (Dec. 27, 2004). For information on Schedule A requirements before March 28, 2005, see prior 20 CFR 656.10 (PDF) and 20 CFR 656.22 (PDF).
[^ 64] See 20 CFR 656.10. See 20 CFR 656.15.
[^ 65] See Fee Schedule (Form G-1055).
[^ 66] If the petition was filed before January 1, 2010, then the prevailing wage determination would have been issued by the applicable State Workforce Agency (SWA).
[^ 67] For guidance on the appropriate posting location(s) for cases involving multiple worksites, see OFLC’s Frequently Asked Questions and Answers webpage.
[^ 68] See 20 CFR 656.5 and 20 CFR 656.15.
[^ 69] If the beneficiary will be assigned to other third-party worksites, that may impact the required contents of the notice of posting, the location of that notice, prevailing wage determination, ETA Form 9089, and the petition.
[^ 70] See 20 CFR 656.3. See Chapter 2, Eligibility Requirements [6 USCIS-PM E.2].
[^ 71] See 20 CFR 656.15(e) (the denial of a Schedule A case cannot be appealed through BALCA). DHS delegated the authority to adjudicate appeals to the AAO under the authority vested in the Secretary through the Homeland Security Act of 2002, Pub. L. 107-296 (PDF) (November 25, 2002). See Delegation Number 0150.1 (effective March 1, 2003). See 8 CFR 2.1. The AAO exercises appellate jurisdiction over matters described in 8 CFR 103.1(f)(3) (PDF) (in effect February 28, 2003), including decisions on petitions for an immigrant visa based on employment.
[^ 72] See 20 CFR 656.17. See Part F, Employment-Based Classifications [6 USCIS-PM F] for further discussion of that category.
[^ 73] See 20 CFR 656.15(f). See Section H, Filing Requirements [6 USCIS-PM E.7(H)].
Chapter 8 - Documentation and Evidence
A. Filing
To seek an employment-based immigrant classification on behalf of a beneficiary, the petitioner must properly file an Immigrant Petition for Alien Workers (Form I-140) with the appropriate fee with the appropriate USCIS location.[1]
1. Priority Dates
The priority date is used in conjunction with the U.S. Department of State’s (DOS) Visa Bulletin to determine when a visa is available and the beneficiary can apply for adjustment of status or for an immigrant visa abroad. If an immigrant visa is available for the petition’s priority date, and the beneficiary is otherwise eligible for adjustment of status, the beneficiary may file an Application to Register Permanent Residence or Adjust Status (Form I-485) concurrently with the petition.[2]
Schedule A Permanent Labor Certifications and Petitions Not Supported by a Permanent Labor Certification
The priority date for a petition supported by a Schedule A designation, or for a petition approved for a classification that does not require a permanent labor certification, is the date the petition is filed with USCIS.[3]
Individual Permanent Labor Certifications Filed with the U.S. Department of Labor
The priority date for a petition supported by an Application for Permanent Employment Certification (ETA Form 9089) (also referred to as the permanent labor certification application) filed with the U.S. Department of Labor (DOL) on or after March 28, 2005 is the earliest date the application for permanent labor certification is filed with DOL.[4] In some cases, the date of filing in the certification section of the ETA Form 9089 may be blank. In such instances, USCIS may request a corroborative statement or other evidence from DOL that clarifies what the correct priority date should be.
Where the beneficiary’s priority date is established by the filing of the permanent labor certification, once the beneficiary’s petition has been approved, the beneficiary retains his or her priority date as established by the filing of the permanent labor certification for any future petitions, unless:
- USCIS revokes the approval of the previously approved petition because of fraud or willful misrepresentation;
- DOL revokes the approval of the permanent labor certification; or
- USCIS determines that the petition approval was based on a material error.[5]
Retention of the earlier priority date includes cases where a change of petitioner has occurred; however, the new petitioner must obtain a new permanent labor certification if the classification requested requires a permanent labor certification.[6]
2. Effect of Denial of Petition on Priority Date
If a Schedule A petition or a petition that does not require permanent labor certification is denied, no priority date is established. In addition, no priority date is established by an individual permanent labor certification if a petition based upon that certification was never filed and there is a change of petitioner (except in successor-in-interest cases).[7]
3. Priority Date Based on Earlier Petition
If a beneficiary is the beneficiary of two (or more) approved petitions, the priority date of the earlier petition may be applied to all subsequently filed petitions.[8]
For example, Company A files a permanent labor certification request on behalf of a beneficiary as a scientist with an advanced degree on January 10, 2020. DOL issues the certification on March 20, 2020. Company A later files, and USCIS approves, a relating immigrant visa petition under the employment-based 2nd preference (EB-2) category. On July 15, 2020, the beneficiary files a second petition on his or her own behalf as an extraordinary scientist under the employment-based 1st preference (EB-1) category, which USCIS approves. The beneficiary is entitled to use the January 10, 2020 priority date to apply for adjustment under either the EB-1 or the EB-2 classification.[9]
B. Evidence
1. Job Offers
In most cases, the beneficiary of a petition must have a bona fide job offer from a petitioner in the United States. As evidence of the job offer, most petitioners who file EB-2 and employment-based 3rd preference (EB-3) petitions must first obtain an approved individual permanent labor certification from DOL.
In other cases, where the beneficiary is eligible for Schedule A blanket permanent labor certification, the petitioner submits unapproved permanent labor certification applications to USCIS with the petition. In relatively few cases, such as those involving beneficiaries seeking EB-1 classification,[10] as well as those seeking EB-2 classification who also qualify for a national interest waiver,[11] an individual permanent labor certification from DOL is not required.
2. Licensure
Neither the statute nor the regulations require that the beneficiary of a petition be able to engage in the occupation immediately. There are often licensing and other additional requirements that a person must meet before he or she can engage in the occupation. Unless needed to meet the requirements of a permanent labor certification, such considerations are not a factor in the adjudication of the petition.
Footnotes
[^ 1] See 8 CFR 103.2(a)(7)(ii)(D). See the Direct Filing Addresses for Form I-140, Immigrant Petition for Alien Worker webpage.
[^ 2] See 8 CFR 245.1(g). See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section C, Concurrent Filings [7 USCIS-PM A.3(C)].
[^ 3] See 8 CFR 204.5(d).
[^ 4] See 8 CFR 204.5(d). The priority date for a petition supported by an Application for Alien Employment Certification (ETA Form 750) filed with DOL before March 28, 2005 is the earliest date the ETA Form 750 was accepted by any office in DOL’s employment service system. There may be instances where the petitioner indicates that DOL erred by assigning a new priority date on an ETA Form 9089 filed on or after March 28, 2005, even though the employer previously requested to withdraw the pending ETA Form 750 and refiled an ETA Form 9089 for the identical job opportunity and would have been eligible to use the previously filed ETA Form 750 filing date. For more information on labor certifications, see Chapter 6, Permanent Labor Certification [6 USCIS-PM E.6].
[^ 5] See 8 CFR 204.5(e).
[^ 6] For information about successor-in-interest determinations, see Chapter 3, Successor-in-Interest in Permanent Labor Certification Cases [6 USCIS-PM E.3].
[^ 7] For information on petition denials and portability, see Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment, Chapter 5, Job Portability after Adjustment Filing and Other AC21 Provisions [7 USCIS-PM E.5] and the Form I-485 Supplement J webpage.
[^ 8] See 8 CFR 204.5(e).
[^ 9] Petitions filed under the old third and sixth preferences were automatically converted to one of the new classifications when the provisions of the Immigration Act of 1990, Pub. L. 101-649 (PDF) (November 29, 1990), went into effect. If the application for labor certification was filed before October 1, 1991, the petition must have been filed by October 1, 1993, in order to preserve the date of the labor certification as the priority date. If the application for labor certification was filed before October 1, 1991, but not granted until after October 1, 1993, the petition must have been filed within 60 days after the date of certification to maintain the priority date. Otherwise, the date the petition was filed with USCIS (or before March 1, 2003, legacy Immigration and Naturalization Service) was the priority date.
[^ 10] See INA 203(b)(1)(A). For visa availability, see DOS’s Visa Bulletin.
[^ 11] See INA 203(b)(2)(B).
Chapter 9 - Evaluation of Education Credentials
In cases involving foreign degrees, officers may favorably consider a credentials evaluation performed by an independent credentials evaluator who has provided a credible, logical, and well-documented case for such an equivalency determination that is based solely on the alien’s foreign degree(s).[1]
In addition, officers may accept a comparable evaluation performed by a school official who has the authority to make such determinations and is acting in his or her official capacity with the educational institution.[2]
Officers should consider the opinions rendered by an education credential evaluator in conjunction with a review of the beneficiary’s relevant education credentials and other available credible resource material regarding the equivalency of the education credentials to college degrees obtained in the United States. Opinions rendered that are merely conclusory and do not provide a credible roadmap that clearly lays out the basis for the opinions are not persuasive.
Any educational equivalency evaluation performed by a credentials evaluator or school official is solely advisory in nature; the final determination continues to rest with the officer.[3]
Footnotes
[^ 1] For information on the specific educational requirements for professional and advanced degree professionals, see Part F, Employment-Based Classifications, Chapter 5, Advanced Degree or Exceptional Ability [6 USCIS-PM F.5], Chapter 6, Physician [6 USCIS-PM F.6], and Chapter 7, Skilled Worker, Professional, or Other Worker [6 USCIS-PM F.7].
[^ 2] For the advanced degree and professional classifications, the beneficiary’s educational credentials must be equivalent to a U.S. degree. See 8 CFR 204.5(k)(2) and 8 CFR 204.5(l)(2).
[^ 3] See Matter of Caron International (PDF), 19 I&N Dec. 791 (Comm. 1988). See Matter of Sea, Inc. (PDF), 19 I&N Dec. 817 (Comm. 1988). See Matter of Ho (PDF), 19 I&N Dec. 582 (BIA 1988).
Chapter 10 - Decision and Post-Adjudication
A. Approval
If the petitioner properly filed the petition and the officer is satisfied that the petitioner has met the required eligibility standards, the officer approves the petition.
After a petition has been approved and an immigrant visa is available, a beneficiary may apply for an immigrant visa with U.S. Department of State (DOS) or apply with USCIS to adjust status to permanent residence if in the United States.[1]
B. Denial
If the petitioner has not established eligibility, the officer denies the petition.
The officer should write the denial in clear and comprehensive language and cover all grounds for denial.[2] The officer should refer in the denial to the controlling statute or regulations and to any relevant precedent or adopted decisions. The decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider. The denied petition should then be held locally until the time period for an appeal or motion has passed.
The denial decision may be appealed to the Administrative Appeals Office (AAO) if falling within the AAO’s jurisdiction.[3] A petitioner may not appeal a denial decision that is based upon lack of permanent labor certification. A petitioner may appeal a case that is denied because the beneficiary does not qualify for the Schedule A designation or for the waiver of the job offer in the national interest, or because USCIS determined that a successor-in-interest does not exist.
C. Revocation
A petition’s approval may be revoked, in the agency’s discretion, “for good and sufficient cause.”[4] A petition may also be withdrawn upon a written request for withdrawal of the petition filed by the petitioner (who in some cases may also be the beneficiary).[5]
DOS may also terminate the registration of a beneficiary with an approved petition if such beneficiary fails to apply for an immigrant visa within 1 year of notification of availability of a visa number. The same statutory provision provides for reinstatement of registration in certain cases.[6]
According to the AAO’s adopted decision in Matter of V-S-G- Inc., beneficiaries who are otherwise eligible to and have properly requested to port under the American Competitiveness in the 21st Century Act (AC21) are affected parties.[7] As a result of this decision, USCIS provides a Notice of Intent to Revoke (NOIR) or a Notice of Revocation (NOR) or both to a beneficiary who has an approved petition and an Application to Register Permanent Residence or Adjust Status (Form I-485) that has been pending for 180 days or more, and has properly requested to port.
The porting request is proper when it has been favorably reviewed by USCIS before the issuance of a NOIR or NOR. Before January 17, 2017, a beneficiary requested to port by submitting a request in writing. Beginning January 17, 2017, a beneficiary must request to port by submitting Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j) (Form I-485 Supplement J).[8]
D. Fraudulent Marriage Prohibition
USCIS may not approve a petition, including an employment-based petition, filed on behalf of a beneficiary who has been determined to have attempted or conspired to enter into a marriage for the purpose of evading immigration laws.[9]
Although it is not necessary that the beneficiary has been convicted of, or even prosecuted for the attempt or conspiracy, the evidence of the actual act, attempt, or conspiracy must be contained in the beneficiary’s A-file. If a review of the beneficiary’s A-file indicates that he or she has attempted or conspired to obtain an immigration benefit by virtue of a fraudulent marriage, USCIS sends the petitioner a Notice of Intent to Deny (NOID) or NOIR that outlines the basis for the determination. The marriage must be shown to have been a sham at its inception for this prohibition to apply.
To overcome this ground of ineligibility, the petitioner must convincingly demonstrate that the beneficiary entered the marriage for the purpose of starting a life with his or her spouse and not strictly for the purpose of obtaining an immigration benefit.
If the evidence provided in response to the NOID or NOIR does not overcome the fraudulent marriage determination, the officer should deny or revoke the approval of a petition filed on behalf of any beneficiary for whom there is substantial and probative evidence of such an attempt or a conspiracy, regardless of whether the beneficiary received a benefit through the attempt or conspiracy.
Footnotes
[^ 1] See Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment [7 USCIS-PM E].
[^ 2] See 8 CFR 103.3(a)(1)(i). See DHS Delegation No. 0150.1 para. (2)(U) (Mar. 1, 2003), which delegated the Administrative Appeals Office’s jurisdiction over the decisions listed in 8 CFR 103.1(f)(3)(iii)(B) (PDF) (as they appeared February 28, 2003).
[^ 3] See 8 CFR 103.3(a)(2).
[^ 5] See 8 CFR 205.1 and 8 CFR 205.2.
[^ 6] See INA 203(g).
[^ 7] See Pub. L. 106-313 (PDF) (October 17, 2000). See Matter of V-S-G- Inc. (PDF), Adopted Decision 2017-06 (AAO Nov. 11, 2017).
[^ 8] For more information, see Volume 7, Adjustment of Status, Part E, Employment-Based Adjustment, Chapter 5, Job Portability after Adjustment Filing and Other AC21 Provisions [7 USCIS-PM E.5].
[^ 9] See INA 204(c). The fraudulent marriage prohibition that is articulated in INA 204(c) and 8 CFR 204.2(a)(1)(ii) does not distinguish between forms, but merely states “a petition for immigrant visa classification.” See Matter of Christo’s, Inc. (PDF), 26 I&N Dec. 537 (AAO 2015).
Part F - Employment-Based Classifications
Chapter 1 - Purpose and Background
A. Purpose
The Immigration and Nationality Act (INA) and implementing regulations provide for several employment-based immigrant visa classifications. Alien beneficiaries approved in these classifications are eligible to apply for lawful admission as a permanent resident or adjustment of status to permanent residence.
B. Background
In general, for an Immigrant Petition for Alien Workers (Form I-140), a petitioner must demonstrate to USCIS that the beneficiary is qualified for the immigrant classification sought.[1] If the petition is based on an underlying approved permanent labor certification application, then the petition must be filed during the validity period of the permanent labor certification established by the U.S. Department of Labor (DOL).
The petitioner must demonstrate that the beneficiary is qualified for the position certified by DOL. However, as discussed in more detail later in this part, there are several immigrant classifications that do not require the petitioner to first obtain a permanent labor certification. In addition, in certain classifications, the beneficiary is able to self-petition for the classification sought.
General information relating to employment-based immigrant petitions is provided in Part E.[2] This Part F provides a more detailed discussion of the specific immigrant classifications.
Visa Classifications
The following table lists the employment-based immigrant visa classifications, the corresponding codes of admission, and where to find additional guidance about the classifications.
Employment-Based Immigrant | Code of Admission | For More Information |
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Persons of Extraordinary Ability | E11 | See Chapter 2, Extraordinary Ability [6 USCIS-PM F.2] |
Outstanding Professor Outstanding Researcher | E12 | See Chapter 3, Outstanding Professor or Researcher [6 USCIS-PM F.3] |
Multinational Executive Multinational Manager | E13 | See Chapter 4, Multinational Executive or Manager [6 USCIS-PM F.4] |
Professional Holding Advanced Degree Person of Exceptional Ability | E21 | See Chapter 5, Advanced Degree or Exceptional Ability [6 USCIS-PM F.5] and Chapter 6, Physician [6 USCIS-PM F.6] |
Skilled Worker | E31 | See Chapter 7, Skilled Worker, Professional, or Other Worker [6 USCIS-PM F.7] |
Professional Holding Baccalaureate Degree | E32 | See Chapter 7, Skilled Worker, Professional, or Other Worker [6 USCIS-PM F.7] |
Other Worker | EW3 | See Chapter 7, Skilled Worker, Professional, or Other Worker [6 USCIS-PM F.7] |
C. Legal Authorities
- INA 203(b)(1), (2), (3) – Preference allocation for employment-based immigrants
- 8 CFR 204.5 – Petitions for employment-based immigrants
- 20 CFR 656 – Labor certification process for permanent employment of aliens in the United States
Footnotes
[^ 1] This Part generally uses the simplified terms petition, petitioner, and beneficiary. The term petition refers to the Immigrant Petition for Alien Workers (Form I-140). The term petitioner generally refers to the petitioning employer, though in some circumstances the petitioner may be a self-petitioning alien. The term beneficiary refers to the alien who is the beneficiary of the petition, who in some cases may also be a self-petitioner.
[^ 2] See Part E, Employment-Based Immigration [6 USCIS-PM E].
Chapter 2 - Extraordinary Ability
A. Eligibility
When seeking classification as a person of extraordinary ability, a petitioner files an Immigrant Petition for Alien Workers (Form I-140) on behalf of an alien (who may be the petitioner) with evidence demonstrating that the beneficiary is eligible.[1]
Eligibility for Extraordinary Ability Classification |
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The person has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation. |
The person seeks to enter the United States to continue work in the area of extraordinary ability. |
The person's entry into the United States will substantially benefit the United States in the future. |
Self-Petitioners
A petition filed on behalf of a person with extraordinary ability does not need to be supported by a job offer; therefore, anyone can file the petition on behalf of the person, including the alien who may file as a self-petitioner.[2] The person must still demonstrate, however, that he or she intends to continue work in the area of his or her extraordinary ability and that his or her work will substantially benefit the United States in the future.[3]
1. Sustained National or International Acclaim
When filing a petition for a person with extraordinary ability, the petitioner must submit evidence that the person has sustained national or international acclaim and that the person's achievements have been recognized in the field of expertise.[4] In determining whether the beneficiary has enjoyed "sustained" national or international acclaim, the officer should consider that such acclaim must be maintained.[5] However, the term sustained does not imply an age limit on the beneficiary. A beneficiary may be very young or early in his or her career and still be able to show sustained acclaim. There is also no definitive time frame on what constitutes sustained.
If a person was recognized for a particular achievement, the officer should determine whether the person continues to maintain a comparable level of acclaim in the field of expertise since the person was originally afforded that recognition. A person may, for example, have achieved national or international acclaim in the past but then failed to maintain a comparable level of acclaim thereafter.
2. Continuing to Work in the Area of Expertise
To qualify as a person with extraordinary ability, the beneficiary must intend to continue to work in the area of his or her expertise.[6]
The officer may encounter instances where it is difficult to determine whether the person’s intended employment falls sufficiently within the bounds of his or her area of extraordinary ability. Some of the most problematic cases are those in which the beneficiary’s sustained national or international acclaim is based on his or her abilities as an athlete, but the beneficiary’s intent is to come to the United States and be employed as an athletic coach or manager. Competitive athletics and coaching rely on different sets of skills and in general are not in the same area of expertise. However, many extraordinary athletes have gone on to be extraordinary coaches.
Therefore, in general, if a beneficiary has clearly achieved recent national or international acclaim as an athlete and has sustained that acclaim in the field of coaching or managing at a national level, officers can consider the totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary ability such that USCIS can conclude that coaching is within the beneficiary’s area of expertise.
Where the beneficiary has had an extended period of time to establish his or her reputation as a coach beyond the years in which he or she had sustained national or international acclaim as an athlete, depending on the specific facts, officers may place heavier, or exclusive, weight on the evidence of the beneficiary’s achievements as a coach or a manager.
3. Entry to Substantially Benefit the United States
To qualify as a person with extraordinary ability, the person’s entry must substantially benefit the United States in the future.[7] Although neither the statute nor the regulations specifically define the statutory phrase “substantially benefit,” it has been interpreted broadly.[8]
Whether the petitioner demonstrates that the person’s employment meets this requirement requires a fact-dependent assessment of the case. There is no standard rule as to what will substantially benefit the United States. In some cases, a Request for Evidence (RFE) may be appropriate if an officer is not yet satisfied that the petitioner has met this requirement.
B. Evidence of Extraordinary Ability
The regulations describe various types of evidence that the petitioner must submit in support of a petition as documentation of the beneficiary’s extraordinary ability.[9] In general, the petitioner must submit evidence that:
- The person has sustained national or international acclaim; and
- The person’s achievements have been recognized in the field of expertise.
This initial evidence must include either evidence of a one-time achievement (for example, a major internationally recognized award, such as the Nobel Prize) or at least three of the types of evidence listed in the regulations.[10]
The evidence provided in support of the petition need not specifically use the words "extraordinary." Rather, the material should be such that it is readily apparent that the person's contributions to the field are qualifying. Also, although some of the regulatory language relating to evidence occasionally uses plurals, it is entirely possible that the presentation of a single piece of evidence in a specific evidentiary category may be sufficient.
On the other hand, the submission of voluminous documentation may not contain sufficient persuasive evidence to establish the beneficiary’s eligibility. The evidence provided in support of the petition must ultimately establish that the beneficiary "is one of that small percentage who have risen to the very top of the field of endeavor."[11]
Officers should use a two-step analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for classification as a person with extraordinary ability.[12]
Petition for Extraordinary Ability Classification: Overview of Two-Step Evidentiary Review | |
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Step 1 | Assess whether evidence meets regulatory criteria: Determine, by a preponderance of the evidence, which evidence submitted by the petitioner objectively meets the parameters of the regulatory description that applies to that type of evidence (referred to as "regulatory criteria"). |
Step 2 | Final merits determination: Evaluate all the evidence together when considering the petition in its entirety for the final merits determination, in the context of the high level of expertise required for this immigrant classification. |
1. Initial Evidence of Extraordinary Ability
The first step of the evidentiary review is limited to determining whether the evidence submitted with the petition meets the regulatory criteria.[13] The evidence must be comprised of either a one-time achievement (that is, a major, internationally recognized award) or at least three of the ten regulatory criteria or be comparable to at least three of the ten regulatory criteria.[14] The officer should apply a preponderance of the evidence standard when making this determination.
For purposes of the first step of the analysis, officers should consider the quality and caliber of the evidence to determine whether a particular regulatory criterion has been met, to the extent the criterion has qualitative requirements.[15] Officers should not yet make a determination regarding whether or not the person is one of that small percentage who have risen to the very top of the field or if the person has sustained national or international acclaim.[16]
The following tables describe the limited determinations the officer should make in the first step of the analysis to determine whether the person has met the applicable evidentiary criteria, including any qualifying comparable evidence.[17]
Criterion 1: Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.[18] |
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First, USCIS determines if the person was the recipient of prizes or awards. Nothing precludes the person from relying on a team award, provided the person is one of the recipients of the award.[19] The description of this type of evidence in the regulation indicates that the focus should be on the person's receipt of the awards or prizes, as opposed to the employer's receipt of the awards or prizes. Second, USCIS determines whether the award is a lesser nationally or internationally recognized prize or award which the person received for excellence in the field of endeavor. As indicated by the plain language of the regulation, this criterion does not require an award or prize to have the same level of recognition and prestige associated with the Nobel Prize or another award that would qualify as a one-time achievement. Examples of qualifying awards may include, but are not limited to:
Considerations: Relevant considerations regarding whether the basis for granting the prizes or awards was excellence in the field include, but are not limited to:
While many scholastic awards do not have the requisite level of recognition, there may be some that are nationally or internationally recognized as awards for excellence such that they may satisfy the requirements of this criterion. For example, an award available only to persons within a single locality, employer, or school may have little national or international recognition, while an award open to members of a well-known national institution (including an R1 or R2 doctoral university[20]) or professional organization may be nationally recognized. Similarly, national or international recognition is most often associated with awards given to individuals at the highest level in a given field. However, there is no specific requirement that an award be open to all members of the field, including the most experienced, in order to meet the requirements of this criterion. While limitations on competitors can be a relevant factor, in some instances the evidence may establish that an award or prize is nationally or internationally recognized despite being limited to youth, amateur competitors, or early-career professionals. For instance, awards presented to new players or “rookies” in major sports leagues may garner national or even international media coverage. |
Criterion 2: Membership in associations in the field for which classification is sought that require outstanding achievement of their members, as judged by recognized national or international experts in their disciplines or fields.[21] |
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USCIS determines if the association for which the person claims present or past membership[22] requires that members have outstanding achievements in the field as judged by recognized experts in that field. Examples of associations in the field requiring outstanding achievement of their members may include, but are not limited to:
Considerations: The petitioner must show that membership in the association requires outstanding achievements in the field for which classification is sought, as judged by recognized national or international experts. Associations may have multiple levels of membership. The level of membership afforded to the person must show that in order to obtain that level of membership, recognized national or international experts judged the person as having attained outstanding achievements in the field for which classification is sought. As a possible example, general membership in an international organization for engineering and technology professionals may not meet the requirements of the criterion. However, if that same organization at the fellow level requires, in part, that a nominee have accomplishments that have, for example, contributed importantly to the advancement or application of engineering, science, and technology, and that a council of experts and a committee of current fellows judges the nominations for fellows, that higher, fellow level may be qualifying. Another possible qualifying example may include membership as a fellow in a scientific society dedicated to artificial intelligence if the membership is based on recognition of a nominee’s significant, sustained contributions to the field of artificial intelligence, and a panel of current fellows makes the selection of new fellows. Relevant factors that may lead to a conclusion that the person's membership in the association(s) was not based on outstanding achievements in the field include, but are not limited to, instances where the person's membership was based solely on the following factors (by themselves or in the aggregate):
|
Criterion 3: Published material about the person in professional or major trade publications or other major media relating to the person's work in the field for which classification is sought. Such evidence must include the title, date, and author of the material, and any necessary translation.[23] |
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First, USCIS determines whether the published material was related to the person and the person's specific work in the field for which classification is sought. Examples of qualifying media may include, but are not limited to:
Considerations: The published material should be about the person, relating to the person’s work in the field, and not just about the person’s employer and the employer’s work or about another organization and that organization’s work. Marketing materials created for the purpose of selling the person's products or promoting the person’s services are not generally considered to be published material about the person (this includes seemingly objective content about the person in major print publications that the person or the person’s employer paid for). However, the person and the person’s work need not be the only subject of the material; published material that covers a broader topic but includes a substantial discussion of the person’s work in the field and mentions the person in connection to the work may be considered material about the person relating to the person’s work. Moreover, officers may consider material that focuses solely or primarily on work or research being undertaken by a team of which the person is a member, provided that the material mentions the person in connection with the work or other evidence in the record documents the person’s significant role in the work or research. Evidence may include documentation such as print or online newspaper or magazine articles, popular or academic journal articles, books, textbooks, similar publications, or a transcript of professional or major audio or video coverage of the person and the person’s work. Second, USCIS determines whether the publication qualifies as a professional publication, major trade publication, or major media publication. In evaluating whether a submitted publication is a professional publication, major trade publication, or major media, relevant factors include the intended audience (for professional and major trade publications) and the relative circulation, readership, or viewership (for major trade publications and other major media). |
Criterion 4: The person's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought.[24] |
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USCIS determines whether the person has acted as the judge of the work of others in the same or an allied field of specification. Examples of judging the work of others may include, but are not limited to:
Considerations: The petitioner must show that the person has not only been invited to judge the work of others, but also that the person actually participated in the judging of the work of others in the same or allied field of specialization. For example, a petitioner might document the person’s peer review work by submitting a copy of a request from a journal to the person to do the review, accompanied by evidence confirming that the person actually completed the review. |
Criterion 5: The person's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.[25] |
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First, USCIS determines whether the person has made original contributions in the field. Second, USCIS determines whether the original contributions are of major significance to the field. Examples of relevant evidence include, but are not limited to:
Considerations: Analysis under this criterion focuses on whether the person’s original work constitutes major, significant contributions to the field. Evidence that the person’s work was funded, patented, or published, while potentially demonstrating the work’s originality, will not necessarily establish, on its own, that the work is of major significance to the field. For example, published research that has provoked widespread commentary on its importance from others working in the field, and documentation that it has been highly cited relative to others’ work in that field, may be probative of the significance of the person’s contributions to the field of endeavor. Similarly, evidence that the person developed a patented technology that has attracted significant attention or commercialization may establish the significance of the person’s original contribution to the field. If a patent remains pending, USCIS generally requires additional supporting evidence to document the originality of the person’s contribution, such as detailed reference letters. Detailed letters from experts in the field explaining the nature and significance of the person’s contribution may also provide valuable context for evaluating the claimed original contributions of major significance, particularly when the record includes documentation corroborating the claimed significance. Submitted letters should specifically describe the person’s contribution and its significance to the field and should also set forth the basis of the writer’s knowledge and expertise. |
Criterion 6: The person's authorship of scholarly articles in the field, in professional or major trade publications or other major media.[26] |
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First, USCIS determines whether the person has authored scholarly articles in the field. As defined in the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college, university, or research institution. Scholarly articles are also generally peer reviewed by other experts in the field of specialization. In general, it should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. Examples of scholarly article authorship include, but are not limited to:
For other fields, a scholarly article should be written for learned persons in that field. ("Learned" is defined as "having profound knowledge gained by study").[28] Learned persons include all persons having profound knowledge of a field. Second, USCIS determines whether the publication qualifies as a professional publication, major trade publication, or major media publication. In evaluating whether a submitted publication is a professional publication or major media, relevant factors include the intended audience (for professional journals) and the circulation or readership relative to other media in the field (for major media). |
Criterion 7: Display of the person's work in the field at artistic exhibitions or showcases.[29] |
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First, USCIS determines whether the work that was displayed is the person's work product. The description of this type of evidence in the regulation provides that the work must be the person's work product. Second, USCIS determines whether the venues (virtual or otherwise) where the person's work was displayed were artistic exhibitions or showcases. Merriam-Webster's online dictionary defines “exhibition” as a public showing (as of works of art, objects of manufacture, or athletic skill).[30] While the dictionary definition includes public showings other than those that are artistic in nature, the plain language of the criterion includes the modifier “artistic” and explicitly requires that the exhibitions or showcases be artistic in nature. USCIS only considers non-artistic exhibitions or showcases as part of a properly supported claim of comparable evidence, discussed in more detail below. |
Criterion 8: The person has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.[31] |
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First, USCIS determines whether the person has performed in a leading or critical role for an organization, establishment, or a division or department of an organization or establishment. Examples of lead or critical roles may include, but are not limited to:
Considerations: In evaluating such evidence, officers examine whether the role is (or was) leading or critical. For a leading role, officers look at whether the evidence establishes that the person is (or was) a leader within the organization or establishment or a division or department thereof. A title, with appropriate matching duties, can help to establish that a role is (or was), in fact, leading. For a critical role, officers look at whether the evidence establishes that the person has contributed in a way that is of significant importance to the outcome of the organization or establishment's activities or those of a division or department of the organization or establishment. A supporting role may be considered critical if the person's performance in the role is (or was) important. It is not the title of the person's role, but rather the person's performance in the role that determines whether the role is (or was) critical. This is one criterion where letters from persons with personal knowledge of the significance of the person's leading or critical role can be particularly helpful to officers in making this determination, so long as the letters contain detailed and probative information that specifically addresses how the person's role for the organization, establishment, division, or department was leading or critical. Evidence of experience must consist of letters from employers.[33] Second, USCIS determines whether the organization or establishment, or the department or division for which the person holds or held a leading or critical role, has a distinguished reputation. The relative size or longevity of an organization or establishment is not in and of itself a determining factor but is considered together with other information to determine whether a distinguished reputation exists. Other relevant factors for evaluating the reputation of an organization or establishment can include the scale of its customer base or relevant media coverage. For academic departments, programs, and institutions, officers may also consider relevant and credible national rankings and receipt of government research grants as positive factors. For a startup business, officers may consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders commensurate with funding rounds generally achieved for that startup’s stage and industry, as a positive factor regarding its distinguished reputation. Merriam-Webster's online dictionary defines “distinguished” as “marked by eminence, distinction, or excellence” or “befitting an eminent person.”[34] |
Criterion 9: The person has commanded a high salary, or other significantly high remuneration for services, in relation to others in the field.[35] |
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USCIS determines whether the person's salary or remuneration is high relative to the compensation paid to others working in the field. USCIS does not interpret the phrase “has commanded” to mean that the person must have already earned such salary or remuneration in order to meet the criterion. Rather, a credible contract or job offer showing prospective salary or remuneration may establish that the person has been able to command such compensation. Evidence relevant to demonstrating high remuneration may include, but is not limited to:
Considerations: Evidence regarding whether the person's compensation is high relative to that of others working in the field may take many forms. Examples may include, but are not limited to, geographical or position-appropriate compensation surveys and organizational justifications to pay above the compensation data. The following websites, among others, may be helpful in evaluating the relative compensation for a given field:
When evaluating whether a comparison between the beneficiary’s documented remuneration and the remuneration in the survey is accurate, the following considerations, among others, may be relevant:
For entrepreneurs or founders of startup businesses, officers consider evidence that the business has received significant funding from government entities, venture capital funds, angel investors, or other such funders in evaluating the credibility of submitted contracts, job offer letters, or other evidence of prospective salary or remuneration for services. |
Criterion 10: Commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.[36] |
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USCIS determines whether the person has enjoyed commercial successes in the performing arts. This criterion focuses on volume of sales and box office receipts as a measure of the person's commercial success in the performing arts. Therefore, the mere fact that a person has recorded and released musical compilations or performed in theatrical, motion picture, or television productions would be insufficient, in and of itself, to meet this criterion. The evidence must show that the volume of sales and box office receipts reflect the person's commercial success relative to others involved in similar pursuits in the performing arts. |
Comparable evidence: Comparable evidence to establish the person's eligibility if the standards do not readily apply to the person's occupation.[37] |
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USCIS determines if the evidence submitted is comparable to the evidence required in 8 CFR 204.5(h)(3). This regulatory provision provides petitioners the opportunity to submit comparable evidence to establish the person's eligibility, if it is determined that the evidentiary criteria described in the regulations do not readily apply to the person's occupation. When evaluating such comparable evidence, officers must consider whether the regulatory criteria are readily applicable to the person's occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in that regulation. A general unsupported assertion that the listed evidentiary criterion does not readily apply to the petitioner’s occupation is not probative. Similarly, general claims that USCIS should accept witness letters as comparable evidence are not persuasive. However, a statement from the petitioner can be sufficient to establish whether a criterion is readily applicable if that statement is detailed, specific, and credible. Although officers do not consider comparable evidence where a particular criterion is readily applicable to the person’s occupation, a criterion need not be entirely inapplicable to the person’s occupation. Rather, the officer considers comparable evidence if the petitioner shows that a criterion is not easily applicable to the person’s job or profession.[38] As with all extraordinary ability petitions, officers may consider comparable evidence in support of petitions for persons working in science, technology, engineering, or mathematics (STEM) fields. Specifically, if a petitioner demonstrates that a particular criterion does not readily apply to the person’s occupation, the petitioner may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition. For instance, if the publication of scholarly articles is not readily applicable to a person whose occupation is in an industry rather than academia, a petitioner might demonstrate that the person’s presentation of work at a major trade show is of comparable significance to that criterion. As another example, if the petitioner demonstrates that receipt of a high salary is not readily applicable to the person’s position as an entrepreneur, the petitioner might present evidence that the person’s highly valued equity holdings in the startup are of comparable significance to the high salary criterion. The following are other non-exhaustive examples of where the comparable evidence provision might apply:
There is no comparable evidence for the one-time achievement of a major, international recognized award. |
Notably, the evidence evaluated in this step is also reviewed in the next step where the officer must determine whether the person is one of that small percentage who has risen to the very top of the field of endeavor, and that the person has sustained national or international acclaim.
However, objectively meeting the regulatory criteria in the first step alone does not establish that the person in fact meets the requirements for classification as a person with extraordinary ability.[39]
For example:
- Participating in the judging of the work of others in the same or an allied field of specialization alone, regardless of the circumstances, should satisfy the regulatory criteria in the first step of the analysis. However, the second step requires the officer to evaluate the person's participation to determine whether it was indicative of the person being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.
- Publishing scholarly articles in professional or major trade publications or other major media alone, regardless of the caliber, should satisfy the regulatory criteria in the first step of the analysis. However, the second step requires the officer to evaluate the person's publications to determine whether they were indicative of the person being one of that small percentage who have risen to the very top of the field of endeavor and enjoying sustained national or international acclaim.
The question of whether the person is one of that small percentage who have risen to the very top of the field of endeavor and enjoys sustained national or international acclaim should be addressed in the second step of the analysis (final merits determination). In the first step, the officer is only required to determine if the evidence objectively meets the regulatory criteria.
2. Final Merits Determination
In the second step of the analysis, the officer should consider the petition in its entirety to determine eligibility according to the standard. To establish eligibility, the petition must demonstrate that the person has sustained national or international acclaim and that their achievements have been recognized in the field of expertise, indicating that the person is one of that small percentage who has risen to the very top of the field of endeavor. The officer applies a preponderance of the evidence standard when making this determination.
An officer may not limit the kind of evidence the officer thinks the person should be able to submit and deny the petition if that particular type of evidence (whether one of the prescribed types[40] or comparable evidence[41]) is absent, if the person nonetheless submitted other types of evidence that meet the regulatory requirements for the classification.
For example, an officer may think that if a person is extraordinary, there should be published articles about the person and the person’s work. However, an officer cannot deny the petition because no published articles were submitted, so long as the petitioner has submitted other evidence that meets the three qualifying criteria which demonstrates the person is in fact extraordinary. Approval or denial of a petition is based on the type and quality of evidence submitted rather than assumptions about the failure to address different criteria.
At this step, officers consider any potentially relevant evidence in the record, even if such evidence does not fit one of the above regulatory criteria or was not presented as comparable evidence. The officers consider all evidence in the totality. Some evidence may weigh more favorably on its own, while other evidence is more persuasive when viewed with other evidence.
The following are examples of situations where evidence in the record may help officers evaluate the quality of the initial or comparable evidence and determine whether in a totality analysis that considers all of the evidence, the person is among the small percentage at the top of the field and has sustained national or international acclaim:[42]
- The record demonstrates that the person has published articles in particularly highly-ranked journals (including published conference proceedings) relative to other journals in the field, as demonstrated by, for example, evidence the petitioner provides regarding the journal’s impact factor.[43] Depending on the level of recognition of the journals in question, as demonstrated by evidence in the record, there may be particular prestige or acclaim associated with publication in such journals, especially if the person is the most significant contributor to the published article, a senior author, or the sole author of the article;
- The petitioner provides evidence demonstrating that the total rate of citations to the person’s body of published work is high relative to others in the field, such as the person has a high h-index[44] for the field. Depending on the field and the comparative data the petitioner provides, such evidence may indicate a person’s high overall standing for the purpose of demonstrating that the person is among the small percentage at the top of the field;[45]
- The petitioner documents the person’s employment or research experience with leading institutions in the field (such as U.S. universities that have been recognized as having high or very high research activity by the Carnegie Classification of Institutions of Higher Education,[46] foreign universities with comparably high research activity, or a university that is highly regarded according to a widely recognized metric such as the QS World University Rankings[47]). Such employment or experience can be a positive factor toward demonstrating that the person is among the small percentage at the top of the field;
- The record establishes that the person has received unsolicited invitations to speak or present research at nationally or internationally recognized conferences in the field. This type of invitation is generally indicative of a person’s high standing and recognition for achievements in the field; and
- The record establishes that the person is named as an investigator, scientist, or researcher on a peer-reviewed and competitively-funded U.S. government grant or stipend for STEM research. This type of evidence can be a positive factor indicating a person is among the small percentage at the top of the person’s field.
In all cases, the petitioner must provide sufficient context regarding the above evidence and considerations to demonstrate that the evidence meets the relevant criteria and to establish the person’s extraordinary ability in the totality of the circumstances. This means that the petitioner must explain the significance of the submitted evidence, and how it demonstrates that the person has achieved sustained national or international acclaim and recognition in their field of expertise.
While a person may be stronger in one particular evidentiary area than in others, the totality of the evidence must establish that the person is extraordinary. If the officer determines that the petitioner has failed to demonstrate eligibility, the officer should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific reasons as to why the officer concluded that the petitioner has not demonstrated by a preponderance of the evidence that the person has extraordinary ability.[48] As with all adjudications, if an officer believes that the facts stated in the petition are not true, and can articulate why in the denial, then the officer denies the petition and explains the reasons in the written denial.
If requesting additional evidence is appropriate, officers should provide some explanation of the deficiencies in the evidence already submitted and, if possible, examples of persuasive evidence that the petitioner might provide to corroborate the statements made in the petition. If a petitioner has submitted evidence that the petitioner believes establishes the person's extraordinary ability, merely restating the evidentiary requirements or stating that the evidence submitted is insufficient does not clarify to the petitioner how to overcome the deficiencies.
3. Other Evidentiary Considerations
Letters of Support
Many petitions to classify a person with extraordinary ability contain letters of support. Letters of support, while not without weight, should not form the cornerstone of a successful claim for this classification. Rather, the statements made by the witnesses should be corroborated by documentary evidence in the record. The letters should explain in specific terms why the witnesses believe the beneficiary to be of the caliber of a person with extraordinary ability. Letters that merely reiterate USCIS’ definitions relating to this classification or make general and expansive statements regarding the beneficiary and the beneficiary’s accomplishments are generally not persuasive.
The relationship or affiliation between the beneficiary and the witness is also a factor the officer should consider when evaluating the significance of witnesses’ statements. It is generally expected that one whose accomplishments have garnered sustained national or international acclaim would have received recognition for their accomplishments well beyond the circle of their personal and professional acquaintances.
In some cases, letters from others in the beneficiary’s field may merely make general assertions about the beneficiary, and at most, indicate that the beneficiary is a competent, respected figure within the field of endeavor, but the record lacks sufficient, concrete evidence supporting such statements. These letters should be considered, but do not necessarily show the beneficiary’s claimed extraordinary ability.
Evaluating Immigrant Petitions Filed on Behalf of O-1 Nonimmigrants
An officer might encounter a case where a petition is filed on behalf of a person who was previously classified as an O-1 nonimmigrant with extraordinary ability, or extraordinary achievement in the case of persons in the motion picture and television industry.[49] Though the prior approval of an O-1 petition is a relevant consideration and can be an indicator of eligibility in adjudicating an immigrant petition for a person with extraordinary ability, it is not determinative.[50]
Due to the similarities in many of the evidentiary requirements, some courts have asked USCIS to provide an explanation as to why, if the person had previously been classified in a roughly analogous nonimmigrant category, USCIS has determined that the person is not eligible for the employment-based immigrant visa classification in question.
For this reason, where possible, officers issuing denials in such cases should provide a brief discussion as to why, notwithstanding the previous O-1 nonimmigrant visa petition approval, the petitioner has failed to meet its burden to establish that the beneficiary is eligible for classification as an immigrant with extraordinary ability.
Footnotes
[^ 1] See INA 203(b)(1)(A). See 8 CFR 204.5(h).
[^ 2] See 8 CFR 204.5(h)(5). See 8 CFR 204.5(h)(1) (providing that “[a]n alien, or any person on behalf of the alien,” may file the petition).
[^ 3] See INA 203(b)(1)(A)(ii)-(iii).
[^ 4] See INA 203(b)(1)(A)(i). See 8 CFR 204.5(h)(3).
[^ 5] According to Black's Law Dictionary (11th ed. 2019), the definition of sustain is "to support or maintain, especially over a long period of time . . . To persist in making (an effort) over a long period of time."
[^ 6] See INA 203(b)(1)(A)(ii). See 8 CFR 204.5(h)(5).
[^ 7] See INA 203(b)(1)(A)(iii).
[^ 8] See Matter of Price (PDF), 20 I&N Dec. 953 (Assoc. Comm. 1994) (golfer of beneficiary’s caliber will substantially benefit prospectively the United States given the popularity of the sport).
[^ 9] See 8 CFR 204.5(h)(3)-(4).
[^ 10] See 8 CFR 204.5(h)(3).
[^ 11] See 8 CFR 204.5(h)(2).
[^ 12] See Kazarian v. USCIS (PDF), 596 F.3d 1115 (9th Cir. 2010).
[^ 13] See Kazarian v. USCIS (PDF), 596 F.3d 1115 (9th Cir. 2010).
[^ 14] See 8 CFR 204.5(h)(3).
[^ 15] For example, in evaluating an award submitted under 8 CFR 204.5(h)(3)(i), it is necessary to consider the level of recognition the award holds to determine whether it is “nationally or internationally recognized,” consistent with the requirements of the criterion. However, evidence that the beneficiary’s work was displayed at an artistic exhibition alone, regardless of caliber or significance, would satisfy the requirements of 8 CFR 204.5(h)(3)(vii).
[^ 16] See Kazarian v. USCIS (PDF), 596 F.3d 1115, 1122 (9th Cir. 2010).
[^ 17] See 8 CFR 204.5(h)(3).
[^ 18] See 8 CFR 204.5(h)(3)(i).
[^ 19] In general, qualifying awards include team awards where each member receives a trophy, certification, or medal; appears on the podium or stage; or is specifically named in the awarding organization’s announcement of the award selection. Examples include members of a musical group who receive an award and relay team members who appear together on the medal podium. Mere acknowledgment from the award recipient does not constitute receiving the award from the awarding authority.
[^ 20] The Carnegie Classification of Institutions of Higher Education recognizes R1 and R2 doctoral universities as having very high or high research activity, respectively, based on publicly available federal government data regarding the number of doctoral degrees awarded and the amount of total research expenditures. See the Carnegie Classification of Institutions of Higher Education’s Carnegie Classification webpage.
[^ 21] See 8 CFR 204.5(h)(3)(ii).
[^ 22] While current membership is not required to meet the plain language requirements of this criterion, if the petition is not accompanied by any recent evidence, the length of time since membership may be a consideration for whether the person has sustained acclaim in the final merits determination.
[^ 23] See 8 CFR 204.5(h)(3)(iii).
[^ 24] See 8 CFR 204.5(h)(3)(iv).
[^ 25] See 8 CFR 204.5(h)(3)(v).
[^ 26] See 8 CFR 204.5(h)(3)(vi).
[^ 27] While many articles accepted for presentation at conferences do not result in publication, there are conferences that peer review and publish accepted presentations in professional journals (sometimes called proceedings), such that they may qualify as scholarly articles under this criterion.
[^ 28] See Oxford English Dictionary’s definition of “learned.”
[^ 29] See 8 CFR 204.5(h)(3)(vii).
[^ 30] See Merriam-Webster Dictionary’s definition of “exhibition.”
[^ 31] See 8 CFR 204.5(h)(3)(viii).
[^ 32] See SBIR America’s Seed Fund webpage.
[^ 33] See 8 CFR 204.5(g)(1).
[^ 34] See Merriam-Webster Dictionary’s definition of “distinguished.”
[^ 35] See 8 CFR 204.5(h)(3)(ix).
[^ 36] See 8 CFR 204.5(h)(3)(x).
[^ 37] See 8 CFR 204.5(h)(4).
[^ 38] Consistent with a plain language reading, “readily” means “easily” or “without much difficulty.” See Merriam-Webster Dictionary’s definition of “readily." The term “occupation” is defined as “the principal business of one’s life.” See Merriam-Webster Dictionary’s definition of “occupation.”
[^ 39] See INA 203(b)(1)(A).
[^ 40] See 8 CFR 204.5(h)(3).
[^ 41] See 8 CFR 204.5(h)(4).
[^ 42] Not all cases will have such evidence, nor is such evidence necessary for the petitioner to demonstrate eligibility. Additionally, the list is a non-exhaustive list of examples. While the listed factors may be especially relevant to persons in STEM fields, the guidance applies to all extraordinary ability petitions.
[^ 43] Impact factor is commonly used as a measure of a journal’s influence; it represents the average number of citations received per article published in that journal during the 2 preceding years. See Garfield, E, The History and Meaning of the Journal Impact Factor, Journal of the American Medical Association, Vol. 295, Iss. 1, p. 90 (2006).
[^ 44] The h-index is an example of a tool for measuring a researcher’s output and impact. It is based on the highest number of the researcher’s publications that have been cited at least that same number of times. For example, if a researcher has an h-index of 10, it means the researcher has 10 publications that have 10 or more citations each (but not 11 publications with at least 11 citations each). See Hirsch, J, An Index to Quantify an Individual’s Scientific Research Output, Proceedings of the National Academy of Sciences of the United States of America, Vol. 102, Iss. 46, p. 16569 (2005). Other indices for measuring output and impact are also used. When relying on any of these tools, a petitioner should explain its methodology and significance with supporting documentation because the sources for the data and the duration of time involved in the calculation can impact the actual h-index value.
[^ 45] This factor is less relevant for beneficiaries early in their career, as such persons have had less time to accumulate citations but may nevertheless have garnered acclaim and risen to the small percentage at the top of the field as demonstrated by other evidence in the record. As stated above, none of the listed factors are required to demonstrate eligibility.
[^ 46] The Carnegie Classification of Institutions of Higher Education uses the R1 and R2 doctoral university designations to recognize institutions as having very high or high research activity, respectively, based on publicly available federal government data regarding the number of doctoral degrees awarded and the amount of total research expenditures. See the Carnegie Classification of Institutions of Higher Education’s Carnegie Classification webpage.
[^ 47] QS is a British analytics company specializing in global higher education. See the QS About Us webpage. The QS World University Rankings annually evaluate universities according to a methodology based on six consistent and empirical metrics: academic reputation (40 percent), employer reputation (10 percent), faculty to student ratio (20 percent), citations per faculty (20 percent), international faculty ratio (5 percent), and international student ratio (5 percent). These metrics are used to rank universities, as well as capture and assess university performance. See the QS World University Rankings Methodology webpage.
[^ 48] As described in INA 203(b)(1)(A).
[^ 49] For more information on this classification, see Volume 2, Nonimmigrants, Part M, Nonimmigrants of Extraordinary Ability or Achievement (O), Chapter 4, O-1 Beneficiaries [2 USCIS-PM M.4].
[^ 50] Each petition is separate and independent and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions. Moreover, the O-1 nonimmigrant classification has different standards and criteria for persons in the arts and the motion picture and television industry when compared to the definition and standard set forth for immigrants with extraordinary ability. For example, a person in the arts may have extraordinary ability under the O-1 category because the person has distinction, which is defined as a nonimmigrant with extraordinary ability in the arts; but does not meet the definition for extraordinary ability according to the immigrant classification criteria, which is defined as a person who is among the small percentage at the very top of the field.
Chapter 3 - Outstanding Professor or Researcher
A. Eligibility
A U.S. employer, including a university institution of higher learning or private employer, may petition for a professor or researcher who is internationally recognized as outstanding in a specific academic area to work in a tenured or tenure-track position or a comparable position to conduct research.[1]
B. Evidence
The regulation describes the evidence that the petitioner must submit in support of an Immigrant Petition for Alien Workers (Form I-140) for an outstanding professor or researcher.[2] The petitioner must submit evidence to demonstrate that the beneficiary professor or researcher (beneficiary) is recognized internationally as outstanding in the academic field specified in the petition. Academic field means "a body of specialized knowledge offered for study at an accredited U.S. university or institution of higher education."[3]
By regulatory definition, a body of specialized knowledge is larger than a very small area of specialization in which only a single course is taught or that is the subject of a very specialized dissertation. As such, it would be acceptable to find the beneficiary is an outstanding professor or researcher in particle physics rather than physics in general, as long as the petitioner has demonstrated that the claimed field is "a body of specialized knowledge offered for study at an accredited United States university or institution of higher education."[4]
In addition, the petitioner must submit evidence of an offer from a qualifying prospective employer of tenured or tenure-track employment (for professors) or permanent employment (which can also include tenured or tenure track positions) in the case of research positions.[5] Finally, the petitioner must provide evidence that the beneficiary has had at least 3 years of experience in teaching or research in the academic field in which the beneficiary will be engaged.[6]
Officers should use a two-step analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for classification as an outstanding professor or researcher.[7]
Petition to Classify an Outstanding Professor or Researcher: Overview of Two-Step Evidentiary Review | |
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Step 1 | Assess whether evidence meets regulatory criteria: Determine, by a preponderance of the evidence, which evidence submitted by the petitioner objectively meets the parameters of the regulatory description that applies to that type of evidence (referred to as "regulatory criteria"). |
Step 2 | Final merits determination: Evaluate all the evidence together when considering the petition in its entirety for the final merits determination, in the context of the high level of expertise required for this immigrant classification. |
Officers should apply a preponderance of the evidence standard when making these determinations.
1. Assess Whether Evidence Meets Any Regulatory Criteria
The first step of the evidentiary review is limited to determining whether the evidence submitted with the petition is comprised of at least two of the six regulatory criteria.[8]
For purposes of the first step of the analysis, officers should consider the quality and caliber of the evidence to determine whether a particular regulatory criterion has been met, to the extent the criterion has qualitative requirements.[9] Officers should not yet make a determination regarding whether or not the beneficiary is recognized internationally as outstanding in the academic field.
For example:
- Participating in the judging of the work of others in the same or an allied academic field alone, regardless of the circumstances, should satisfy the regulatory criteria in step one. However, for the analysis in step two, the beneficiary's participation should be evaluated to determine whether it was indicative of the beneficiary being recognized internationally as outstanding in a specific academic area.
- Authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field alone, regardless of the caliber, should satisfy the regulatory criteria in step one. However, for the analysis in step two, the beneficiary's authorship of books or articles should be evaluated to determine whether they were indicative of the beneficiary being recognized internationally as outstanding in a specific academic area.
The issue of whether the beneficiary is recognized internationally as outstanding in a specific academic area should be addressed in the second step of the analysis (final merits determination), not in the first step where the officer is only required to determine if the evidence objectively meets the regulatory criteria.
The following tables provide details on the limited determinations that officers should make when first evaluating the evidence, including comparable evidence.
Criterion 1: Receipt of major prizes or awards for outstanding achievement in the academic field.[10] |
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First, USCIS determines if the beneficiary was the recipient of prizes or awards. The description of this type of evidence in the regulation indicates that the focus must be on the beneficiary's receipt of the major prizes or awards, as opposed to the employer's receipt of the prizes or awards. Second, USCIS determines whether the prizes or awards received are major ones and are for outstanding achievement in the academic field. Examples of qualifying rewards may include, but are not limited to:
Considerations: Relevant considerations regarding whether the basis for granting the major prizes or awards for outstanding achievement in the academic field include, but are not limited to:
For example, an award available only to persons within a single locality, employer, or school may have little international recognition, while an award open to members of an internationally known and respected institution (including an R1 or R2 doctoral university[11]) or professional organization may be internationally recognized. |
Criterion 2: Membership in associations in the academic field that require outstanding achievements of their members.[12] |
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First, USCIS determines if the association for which the beneficiary claims membership requires outstanding achievements in the academic field. Examples of associations in the field requiring outstanding achievement of their members may include, but are not limited to:
Considerations: The petitioner must show that membership in the association is based on the beneficiary's outstanding achievements in the academic field. Associations may have multiple levels of membership. The level of membership afforded to the beneficiary must show that it requires outstanding achievements in the academic field for which classification is sought. As a possible example, general membership in an international organization for engineering and technology professionals may not meet the requirements of the criterion. However, if that same organization at the fellow level requires, in part, that a nominee have accomplishments that have contributed importantly to the advancement or application of engineering, science, and technology, and that a council of experts and a committee of current fellows judges the nominations for fellows, that higher, fellow level may be qualifying. As another possible example, membership as a fellow in a scientific society dedicated to artificial intelligence is based on recognition of a nominee’s significant, sustained contributions to the field of artificial intelligence, and a panel of current fellows makes the selection of new fellows. Relevant factors that may lead to a conclusion that the beneficiary's membership in the association was not based on outstanding achievements in the academic field include, but are not limited to, instances where the beneficiary's membership was based:
|
Criterion 3: Published material in professional publications written by others about the beneficiary's work in the academic field. Such material must include the title, date, and author of the material, and any necessary translation.[13] |
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First, USCIS determines whether the published material was about the beneficiary's work. Examples of qualifying published material may include, but are not limited to:
Considerations: The published material should be about the beneficiary's work in the field, not just about the beneficiary’s employer or another organization that the beneficiary is associated with. Articles that cite the beneficiary's work as one of multiple footnotes or endnotes are not generally about the beneficiary's work. However, the beneficiary’s work need not be the only subject of the material; published material that covers a broader topic but includes a substantial discussion of the beneficiary’s work in the field may be considered material about the beneficiary’s work. Moreover, officers may consider material that focuses solely or primarily on work or research being undertaken by a team of which the beneficiary is a member, provided that the material mentions the beneficiary in connection with the work, or other evidence in the record documents the beneficiary’s significant role in the work or research. Evidence may include documentation such as print or online articles in professional publications or a transcript of professional audio or video coverage of the beneficiary’s work. Second, USCIS determines whether the publication qualifies as a professional publication. Evidence of published material in professional publications about the beneficiary should establish the circulation (online or in print) or viewership and the intended audience of the publication, as well as the title, date, and author of the material. |
Criterion 4: The beneficiary's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field.[14] |
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USCIS determines whether the beneficiary has participated, either individually or on a panel, as the judge of the work of others in the same or an allied academic field. Examples of qualifying judging experience may include, but are not limited to:
Considerations: The petitioner must show that the beneficiary has not only been invited to judge the work of others, but also that the beneficiary actually participated in the judging of the work of others in the same or allied academic field. For example, a petitioner might document a beneficiary’s peer review work by submitting a copy of a request from a journal to the beneficiary to do the review, accompanied by evidence confirming that the beneficiary actually completed the review. |
Criterion 5: The beneficiary's original scientific or scholarly research contributions to the academic field.[15] |
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USCIS determines whether the beneficiary has made original scientific or scholarly research contributions to the academic field. Examples of relevant evidence of qualifying contributions may include, but are not limited to:
Considerations: The regulations do not require that the beneficiary's contributions be of major significance. That said, the description of this type of evidence in the regulation does not simply require original research, but an original scientific or scholarly research contribution.[16] Moreover, the description of this type of evidence in the regulation requires that the contribution must be to the academic field, rather than an individual laboratory or institution. The regulations include a separate criterion for scholarly articles.[17] Therefore, contributions are a separate evidentiary requirement from scholarly articles. Possible items that could satisfy this criterion include, but are not limited to:
|
Criterion 6: The beneficiary’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.[19] |
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First, USCIS determines whether the beneficiary has authored scholarly articles in the field. Examples of qualifying publications may include, but are not limited to:
Considerations: As defined in the academic arena, a scholarly article reports on original research, experimentation, or philosophical discourse. It is written by a researcher or expert in the field who is often affiliated with a college or university. Scholarly articles are also generally peer reviewed by other experts in the field of specialization. It should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, or pictures as illustrations of the concepts expressed in the article. Second, USCIS determines whether the publication qualifies as a scholarly book or as a scholarly journal with international circulation in the academic field. Evidence of published material in scholarly journals with international circulation should establish that the circulation (online or in print) is, in fact, international, and who the intended audience of the publication is. Scholarly journals are typically written for a specialized audience often using technical jargon. Articles normally include an abstract, a description of methodology, footnotes, endnotes, and bibliography. |
Comparable evidence: Comparable evidence to establish the beneficiary's eligibility if the standards do not readily apply.[21] |
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USCIS determines if the evidence submitted is comparable to the evidence required in 8 CFR 204.5(i)(3)(i). A petitioner for an outstanding professor or researcher does not need to establish that a particular standard is not readily applicable to the beneficiary's occupation. Instead, the petitioner may submit alternative, but qualitatively comparable evidence, if it establishes that the standards do not readily apply to that evidence. The existing evidentiary standards serve as a roadmap for determining, among other things, the quantity and types of evidence that should be submitted in order for such evidence to be considered “comparable.”[22] |
2. Final Merits Determination
Meeting the minimum requirement by providing at least two types of initial evidence does not, in itself, establish that the beneficiary in fact meets the requirements for classification as an outstanding professor or researcher.[23] Officers also consider the quality of the evidence. In the second step of the analysis in each case, officers should evaluate the evidence together when considering the petition in its entirety to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the beneficiary is recognized internationally as outstanding in a specific academic area.[24]
At this step, officers consider any potentially relevant evidence, even if such evidence does not fit one of the above regulatory criteria or was not presented as comparable evidence. The officers consider all evidence in the totality. Some evidence may weigh more favorably on its own, while other evidence is more persuasive when viewed with other evidence.
The following are examples of situations where evidence in the record may help officers evaluate the quality of the initial or comparable evidence to determine whether, in a totality analysis that considers all of the evidence, the beneficiary is internationally recognized as outstanding:[25]
- The record demonstrates that the beneficiary has published articles in highly-ranked journals relative to other journals in the field, as demonstrated by, for example, evidence the petitioner provides regarding the journal’s impact factor.[26] Depending on the level of recognition of the journals in question, as demonstrated by evidence in the record, there may be a high level of recognition associated with publication in such journals, especially if the beneficiary is the most significant contributor to the publication, a senior author, or the sole author of the article;
- The petitioner provides evidence demonstrating that the total rate of citations to the beneficiary’s body of published work is high relative to others in the field, such as the beneficiary has a high h-index[27] for the field. Depending on the field and the comparative data the petitioner provides, such evidence may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary enjoys international recognition as outstanding;[28]
- The petitioner documents the beneficiary’s employment or research experience is with leading institutions in the field (such as U.S. universities that have been recognized as having high or very high research activity by the Carnegie Classification of Institutions of Higher Education,[29] foreign universities with comparably high research activity, or a university that is highly regarded according to a widely recognized metric such as the QS World University Rankings[30]). Such employment or experience can be a positive factor toward demonstrating that the beneficiary enjoys international recognition as outstanding;
- The record establishes that the beneficiary has received unsolicited invitations to speak or present research at nationally or internationally recognized conferences in the field. Although such a role for the conference may not rise to the level of a leading or critical role, this type of invitation is generally indicative of a person’s recognition for achievements in the field; and
- The record establishes that the beneficiary is named as an investigator, scientist, or researcher on a peer-reviewed and competitively funded U.S. government grant or stipend for science, technology, engineering, and mathematics (STEM) research. This type of evidence can be a positive factor indicating a beneficiary is recognized internationally as outstanding in the beneficiary’s field.
In all cases, the petitioner must provide sufficient context regarding the above evidence and considerations to demonstrate that the evidence meets the relevant criteria and to establish the beneficiary’s international recognition in the totality of the circumstances. This means that the petitioner must explain the significance of the submitted evidence, and how it demonstrates that the beneficiary is internationally recognized as outstanding.
When requesting additional evidence or denying a petition, if the officer determines that the petitioner has failed to demonstrate eligibility, the officer should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific reasons as to why the officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the beneficiary is an outstanding professor or researcher.[31] As with all adjudications, if an officer believes that the facts stated in the petition are not true, and can articulate why in the denial, then the officer denies the petition and explains the reasons in the written denial.[32]
C. Qualifying Status of Employer
Although a permanent labor certification is not required for the outstanding professor or researcher classification, the petitioner must provide an offer of employment as initial evidence in support of the petition.[33] The offer of employment must be in the form of a letter from the prospective U.S. employer to the beneficiary and the offer must state that the employer is offering the beneficiary employment in a tenured or tenure-track teaching position or a permanent research position in the beneficiary’s academic field.[34] In addition, the petitioner must demonstrate that it has the ability to pay the beneficiary’s salary.[35]
The beneficiary of a petition for outstanding professor or researcher must be seeking to work for a university; an institution of higher education; or a department, division, or institute of a private employer if the department, division, or institute employs at least three persons full time in research activities and has achieved documented accomplishments in an academic field.[36]
In general, positions with government agencies at the federal, state, or local level do not fit within the statutory framework unless the government agency is shown to be a U.S. university or an institution of higher learning.[37] Therefore, USCIS may only approve a petition for outstanding professor or researcher in instances where the offer of permanent employment is from a government agency if that agency can establish that it is a U.S. university or an institution of higher learning. Government agencies do not qualify as private employers.
Government agencies that do not fit the statutory framework may have other available immigration avenues for offers of permanent employment to professors or researchers. For example, assuming all of the eligibility requirements for that visa preference category have been met, a government agency may file a petition for the person under the extraordinary ability classification.[38]
D. Offer of Employment
1. Research Positions
The petitioner must submit evidence to establish that the job offer is for a permanent research position.[39] Officers should not deny a petition where the employer is seeking an outstanding researcher solely because the actual employment contract or offer of employment does not contain a “good cause for termination” clause. The petitioning employer, however, must still establish that the offer of employment is intended to be of an indefinite or unlimited duration and that the nature of the position is such that the employee will ordinarily have an expectation of continued employment.
For example, many research positions are funded by grant money received on a yearly basis. Researchers, therefore, are sometimes employed under employment contracts that are valid in 1-year increments. If the petitioning employer demonstrates, however, the intent to continue to seek funding and a reasonable expectation that funding will continue (such as demonstrated prior renewals for extended long-term research projects), such employment can be considered permanent within the meaning of the regulation.[40] Officers should also consider the circumstances surrounding the job offer as well as the benefits attached to the position. A position that appears to be limited to a specific term, such as in the example above, can meet the regulatory test if the position normally continues beyond the term (that is, if the funding grants are normally renewed).
2. Tenure or Tenure-Track Positions
The determination as to whether a position qualifies as a tenured or a tenure-track position is not linked to the regulatory requirement that the position be permanent.[41] The definition of permanent applies only to research positions. Officers do not need to evaluate whether the employment contract for a tenured or tenure-track position has a “good cause for termination” clause and should not deny a petition seeking an outstanding professor for a tenured or tenure-track position on that basis alone.
However, officers should evaluate whether the overall nature of the position is tenured or tenure-track. USCIS does not consider positions that are temporary, adjunct, limited duration fellowships, or similar positions where the employee has no reasonable expectation of long-term employment with the university, to be tenured or tenure-track positions.
Footnotes
[1] See INA 203(b)(1)(B). See 8 CFR 204.5(i).
[2] See 8 CFR 204.5(i)(3).
[3] See 8 CFR 204.5(i)(2).
[4] See 8 CFR 204.5(i)(2) (definition of academic field).
[5] See 8 CFR 204.5(i)(2), defining “permanent, in reference to a research position” as “either tenured, tenure-track, or for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.”
[6] See 8 CFR 204.5(i)(3)(iii) and 8 CFR 204.5(i)(3)(iv). See 8 CFR 204.5(i)(2) for definitions for permanent and academic field.
[7] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality. Therefore, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true”). See Kazarian v. USCIS (PDF), 596 F.3d 1115, 1122 (9th Cir. 2010). USCIS has interpreted Kazarian as applicable to outstanding professor and researcher petitions.
[8] See 8 CFR 204.5(i)(3)(i). The regulation at 8 CFR 204.5(i)(3)(ii) allows a petitioner to submit comparable evidence to establish eligibility if the standards in 8 CFR 204.5(i)(3)(i) do not readily apply.
[9] For example, in evaluating an award submitted under 8 CFR 204.5(i)(3)(i)(A), it is necessary to consider the level of recognition the award holds to determine whether it is a major award, consistent with the requirements of the criterion. However, evidence that the beneficiary participated as a judge of the work of others in the same or allied field alone, regardless of the caliber or significance of such judging experience, would satisfy the requirements of 8 CFR 204.5(i)(3)(i)(D).
[10] See 8 CFR 204.5(i)(3)(i)(A).
[11] The Carnegie Classification of Institutions of Higher Education recognizes R1 and R2 doctoral universities as having very high or high research activity, respectively, based on publicly available federal government data regarding the number of doctoral degrees awarded and the amount of total research expenditures. See the Carnegie Classification of Institutions of Higher Education’s Carnegie Classification webpage.
[12] See 8 CFR 204.5(i)(3)(i)(B).
[13] See 8 CFR 204.5(i)(3)(i)(C).
[14] See 8 CFR 204.5(i)(3)(i)(D).
[15] See 8 CFR 204.5(i)(3)(i)(E).
[16] See 8 CFR 204.5(i)(3)(i)(E).
[17] See 8 CFR 204.5(i)(3)(i)(F).
[18] Impact factor is commonly used as a measure of a journal’s influence; it represents the average number of citations received per article published in that journal during the 2 preceding years. See Garfield, E, The History and Meaning of the Journal Impact Factor, Journal of the American Medical Association, Vol. 295, Iss. 1, p. 90 (2006).
[19] See 8 CFR 204.5(i)(3)(i)(F).
[20] While many articles accepted for presentation at conferences do not result in publication, there are conferences that peer review and publish accepted presentations in professional journals (sometimes called proceedings), such that they may qualify as scholarly articles under this criterion.
[21] See 8 CFR 204.5(i)(3)(ii).
[22] See 81 FR 2068, 2075 (PDF) (Jan. 15, 2016).
[23] As described in INA 203(b)(1)(B).
[24] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.”). See Kazarian v. USCIS (PDF), 596 F.3d 1115, 1122 (9th Cir. 2010). USCIS has interpreted Kazarian as applicable to outstanding professor and researcher petitions.
[25] Not all cases will have such evidence, nor is such evidence required for the petitioner to demonstrate eligibility. Additionally, the examples provided are a non-exhaustive list. While the listed factors may be especially relevant to beneficiaries in STEM fields, the guidance applies to all professors and researchers.
[26] Impact factor is commonly used as a measure of a journal’s influence; it represents the average number of citations received per article published in that journal during the 2 preceding years. See Garfield, E, The History and Meaning of the Journal Impact Factor, Journal of the American Medical Association, Vol. 295, Iss. 1, p. 90 (2006).
[27] The h-index is an example of a tool for measuring a researcher’s output and impact. It is based on the highest number of the researcher’s publications that have been cited at least that same number of times. For example, if a researcher has an h-index of 10, it means the researcher has 10 publications that have 10 or more citations each (but not 11 publications with at least 11 citations each). See Hirsch, J, An Index to Quantify an Individual’s Scientific Research Output, Proceedings of the National Academy of Sciences of the United States of America, Vol. 102, Iss. 46, p. 16569 (2005). Other indices for measuring output and impact are also used. When relying on any of these tools, a petitioner should explain its methodology and significance with supporting documentation because the sources for the data and the duration of time involved in the calculation can impact the actual h-index value.
[28] This factor is less relevant for beneficiaries early in their career, as such persons have had less time to accumulate citations but may nevertheless have garnered acclaim and risen to the small percentage at the top of the field as demonstrated by other evidence in the record. As stated above, none of the listed factors are required to demonstrate eligibility.
[29] The Carnegie Classification of Institutions of Higher Education uses the R1 and R2 doctoral university designations to recognize institutions as having very high or high research activity, respectively, based on publicly available federal government data regarding the number of doctoral degrees awarded and the amount of total research expenditures. See the Carnegie Classification of Institutions of Higher Education’s Carnegie Classification webpage.
[30] QS is a British analytics company specializing in global higher education. See the QS About Us webpage. The QS World University Rankings annually evaluate universities according to a methodology based on six consistent and empirical metrics: academic reputation (40 percent), employer reputation (10 percent), faculty to student ratio (20 percent), citations per faculty (20 percent), international faculty ratio (5 percent), and international student ratio (5 percent). These metrics are used to rank universities, as well as capture and assess university performance. See the QS World University Rankings Methodology webpage.
[31] As described in INA 203(b)(1)(B).
[32] See INA 204(b).
[33] See 8 CFR 204.5(i)(3)(iv).
[34] See 8 CFR 204.5(i)(3)(iv). See 8 CFR 204.5(i)(2) (defining “permanent”).
[35] See 8 CFR 204.5(g)(2).
[36] See INA 203(b)(1)(B). See 8 CFR 204.5(i)(3)(iii) (which mirrors the language in the Immigration and Nationality Act).
[37] See INA 203(b)(1)(B)(iii).
[38] See INA 203(b)(1)(A). See Chapter 2, Extraordinary Ability [6 USCIS-PM F.2].
[39] See 8 CFR 204.5(i)(2).
[40] See 8 CFR 204.5(i)(2).
[41] See 8 CFR 204.5(i)(2).
Chapter 4 - Multinational Executive or Manager
A. Eligibility
Since 1990, the multinational executive or manager visa classification, which was formerly designated under the U.S. Department of Labor’s regulations as Schedule A Group IV, is now a separate visa classification.[1] A petitioning U.S. employer may file an Immigrant Petition for Alien Workers (Form I-140) on behalf of such an executive or manager. The petitioner must demonstrate that the beneficiary has a permanent job offer in a primarily managerial or executive position with a qualifying U.S. employer. A permanent labor certification is not required for this classification.[2] The petitioner must demonstrate that the beneficiary was employed abroad by a qualifying organization for 1 year out of the previous 3 years.[3]
The petitioning U.S. employer must have been doing business in the United States for at least 1 year before filing a petition for its managers and executives (a similar provision was in Schedule A Group IV).[4] Aliens seeking to enter the United States to open a new office are not eligible for the multinational executive or manager immigrant classification.[5] The executive or manager must be coming to an existing business in the United States.[6] This requirement was based in part on the pre-existing Schedule A, Group IV requirement.
The requirement was also based on the fact that, unlike in the case of a new office petition for a nonimmigrant intracompany transferee (L-1), which may only be extended upon a showing that the U.S. entity has been doing business for the previous year,[7] the multinational executive or manager immigrant visa classification is permanent in nature. Further, unlike the immigrant investor fifth preference visa, for example, there is no first preference “conditional resident” status that requires a review of the business after the beneficiary becomes a permanent resident in order for the beneficiary to continue in that status.
A petitioning U.S. employer must demonstrate that the beneficiary has been employed for at least 1 year by a related organization abroad to work in a capacity that is managerial or executive.[8] Managerial capacity includes personnel and function managers while executive capacity focuses on a person's position within an organization.
The petitioning U.S. employer must demonstrate that it and the related organization abroad:
- Maintain a qualifying relationship; and
- Are both actively engaged in doing business.
The petitioning U.S. employer must also show that it has been actively engaged in doing business for at least 1 year.[9] In addition, the petitioner must demonstrate that it has the ability to pay the beneficiary’s salary.[10]
B. Petitioner Requirements
When an employer wishes to transfer an alien employee working abroad to a U.S. company location using the multinational executive or manager visa classification, a qualifying relationship must exist between the foreign employer and the petitioning U.S. employer. A qualifying relationship exists when the U.S. employer is an affiliate, parent, or subsidiary of the foreign firm, corporation, or other legal entity.[11]
To establish a qualifying relationship under the statute and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (for example, a U.S. entity with a foreign office) or related as a parent and subsidiary or as affiliates. The officer must examine the factors of ownership and control when determining whether a qualifying relationship exists between the United States and foreign entities for purposes of this visa classification.[12]
Either the foreign or U.S. entity must own and control the other entity or both must be subsidiaries owned and controlled by the same parent entity or person.[13] In the context of this visa classification, ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control. Control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity.[14]
In situations where the petitioner has submitted documentation of a qualifying relationship based on control through possession of proxy votes, the petitioner must show that the proxy votes are irrevocable from the time of filing through the time of adjudication. Further, the petitioner must provide evidence demonstrating that the qualifying relationship will continue to exist until the beneficiary becomes a lawful permanent resident.
The Business Structures overview provides more information on the most common business forms or structures, including information on formation, fundamental characteristics, and the tax forms submitted to the Internal Revenue Service.
1. Subsidiary and Parent
The term subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly:
- More than half of the entity and controls the entity;
- Half of the entity and controls the entity;
- 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or
- Less than half of the entity, but in fact controls the entity.[15]
While the term parent is not directly defined by the regulations, it is understood to mean the owner of a subsidiary.
2. Affiliate
There are three types of qualifying affiliate relationships:
- One of two subsidiaries, both of which are owned and controlled by the same parent entity or person;
- One of two legal entities owned and controlled by the same group of people, each owning and controlling approximately the same share or proportion of each entity; and
- A partnership that is organized outside the United States to provide accounting services, along with managerial or consulting services, and markets those services under an internationally recognized name, as part of an agreement with a worldwide coordinating organization (of which the U.S. entity is a member) that is owned and controlled by the member accounting firms, partnership, or similar entity organized outside the United States.[16]
3. Limits on Petitions from Branch Offices and Nonimmigrants
Domestic offices of a foreign employer operated as a branch (that is, not as a separate, domestic legal entity) and nonimmigrants may not offer permanent employment to a beneficiary for the purpose of obtaining an immigrant visa for a multinational executive or manager.[17] The petitioner must be a U.S. citizen or a U.S. corporation, partnership, or other legal entity in order to file an immigrant visa petition for a multinational executive or manager. Therefore, while a U.S. corporation with a branch abroad may file a petition, a foreign corporation operating an office or division in the United States that is not a separate, domestic legal entity may not.[18]
4. Sole-Proprietorship
A sole proprietorship is a business in which an individual owns all the assets, owes all the liabilities, and operates the business in his or her personal capacity.[19] Unlike a corporation, a sole proprietorship does not exist as an entity apart from the individual owner.[20] A sole-proprietorship may not file a petition on behalf of the alien owner, as such would be considered an impermissible self-petition.
There is a difference between a self-incorporated petitioner and a sole proprietorship. Although a self-incorporated petitioner may only have one owner or employee, a corporation is a separate and distinct legal entity from its owners or stockholders and therefore may petition for that owner or employee.[21]
5. Doing Business
Doing business means the regular, systematic, and continuous provision of goods or services or both by a qualifying organization. Doing business does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.[22]
Foreign Employer Must Continue to do Business
Both the U.S. employer and at least one qualifying organization abroad must continue to do business up until the time of visa issuance or adjustment of status.[23]
If the beneficiary’s foreign employer’s operations abroad cease entirely (for example, the company, together with all other otherwise qualifying related organizations, goes out of business or relocates completely to the United States) before the time of visa issuance or adjustment of status, the beneficiary is no longer be eligible for classification as a multinational executive or manager.
U.S. Employer Must Have Been Doing Business for At Least 1 Year
The U.S. employer must have been actively engaged in doing business for at least 1 year at the time of filing of the petition.[24] Therefore, a U.S. organization may have a legal existence in the United States for more than 1 year, but if it has not engaged in the continuous provision of goods and services for at least 1 year, the organization is ineligible to file petitions for multinational executives or managers.
C. Beneficiary Requirements
1. Managerial Capacity
The statutory definition of "managerial capacity" includes both "personnel managers" and "function managers."[25]
As it relates to personnel managers, managerial capacity means an assignment within an organization in which the beneficiary primarily:
- Manages the organization, department, subdivision, function, or component of the organization;
- Supervises and controls the work of other supervisory, professional, or managerial employees;
- Possesses authority to hire and fire or recommend those and other personnel actions (such as promotion and leave authorization) for employees directly supervised; and
- Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
Contrary to the common understanding of the word “manager” as any person who supervises others, the statute has a much more limited definition of the term manager. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.[26]
Further, if staffing levels are used as a factor in determining whether the beneficiary is functioning in a managerial or executive capacity, an officer should not merely rely on the number of employees the beneficiary is supervising, but should look at the beneficiary’s role and function within the organization.[27]
2. Function Managers
The term function manager, sometimes referred to as functional manager, applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function" within the organization.[28]
In this context, the definition of the term manager includes function managers.[29] A manager may qualify for multinational manager or executive classification as a function manager if the petitioner can show, among other things, that the beneficiary has and will be primarily managing or directing the management of a function of an organization, even if the beneficiary did not or will not directly supervise any employees.
As it relates to function managers, managerial capacity means an assignment within an organization in which the beneficiary primarily:[30]
- Manages the organization or a department, subdivision, function, or component of the organization;
- Manages an essential function within the organization or a department or subdivision of the organization;
- Functions at a senior level within the organizational hierarchy or with respect to the function managed; and
- Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.
The petitioner must clearly demonstrate, however, that the essential function being managed is not also being directly performed by the beneficiary. For example, in Matter of G-, the petitioner submitted evidence, including organizational and workflow charts, that indicated that the beneficiary led a financial planning and analysis (FP&A) team that oversaw the monthly revenue forecast process and collected financial data from delivery leads and global sales teams.[31]
The record reflected that the beneficiary would continue to be supported by six direct and three indirect reports. These personnel performed the routine duties associated with the FP&A function, enabling the beneficiary to primarily develop policies and goals and oversee the execution of long-term strategies. The petitioner demonstrated that this staff would continue to relieve the beneficiary from performing day-to-day administrative and reporting tasks, allowing him to primarily manage the FP&A function rather than perform it himself. That he supervised his direct reports did not detract from finding that he primarily manages the function.[32] In contrast, an employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.[33]
In applying the statute and applicable regulations to determine whether the beneficiary meets the definition of a function manager, the petitioner must show that the beneficiary will primarily manage that essential function by clearly describing the beneficiary’s duties and indicating the proportion of time dedicated to each duty.[34] While he or she may perform some operational or administrative tasks, the beneficiary must primarily manage the essential function.[35]
In addition, the petitioner must establish that the beneficiary will occupy a senior position in the petitioner’s organizational hierarchy or within the function managed and that the beneficiary will have discretionary authority over the day-to-day operations of that function.
USCIS considers all factors relevant to these criteria, including the nature and scope of the petitioner’s business; the organizational structure and staffing levels; the value of the budgets, products, or services that a beneficiary will manage; and any other factors, such as operational and administrative work performed by staff within the organization, that contribute to understanding the beneficiary’s actual duties and role in the business.[36]
An important, although not necessarily determinative, factor in determining whether a beneficiary qualifies as a function manager is the beneficiary's authority to commit the company to a course of action or expenditure of funds. Function managers perform at a senior level in the organization and may or may not have direct supervision of other employees.
3. Executive Capacity
The statutory definition of the term "executive capacity"[37] focuses on a person's position within an organization. To adjudicate a petition for a multinational executive or manager properly, therefore, the officer should have a basic understanding not only of the position the beneficiary intends to fill, but also of the nature and structure of the organization itself.
The term “executive capacity” means an assignment within an organization in which the employee primarily:
- Directs the management of the organization or a major component or function of the organization;
- Establishes the goals and policies of the organization, component, or function;
- Exercises wide latitude in discretionary decision making; and
- Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.[38]
USCIS does not consider a beneficiary an executive under the statute simply because he or she has an executive title or because some portion of his or her time is spent directing the enterprise as the owner or sole managerial employee; the focus is on the primary duties of the beneficiary. In this regard, there must be sufficient staff (for example, contract employees or others) to perform the day-to-day operations of the petitioning organization in order to enable the beneficiary to be primarily employed in the executive function.
4. Evaluating Managerial or Executive Status
The petitioner must establish that the U.S. entity itself is in fact conducting business at a level that would require the services of a person primarily engaged in executive (or managerial) functions. In making this determination, an officer should consider, as appropriate, the nature of the business, including its size, its organizational structure, and the product or service it provides.
When examining the executive or managerial capacity of the beneficiary, an officer should look first to the petitioner's description of the job duties.[39] Specifics are an important indication of whether a beneficiary's duties are primarily executive or managerial in nature. Merely repeating or paraphrasing the language of the statute or regulations does not satisfy the petitioner's burden of proof.
If the beneficiary performs non-managerial administrative or operational duties, the description of the beneficiary's job duties must demonstrate what proportion of the beneficiary's duties is managerial in nature, and what proportion is non-managerial. A beneficiary who primarily performs non-managerial or non-executive duties does not qualify as a manager or executive under the statutory definitions.
Additionally, officers should review the totality of the evidence, including descriptions of a beneficiary's duties and his or her subordinate employees, the nature of the petitioner's business, the employment and remuneration of other employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in the business. The evidence must demonstrate that the duties of the beneficiary and his or her subordinates correspond to their placement in the organization's structural hierarchy. Artificial tiers of subordinate employees and inflated job titles do not support a finding that the position is managerial.
For smaller organizations, the officer may request a description of the overall management and executive personnel structure supported by position descriptions for the managerial and executive staff members of the organization. For organizations that are substantial in size, the officer may request comparable descriptions for the organizational unit where the beneficiary is to be employed. As with all adjudications, if an officer believes that the facts stated in the petition are not true, and can articulate why in the denial, then the officer denies the petition and explains the reasons in the written denial.[40]
If staffing levels are used to determine whether a beneficiary's job capacity is primarily executive or managerial in nature, an officer considers the reasonable needs of the business enterprise in light of its overall purpose and stage of development.[41] It is the petitioner’s burden to demonstrate the company’s reasonable needs with respect to staff or the organization’s structure.[42] However, in evaluating reasonable needs, an officer should not hold a petitioner to his or her undefined and unsupported view of common business practice or standard business logic.
As indicated above, a single-person office is not precluded from having that sole employee be classified as a multinational manager or executive, provided the requisite corporate affiliation exists and all other requirements are met. However, it may be very difficult for a petitioner to establish that the sole employee will be engaged primarily in a managerial or executive function.
While a sole employee will have some managerial or executive duties, simply to keep the business running, he or she will normally be spending the majority of his or her work time doing the day-to-day work of the business, that is, performing the type of duties that persons who would normally be employed in the business in question would perform.
However, an officer considers the totality of the record, including the nature and scope of the petitioner’s business and organizational structure, staffing levels, the beneficiary’s position and scope of authority, the work performed by other employees and whether it relieves the beneficiary from performing operational and administrative duties, and the reasonable needs of the organization as a whole.[43]
D. Evaluating Petitions Filed on Behalf of L-1A Nonimmigrants
In some cases, an officer may adjudicate an immigrant petition for a multinational executive or manager that was filed on behalf of a beneficiary who was previously granted L-1A nonimmigrant classification as a nonimmigrant manager or executive. Though the prior approval of an L-1A nonimmigrant petition on behalf of the beneficiary may be a relevant consideration in adjudicating the immigrant petition, the fact that the beneficiary was previously approved for L-1A classification is not binding if the facts do not support approval of the immigrant petition.
Eligibility as an L-1A nonimmigrant does not automatically establish eligibility under the criteria for an immigrant visa classification for a multinational executive or manager. Each petition is separate and independent and must be adjudicated on its own merits, under the corresponding statutory and regulatory provisions.
Notwithstanding the fact that each petition must be adjudicated on its own merits, some courts have asked USCIS to provide an explanation as to why, if the beneficiary had previously been classified in a roughly analogous nonimmigrant category, USCIS has determined that the beneficiary is not eligible for classification in the employment-based immigrant visa classification in question. For this reason, where possible, officers issuing denials in these cases should provide a brief discussion as to why, notwithstanding the previous L-1A nonimmigrant visa petition approval, the petitioner has failed to meet its burden to establish eligibility for approval of the immigrant petition for classification as a multinational executive or manager.
Unlike in the case of the L-1B nonimmigrant classification, there is no provision of law that allows a person who was or is employed in a purely specialized knowledge capacity abroad to be classified as a “specialized knowledge” multinational executive or manager immigrant classification.
However, it should be noted that some beneficiaries who are classified as L-1B nonimmigrants might qualify for the multinational executive or manager immigrant classification because their specialized knowledge and employment abroad also would have qualified as managerial or executive employment and because the petitioners intend to employ them in managerial or executive positions on a permanent basis.
Footnotes
[^ 1] See INA 203(b)(1)(C).
[^ 2] See INA 212(a)(5)(D). See 8 CFR 204.5(j)(5).
[^ 3] See 8 CFR 204.5(j)(3)(i)(A). See Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018). This decision clarifies that a beneficiary who worked abroad for a qualifying multinational organization for at least 1 year, but left the organization for a period of more than 2 years after being admitted to the United States as a nonimmigrant, does not satisfy the 1 year of the previous 3 years foreign employment requirement for immigrant classification as a multinational manager or executive. To cure the interruption in employment, such a beneficiary would need an additional year of qualifying employment abroad before he or she could once again qualify. Unlike the L-1 nonimmigrant classification, the year of qualifying employment does not have to be “continuous.” Compare INA 101(a)(15)(L) (requiring that the beneficiary have been employed “continuously” abroad for the 1-year period) with INA 203(b)(1)(C) (requiring that the beneficiary be employed abroad for “at least 1 year.”)
[^ 4] See 8 CFR 204.5(j)(3)(i)(D).
[^ 5] The ability to enter the United States to open a new office is limited to the L-1 nonimmigrant classification. See 8 CFR 214.2(l)(3)(v).
[^ 6] See 8 CFR 204.5(j)(3)(D).
[^ 7] See 8 CFR 214.2(l)(14)(ii).
[^ 8] See INA 203(b)(1)(C). See 8 CFR 204.5(j).
[^ 9] See 8 CFR 204.5(j)(3).
[^ 10] See 8 CFR 204.5(g)(2).
[^ 11] See 8 CFR 204.5(j)(2).
[^ 12] See INA 203(b)(1)(C). See 8 CFR 204.5(j)(2) (definitions of affiliate and subsidiary).
[^ 13] See 8 CFR 204.5(j)(2) (definition of affiliate and subsidiary).
[^ 14] See Matter of Church Scientology International (PDF), 19 I&N Dec. 593 (Comm. 1988).
[^ 15] See 8 CFR 204.5(j)(2).
[^ 16] See 8 CFR 204.5(j)(2) (definition of affiliate).
[^ 17] See Matter of Thornhill (PDF), 18 I&N Dec. 34 (Comm. 1981).
[^ 18] While the L-1 nonimmigrant visa regulations allow for a branch office to petition for a manager or executive, the immigrant visa regulations do not permit a foreign branch office to petition for a multinational executive or manager. The nonimmigrant regulations define the term branch as "an operating division or office of the same organization housed in a different location." See 8 CFR 214.2(l)(1)(ii)(J).
[^ 19] See Black's Law Dictionary (11th Ed. 2019).
[^ 20] See Matter of United Investment Group (PDF), 19 I&N Dec. 248, 250 (Comm. 1984).
[^ 21] See Matter of M- (PDF), 8 I&N Dec. 24, 50 (BIA 1958, AG 1958). See Matter of Aphrodite Investments Limited (PDF), 17 I&N Dec. 530 (Comm. 1980). See Matter of Tessel (PDF), 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).
[^ 22] See 8 CFR 204.5(j)(2). Doing business does not require that the petitioner provide either goods, services, or both to an unaffiliated third party; providing goods or services in a regular, systematic, and continuous manner to related companies is sufficient. See Matter of Leacheng International, Inc. (PDF), 26 I&N Dec. 532 (AAO 2015).
[^ 23] See Matter of F-M-Co, Adopted Decision 2020-01 (AAO May 5, 2020). This decision clarifies that for first preference multinational executives or managers, a petitioner must have a qualifying relationship with the beneficiary’s foreign employer at the time the petition is filed and must maintain that relationship until the petition is adjudicated. The decision also clarifies that in the event a corporate restructuring affecting the foreign entity occurs prior to the filing of the petition, a petitioner may establish that the beneficiary’s qualifying foreign employer continues to exist and do business through a valid successor entity.
[^ 24] See 8 CFR 204.5(j)(3)(i)(D). There is no “new office” provision for persons seeking to immigrate under the multinational executive or manager category as there is for certain aliens who seek admission as L-1 nonimmigrants in order to open or be employed in a new office in the United States. See 8 CFR 214.2(l)(3)(v).
[^ 25] See INA 101(a)(44)(A)(i)-(ii).
[^ 26] See INA 101(a)(44)(A). See 8 CFR 204.5(j)(4)(i).
[^ 27] See 8 CFR 204.5(j)(4)(ii).
[^ 28] See INA 101(a)(44)(A)(ii). See Matter of G-, Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), which analyzes the requirements for a function manager and concludes: “In sum, to establish that the beneficiary will be employed in a managerial capacity as a ’function manager’ the petitioner must demonstrate that: (1) the function is a clearly defined activity; (2) the function is ’essential,’ that is, core to the organization; (3) the beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at a senior level within the organizational hierarchy or with respect to the function managed; and (5) the beneficiary will exercise discretion over the function’s day-to-day operations.”
[^ 29] See INA 101(a)(44)(A).
[^ 30] See 8 CFR 204.5(j)(2).
[^ 31] See Matter of G-, Adopted Decision 2017-05 (AAO Nov. 8, 2017).
[^ 32] See Matter of G-, Adopted Decision 2017-05 (AAO Nov. 8, 2017).
[^ 33] See Boyang, Ltd. v. INS, 67 F.3d 305 (9th Cir. 1995) (citing Matter of Church Scientology International (PDF), 19 I&N Dec. 593, 604 (Comm. 1988)).
[^ 34] See 8 CFR 204.5(j)(5).
[^ 35] See Matter of G-, Adopted Decision 2017-05 (AAO Nov. 8, 2017).
[^ 36] See Matter of G-, Adopted Decision 2017-05 (AAO Nov. 8, 2017).
[^ 37] See INA 101(a)(44)(B).
[^ 38] See INA 101(a)(44)(B).
[^ 39] See 8 CFR 204.5(j)(5).
[^ 40] See INA 204(b).
[^ 41] See INA 101(a)(44)(C). See 8 CFR 204.5(j)(4)(ii).
[^ 42] See INA 101(a)(44)(C).
[^ 43] See Matter of Z-A-, Inc., Adopted Decision 2017-05 (AAO April 14, 2016).
Chapter 5 - Advanced Degree or Exceptional Ability
A. Advanced Degree Professionals
1. Eligibility
To qualify for this immigrant classification as a professional with an advanced degree, the following requirements must be met:
- The beneficiary[1] must be a member of the professions[2] holding an advanced degree or foreign equivalent degree;
- The position certified in the underlying permanent labor certification application or Schedule A application must require, at a minimum, a professional holding an advanced degree or the equivalent;[3] and
- The beneficiary must have not only had the advanced degree or its equivalent on the date that the permanent labor certification application was filed, but also must have met all of the requirements needed for entry into the proffered position at that time.[4]
2. Foreign Equivalent Degrees
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate.[5] A U.S. baccalaureate degree or a foreign equivalent degree followed by at least 5 years of progressive experience in the specialty is considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the beneficiary must have a U.S. doctorate or a foreign equivalent degree.[6]
A beneficiary can satisfy the advanced degree requirement by holding either a:
- U.S. master’s degree or higher or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher; or
- U.S. bachelor’s degree, or a foreign degree evaluated to be the equivalent of a U.S. bachelor’s degree, plus 5 years of progressive, post-degree work experience.[7]
A beneficiary who does not possess at least a U.S. bachelor’s degree or a foreign equivalent degree is ineligible for this classification.[8]
3. Advanced Degree Position
Mere possession of an advanced degree or its equivalent is not sufficient for establishing a beneficiary’s eligibility for this classification. The petitioner must also demonstrate that the position certified in the underlying permanent labor certification application or set forth on the Schedule A application requires a professional holding an advanced degree or the equivalent. The petitioner must demonstrate that the position, and the industry as a whole, normally requires that the position be filled by a person holding an advanced degree.
Where the position requires multiple credentials combined with experience, the issue is not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree, but rather that the minimum requirements for the position in the permanent labor certification meet the definition of an advanced degree.[9]
This requirement has resulted in a particular problem involving petitions filed on behalf of registered nurses. Although many such nurses possess advanced degrees, they are filling nursing positions in the United States that generally do not require advanced degrees. Specifically, the Occupational Information Network (O*Net)[10] indicates that, in nursing, only managerial jobs (director of nursing or assistant director of nursing) or advanced level jobs (such as clinical nurse specialist, nurse practitioner) generally require advanced degrees. A registered nurse job, by contrast, usually does not require an advanced degree.
The long waiting periods often required for issuance of third preference employment-based immigrant visas for skilled workers, professionals, or other workers may cause a gap between the available supply of eligible nurses and the high demand for nursing services. Officers must verify the actual minimum requirements for the nursing position offered in the advanced degree petition. As stated, most nursing positions do not qualify for the advanced degree classification.
B. Exceptional Ability
1. Eligibility
A beneficiary[11] may qualify for the exceptional ability visa preference classification if:
- He or she has exceptional ability in the sciences, arts, or business;
- He or she will substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future; and
- His or her services in one of those fields are sought by an employer in the United States.[12]
The term exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.[13] This standard is lower than the standard for extraordinary ability classification.[14]
2. Evidence
Officers should use a two-step analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for exceptional ability classification.
Petition for Exceptional Ability Classification: Overview of Two-Step Evidentiary Review | |
---|---|
Step 1 | Assess whether evidence meets regulatory criteria: Determine, by a preponderance of the evidence, which evidence submitted by the petitioner objectively meets the parameters of the regulatory description that applies to that type of evidence (referred to as "regulatory criteria"). |
Step 2 | Final merits determination: Evaluate all the evidence together when considering the petition in its entirety for the final merits determination, considering the high level of expertise required for this immigrant classification. |
Assess Whether Evidence Meets Any Regulatory Criteria
The first step of the evidentiary review is limited to determining whether the evidence submitted with the petition is comprised of at least three of the six regulatory criteria.[15] The officer should apply a preponderance of the evidence standard when making this determination.
While officers should consider the quality and caliber of the evidence to determine whether a particular regulatory criterion has been met, officers should not yet make a determination regarding whether or not the beneficiary qualifies for exceptional ability in this first step.
The initial evidence must include at least three of the following six types of evidence listed in the regulations:
- An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
- Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);
- Evidence of membership in professional associations; and
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.[16]
In some cases, evidence relevant to one criterion may be relevant to other criteria.
Additionally, if these types of evidence do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.[17] This provides petitioners the opportunity to submit comparable evidence to establish the beneficiary's eligibility if the regulatory standards[18] do not readily apply to the beneficiary's occupation. When evaluating such comparable evidence, officers consider whether the criteria are readily applicable to the beneficiary's occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in the regulation.
General assertions that any of the six objective criteria do not readily apply to the beneficiary's occupation are not acceptable. Similarly, claims that USCIS should accept witness letters as comparable evidence are not persuasive. The petitioner should explain why the evidence it has submitted is comparable.[19]
Objectively meeting the regulatory criteria alone does not establish that the beneficiary in fact meets the requirements for exceptional ability classification.[20] For example, being a member of professional associations alone, regardless of the caliber, should satisfy one of the three required regulatory criteria. However, the beneficiary's membership should also be evaluated to determine whether it is indicative of the beneficiary having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. However, this secondary evaluation should be conducted as part of the final merits determination.
Final Merits Determination
Meeting the minimum requirement by providing at least three types of initial evidence does not, in itself, establish that the beneficiary in fact meets the requirements for exceptional ability classification.[21] Officers must also consider the quality of the evidence. In the second part of the analysis, officers should evaluate the evidence together when considering the petition in its entirety for the final merits determination. The officer must determine whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the beneficiary has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
When requesting additional evidence or drafting a denial, if the officer determines that the petitioner has failed to demonstrate this requirement, he or she should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific reasons as to why the officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the beneficiary qualifies for exceptional ability classification.
The petitioner must demonstrate that the beneficiary is above others in the field; qualifications possessed by most members of a given field cannot demonstrate a degree of expertise significantly above that ordinarily encountered. The mere possession of a degree, diploma, certificate or similar award from a college, university, school, or other institution of learning is not by itself considered sufficient evidence of exceptional ability.[22]
Furthermore, formal recognition in the form of certificates and other documentation that are contemporaneous with the beneficiary's claimed contributions and achievements may have more weight than letters prepared for the petition recognizing the beneficiary's achievements. As with all adjudications, if an officer believes that the facts stated in the petition are not true, and can articulate why in the denial, then the officer denies the petition and explains the reasons in the written denial.[23]
3. Schedule A, Group II Permanent Labor Certification
Schedule A, Group II permanent labor certification for persons of "exceptional ability in the sciences or arts"[24] is distinct from classification as an person of "exceptional ability in the sciences, arts, professions, or business."[25] Under the U.S. Department of Labor (DOL)'s regulations, an employer seeking permanent labor certification on behalf of an person of "exceptional ability in the sciences or arts" may apply directly to USCIS for Schedule A, Group II permanent labor certification instead of applying to DOL for issuance of a permanent labor certification.[26]
C. Professional Athletes
1. Eligibility
The Immigration and Nationality Act (INA) defines professional athletes for the purpose of allowing them to retain the validity of the underlying permanent labor certification if they change employers.[27] These athletes may qualify for exceptional ability classification.[28] Specifically, the precedent decision Matter of Masters held that a professional golfer could, if he was otherwise eligible, qualify as for exceptional ability classification in the arts.[29]
This holding has been interpreted to apply to exceptional ability petitions filed on behalf of any athlete. However, the fact that the beneficiary has signed a contract to play for a major league team may not be sufficient to establish exceptional ability as a professional athlete.
Definition of Professional Athlete
For purposes of this classification, the term professional athlete means a person who is employed as an athlete by:
- A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or
- Any minor league team that is affiliated with such an association.[30]
Permanent Labor Certification Validity
A petition for classification of a professional athlete is supported by an underlying permanent labor certification filed on the beneficiary’s behalf, which remains valid even if the athlete changes employers, so long as the new employer is a team in the same sport as the team that filed the petition.[31]
Employers filing permanent labor certification applications on behalf of beneficiaries to be employed as professional athletes on professional sports teams file permanent labor certification applications under special procedures for professional athletes directly with the appropriate DOL processing center.[32]
2. Evidence
As is the case with all petitions for persons of exceptional ability, the petitioner must provide, as initial evidence, documentation demonstrating that the beneficiary qualifies exceptional ability classification, as specified in the regulations.[33] However, submission of evidence that meets the three required regulatory criteria does not necessarily establish that the beneficiary is qualified for the classification. An officer must assess the quality of such evidence, in addition to the quantity of the evidence presented, in determining whether the petitioner has met its burden in establishing that the beneficiary is qualified for the classification.
Similarly, an approved permanent labor certification submitted on behalf of a professional athlete does not prove that the beneficiary qualifies as an athlete of exceptional ability. Officers should look for evidence of exceptional ability beyond the mere existence of a contract with a major league team or an approved permanent labor certification.
An approved permanent labor certification submitted on behalf of the beneficiary does not bind USCIS to a determination that the person is of exceptional ability. Notwithstanding the grant of a permanent labor certification, the beneficiary may, for any number of reasons, be unable to fulfill the underlying purpose of the petition.
Many athletes, for example, enjoy substantial signing bonuses, but may not, thereafter, prove to be of “major league,” let alone exceptional caliber. Similarly, the fact that a beneficiary played for a portion of a season for a major league team does not automatically establish that the beneficiary will continue to play at an exceptional ability level. It would be inappropriate to approve an immigrant visa petition on behalf of a major league player on the basis of exceptional ability if the beneficiary is unlikely to continue to perform the duties specified in the underlying petition for a reasonable period following approval of lawful permanent resident status.
Additionally, the beneficiary could be cut from the major league roster, may announce his permanent retirement as a player in the sport, or suffer from a career-ending injury prior to adjudication of the petition, thereby removing the job offer that formed the basis of the petition, which would result in a denial of the petition.
D. National Interest Waiver of Job Offer
Since 1990, the Immigration and Nationality Act (INA) has provided that a person of exceptional ability[34] may obtain a waiver of the job offer requirement if USCIS deems such waiver to be in the “national interest.”[35] A subsequent technical amendment[36] extended the job offer waiver to certain professionals.[37] This waiver provision applies only to the second preference (EB-2) classification for members of the professions holding advanced degrees and persons of exceptional ability. This waiver of the job offer is known as the national interest waiver.
A petition filed with a request for a national interest waiver on behalf of a person does not need to be supported by a job offer; therefore, the person may file as a self-petitioner. A waiver of a job offer also includes a waiver of the permanent labor certification requirement.[38] In support of the petition, however, the petitioner must submit the employee-specific portions of a permanent labor certification (without DOL approval).[39] The petitioner may submit either the Form ETA 750B or Form ETA 9089. To establish eligibility, the petitioner has the burden of demonstrating that:
- The person qualifies as either a member of the professions holding an advanced degree or as a person of exceptional ability;[40] and
- The waiver of the job offer requirement, and thus, the labor certification requirement, is in the “national interest.”
Qualification for the EB-2 classification as a member of the professions holding an advanced degree or as a person of exceptional ability does not automatically mean that the person qualifies for a national interest waiver. Regardless of whether the person is an advanced degree professional or demonstrates exceptional ability, the petitioner seeking a waiver of the job offer must not only demonstrate eligibility for the classification, but also demonstrate that the waiver itself is in the national interest.[41]
Specifically, in the exceptional ability context, the INA requires that all petitions for a person of exceptional ability show that the person’s presence in the United States would substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future. Even if the petitioner demonstrates such exceptional ability, if the petitioner is seeking a waiver of the job offer, the petitioner must also demonstrate the additional requirement of national interest.[42] Neither the INA nor the regulations define the term “national interest.”
The burden rests with the petitioner to establish that the waiver of the job offer requirement is in the national interest. USCIS considers every petition on a case-by-case basis.
USCIS may grant a national interest waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence, based on the following three prongs:[43]
- The person’s proposed endeavor has both substantial merit and national importance;
- The person is well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.[44]
Section 1 below provides an overview of the three prongs that are part of the analysis; section 2 provides guidance specific to persons with advanced degrees in science, technology, engineering, or mathematics (STEM); section 3 addresses letters of support and other evidence from interested government agencies and quasi-governmental entities; and finally, section 4 is specific to entrepreneurs.
When an officer denies a petition because the petitioner has not established that granting the waiver is in the national interest, the decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.[45]
1. Overview of the Three Prongs
First Prong: The Proposed Endeavor has both Substantial Merit and National Importance
When reviewing the proposed endeavor, officers determine whether the evidence presented demonstrates, by a preponderance of the evidence, the proposed endeavor has substantial merit and national importance. The term “endeavor” is more specific than the general occupation; a petitioner should offer details not only as to what the occupation normally involves, but what types of work the person proposes to undertake specifically within that occupation.[46] For example, while engineering is an occupation, the explanation of the proposed endeavor should describe the specific projects and goals, or the areas of engineering in which the person will work, rather than simply listing the duties and responsibilities of an engineer.
The endeavor’s merit may be demonstrated in areas including, but not limited to, business, entrepreneurship, science, technology, culture, health, or education.
In addition, officers may consider evidence of the endeavor’s potential significant economic impact, but “merit may be established without immediate or quantifiable economic impact” and “endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.”[47]
Officers must also examine the national importance of the specific endeavor proposed by considering its potential prospective impact. Officers should focus on the nature of the proposed endeavor, rather than only the geographic breadth of the endeavor.[48]
For example, the endeavor “may have national importance because it has national or even global implications within a particular field, such as certain improved manufacturing processes or medical advances.” Economically, it may have “significant potential to employ U.S. workers” or “other substantial positive economic effects, particularly in an economically depressed area.”[49] Therefore, petitioners should submit a detailed description explaining the proposed endeavor and supporting documentary evidence to establish that the endeavor is of national importance.
In determining national importance, the officer’s analysis should focus on what the beneficiary will be doing rather than the specific occupational classification. Endeavors such as classroom teaching, for example, without broader implications for a field or region, generally do not rise to the level of having national importance for the purpose of establishing eligibility for a national interest waiver.
Ultimately, if the evidence of record demonstrates that the person’s proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.[50]
Second Prong: The Person is Well Positioned to Advance the Proposed Endeavor
Unlike the first prong, which focuses on the merit and importance of the proposed endeavor, the second prong centers on the person. Specifically, the petitioner must demonstrate that the person is well positioned to advance the endeavor.
In evaluating whether the person is well positioned to advance the endeavor, USCIS considers factors[51] including, but not limited to:
- The person’s education, skills, knowledge, and record of success in related or similar efforts;
- A model or plan that the person developed, or played a significant role in developing, for future activities related to the proposed endeavor;
- Any progress towards achieving the proposed endeavor; and
- The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons.
The petitioner should submit evidence to document the person’s past achievements and corroborate projections related to the proposed endeavor to show that the person is well-positioned to advance the endeavor. A person may be well-positioned to advance an endeavor even if the person cannot demonstrate that the proposed endeavor is more likely than not to ultimately succeed.[52] However, unsubstantiated or implausible claims would not meet the petitioner’s burden of proof.
Below is a non-exhaustive list of the types of evidence that tend to show that the person is well positioned to advance a proposed endeavor. This list is not meant to be a checklist or to indicate that any one type of evidence is either required or sufficient to establish eligibility.
Evidence that may demonstrate that the person is well-positioned to advance a proposed endeavor includes, but is not limited to:
- Degrees, certificates, or licenses in the field;
- Patents, trademarks, or copyrights developed by the person;
- Letters from experts in the person’s field, describing the person’s past achievements and providing specific examples of how the person is well positioned to advance the person’s endeavor;
- Published articles or media reports about the person’s achievements or current work;
- Documentation demonstrating a strong citation history of the person’s work or excerpts of published articles showing positive discourse around, or adoption of, the person’s work;
- Evidence that the person’s work has influenced the field of endeavor;
- A plan describing how the person intends to continue the proposed work in the United States;[53]
- A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;
- Correspondence from prospective or potential employers, clients, or customers;
- Documentation reflecting feasible plans for financial support (see below for a more detailed discussion of evidence related to financing for entrepreneurs);[54]
- Evidence that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor;
- Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor;
- Letters from government agencies or quasi-governmental entities in the United States demonstrating that the person is well positioned to advance the proposed endeavor (see below for a more detailed discussion of supporting evidence from interested government agencies and quasi-governmental entities);[55]
- Evidence that the person has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation; and
- Evidence demonstrating how the person’s work is being used by others, such as, but not limited to:
- Contracts with companies using products that the person developed or assisted in developing;
- Documents showing technology that the person invented, or contributed to inventing, and how others use that technology; and
- Patents or licenses for innovations the person developed with documentation showing why the patent or license is significant to the field.
In each case, officers must consider the totality of circumstances to determine whether the preponderance of evidence establishes that the person is well positioned to advance the proposed endeavor.
Third Prong: On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements
Once officers have determined that the petitioner met the first two prongs, they proceed with the analysis of the third prong. This last prong requires the petitioner to demonstrate that the factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification, which is intended to ensure that the admission of foreign workers will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.[56]
While Congress sought to further the national interest by requiring job offers and labor certifications to protect U.S. workers, Congress also recognized that in certain instances the national interest is better served by a waiver of the job offer and thus the labor certification requirement. In such cases, a national interest waiver outweighs the benefits inherent to the labor certification process, which primarily focuses on a geographically limited labor market. Within the context of national interest waiver adjudications, Congress entrusted the Secretary of Homeland Security to balance this interest.
Therefore, for the third prong, an officer assesses whether the person’s endeavor and the person being well-positioned to advance that endeavor, taken together, provide benefits to the nation such that a waiver of the labor certification requirement outweighs the benefits that ordinarily flow from that requirement. For example, in the case of an entrepreneur, where the person is self-employed in a manner that generally does not adversely affect U.S. workers,[57] or where the petitioner establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the labor certification.
Therefore, in establishing eligibility for the third prong, petitioners may submit evidence relating to one or more of the following factors, as outlined in Matter of Dhanasar:
- The impracticality of a labor certification application;[58]
- The benefit to the United States from the prospective alien’s contributions, even if other U.S. workers were also available;[59] and
- The national interest in the person’s contributions is sufficiently urgent,[60] such as U.S. competitiveness in STEM fields.
More specific considerations may include:
- Whether urgency, such as public health or safety, warrants foregoing the labor certification process;
- Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation,[61] which cannot be appropriately captured by the labor certification;[62]
- Whether the person’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and[63]
- Whether the person’s endeavor may lead to potential job creation.
2. Specific Evidentiary Considerations for Persons with Advanced Degrees in Science, Technology, Engineering, or Mathematics (STEM) Fields
There are specific evidentiary considerations relating to STEM degrees and fields, although the analysis is the same regardless of endeavor, so these considerations may apply in non-STEM endeavors where the petitioner demonstrates that such considerations are applicable.[64] USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies[65] or other STEM areas important to U.S. competitiveness[66] or national security.[67]
To identify a critical and emerging technology field, officers consider governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner. The lists of critical and emerging technology subfields published by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council, are examples of authoritative lists.[68] Officers may find that a STEM area is important to competitiveness or security in a variety of circumstances, for example, when the evidence in the record demonstrates that an endeavor will help the United States to remain ahead of strategic competitors or current and potential adversaries, or relates to a field, including those that are research and development-intensive industries,[69] where appropriate activity and investment, both early and later in the development cycle, may contribute to the United States achieving or maintaining technology leadership or peer status among allies and partners.
With respect to the first prong, as in all cases, the evidence must demonstrate that a STEM endeavor has both substantial merit and national importance. Many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance. On the other hand, while proposed classroom teaching activities in STEM, for example, may have substantial merit in relation to U.S. educational interests, such activities, by themselves, generally are not indicative of an impact in the field of STEM education more broadly, and therefore generally would not establish their national importance.[70]
For the second prong, as mentioned above, the person’s education and skillset are relevant to whether the person is well positioned to advance the endeavor.[71] USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong.[72]
Persons with a Ph.D. in a STEM field, as well as certain other persons with advanced STEM degrees relating to the proposed endeavor, have scientific knowledge in a narrow STEM area since doctoral dissertations and some master’s theses concentrate on a particularized subject matter. Officers should then consider whether that specific STEM area relates to the proposed endeavor. Even when the area of concentration is in a theoretical STEM area (theoretical mathematics or physics, for example), it may further U.S. competitiveness or national security as described in the proposed endeavor.
Examples of evidence that can supplement the person’s education are listed above,[73] but a petitioner may submit any relevant evidence, including letters from interested government agencies as discussed below,[74] to show how the person is well positioned to advance the proposed endeavor. A degree in and of itself, however, is not a basis to determine that a person is well positioned to advance the proposed endeavor.
Finally, with respect to the third prong, it is the petitioner’s burden to establish that factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification.
When evaluating the third prong and whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a strong positive factor:
- The person possesses an advanced STEM degree, particularly a Ph.D.;
- The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
- The person is well positioned to advance the proposed STEM endeavor of national importance.
The benefit is especially weighty where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies as discussed in section 3 below.
3. The Role of Interested Government Agencies or Quasi-Governmental Entities
While not required, letters from interested government agencies or quasi-governmental entities in the United States (for example federally-funded research and development centers) can be helpful evidence and, depending on the contents of the letters, can be relevant to all three prongs. Specifically, letters from an interested government agency or quasi-governmental entity could prove favorable for purposes of the first prong if, for example, they establish that the agency or entity has expertise in the proposed endeavor and that the proposed STEM endeavor promises to advance a critical and emerging technology or is otherwise important for purposes of maintaining the United States’ technological prominence.
Detailed letters of government or quasi-governmental interest that provide relevant information about how well-positioned the person is to advance the endeavor are valuable for purposes of assessing the second prong.[75] Finally, an interested government agency or quasi-governmental entity can help explain how granting the waiver may outweigh the benefits of the job offer and labor certification requirement by explaining a particular urgency or detailing how the United States would benefit from the prospective alien’s contributions, even if other U.S. workers are available.
4. Specific Evidentiary Considerations for Entrepreneurs
There may be unique aspects of evidence submitted by an entrepreneurial petitioner[76] undertaking a proposed endeavor, including through an entity based in the United States in which the petitioner typically possesses (or will possess) an ownership interest, and in which the petitioner maintains (or will maintain) an active and central role such that the petitioner's knowledge, skills, or experience would significantly advance the proposed endeavor.
When evaluating whether such petitions satisfy the three-pronged framework, officers may consider the fact that many entrepreneurs do not follow traditional career paths and there is no single way in which an entrepreneurial start-up entity must be structured.
In addition to the more generally applicable evidence described above, an entrepreneur petitioner may submit the following types of evidence to establish that the endeavor has substantial merit and national importance, that the petitioner is well positioned to advance the endeavor, and that, on balance, it would be beneficial to waive the job offer and thus labor certification requirements.
Evidence of Ownership and Role in the U.S.-Based Entity
The petitioner may have an ownership interest in an entity based in the United States, of which the petitioner may also be the founder or co-founder. The petitioner may also play an active and central role in the operations of the entity as evidenced by the petitioner’s appointment as an officer (or similar position of authority) of the entity or in another key role within the entity. Such evidence may have probative value in demonstrating the petitioner is well positioned to advance the endeavor.
Degrees, Certifications, Licenses, Letters of Experience
This evidence may indicate that the petitioner has knowledge, skills, or experience that would significantly advance the proposed endeavor being undertaken by the entity. Education and employment history, along with other factors related to the petitioner’s background, may serve to corroborate the petitioner’s claims. Some examples include successfully leading prior start-up entities or having a combination of relevant degrees and experience to equip the petitioner to advance the proposed endeavor.
Investments
An investment, binding commitment to invest, or other evidence demonstrating a future intent to invest in the entity by an outside investor, consistent with industry standards, may provide independent validation and support of a finding of the substantial merit of the proposed endeavor or the petitioner being well placed to advance the proposed endeavor. This investment may come from persons, such as angel investors, or established organizations, such as venture capital firms. Because different endeavors have different capital needs, USCIS also considers the amount of capital that would be appropriate to advance the endeavor in determining whether the petitioner has secured sufficient investments.
Incubator or Accelerator Participation
Incubators are private or public entities that provide resources, support, and assistance to entrepreneurs to foster the growth and development of an idea or enterprise. Accelerators are generally private venture capital entities and focus on helping entrepreneurs and their start-ups speed the launch, growth, and scale of their businesses.
Officers may consider evidence of an entrepreneur’s admission into an incubator or accelerator as an endorsement of the petitioner’s proposed plan or past track record, and the petitioner being well positioned to advance the endeavor. Petitioners may submit evidence of the past success of the incubator for officers to consider when evaluating this evidence.
Awards or Grants
Relevant funds may come from federal, state, or local government entities with expertise in economic development, research and development, or job creation. In addition, awards or grants may be given by other entities, such as policy or research institutes. Like investment from outside investors, this evidence may provide independent validation and support for a finding of substantial merit, national importance, or both, of the proposed endeavor or the petitioner being well positioned to advance the proposed endeavor.
Intellectual Property
Intellectual property, including relevant patents held by the petitioner or one of the petitioner’s current or prior start-up entities, accompanied by documentation showing why the intellectual property is significant to the field or endeavor, may serve as probative evidence of a prior record of success and potential progress toward achieving the endeavor. The petitioner should submit evidence to document how the petitioner contributed to the development of the intellectual property and how it has or may be used internally or externally.
Published Materials about the Petitioner, the Petitioner’s U.S.-Based Entity, or Both
Relevant published materials may consist of printed or online newspaper or magazine articles or other similar published materials evidencing that the petitioner or the petitioner’s entity, with some reference to the petitioner’s role, has received significant attention or recognition by the media. Petitioners may submit evidence of the media outlet’s reputation for officers to consider when evaluating this evidence.
Revenue Generation, Growth in Revenue, and Job Creation
Relevant growth metrics may support that the proposed endeavor, the petitioner’s start-up entity, or both, has substantial merit or that the petitioner is well positioned to advance the proposed endeavor. Such evidence may include a showing that the entity has exhibited growth in terms of revenue generation, jobs created in the United States, or both, and the petitioner’s contribution to such growth.
This evidence may also support that the proposed endeavor, the petitioner’s start-up entity, or both, have national importance when coupled with other evidence, such as the location of the current or proposed start-up entity in an economically depressed area that has benefited or will benefit from jobs created by the start-up entity.
Letters and Other Statements from Third Parties
Letters may be from, for example, relevant government entities, outside investors, or established business associations with knowledge of:
- The research, products, or services developed by the petitioner, the petitioner’s entity, or both; or the petitioner’s knowledge, skills, or
- Experience that would advance the proposed endeavor.
While entrepreneurs typically do not undergo the same type of peer review common in academia, entrepreneurs may operate in a variety of high-tech or cutting-edge industries that have their own industry or technology experts that provide various forms of peer review.[77]
Additionally, the merits of the entrepreneur’s business, business plan, product, or technology may undergo various forms of review by third parties, such as prospective investors, retailers, or other industry experts. Accordingly, letters and other statements from relevant third-party reviewers, may have probative value in demonstrating the substantial merit and national importance of the endeavor and that the individual is well positioned to advance the endeavor.
Generally, many entrepreneurial endeavors are measured in terms of revenue generation, profitability, valuations, cash flow, or customer adoption. However, other metrics may be of equal importance in determining whether the petitioner has established each of the three prongs.
As noted in Matter of Dhanasar, “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution.”[78] Accordingly, petitioners are not required to establish that the proposed endeavor is more likely than not to ultimately succeed based solely on the typical metrics used to measure entrepreneurial endeavors (although such showings may be considered favorably).
They instead need to show that the proposed endeavor has both substantial merit and national importance, that the petitioner is well positioned to advance the proposed endeavor, and that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
Evidence establishing the petitioner’s past entrepreneurial achievements and that corroborates projections of future work in the national interest are favorable factors. Claims lacking corroborating evidence are not sufficient to meet the petitioner’s burden of proof. As in all cases, officers must consider the totality of circumstances to determine whether each of the three prongs is established by a preponderance of the evidence.
Footnotes
[^ 1] This section uses the term beneficiary to refer to the alien; however, if the advanced degree professional also seeks a national interest waiver of the job offer, he or she can self-petition. See Section D, National Interest Waiver of Job Offer [6 USCIS-PM F.5(D)].
[^ 2] See 8 CFR 204.5(k)(2) (defining profession as one of the occupations listed in INA 101(a)(32), as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation).
[^ 3] See INA 203(b)(2)(A). See 8 CFR 204.5(k).
[^ 4] See 8 CFR 204.5(k)(4).
[^ 5] For additional information on medical degrees as advanced degrees, see Chapter 6, Physicians [6 USCIS-PM F.6]. For general information about evaluations of education credentials, see Part E, Employment-Based Immigration, Chapter 9, Evaluation of Education Credentials [6 USCIS-PM E.9].
[^ 6] See 8 CFR 204.5(k)(2).
[^ 7] The Joint Explanatory Statement of the Committee of Conference, made at the time Congress adopted the Immigration Act of 1990, stated that the equivalent of an advanced degree is a bachelor’s degree plus at least 5 years progressive experience in the professions. See 60 FR 29771 (PDF). USCIS has incorporated this standard with respect to establishing equivalency to a master’s degree. See 8 CFR 204.5(k)(3)(i)(B).
[^ 8] Whether the beneficiary has completed all substantive requirements for the degree as of the date on a provisional certificate is a case-specific analysis; but if the petitioner establishes that the beneficiary had completed those requirements, USCIS considers the date of the provisional certificate for purposes of calculating post-baccalaureate experience. See Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017).
[^ 9] See 8 CFR 204.5(k)(2).
[^ 10] See the Occupational Information Network (O*Net) website, which is sponsored by U.S. Department of Labor (DOL)’s Employment and Training Administration, and developed by the National Center for O*NET Development.
[^ 11] This section uses “beneficiary” to refer to the alien; however, if the person of exceptional ability also seeks a national interest waiver of the job offer, he or she can self-petition. See Section D, National Interest Waiver of the Job Offer [6 USCIS-PM F.5(D)].
[^ 12] See INA 203(b)(2)(A). See 8 CFR 204.5(k).
[^ 13] See 8 CFR 204.5(k)(2).
[^ 14] See Chapter 2, Extraordinary Ability [6 USCIS-PM F.2].
[^ 15] See 8 CFR 204.5(k)(3)(ii).
[^ 16] See 8 CFR 204.5(k)(3)(ii).
[^ 17] See 8 CFR 204.5(k)(3)(iii).
[^ 18] See 8 CFR 204.5(k)(3)(ii).
[^ 19] See 8 CFR 204.5(k)(3)(ii).
[^ 20] See INA 203(b)(2).
[^ 21] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 376 (AAO 2010) (“[T]ruth is to be determined not by the quantity of evidence alone but by its quality. Therefore, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.”). See Kazarian v. USCIS (PDF), 596 F.3d 1115, 1122 (9th Cir. 2010). USCIS has interpreted Kazarian as applicable to exceptional ability petitions. See Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update AD11-14, PM-602-0005.1, issued December 22, 2010.
[^ 22] See INA 203(b)(2)(C).
[^ 23] See INA 204(b).
[^ 24] See 20 CFR 656.15(d).
[^ 25] See INA 203(b)(2).
[^ 26] See 20 CFR 656.15(d). See Part E, Employment-Based Immigration, Chapter 7, Schedule A Designation Petitions [6 USCIS-PM E.7].
[^ 27] See INA 212(a)(5)(A)(iii).
[^ 28] See INA 203(b)(2)(A).
[^ 29] See Matter of Masters (PDF), 13 I&N Dec. 125 (Dist. Dir. 1969).
[^ 30] See INA 212(a)(5)(A)(iii). See 20 CFR 656.40(f).
[^ 31] See INA 212(a)(5)(A)(iv).
[^ 32] See 73 FR 11954 (PDF). See DOL’s Foreign Labor Certification webpage.
[^ 33] See 8 CFR 204.5(k)(3)(ii)-(iii). See Section B, Exceptional Ability Classification, Subsection 2, Evidence [6 USCIS-PM F.5(B)(2)].
[^ 34] See Section B, Exceptional Ability [6 USCIS-PM F.5(B)].
[^ 35] See INA 203(b)(2)(B)(i). See 8 CFR 204.5(k)(4)(ii).
[^ 36] See Section 302(b)(2) of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. 102-232 (PDF), 105 Stat. 1733, 1743 (December 12, 1991).
[^ 37] See Section A, Advanced Degree Professionals [6 USCIS-PM F.5(A)].
[^ 38] See 8 CFR 204.5(k)(4)(ii).
[^ 39] See 8 CFR 204.5(k)(4)(ii).
[^ 40] See 8 CFR 204.5(k)(1)-(3) (providing definitions and considerations for making advanced degree professional and person of exceptional ability determinations). As explained in Matter of Dhanasar, 26 I&N Dec. 884, 886 n.3 (AAO 2016), advanced degree professionals and persons of exceptional ability are generally subject to the labor certification requirement and are not exempt because of their advanced degree or exceptional ability. See Matter of Dhanasar, 26 I&N Dec. 884, 893 (AAO 2016).
[^ 41] Therefore, whether a given person seeks classification as a person of exceptional ability or as a member of the professions holding an advanced degree, that person cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in the person’s field of expertise. See Matter of Dhanasar, 26 I&N Dec. 884, 886 n.3 (AAO 2016).
[^ 42] See INA 203(b)(2).
[^ 43] The three prongs derive from the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). The references to the facts in that case in this guidance, however, are illustrative and do not set the standard.
[^ 44] See Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016). See Poursina v. USCIS (PDF), 936 F.3d 868 (9th Cir. 2019).
[^ 45] See 8 CFR 103.3(a).
[^ 46] For instance, although the petitioner was an engineer by occupation, the decision discusses his specific proposed endeavors “to engage in research and development relating to air and space propulsion systems, as well as to teach aerospace engineering.” See Matter of Dhanasar, 26 I&N Dec. 884, 891 (AAO 2016).
[^ 47] See Matter of Dhanasar, 26 I&N Dec. 884, 892 (AAO 2016) (finding that the petitioner’s proposed research “aims to advance scientific knowledge and further national security interests and U.S. competitiveness in the civil space sector” and therefore has substantial merit).
[^ 48] See Matter of Dhanasar, 26 I&N Dec. 884, 887 (AAO 2016) (finding that “certain locally- or regionally-focused endeavors may be of national importance despite being difficult to quantify with respect to geographic scope”).
[^ 49] See Matter of Dhanasar, 26 I&N Dec. 884, 889-90 (AAO 2016).
[^ 50] See Matter of Dhanasar, 26 I&N Dec. 884, 889-90 (AAO 2016) (explaining that “an endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance”). See Matter of Dhanasar, 26 I&N Dec. 884, 892 (AAO 2016) (finding that the petitioner’s evidence demonstrated the national importance of advancements in STEM fields, specifically hypersonic propulsion technologies and research).
[^ 51] See Matter of Dhanasar, 26 I&N Dec. 884, 890, 892-93 (AAO 2016).
[^ 52] See Matter of Dhanasar, 26 I&N Dec. 884, 890 (AAO 2016).
[^ 53] In the case of a petitioner who does not intend to be self-employed, USCIS considers a job offer or communications with prospective employers, while not required, relevant to demonstrate the circumstances or capacity in which the person intends to carry out the endeavor and the feasibility of that plan.
[^ 54] For a discussion of financing for entrepreneurs, see Subsection 4, Specific Evidentiary Considerations for Entrepreneurs [6 USCIS-PM F.5(D)(4)].
[^ 55] For a discussion of letters from interested government agencies, see Subsection 3, The Role of Interested Government Agencies [6 USCIS-PM F.5(D)(3)].
[^ 56] See 20 CFR 656.1. See Part E, Employment-Based Immigration, Chapter 6, Permanent Labor Certification, Section A, Employer Requirements, Subsection 2, Individual Permanent Labor Certifications [6 USCIS-PM E.6(A)(2)].
[^ 57] See discussion of the entrepreneurs in Subsection 4, Specific Considerations for Entrepreneurs, [6 USCIS-PM F.5(D)(4)].
[^ 58] See Matter of Dhanasar, 26 I&N Dec. 884, 890 (AAO 2016).
[^ 59] See Matter of Dhanasar, 26 I&N Dec. 884, 891, 893 (AAO 2016) (holding that “because of his record of successful research in an area that furthers U.S. interests, we find that this petitioner offers contributions of such value that, on balance, they would benefit the United States even assuming that other qualified U.S. workers are available”). In that case, the Administrative Appeals Office (AAO) noted that the petitioner holds three graduate degrees in fields tied to the proposed endeavor, that his proposed research has significant implications for U.S. national security and competitiveness, and that his work had attracted interest from government agencies. Therefore, the AAO considered the petitioner’s endeavor in the field of aerospace engineering, and his level and extent of expertise within that field, taken together, to have the potential to provide great benefit to the United States such that waiver of the job offer was in the national interest.
[^ 60] See Matter of Dhanasar, 26 I&N Dec. 884, 891 (AAO 2016).
[^ 61] An employer may only list the minimum job requirements on a labor certification application. See 20 CFR 656.17(i).
[^ 62] See Matter of Dhanasar, 26 I&N Dec. 884, 890 (AAO 2016).
[^ 63] See Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016) (explaining that when evaluating the first prong, “the potential to create a significant economic impact may be favorable but is not required”). The potential economic impact is an appropriate inquiry when weighing the relative benefit of granting the national interest waiver.
[^ 64] “STEM” is not defined in the regulations describing the national interest waiver benefit, but officers may refer to the definition found in the context of STEM optional practical training for students for guidance. See 8 CFR 214.2(f)(10)(ii)(C)(2)(i) (defining STEM as “science, technology, engineering, or mathematics”).
[^ 65] Critical and emerging technologies are those that are critical to U.S. national security, including military defense and the economy. While those technologies necessarily evolve and USCIS reviews the specifics of each proposed endeavor on a case-by-case basis, examples may include, but are not limited to, certain critical areas of artificial intelligence or quantum information science. When adjudicating this discretionary benefit, officers should review the entire record and, where officers have concerns, work closely with their supervisors and fraud, benefit integrity, and national security personnel in their offices.
[^ 66] One, but certainly not the only, indicator of STEM areas important to U.S. competitiveness is inclusion as a priority in the annual research and development priorities memo about the President’s budget issued jointly by the White House Director of the Office of Science and Technology Policy and the Director of the Office of Management and Budget. For example, the Memorandum on Research and Development Priorities (PDF) (August 2021) for President Biden’s FY2022 budget is indicative of STEM areas important to U.S. competitiveness.
[^ 67] U.S. national security objectives are outlined in the Interim National Security Strategic Guidance (PDF). These objectives include protect the security of the American people; expand economic prosperity and opportunity; and realize and defend democratic values. For purposes of national interest waiver policy and adjudications, “national security” refers to these three objectives.
[^ 68] For example, the National Science and Technology Council’s Critical and Emerging Technologies List Update (PDF) (February 2022) identifies critical and emerging technologies “with the potential to further these [national security] objectives,” meaning security of Americans, economic prosperity, or democratic values. Departments and agencies may consult this list “when developing, for example, initiatives to research and develop technologies that support national security missions, compete for international talent, and protect sensitive technology from misappropriation and misuse.” The list is part of A Report by the Fast Track Action Subcommittee on Critical and Emerging Technologies.
[^ 69] In general, research-intensive industries are those with higher value added from research and development. For example, the Science and Technology Policy Institute provided a list of research and development intensive industries at Appendix C of a report on Economic Benefits and Losses from Foreign STEM Talent in the United States (October 2021).
[^ 70] See Matter of Dhanasar, 26 I&N Dec. 884, 893 (AAO 2016).
[^ 71] See Matter of Dhanasar, 26 I&N Dec. 884, 892-93 (AAO 2016). In that case, the AAO favorably considered documentation that the petitioner played a significant role in projects funded by grants from the National Aeronautics and Space Administration (NASA) and the Air Force Research Laboratories (AFRL) within the U.S. Department of Defense. Therefore, the significance of the petitioner’s research in his field was corroborated by evidence of peer and government interest in his research, as well as by consistent government funding of the petitioner’s research projects. The AAO concluded that the petitioner’s education, experience, and expertise in his field; the significance of his role in research projects; as well as the sustained interest of and funding from government entities such as NASA and AFRL, positioned him well to continue to advance his proposed endeavor of hypersonic technology research.
[^ 72] See Matter of Dhanasar, 26 I&N Dec. 884, 893 (AAO 2016). In that case, the AAO noted that the petitioner holds three graduate degrees in fields tied to the proposed endeavor, including a Ph.D. in a STEM field (Engineering) from a regionally accredited U.S. university.
[^ 73] See Subsection 1, Overview of the Three Prongs [6 USCIS-PM F.5(D)(1)].
[^ 74] For a discussion of letters from interested government agencies, see Subsection 3, The Role of Interested Government Agencies [6 USCIS-PM F.5(D)(3)].
[^ 75] See Matter of Dhanasar, 26 I&N Dec. 884, 893 (AAO 2016) (finding detailed expert letters describing U.S. government interest and investment in the petitioner’s research to be persuasive).
[^ 76] This section, because it discusses self-petitions by entrepreneurs, does not distinguish between “petitioner” and “person” as they are one and the same.
[^ 77] Petitioners may submit evidence related to the credentials of experts who support a petition for officers to consider when assigning weight to the letter.
[^ 78] See Matter of Dhanasar, 26 I&N Dec. 884, 890 (AAO 2016).
Chapter 6 - Physician
A. Petition for Physician Supported by Permanent Labor Certification
1. Determining Whether Physician has met Minimum Requirements for Position
Officers must determine whether the alien physician (physician) met the minimum education, training, and experience requirements of the permanent labor certification as of the date of its filing with the U.S. Department of Labor (DOL) in order to establish the physician’s eligibility for the classification.[1] Although a permanent labor certification may not specify that a license is required for a physician position, physicians involved in patient care must obtain a license to practice medicine in the location where they are to be employed in the United States as a matter of state or territorial law.[2]
Therefore, it follows that any candidate for such a position must, at the time of the permanent job offer, either possess a permanent license to practice medicine or be eligible for such a license in the state of the intended employment in order to be qualified for entry into the position. In the case of a physician petition supported by a permanent labor certification, the job offer is considered to have been made as of the date of the filing of the permanent labor certification.
License to Practice Medicine[3]
Each U.S. state has a medical board that devises its own educational, training, and experience requirements that physicians must meet in order to be granted a permanent license, more specifically, a full and unrestricted license, to practice medicine in that state. A full and unrestricted license to practice differs from a limited license to practice medicine. Limited licensure is typically granted to physicians who are still working towards obtaining the credentials required for full licensure or who may be providing limited medical care, such as a physician who is working at a summer camp as a camp physician for a short period of time.
In general, there are two pathways to obtain permanent licensure to practice medicine as a physician: either as an initial applicant for licensure, or as an applicant for licensure by endorsement.
The initial applicant pathway is for medical school graduates who have never obtained a permanent license to practice medicine as a physician in the United States, or in some instances, Canada. An initial applicant must show that he or she has any requisite medical degree, post-graduate training, residency, and board certifications, and has passed the medical examinations required by the state medical board.
All U.S. states require licensing candidates to make an application for licensure with their medical board to demonstrate that they meet the requirements of licensure regardless of previous licensure.[4] This pathway is often referred to as an endorsement application and involves:
- A verification of the standing of the applicant’s license(s) issued by another U.S. state or territory, and in some cases by a foreign country; and
- A review of the applicant’s education, training, and medical examinations to determine if the applicant meets the requirements of the state medical board.
U.S. states do not generally allow a physician to practice medicine within their jurisdictional boundaries based on a license issued by another state or territory (referred to as automatic reciprocity). Certain exceptions may exist for physicians practicing at federal medical facilities and in other very limited circumstances.
In some states, applicants must pass medical examinations, such as the U.S. Medical Licensing Examination (USMLE), within a certain number of attempts or within a certain timeframe in order for the examination results to be considered valid for licensure. In addition, approximately 75 percent of the U.S. states require foreign medical school graduates to complete additional post-graduate medical training or residencies beyond that required for U.S. medical school graduates.
In order to approve a petition supported by a permanent labor certification filed on behalf of a physician, the petitioner must show that, at the time of the filing of the permanent labor certification, the physician:
- Possesses a permanent license to practice medicine in the area of intended employment; or
- Has met all of the requirements to be eligible to obtain such a license in the area of intended employment, notwithstanding eligibility requirements that are contingent upon his or her immigration status in the United States.
Some state medical boards do not issue a license to practice medicine unless the applicant presents evidence that he or she is legally authorized to be employed in the United States or has obtained a U.S. Social Security Number (SSN). State licensure criteria relating to the applicant’s U.S. immigration status, such as a requirement that the applicant must be a lawful permanent resident (LPR) or must otherwise possess employment authorization or an SSN, should not be considered relevant to the adjudication of the petition as the petition is the means by which the physician would obtain LPR status and eligibility to accept employment and obtain an SSN in the United States.
Officers review the evidence provided in support of the petition to determine if the physician had a permanent license to practice or was eligible to obtain such a license in the location of intended employment at the time of filing of the permanent labor certification. Information regarding the licensure requirements for U.S. states can be obtained from the Federation of State Medical Boards[5] and at the various U.S. medical board websites.
2. Foreign Medical Degree Equivalency
The United States is one of the few countries where medical school applicants are required to obtain a bachelor’s degree as a requirement for admission to medical school. As a result, a U.S. medical degree is considered to be an advanced degree.
In many other countries, a person may be admitted to medical school directly out of high school. In these instances, the program of study for the foreign medical degree is longer in length (generally 5-7 years in duration) than is required for a less specialized foreign bachelor’s degree (generally 3-4 years in duration). In some countries, the name of the degree is “Bachelor of Medicine, Bachelor of Surgery," and the program of study may involve only medicine, to include some limited basic sciences.
A foreign medical degree may qualify as the equivalent of a U.S. medical degree and therefore an advanced degree for purposes of this visa classification if, at the time of the filing of the permanent labor certification application, the following two conditions are met:
Condition 1: The beneficiary:
- Has been awarded a foreign medical degree from a medical school that requires applicants to obtain a degree equivalent to a U.S. bachelor’s degree as a requirement for admission;
- Has been awarded a foreign medical degree, and the petitioner has provided a foreign education credential evaluation that credibly describes how the foreign medical degree is equivalent to a medical degree obtained from an accredited medical school in the United States; or
- Has been awarded a foreign medical degree and has passed the National Board of Medical Examiners Examination (NBMEE) or an equivalent examination, such as the USMLE, Steps 1, 2, and 3.
Condition 2: The beneficiary was fully eligible for the position described on the permanent labor certification application on the date that it was filed, and the petitioner has established that:[6]
- The beneficiary had a full and unrestricted license to practice medicine in the place of intended employment and continues to hold such unrestricted license; or
- The beneficiary’s foreign medical degree meets the medical degree requirements to be eligible for full and unrestricted licensure specified by the medical board governing the place of intended employment.
Each U.S. state, the District of Columbia, and the U.S. territories have a medical board that devises its own medical degree requirements that candidates must meet in order to be licensed to practice medicine in that jurisdiction.
B. Physician National Interest Waiver
1. Purpose, Background, and Legal Authority
Statutory and Regulatory Authorities[7]
The Nursing Relief for Disadvantaged Areas Act (Nursing Relief Act) of 1999 amended the Immigration and Nationality Act[8] to establish a national interest waiver (NIW) of the DOL’s permanent labor certification process for certain physicians petitioning for advanced degree professional or exceptional ability classification.[9]
USCIS grants a NIW of the job offer requirement, and therefore the permanent labor certification requirement, for any physician seeking advanced degree professional or exceptional ability classification:
- The physician agrees to work full time as a physician in an area or areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals or at a health care facility under the jurisdiction of the Secretary of Veterans Affairs; and
- A federal agency or a department of public health in any state has previously determined that the physician’s work in such an area or at such facility is in the public interest.[10]
The physician may not receive LPR status until he or she has worked full time as a physician for an aggregate of 5 years in the shortage area, or 3 years in the shortage area if the physician petitioned for the NIW before November 1, 1998.[11]
On September 6, 2000, legacy Immigration and Naturalization Service (INS), now USCIS, issued an interim rule implementing the physician NIW provisions.[12]
Consistent with the statute, the regulations allow filing of a physician NIW and an adjustment application without the physician first completing the 3 or 5 years of service in shortage areas. The regulations include provisions that:
- Require physicians who had an NIW denied prior to November 12, 1999, to complete the 5-year rather than the 3-year service requirement;
- Require NIW physicians to comply with reporting requirements, including submitting initial evidence within 120 days of the completion of the second year of service and additional evidence within 120 days of completing the fifth year of service to establish that they were still engaged in the area of medical practice that was the basis for approval of the NIW; and
- Limit NIW eligibility to physicians who practiced in a medical specialty that was within the scope of the shortage designation for the geographic area.
Schneider v. Chertoff
Plaintiffs in Schneider v. Chertoff[13] challenged specific provisions of the agency’s physician NIW regulations and, in its decision issued on June 7, 2006, the Ninth Circuit found that three regulatory provisions were beyond the scope of the statutory language.[14] The court held that:
- Medical practice completed before the approval of the employment-based petition (except medical practice as a J-1 nonimmigrant) counts toward the service requirement;
- NIW physicians who had immigrant visa petitions filed on their behalf before November 1, 1998, but were denied before November 12, 1999, need only fulfill the 3-year service requirement; and
- The regulatory period of 4 years (where 3 years of service is required) or 6 years (where 5 years of service is required) within which NIW physicians must complete the medical service requirement is not a permissible interpretation of the statute.
On the remaining two challenged provisions, the court held that USCIS has the authority to impose reporting requirements on NIW physicians to ensure compliance with the statute and declined to address the question related to whether medical specialists should be covered under the statute.[15] The plaintiff who raised the claim had his NIW and petition denied due to abandonment, thereby mooting the issue.
USCIS remains committed to advancing the congressional intent of providing quality medical care in designated underserved areas and also is mindful of the states’ direct interest in obtaining necessary medical care in underserved areas and their critical role in coordinating with USCIS in the NIW process.
USCIS, however, is not required to allow a physician with an approved NIW and pending adjustment application to continue receiving interim work and travel authorization for an unlimited period without some evidence that the physician is pursuing or intends to pursue the type of medical service that was the basis for the NIW approval.
Therefore, while USCIS amended NIW procedures to meet the Schneider decision (for example, not impose a specific timeframe within which the required medical service must be performed), an officer may exercise discretion to deny employment authorization or an adjustment application if he or she believes that the physician is using the pending adjustment application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.
2. Eligibility
The basic eligibility requirements for the physician are:
- The petitioner has filed a petition under INA 203(b)(2), along with the physician NIW request;
- The physician agrees to work full time in a clinical practice providing primary or specialty care in an underserved area or at a U.S. Department of Veterans Affairs (VA) health care facility for an aggregate of 5 years (not counting any time in J-1 status, but including such time that may have preceded the petition filing);[16] and
- A federal agency or a state department of public health, with jurisdiction over the medically underserved area, has determined that the physician’s work in the underserved area or the VA facility is in the public interest (and, to the extent that past work is presented, that it was in the public interest).[17]
Primary or Specialty Care
Since 2000, legacy INS, and now USCIS, has given state departments of health more flexibility to sponsor waivers for physicians willing to work in medically underserved areas. For instance, under the Conrad 30 Waiver program, state departments of health may sponsor waivers for J-1 specialist physicians who will provide services to medically underserved populations (MUP).[18] The Conrad program is similar to the NIW program as they both have a medical service requirement under which the physician must work in a medically underserved area.
Based on the U.S. Department of Health and Human Services’ (HHS) criteria published in 2000, USCIS (and legacy INS) limited its definition of qualified physicians in designated shortage areas to those who practiced primary care medicine, including family or general medicine, pediatrics, general internal medicine, obstetrics and gynecology, and psychiatry.[19]
As of January 23, 2007, USCIS began accepting NIW petitions on behalf of primary and specialty care physicians who agree to work full time in areas designated by the HHS as having a shortage of healthcare professionals (for example, health professional shortage area (HPSA), medically underserved area (MUA), MUP, and, at the time, physician scarcity areas (PSA)).
In addition, in 2016 the Administrative Appeals Office clarified that, regardless of whether the shortage designation is seemingly limited to primary care physicians, in addition to primary care and specialty care physicians, medical specialists who agree to practice in any area designated by HHS as having a shortage of health care professionals may be eligible for the physician NIW.[20]
The Nursing Relief Act[21] requires USCIS to recognize HHS designations of health professionals without limitation to primary care. Accordingly, USCIS recognizes NIW physicians in primary care and specialty care. A specialty physician is defined as other than a general practitioner, family practice practitioner, general internist, obstetrician, or gynecologist. Dentists, chiropractors, podiatrists, and optometrists do not qualify for the physician scarcity bonus as specialty physicians, and therefore, cannot qualify for the NIW.
A physician or employer must submit evidence showing that a geographic area is or was designated by HHS as having a shortage of health care professionals. The designation must be valid at the time the NIW employment began. If the area loses its HHS designation after the physician starts working, a physician can remain at the facility and the time worked after that point qualifies as NIW employment so long as the employment continues to satisfy all other NIW requirements.
Medically Underserved Areas
In designating areas of the country as “underserved,” the Secretary of Health and Human Services addresses the shortage of family or general medicine and sub-specialist physicians (designations include HPSA, MUP, and MUA). For work that preceded the filing of the petition, the area must have been a designated shortage area at the time the work commenced but need not have retained such designation. For shortage designations, see these sources:
- HHS Health Resources and Services Administration to determine if a geographic area is an MUA or MUP.
- HHS Centers for Medicare and Medicaid Services to determine if a geographic area is an HPSA.[22]
Physicians serving at VA facilities are not bound by the HHS categories noted above. The VA may petition for physicians who specialize in various fields of medicine, and the location of the work need not be in an underserved area.
Time Limit to Complete the Required Medical Service
The physician has no set time limitation to complete the 3 or 5 years of aggregate service, which may include periods of service prior to the filing or approval of the petition. While there is no set time limitation, a NIW physician must submit interim evidence of compliance with the medical service requirement before USCIS approves the adjustment application.
While officers cannot revoke the approval of a petition or deny an adjustment application for a physician solely because the physician did not complete the 3- or 5-year service requirement within a certain timeframe, officers may deny an adjustment application as a matter of discretion if the physician appears to be using the pending adjustment application solely as a means for employment in areas or occupations other than medical service in the designated shortage areas.[23]
3. Evidence
Physicians seeking an NIW based on service in an underserved area or at a VA facility must submit the following supplemental documentation with the petition:[24]
- Employment contract or employment commitment letter covering the required period of clinical medical practice. For work that the physician has not yet started, the contract or employment commitment letter must be issued and dated within the 6-month period before the filing date of the petition.[25] This 6-month requirement does not apply to work that has been completed or that started before the filing date of the petition.
- Public interest letter from the federal agency or state department of public health attesting that the physician’s work is or will be in the public interest. For work that the physician has not yet started, the letter must be issued and dated within the 6-month period before the filing date of the petition.[26] This 6-month requirement does not apply to work that has been completed or that started before the filing date of the petition.
If a physician acquired experience with more than one employer, the record must contain evidence of all service in an underserved area or at a VA facility. The physician must also submit evidence to demonstrate that the physician has met all other eligibility requirements for classification as a person with an advanced degree or exceptional ability,[27] other than the permanent labor certification.
In particular, a physician needing a waiver of the J-1 foreign residency requirement must still obtain such a waiver under INA 212(e) and satisfy all the waiver conditions[28] (including 3 years of service) before USCIS may approve the physician’s adjustment application.[29]
Admissibility Requirements
The Immigration and Nationality Act (INA) requires physicians to meet specific admissibility requirements relating to passing professional medical examinations and English language competency.[30]
The physician must provide evidence that he or she has passed parts I and II of the NBMEE or an equivalent examination as determined by the Secretary of Health and Human Services. The NBMEE, also known as the NBME, ceased to be administered in 1992. The USMLE, which was first administered in 1992, is considered an equivalent examination.[31]
In addition to having passed either the NBMEE, USMLE, or one of its equivalents, the physician is also required to provide evidence of competency in oral and written English. An Educational Commission for Foreign Medical Graduates (ECFMG) certification showing the physician has passed the English language proficiency test meets this requirement.[32]
Physicians seeking a physician NIW must provide documentation to establish admissibility[33] at the time of filing of the petition.[34] In contrast, physicians filing petitions with a permanent labor certification must establish admissibility[35] at the time of the filing of the permanent labor certification.
Requests to Practice in a Different Underserved Area
USCIS regulations allow a physician with an approved petition and a pending adjustment application to practice medicine in a different underserved area or a different VA facility. Physicians must follow certain procedures, including filing an amended petition, in order to request such a change of practice.[36]
Footnotes
[^ 1] See Matter of Wing's Tea House (PDF), 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
[^ 2] See the American Medical Association’s Navigating State Medical Licensure.
[^ 3] See the American Medical Association’s Navigating State Medical Licensure.
[^ 4] See Physician Licensure Application Fees and Timelines by State.
[^ 5] See the Federation of State Medical Boards website.
[^ 6] See Matter of Wing’s Tea House (PDF), 16 I&N Dec. 158 (BIA 1977). See 20 CFR 656.17(h). See 20 CFR 656.10(c)(7).
[^ 7] See INA 203(b)(2)(B)(ii). See 8 CFR 204.12.
[^ 8] See INA 203(b)(2)(B)(ii)(I).
[^ 9] See Section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 (PDF), 113 Stat. 1312, 1318 (November 12, 1999), codified at INA 203(b)(2)(B). Before this law, a qualified physician could obtain a discretionary waiver of the labor certification process by showing that his or her admission or adjustment to permanent residence would be in the national interest of the United States under the same standard as for all other occupations.
[^ 10] See INA 203(b)(2)(B)(ii)(I).
[^ 11] See INA 203(b)(2)(B)(ii)(II) and INA 203(b)(2)(B)(ii)(IV).
[^ 12] See 65 FR 53889 (PDF) (Sep. 6, 2000) (implementing regulations for physician NIW at 8 CFR 204.12 and 8 CFR 245.18).
[^ 13] See Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006).
[^ 14] The court specifically reviewed the statutory language in INA 203(b)(2)(B).
[^ 15] See Schneider v. Chertoff, 450 F.3d 944, 959 (9th Cir. 2006). See Matter of H-V-P-, Adopted Decision 2016-01 (AAO Feb. 9, 2016).
[^ 16] Or 3 years (not counting any time in J-1 status but including such time that may have preceded the petition filing), if the petition was filed before November 1, 1998.
[^ 17] See 8 CFR 204.12.
[^ 18] See INA 214(l).
[^ 19] See 8 CFR 204.12(a)(2)(i). See 65 FR 53889 (PDF), 53890 (September 6, 2000).
[^ 20] See INA 203(b)(2)(B)(ii). See Matter of H-V-P-, Adopted Decision 2016-01 (AAO Feb. 9, 2016).
[^ 21] See Section 5 of the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95 (PDF), 113 Stat. 1312, 1318 (November 12, 1999), codified at INA 203(b)(2)(B).
[^ 22] See the HHS Health Resources and Services Administration website to determine if a geographic area is a MUA or MUP. See the HHS Centers for Medicare and Medicaid Services website to determine if a geographic area is an HPSA.
[^ 23] If a physician’s adjustment application was denied and the petition’s approval revoked on or after September 6, 2000, but before January 23, 2007, solely because the physician did not complete the 3 or 5 years of medical service within the 4- or 6-year time limit, USCIS allowed such applicants to file, with appropriate fees, a motion to reopen the petition or adjustment application or both within 1 year of January 23, 2007. The January 23, 2007, date derives from the memorandum Interim guidance for adjudication national interest waiver (NIW) petitions and related adjustment applications for physicians serving in medically underserved areas in light of Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006) (“Schneider decision”), HQ 70/6.2, issued January 23, 2007.
[^ 24] For a complete list and detailed explanation of this supplemental evidence, see 8 CFR 204.12(c).
[^ 25] See 8 CFR 204.12(c)(1).
[^ 26] See 8 CFR 204.12(c)(3).
[^ 27] See 8 CFR 204.5(k)(1)-(3).
[^ 28] See INA 214(l).
[^ 29] See 8 CFR 204.12(g).
[^ 30] See INA 212(a)(5)(B).
[^ 31] Previously, the Visa Qualifying Examination (which was administered from 1977 through 1984) and the Comprehensive Foreign Medical Graduate Examination in the Medical Sciences (which was administered from 1984 through 1993) were also considered equivalent examinations.
[^ 32] For information regarding this certification, see the ECFMG website.
[^ 33] See INA 212(a)(5)(B).
[^ 34] See 8 CFR 204.12(c)(4).
[^ 35] See INA 212(a)(5)(B).
[^ 36] See 8 CFR 204.12(f).
Chapter 7 - Skilled Worker, Professional, or Other Worker
A total of 40,000 visas are available each fiscal year for employment-based 3rd preference workers, of which not more than 10,000 may be issued to “other” (unskilled)[1] workers. The visas for skilled workers (requiring at least 2 years training or experience)[2] and professionals (persons holding a bachelor’s degree or its equivalent in the specific field in which they are to be engaged)[3] are deducted from the same 30,000 number allotment.
A petitioning U.S. employer may file an Immigrant Petition for Alien Workers (Form I-140) on behalf of a beneficiary for classification as a skilled worker, professional, or other (unskilled) worker.[4]
A. Eligibility
In all cases, the beneficiary must have the minimum education and work experience requirements that are specified on the permanent labor certification.[5] Therefore, if the permanent labor certification specifies that a bachelor’s degree in a given field is the minimum requirement for entry into the position, the beneficiary must possess a minimum of a U.S. bachelor’s degree or its foreign equivalent degree in the field.
Where the labor certification permits educational and experience equivalence to a bachelor’s degree, however, the beneficiary may qualify as a skilled worker if he or she meets the requirements on the labor certification.[6] On the other hand, if the permanent labor certification states a requirement of “2 years college and 2 years experience,” mere possession of a bachelor’s degree, without 2 years of experience, would not qualify, although it would meet the education requirement.
Sheepherders
A sheepherder is an unskilled worker. An alien sheepherder who has been legally employed as a nonimmigrant sheepherder in the United States for at least 33 of the preceding 36 months is not required to obtain an approved permanent labor certification from the U.S. Department of Labor. Instead, the petitioner files the permanent labor certification application directly with the appropriate USCIS office or the U.S. Department of State. This procedure relates only to the permanent labor certification process and has no bearing on the amount of training or experience needed to perform the job.
Footnotes
[^ 1] See 8 CFR 204.5(l)(2), defining an other worker as one capable of performing unskilled labor (requiring less than 2 years training or experience).
[^ 2] Relevant post-secondary education may be considered as training. See 8 CFR 204.5(l)(2) (definition of skilled worker).
[^ 3] See 8 CFR 204.5(l)(2) (definition of professional).
[^ 4] See INA 203(b)(3). See 8 CFR 204.5(l).
[^ 5] See Matter of Wing's Tea House (PDF), 16 I&N Dec. 158 (Act. Reg. Comm. 1977).
[^ 6] See 8 CFR 204.5(l)(4).
Part G - Investors
Chapter 1 - Purpose and Background
A. Purpose
The Immigration and Nationality Act (INA) makes visas available to qualified immigrant investors who will contribute to the economic growth of the United States by investing in U.S. businesses and creating jobs for U.S. workers.[1] Congress created this employment-based 5th preference (EB-5) immigrant visa category to benefit the U.S. economy by providing an incentive for foreign capital investment in commercial enterprises that create or preserve U.S. jobs. Petitioners participating in the Regional Center Program, discussed more under the background section below, may meet statutory job creation based on estimates of indirect job creation,[2] rather than relying only on jobs directly created by the new commercial enterprise.
The INA authorizes approximately 10,000 visas each fiscal year for immigrant investors (including their spouses and unmarried children under the age of 21) who have invested or are actively in the process of investing in a new commercial enterprise and satisfy the applicable job creation requirements. To encourage certain types of investments, Congress amended the INA on March 15, 2022, to reserve 20 percent of the EB-5 visas for investors in rural areas, 10 percent for investors in high unemployment areas, and 2 percent for investors in infrastructure projects.[3] In addition, EB-5 visas are authorized for investors in the Regional Center Program through September 30, 2027.[4]
The INA initially established a threshold investment amount of $1,000,000 U.S. dollars per investor and provided the ability to raise the amount by regulation.[5] On July 24, 2019, DHS published the EB-5 Immigrant Investor Program Modernization Rule (EB-5 Modernization Rule), which raised the investment amount for petitions filed on or after November 21, 2019.[6] However, on June 22, 2021, the U.S. District Court for the Northern District of California in Behring Regional Center LLC v. Wolf vacated the EB-5 Modernization Rule.[7] Accordingly, USCIS does not apply the amounts from the vacated rule to any petitions, regardless of when filed.
On March 15, 2022, the EB-5 Reform and Integrity Act of 2022 was signed into law, which raised the standard investment amount to $1,050,000.[8] Petitions filed on or after March 15, 2022, are subject to this higher amount. The minimum amount for investing in a targeted employment area (TEA) was previously set at 50 percent of the standard minimum investment amount, $500,000 U.S. dollars per investor,[9] but increased to $800,000 for petitions filed on or after March 15, 2022, and now also includes investments into infrastructure projects.[10]
The following table outlines the minimum investment amounts by filing date and investment location.
Petition Filing Date |
Standard Minimum Investment Amount |
Reduced Investment Amount |
High Employment Area Investment Amount |
---|---|---|---|
Before March 15, 2022[11] |
$1,000,000 |
$500,000 TEA only |
$1,000,000 |
On or After March 15, 2022[12] |
$1,050,000 |
$800,000 TEA and infrastructure projects |
$1,050,000 |
Upon adjustment of status or admission to the United States, immigrant investors and their derivative family members receive conditional permanent resident status for a 2-year period. Ultimately, if the applicable requirements have been satisfied, USCIS removes the conditions and the immigrants become lawful permanent residents (LPRs) of the United States without conditions.
B. Background
1. EB-5 Category Beginnings
In 1990, Congress created the EB-5 immigrant visa category.[13] The legislation envisioned LPR status, initially for a 2-year conditional period, for immigrant investors who established,[14] invested (or were actively in the process of investing) in, and engaged in the management of job-creating or job-preserving for-profit enterprises.[15] Congress placed no restriction on the type of the business if the immigrant investor invested the required capital and directly created at least 10 jobs for U.S. workers.
2. Creation of the Regional Center Program
In 1992, Congress expanded the allowable measure of job creation for the EB-5 category by launching the Immigrant Investor Pilot Program (referred to in this guidance as the Regional Center Program).[16] Congress designed this program to determine the viability of pooling investments in designated regional centers.[17]
As originally drafted, the Regional Center Program was different from the direct job creation (standalone) model because it allowed for the use of reasonable economic or statistical methodologies to demonstrate job creation. Reasonable methodologies are used, for example, to credit indirect (including induced) jobs to immigrant investors. Indirect jobs are jobs held outside the enterprise that receives immigrant investor capital.
3. Program Evolution
Congress initially authorized the Regional Center Program as a trial pilot program, set to expire after 5 years. Congress extended the Regional Center Program several times before codifying the Regional Center Program into INA 203(b)(5) as part of the EB-5 Reform and Integrity Act of 2022, which became effective on May 14, 2022 and authorizes the Regional Center Program through September 30, 2027.[18] The EB-5 Reform and Integrity Act of 2022 also included other substantive revisions to the EB-5 program more generally.[19]
Acts and Amendments |
Key Changes |
---|---|
Sections 121(a)-(b) of the Immigration Act of 1990[20] |
|
Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993[21] |
|
Sections 11035-37 of the 21st Century Department of Justice Appropriations Authorization Act[23] |
|
Section 1 of Pub. L. 112-176 (PDF)[24] |
|
Division O, Section 204 of Pub. L. 116-260 (PDF)[25] |
|
Sections 101 and 102 of the EB-5 Reform and Integrity Act of 2022 (PDF)[26] |
|
C. Legal Authorities
-
INA 203(b)(5); 8 CFR 204.6 (PDF)[28] – Employment creation immigrants
-
INA 216A; 8 CFR 216.6 – Conditional permanent resident status for certain alien entrepreneurs, spouses, and children
-
8 CFR 216.3 – Termination of conditional permanent resident status
-
Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, repealed on March 15, 2022[29]
Footnotes
[^ 1] See INA 203(b)(5).
[^ 2] For petitions filed on or after March 15, 2022, there are limits on the percentage of indirect job creation. See Chapter 2, Immigrant Petition Eligibility Requirements, Section D, Creation of Jobs, Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)]
[^ 3] See INA 203(b)(5)(B). See the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103 (PDF), 136 Stat. 49 (March 15, 2022).
[^ 4] See INA 203(b)(5)(E). See the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103 (PDF), 136 Stat. 49 (March 15, 2022).
[^ 5] See INA 203(b)(5)(B) and INA 203(b)(5)(C) prior to March 15, 2022.
[^ 6] See 84 FR 35750 (PDF) (July 24, 2019).
[^ 7] See 544 F. Supp. 3d 937 (N.D. Cal. 2021). Because a federal court vacated the Modernization Rule, links to regulations in this chapter are to those regulatory provisions in effect prior to the vacated rule. The regulations also do not reflect any updates to certain provisions superseded by statute. In those situations, such as the investment amount, this chapter cites to the statutory authority instead of the regulations.
[^ 8] See INA 203(b)(5)(C). See the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).
[^ 9] See INA 203(b)(5)(B) and INA 203(b)(5)(C) prior to March 15, 2022.
[^ 10] See INA 203(b)(5)(C). See the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).
[^ 11] See 8 CFR 204.6(f) (PDF)
[^ 12] See INA 203(b)(5)(C). These amounts automatically adjust on January 1, 2027, and every 5 years thereafter. See INA 203(b)(5)(C)(iii). USCIS will update this Part accordingly.
[^ 13] See Section 121(a) of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649 (PDF), 104 Stat. 4978, 4987 (November 29, 1990).
[^ 14] In 2002, Congress eliminated the requirement that an immigrant investor establish the new commercial enterprise. See Section 11036 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273 (PDF), 116 Stat. 1758, 1846 (November 2, 2002).
[^ 15] See Sections 121(a)-(b)(1) of IMMACT90, Pub. L. 101-649 (PDF), 104 Stat. 4978, 4987 (November 29, 1990).
[^ 16] See Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. 102-395 (PDF), 106 Stat. 1828, 1874 (October 6, 1992).
[^ 17] See S. Rep. 102-331 at 118 (July 23, 1992).
[^ 18] For information on the current expiration date, see the About the EB-5 Visa Classification webpage.
[^ 19] See the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).
[^ 20] See Pub. L. 101-649 (PDF), 104 Stat. 4978, 4987 (November 29, 1990).
[^ 21] See Pub. L. 102-395 (PDF), 106 Stat. 1828, 1874 (October 6, 1992).
[^ 22] For a discussion on indirect jobs, see Chapter 2, Immigrant Petition Eligibility Requirements, Section D, Creation of Jobs [6 USCIS-PM G.2(D)].
[^ 23] See Pub. L. 107-273 (PDF), 116 Stat. 1758, 1846 (November 2, 2002).
[^ 24] See 126 Stat. 1325, 1325 (September 28, 2012).
[^ 25] See 134 Stat. 1182, 2148 (December 27, 2020).
[^ 26] See the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).
[^ 27] See Pub. L. 102-395 (PDF), 106 Stat. 1828, 1874 (October 6, 1992), as amended.
[^ 28] DHS published the EB-5 Immigrant Investor Program Modernization Rule, effective November 21, 2019. See 84 FR 35750 (PDF), 35808 (July 24, 2019). However, that rule was vacated by Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021). Therefore, all links to regulations in this part are to those in effect prior to that rule.
[^ 29] See Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. Repealed on March 15, 2022, by the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).
[^ 30] See the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).
Chapter 2 - Immigrant Petition Eligibility Requirements
The immigrant investor category requires three main elements:
- An investment of capital;
- Engagement in a new commercial enterprise; and
- Job creation.
Each element is explained in this chapter in the context of:
- The standalone program and the Regional Center Program for petitions filed before March 15, 2022;
- For standalone petitions filed on or after March 15, 2022; and
- New Regional Center Program petitions filed on or after May 14, 2022.[1]
For the general requirements, the term immigrant investor in this part of the Policy Manual refers to any employment-based 5th preference (EB-5) investor-petitioner, whether investing through the standalone program or the Regional Center Program. Where distinctions between the two programs exist, the term standalone immigrant investor refers to petitioners using the standalone program, and the term regional center immigrant investor refers to petitioners using the Regional Center Program.
A. Investment of Capital
Congress created the immigrant investor category so the U.S. economy can benefit from an immigrant’s contribution of capital. This benefit is greatest when capital is at risk and invested in a new commercial enterprise that, because of the investment, creates at least 10 full-time jobs for U.S. workers. The regulations that govern the category define the terms capital and investment with this economic benefit in mind.[2]
1. Capital
The word capital does not mean only cash. Instead, the broad definition of capital takes into account the many different ways in which a person can make a contribution of financial value to a business.
The following table outlines how the EB-5 Reform and Integrity Act of 2022 refined the definition of capital.
For petitions filed before March 15, 2022 | For petitions filed on or after March 15, 2022[3] |
---|---|
Capital includes cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the immigrant investor, provided the immigrant investor is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.[4] All capital must be valued at fair market value in U.S. dollars. | Congress has similarly defined “capital” as “cash and all real, personal, or mixed tangible assets owned and controlled by the . . . investor, or held in trust for the benefit of the [investor] and to which the [investor] has unrestricted access.”[5] Also consistent with past definitions, the statute now provides that capital must be valued at fair market value in U.S. dollars, in accordance with Generally Accepted Accounting Principles or other standard accounting practice adopted by the U.S. Securities and Exchange Commission, at the time it is invested.[6] |
The immigrant investor must establish that they are the legal owner of the capital invested[7] and has obtained the capital through lawful means. USCIS does not consider as capital any assets acquired directly or indirectly by unlawful means, such as criminal activity.[8] As of May 14, 2022, gifts and loans to the investor are expressly permitted as capital, provided certain conditions are met.[9]
Promissory Notes
Capital can include the immigrant investor’s promise to pay (a promissory note), as long as the immigrant investor is personally and primarily liable for the promissory note debt and his or her assets adequately secure the note. Any security interest must be perfected[10] to the extent provided for by the jurisdiction in which the asset is located.[11] Further, the assets securing the promissory note:
- Cannot include assets of the company in which the immigrant is investing;
- Must be specifically identified as securing the promissory note; and
- Must be fully amenable to seizure by a U.S. noteholder.[12]
The fair market value of a promissory note depends on its present value, not the value at any different time. In addition, to qualify as capital, nearly all of the money due under a promissory note must be payable within 2 years, without provisions for extensions.[13]
Investing Indebtedness
When investing indebtedness, an immigrant investor must demonstrate:
- The immigrant investor is personally and primarily liable for the debt;
- The indebtedness is secured by assets the immigrant investor owns; and
- The assets of the new commercial enterprise are not used to secure any of the indebtedness.
The immigrant investor must have primary responsibility, under the loan documents, for repaying the debt used to satisfy his or her minimum required investment amount.[14]
The immigrant investor must also demonstrate that his or her own collateral secures the indebtedness, and that the value of the collateral is sufficient to secure the amount of indebtedness that satisfies the immigrant investor’s minimum required investment amount. Any indebtedness secured by the immigrant investor’s assets qualifies as capital only up to the fair market value of the immigrant investor’s pledged assets.
2. Investment
The immigrant investor is required to invest his or her own capital. The petitioner must document the path of the funds to establish that the investment was made, or is actively in the process of being made, with the immigrant investor’s own funds.[15] For petitions filed on or after March 15, 2022, the capital must be expected to remain invested for not less than 2 years.[16]
To invest means to contribute capital. A loan from the immigrant investor to the new commercial enterprise does not count as a contribution of capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the immigrant investor and the new commercial enterprise is not a capital investment.[17]
To qualify as an investment, the immigrant investor must actually place his or her capital at risk. The mere intent to invest is not sufficient.[18]
Purchasing a share of a business from an existing shareholder, without more, does not qualify, since the payment goes to the former shareholder rather than to the new commercial enterprise.
Guaranteed Returns
If the immigrant investor is guaranteed a return, or a rate of return, on all or a portion of their capital, then the amount of any guaranteed return is not at risk.[19] For the capital to be at risk, there must be a risk of loss and a chance for gain.
Additionally, if the investor is guaranteed the right to eventual ownership or use of a particular asset in consideration of the investor’s contribution of capital into the new commercial enterprise, the expected present value of the guaranteed ownership or use of such asset counts against the total amount of the investor’s capital contribution in determining how much money was placed at risk. For example, if the immigrant investor is given a right of ownership or use of real estate, the present value of that real estate is not counted as investment capital put at risk of loss.[20]
Nothing prevents an immigrant investor from receiving a return on his or her capital in the form of a distribution of profits from the new commercial enterprise. This distribution of profits may happen during the conditional residency period and may happen before creating the required jobs. However, the distribution cannot be a portion of the investor’s minimum qualifying investment and cannot have been guaranteed to the investor.
Redemption Language for Petitions Filed Before March 15, 2022
USCIS relies on regulatory language and precedent decisions to address redemption agreements. The regulatory definition of “invest” excludes capital contributions that are “in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement.”[21]
An agreement evidencing a preconceived intent to exit the investment as soon as possible after removing conditions on permanent residence may constitute an impermissible debt arrangement.[22] Funds contributed in exchange for a debt arrangement do not constitute a qualifying contribution of capital.[23] In general, the petitioner may not enter into the agreement knowing that he or she has a willing buyer at a certain time and for a certain price.[24]
Any agreement between the immigrant investor and the new commercial enterprise that provides the investor with a contractual right to repayment is an impermissible debt arrangement. In such a case, the investment funds do not constitute a qualifying contribution of capital.[25] Mandatory redemptions and options exercisable by the investor are two examples of agreements where the investor has a right to repayment. The impermissibility of such an arrangement cannot be remedied with the addition of other requirements or contingencies, such as conditioning the repurchase of the securities on the availability of funds; the delay of the repurchase until a date in the future (including after the adjudication of the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829)); or the possibility that the investor might not exercise the right. In other words, repayment does not need to be guaranteed in order to be impermissible. It is the establishment of the investor’s right to demand a repurchase, regardless of the new commercial enterprise’s ability to fulfill the repurchase, that constitutes an impermissible debt arrangement.[26]
The following table describes certain characteristics that might be present in agreements and explains whether their inclusion creates an impermissible debt arrangement.
Type of Provision | Description | Impermissible Agreement? |
---|---|---|
Mandatory redemptions | Arrangements that require the new commercial enterprise to redeem all or a portion of the petitioner’s equity at a specified time or upon the occurrence of a specified event (for example, once the conditions are removed on the petitioner’s permanent resident status) and for a specified price (whether fixed or subject to a specified formula). | USCIS considers this an impermissible debt arrangement. Such impermissible obligations are not subject to the discretion of the new commercial enterprise (although it may have some discretion regarding the timing and manner in which the redemption is performed). |
Options exercisable by the investor | Arrangements that grant the petitioner the option to require the new commercial enterprise to redeem all or a portion of his or her equity at a specified time or upon the occurrence of a specified event (for example, once the conditions are removed on the petitioner’s permanent resident status) and for a specified price (whether fixed or subject to a specified formula). | USCIS considers this an impermissible debt arrangement. |
Option exercisable by the new commercial enterprise | A redemption agreement between the immigrant investor and the new commercial enterprise that does not provide the investor with a right to repayment. One example of such an agreement is a discretionary option held by the new commercial enterprise to repurchase investor shares. These options are typically structured similarly to options exercisable by the investor, except that the option is held and may be exercised by the new commercial enterprise. When executed, these options require an investor to sell all or a portion of his or her ownership interest back to that entity. | USCIS generally does not consider these arrangements to be impermissible debt arrangements.[27] However, such an option may be impermissible if there is evidence the parties construct it in a manner that effectively converts it to a mandatory redemption or an option exercisable by the investor (considered a debt arrangement). For example, an arrangement would be impermissible if ancillary provisions or agreements obligate the new commercial enterprise to either (a) exercise the option (at a specified time, upon the occurrence of a specified event, or at the request of the investor) or (b) if it chooses not to exercise the option, liquidate the assets and refund the investor a specific amount. |
Redemption Language for Petitions Filed on or after March 15, 2022
On March 15, 2022, Congress enacted specific statutory provisions relating to agreements between the immigrant investor and the new commercial enterprise. For petitions filed on or after March 15, 2022, capital does not include:
- Capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the investor and the new commercial enterprise;
- Capital invested with a guaranteed rate of return on the amount invested by the investor; or
- In general, invested capital that is subject to any agreement between the investor and the new commercial enterprise that provides the investor with a contractual right to repayment, such as a mandatory redemption at a certain time or upon the occurrence of a certain event, or a put or sell-back option held by the investor, even if such contractual right is contingent on the success of the new commercial enterprise, such as having sufficient available cash flow.[28]
However, the new statutory definition of capital includes (in other words, does not prohibit) capital invested that:
- Is subject to a buy back option that may be exercised solely at the discretion of the new commercial enterprise; and
- Results in the investor withdrawing their petition unless the investor has fulfilled their sustainment period and other program requirements.[29]
Business Activity
An immigrant investor must provide evidence of the actual undertaking of business activity. Merely establishing and capitalizing a new commercial enterprise and signing a commercial lease are not sufficient to show that an immigrant investor has placed his or her capital at risk.[30] Without some evidence of business activity, no assurance exists that the funds will be used to carry out the business of the commercial enterprise.[31]
Made Available
The full amount of the investment must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based.[32] In the regional center context, the immigrant investor must establish that the capital was invested into the new commercial enterprise and that the full amount was subsequently made available to the job-creating business(es), if separate.
In cases with a separate job-creating entity or entities, the payment of administrative fees, management fees, attorneys’ fees, finders’ fees, syndication fees, and other types of expenses or costs by the new commercial enterprise that erode the amount of capital made available to the job-creating entity do not count toward the minimum required investment amount.[33] The payment of these fees and expenses must be in addition to the minimum required capital investment amount.
Sole Proprietors and Funds in Bank Accounts
A standalone investor who is operating a new commercial enterprise as a sole proprietor cannot consider funds in his or her personal bank account as capital committed to the new commercial enterprise. Funds in a personal bank account are not necessarily committed to the new commercial enterprise. The funds must be in business bank accounts.[34] However, even a deposit into a business account over which petitioner exercises sole control, without more, may not satisfy the at-risk requirement.[35]
Escrow Accounts
An immigrant investor’s money may be held in escrow until the investor has obtained conditional permanent resident status if the immediate and irrevocable release of the escrowed funds is contingent only upon:
- Approval of the investor’s petition for classification under INA 203(b)(5); and
- Visa issuance and admission to the United States as a conditional permanent resident, or approval of the investor’s Application to Register Permanent Residence or Adjust Status (Form I-485).
An immigrant investor’s funds may be held in escrow within the United States to avoid any evidentiary issues that may arise with respect to issues such as significant currency fluctuations[36] and foreign capital export restrictions.
Use of foreign escrow accounts is not prohibited as long as the petition establishes that it is more likely than not that the minimum qualifying capital investment will be transferred to the new commercial enterprise in the United States upon the investor obtaining conditional permanent resident status.
When adjudicating the immigrant investor’s petition to remove conditions,[37] USCIS requires evidence verifying that the escrowed funds were released and that the investment was sustained in the new commercial enterprise for the period of the immigrant investor’s residence in the United States.
Deployment of Capital
Before the job creation requirement is met, a new commercial enterprise may deploy capital directly or through any financial instrument so long as applicable requirements are satisfied, including the following:
- The immigrant investor must have placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk;
- There must be a risk of loss and a chance for gain;
- Business activity must actually be undertaken;
- The full amount of the investment must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based;[38] and
- A sufficient relationship to commercial activity (namely, engagement in commerce, that is, the exchange of goods or services) exists such that the enterprise is and remains commercial.[39]
The purchase of financial instruments traded on secondary markets generally does not satisfy these requirements because such secondary market purchases generally:
- Are not related to the actual undertaking of business activity;
- Do not make capital available to the job-creating business; and
- Represent an activity that is solely or primarily financial rather than commercial in nature.
Further Deployment After the Job Creation Requirement is Satisfied
Once the job creation requirement has been met and the investment capital is returned or otherwise available to the new commercial enterprise, the new commercial enterprise may further deploy such capital within a reasonable amount of time[40] in order to satisfy applicable requirements for continued eligibility.[41] The capital may be further deployed, as described above, into any commercial activity that is consistent with the purpose of the new commercial enterprise to engage in the “ongoing conduct of lawful business,”[42] including as may be evidenced in any amendments to the offering documents made to describe the further deployment into such activities.[43]
Consistent with precedent case decisions and existing regulatory requirements, further deployment must continue to meet all applicable eligibility requirements within the framework of the initial bases of eligibility,[44] including the same new commercial enterprise.[45] The further deployment does not need to remain with the same (or any) job creating entity or in a targeted employment area (TEA).
For example, if a new commercial enterprise associated with a regional center loaned pooled investment capital to a job-creating entity that created sufficient jobs through the construction of a residential building in a TEA, the new commercial enterprise, upon repayment of the loan that resulted in the required job creation, may generally further deploy the repaid capital anywhere in the United States or its territories (regardless of whether it would qualify as a TEA) into any commercial activity that satisfies applicable requirements such as one or more similar loans to other entities.
For regional center petitions filed on or after May 14, 2022, further deployment is permitted under the following conditions:
- The new commercial enterprise has executed the business plan for a capital investment project in good faith without a material change;
- The new commercial enterprise has created a sufficient number of new full-time positions to satisfy the job creation requirements of the program for all investors in the new commercial enterprise, either directly or indirectly, as evidenced by the methodologies set forth in the statute;[46]
- The job creating entity has repaid the capital initially deployed in conformity with the initial investment contemplated by the business plan; and
- The capital, after repayment by the job creating entity, remains at risk and it is not redeployed in passive investments, such as stocks or bonds.[47]
3. Required Amount of Investment
The immigrant investor must invest at least the standard minimum investment amount in capital in a new commercial enterprise that creates no fewer than 10 jobs for U.S. workers. An exception exists if the immigrant investor invests their capital in a new commercial enterprise that is principally doing business in and creates jobs in a TEA or, for regional center petitions filed on or after May 14, 2022, in an infrastructure project.
This means that the present fair market value, in U.S. dollars, of the immigrant investor’s lawfully-derived capital must be at least $1,000,000, or $500,000 if investing in a TEA for petitions filed before March 15, 2022.[48] For petitions filed on or after March 15, 2022, those amounts are $1,050,000 or $800,000 if investing in a TEA or infrastructure project, and will automatically increase January 1, 2027, and every 5 years thereafter.[49]
Immigrant investors may diversify their investment across a portfolio of businesses or projects, but only if the minimum investment amount is first placed in a single new commercial enterprise. In such a case, it is necessary to show how eligibility has been established (for example, the minimum investment amount, evidence of an at-risk investment,[50] and job creation) with respect to each job-creating entity at the time of filing.
For standalone investors, the capital may be deployed into a portfolio of wholly owned businesses, so long as all capital is deployed through a single commercial enterprise comprised of a holding company and its wholly owned subsidiaries and all jobs are created directly within that commercial enterprise (in other words, through the portfolio of wholly owned subsidiaries that received the capital through the holding company).
For example, for a petition filed before March 15, 2022, based on an investment in an area in which the minimum investment amount is $1,000,000, the standalone investor can satisfy the statute by investing in a holding company that deploys $600,000 of the investment toward one subsidiary that the holding company wholly owns, and $400,000 of the investment toward another subsidiary that the holding company wholly owns.[51] In this example, the two wholly owned subsidiaries would have to create an aggregate of 10 new jobs between them. However, a standalone investor cannot qualify by separately investing $600,000 in one commercial enterprise and $400,000 in a different commercial enterprise, since these enterprises would be separate rather than consisting of a singular commercial enterprise comprised of a holding company and its wholly owned subsidiaries.
In the regional center context, where indirect jobs may be counted, the commercial enterprise may create jobs indirectly through multiple investments in corporate affiliates or in unrelated entities, but the regional center investor cannot qualify by investing directly in those multiple entities. Instead, the regional center investor’s capital must still be invested in a single commercial enterprise, which can then deploy that capital to multiple job-creating entities as long as the portfolio of businesses or projects can create the required number of jobs.
4. Lawful Source of Funds
For Petitions Filed before May 14, 2022[52]
The immigrant investor must demonstrate by a preponderance of the evidence that the capital invested, or actively in the process of being invested, in the new commercial enterprise was obtained through lawful means.[53] Any assets acquired directly or indirectly by unlawful means, such as criminal activity, are not considered capital.[54] In establishing that the capital was acquired through lawful means, the immigrant investor must provide evidence demonstrating the direct and indirect source of his or her investment capital.[55]
As evidence of the lawful source of funds, the immigrant investor’s petition must be accompanied, as applicable, by:
- Foreign business registration records;
- Corporate, partnership, or any other entity in any form which has filed in any country or subdivision thereof any return described in this list, and personal tax returns, including income, franchise, property (whether real, personal, intangible), or any other tax returns of any kind filed within 5 years, with any taxing jurisdiction in or outside the United States by or on behalf of the immigrant investor;
- Evidence identifying any other source(s) of capital; or
- Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the immigrant investor from any court in or outside the United States within the past 15 years.[56]
The immigrant investor is required to submit evidence identifying any other source of capital. Such evidence may include:
- Corporate, partnership, or other business entity annual reports;
- Audited financial statements;
- Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by the immigrant investor’s own assets, other than those of the new commercial enterprise, and for which the immigrant investor is personally and primarily liable;
- Evidence of income such as earnings statements or official correspondence from current or prior employers stating when the immigrant investor worked for the company and how much income the immigrant investor received during employment;
- Gift instrument(s) documenting gifts to the immigrant investor;
- Evidence, other than tax returns,[57] of payment of individual income tax, such as an individual income tax report or payment certificate, on the following:
- Wages and salaries;
- Income from labor and service or business activities;
- Income or royalties from published books, articles, photographs, or other sources;
- Royalties or income from patents or special rights;
- Interest, dividends, and bonuses;
- Rental income;
- Income from property transfers;
- Any incidental income or other taxable income determined by the relevant financial department;
- Evidence of property ownership, including property purchase or sale documentation; or
- Evidence identifying any other source of capital.
For Petitions Filed on or after May 14, 2022[58]
Effective on May 14, 2022, the immigrant investor must submit the following evidence, as applicable, to demonstrate the lawful source of the invested funds and any funds used to pay administrative costs and fees:
- Business and tax records, or similar records, including:
- Foreign business registration records; and
- Corporate or partnership tax returns (or tax returns of any other entity in any form filed in any country or subdivision of such country);
- Personal tax returns, including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind, filed during the past 7 years (or another period to be determined by the Secretary to ensure that the investment is obtained from a lawful source of funds) with any taxing jurisdiction within or outside the United States by or on behalf of the investor;
- Any other evidence identifying any other source of capital or administrative fees; and
- Evidence related to monetary judgments against the investor, including:
- Certified copies of any judgments, and evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving possible monetary judgments against the investor from any court within or outside the United States; and
- The identity of all persons who transfer into the United States, on behalf of the investor, any funds that are used to meet the capital requirement.[59]
As of May 14, 2022, by statute, gifts and borrowed funds are expressly permissible for petitions filed on or after that date, provided:
- They were gifted or loaned to the investor in good faith; and
- They were not gifted or loaned to circumvent any limitations imposed on permissible sources of capital, including, but not limited to, proceeds from illegal activity.[60]
Investors relying on gifted or borrowed funds must demonstrate the lawful source of those funds by submitting the evidence described above for the donor or, if not a bank, the lender.[61]
5. Targeted Employment Area
A TEA is a rural area or an area that has experienced high unemployment.[62] A rural area is any area other than an area within a standard metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more based on the most recent decennial census of the United States.[63] For petitions filed before March 15, 2022, a high unemployment area is an area that has experienced unemployment of at least 150 percent of the national average rate.[64] For petitions filed on or after March 15, 2022, a high unemployment area is an area designated as such by the Secretary of Homeland Security under INA 203(b)(5)(B)(ii).
Congress provided for a reduced investment amount in a TEA to encourage investment in new commercial enterprises principally doing business in and creating jobs in areas of greatest need. For the lower capital investment amount to apply, the new commercial enterprise into which the immigrant invests or the actual job-creating entity must be principally doing business in the TEA.
A new commercial enterprise is principally doing business in the location where it regularly, systematically, and continuously provides goods or services that support job creation. If the new commercial enterprise provides such goods or services in more than one location, it will be principally doing business in the location most significantly related to the job creation.
Factors considered in determining where a new commercial enterprise is principally doing business include, but are not limited to, the location of:
- Any jobs directly created by the new commercial enterprise;
- Any expenditure of capital related to the creation of jobs;
- The new commercial enterprise’s day-to-day operation; and
- The new commercial enterprise’s assets used in the creation of jobs.[65]
Investments through regional centers allow the immigrant investor to seek to establish indirect job creation. In these cases, the job-creating entity, rather than the new commercial enterprise, determines where the entity is principally doing business. The job-creating entity must be principally doing business in the TEA for the lower capital investment amount to apply.[66]
To demonstrate that the area of the investment is a TEA, the immigrant investor must demonstrate that the TEA meets the statutory and regulatory criteria by submitting:
- For rural areas, evidence that the area is not located within any MSA as designated by the Office of Management and Budget, nor within any city or town having a population of 20,000 or more as based on the most recent decennial census of the United States;[67]
- For high unemployment areas in petitions filed before March 15, 2022,[68] either:
- For high unemployment areas in standalone petitions filed on or after March 15, 2022, a description of the census tract(s) and unemployment statistics that allows USCIS to make a case-specific designation as an area of high unemployment.[71] The area must consist of the census tract or contiguous census tract(s) in which the new commercial enterprise is principally doing business, and may also include any or all census tracts directly adjacent to such census tract(s).[72] The immigrant investor must demonstrate that the weighted average of the unemployment rate for the requested area (that is, the area comprised of multiple census tracts), based on the labor force employment measure for each census tract, is at least 150 percent of the national average unemployment rate.[73]
To promote predictability in the capital investment process, an officer identifies the appropriate date to examine in order to determine whether the immigrant investor’s capital investment qualifies for the lower capital investment amount according to the following table:
Petition Filing Timeframe | TEA Analysis |
---|---|
Petition filed on or after March 15, 2022 | USCIS designates TEAs based on the Immigrant Petition by Standalone Investor (Form I-526) filing for standalone petitions and as part of the Application for Approval of an Investment in a Commercial Enterprise (I-956F), for regional center-affiliated projects.[74] |
Petitions filed before March 15, 2022, and standalone petitions[75] filed on or after March 15, 2022 |
|
A geographic area that once qualified as a TEA may no longer qualify as employment rates or population increase over time. Immigrant investors occasionally request eligibility for the reduced investment threshold based on the fact that other immigrant investors who previously invested in the same new commercial enterprise qualified for the lower capital investment amount. The immigrant investor must establish, however, that at the time of investment or at the time of filing the immigrant petition, as applicable, the geographic area in question qualified as a TEA. An immigrant investor cannot rely on previous TEA determinations made based on facts that have subsequently changed.
For petitions filed on or after March 15, 2022, USCIS designations of TEAs are valid for 2 years from the date of investment for standalone investors or 2 years from the date a regional center properly files the Form I-956F for regional center investors and may be renewed for one or more 2-year periods.[76] An immigrant investor who has invested the amount of capital required for a TEA during an approved designation does not have to increase their investment if the designation expires.[77]
The area in question may qualify as a TEA at the time the investment is made or the Form I-526 immigrant petition is filed, whichever occurs first, but may cease to qualify by the time the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829) is filed. The investor is not required to demonstrate that the area in question remains a TEA at the time the Form I-829 petition is filed. Changes in population size or unemployment rates within the area during the period of conditional permanent residence are acceptable, since increased job creation is a primary goal, which has been met if the area was a TEA at the time the investment was made, or the Form I-526 was filed.
A State’s Designation of a Targeted Employment Area Before March 15, 2022
For petitions filed before March 15, 2022, a state government could designate a geographic or political subdivision within its boundaries as a TEA based on high unemployment. Before the state could make such a designation, an official of the state must have notified USCIS of the agency, board, or other appropriate state governmental body that would be delegated the authority to certify that the geographic or political subdivision was a high unemployment area.[78] The state was then able to send a letter from the authorized body of the state certifying that the geographic or political subdivision of the MSA or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business had been designated a high unemployment area.[79]
Consistent with the regulations in effect before March 15, 2022, USCIS deferred to state determinations of the appropriate boundaries of a geographic or political subdivision that constitutes the TEA. However, for all TEA designations, USCIS still ensured compliance with the statutory requirement that the proposed area designated by the state had an unemployment rate of at least 150 percent above the national average. To do this, USCIS reviewed state determinations of the unemployment rate and assessed the method or methods by which the state authority obtained the unemployment statistics.
Acceptable data sources for calculating unemployment included U.S. Census Bureau data (including data from the American Community Survey) and data from the Bureau of Labor Statistics (including data from Local Area Unemployment Statistics).
There has never been a provision allowing a state to designate a rural area.
6. Infrastructure Projects
For regional center-based petitions filed on or after May 14, 2022, investors may qualify for the reduced investment amount by investing in an infrastructure project. These projects are ones:
- That are administered by a governmental entity (such as a federal, state, or local agency or authority);
- Where the governmental entity, which serves as the job-creating entity, contracts with a regional center or new commercial enterprise to receive capital investment under the regional center program from investors or the new commercial enterprise; and
- That involve financing for maintaining, improving, or constructing a public works project.[80]
USCIS determines whether a project meets the definition of infrastructure project during adjudication of the Form I-956F.[81] A standalone investor cannot establish eligibility through an infrastructure project.
B. Comprehensive Business Plan
For standalone investor petitions filed at any time and regional center investor petitions filed before March 15, 2022, a comprehensive business plan should contain, at a minimum, a description of the business, its products or services (or both), and its objectives.[82]
The plan should contain a market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s products and pricing structures, and a description of the target market and prospective customers of the new commercial enterprise. The plan should list the required permits and licenses obtained. If applicable, it should describe the manufacturing or production process, the materials required, and the supply sources.
The plan should detail any contracts executed for the supply of materials or the distribution of products. It should discuss the marketing strategy of the business, including pricing, advertising, and servicing. The plan should set forth the business’s organizational structure and its personnel’s experience. It should explain the business’s staffing requirements and contain a timetable for hiring, as well as job descriptions for all positions. It should contain sales, costs, and income projections and detail the basis of such projections.
Most importantly, the business plan must be credible.[83]
USCIS reviews business plans in their totality. An officer must determine if it is more likely than not that the business plan is comprehensive and credible. A business plan is not required to contain all of the detailed elements, but the more details the business plan contains, the more likely it is that USCIS considers the plan comprehensive and credible.[84]
As of May 14, 2022, regional centers file a Form I-956F before investors file their Immigrant Petition by Regional Center Investor (Form I-526E).[85]
C. New Commercial Enterprise
A new commercial enterprise is any commercial enterprise established after November 29, 1990.[86] Therefore, the immigrant investor can invest the required amount of capital in a commercial enterprise established after November 29, 1990, provided the remaining eligibility criteria are met.
The following table outlines the definition of new commercial enterprise, depending on when the petition was filed.
Petitions filed before March 15, 2022 | Petitions filed on or after March 15, 2022 |
---|---|
A commercial enterprise is any for-profit activity formed for the ongoing conduct of lawful business.[87] This broad definition is consistent with the realities of the business world and the many different forms and structures that job-creating activities can have. Types of commercial enterprises include, but are not limited to:
A commercial enterprise can consist of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. Noncommercial activities, including owning and operating a personal residence, do not qualify.[89] The commercial enterprise must be formed to make a profit, unlike, for example, some charitable organizations. | The term new commercial enterprise means any for-profit organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business), joint venture, corporation, business trust, limited liability company, or other entity (which may be publicly or privately owned) that receives, or is established to receive, capital investment from immigrant investors.[90] |
The Business Structures overview provides more information on the most common business forms or structures, including information on formation, fundamental characteristics, and the tax forms submitted to the Internal Revenue Service.
1. Enterprise Established on or before November 29, 1990
A new commercial enterprise also includes a commercial enterprise established on or before November 29, 1990, if the enterprise will be restructured or expanded through the immigrant’s investment of capital.
Purchase of an Existing Business that is Restructured or Reorganized
The immigrant investor can invest in a business that existed on or before November 29, 1990, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results.[91] Cosmetic changes to the décor, a new marketing strategy, or a simple change in ownership do not qualify as restructuring.[92]
However, a business plan that modifies an existing business, such as converting a restaurant into a nightclub or adding substantial crop production to an existing livestock farm, could qualify as a restructuring or reorganization.
Expansion of an Existing Business
The immigrant investor can invest in a business that existed on or before November 29, 1990, provided a substantial change in the net worth or number of employees results from the investment of capital.[93]
Substantial change is defined as a 40 percent increase either in the net worth or in the number of employees, so that the new net worth or number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees.[94]
Investment in a new commercial enterprise in this manner does not exempt the immigrant investor from meeting the requirements relating to the amount of capital that must be invested and the number of jobs that must be created.[95]
2. Pooled Investments in Original EB-5 Program
For petitions filed before March 15, 2022, a new commercial enterprise may be used as the basis for the petitions of more than one standalone immigrant investor. For petitions filed on or after March 15, 2022, pooled investments with more than one EB-5 investor are only permitted under the regional center program.[96] For petitions filed before March 15, 2022, each standalone immigrant investor must invest the required amount of capital and each immigrant investor’s investment must result in the required number of jobs. Furthermore, the new commercial enterprise can have owners who are not immigrant investors provided that the sources of all capital invested are identified and all invested capital has been derived by lawful means.[97]
3. Documentation of New Commercial Enterprise
Except for petitions filed by regional center investors on or after May 14, 2022,[98] to document the new commercial enterprise, the immigrant investor must present the following evidence, in addition to any other evidence that USCIS deems appropriate:
- As applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or other similar organizational document for the new commercial enterprise;
- A certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require any such certificate or the state or municipality does not issue such a certificate, a statement to that effect; or
- Evidence that, after November 29, 1990, the required amount of capital for the area in which an enterprise is located has been transferred to an existing business, and that the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred.
This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth or number of employees.[99]
4. Investment in New Commercial Enterprise
To show that the immigrant investor has committed the required amount of capital to the new commercial enterprise, the evidence presented may include, but is not limited to, the following:
- Bank statements showing amounts deposited in U.S. business accounts for the enterprise;
- Evidence of assets which have been purchased for use in the U.S. enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity;
- Evidence of property transferred from abroad for use in the U.S. enterprise, including U.S. Customs and Border Protection commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property;
- Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder’s request; or
- Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing secured by the immigrant investor’s assets, other than those of the new commercial enterprise, and for which the immigrant investor is personally and primarily liable.[100]
5. Engagement in Management of New Commercial Enterprise
The immigrant investor must be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or through policy formulation.[101]
To show that the immigrant investor is or will be engaged in the exercise of day-to-day managerial control or policy formulation, the immigrant investor must submit:
- A statement of the position title that the immigrant investor has or will have in the new enterprise and a complete description of the position’s duties;[102]
- Evidence that the immigrant investor is a corporate officer or a member of the corporate board of directors;[103] or
- If the new enterprise is a partnership, either limited or general, evidence that the immigrant investor is engaged in either direct management or policymaking activities. The immigrant investor is sufficiently engaged in the management of the new commercial enterprise if the investor is a limited partner and the limited partnership agreement provides the investor with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act.[104]
D. Creation of Jobs
The creation of jobs for U.S. workers is a critical element of the EB-5 category. It is not enough that the immigrant investor invests funds into the U.S. economy. The investment of the required amount of capital must be in a new commercial enterprise that creates[105] at least 10 jobs for qualifying employees. It is important to recognize that while the investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs.[106]
Example: Standalone Investments Before March 15, 2022
Ten standalone immigrant investors seek to establish a hotel as their new commercial enterprise. The establishment of the new hotel requires capital to pay financing costs to unrelated third parties, purchase the land, develop the plans, obtain the licenses, build the structure, maintain the grounds, staff the hotel, as well as many other types of expenses involved in the development and operation of a new hotel.
The standalone immigrant investor’s capital can be used to pay part or all of these expenses. Each standalone immigrant investor’s investment of capital helps the new commercial enterprise (the new hotel) create 10 jobs. The 10 immigrants’ investments must result in the new hotel’s creation of 100 jobs (10 jobs for each investor’s capital investment) for qualifying employees.[107]
1. Bridge Financing
A developer or principal of a new commercial enterprise, either directly or through a separate job-creating entity, may use interim, temporary, or bridge financing, in the form of either debt or equity, prior to receipt of immigrant investor capital. If the project starts based on the interim or bridge financing prior to receiving immigrant investor capital and subsequently replaces that financing with immigrant investor capital, the new commercial enterprise may still receive credit for the job creation under the regulations.
Generally, the replacement of temporary or bridge financing with immigrant investor capital should have been contemplated prior to acquiring the original temporary financing. However, even if the immigrant investor financing was not contemplated prior to acquiring the temporary financing, as long as the financing to be replaced was contemplated as short-term temporary financing that would be subsequently replaced by more permanent long-term financing, the infusion of immigrant investor financing could still result in the creation of, and credit for, new jobs.
For example, if traditional financing originally contemplated to replace the temporary financing is no longer available to the commercial enterprise, a developer is not precluded from using immigrant investor capital as an alternative source. Immigrant investor capital may replace temporary financing even if this arrangement was not contemplated prior to obtaining the bridge or temporary financing.
The full amount of the immigrant’s investment must be made available to the business or businesses most closely responsible for creating the jobs upon which eligibility is based. In the regional center context if the new commercial enterprise is not the job-creating entity, then the full amount of the capital must be invested first in the new commercial enterprise and then made available to the job-creating entity or entities.[108]
2. Multiple Job-Creating Entities
If invested in a single new commercial enterprise and where the offering and organizational documents provide, an investor’s full investment may be distributed to more than one job-creating entity in a portfolio investment strategy. The record must demonstrate that the new commercial enterprise will create the requisite jobs through the portfolio of projects. In addition, each investor (or regional center for regional center-based petitions filed on or after May 14, 2022) must demonstrate that the full amount of money is made available to the business(es) most closely responsible for creating the employment upon which the petition is based, which may be one or multiple job-creating entities in a portfolio.
3. Full-Time Positions for Qualifying Employees
The investment into a new commercial enterprise must create full-time positions for not fewer than 10 qualifying employees.[109] An employee is defined as a person who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. In the case of the Regional Center Program, an employee also means a person who provides services or labor in a job that has been created indirectly through investment in the new commercial enterprise.[110]
Qualifying Employee
For the purpose of the job creation requirement, the employee must be a qualifying employee. A qualifying employee is a U.S. citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized for employment in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation. This definition does not include the immigrant investor, the immigrant investor’s spouse, sons, daughters, or any nonimmigrant.[111]
Full-Time Employment
For the purpose of the job creation requirement, the position must be a full-time employment position.[112] Full-time employment is defined as employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week.[113] In the case of the Regional Center Program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.
Two or more qualifying employees can fill a full-time employment position in a job-sharing arrangement. Job sharing is permissible so long as the 35 working hours per week requirement is met. However, the definition of full-time employment does not include combinations of part-time positions, even if those positions when combined meet the hourly requirement per week.[114]
A job-sharing arrangement whereby two or more qualifying employees share a full-time position counts as full-time employment provided the hourly requirement per week is met. To demonstrate that a full-time position is shared by more than one employee, the following evidence, among others, may be relevant:
- A written job-sharing agreement;
- A weekly schedule that identifies the positions subject to a job-sharing arrangement and the hours to be worked by each employee under the job-sharing arrangement; and
- Evidence of the sharing of the responsibilities or benefits of a permanent, full-time position between the employees subject to the job-sharing arrangement.
Jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last at least 2 years are generally not considered intermittent, temporary, seasonal, or transient in nature.
4. Measuring Job Creation
The immigrant investor seeking to enter the United States through the EB-5 program must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees. There are three methods of measuring job creation depending on the new commercial enterprise and where it is located.
Troubled Business
The U.S. economy benefits when the immigrant investor’s capital helps preserve the troubled business’s existing jobs. Immigrant investors investing in a new commercial enterprise that is a troubled business, must show that the number of existing employees in the troubled business is being, or will be, maintained at no less than the pre-investment level for a period of at least 2 years.[115] This applies in the regional center context as well.
The troubled business regulatory provision does not decrease the number of jobs required. An immigrant investor who invests in a troubled business must still demonstrate that 10 jobs have been preserved, created, or some combination of the two. For example, an investment in a troubled business that creates four qualifying jobs and preserves all six pre-investment jobs would satisfy the job creation requirement.
The regulatory definition of a troubled business is a business that has:
- Been in existence for at least 2 years;
- Has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the 12-month or 24-month period prior to the priority date on Form I-526 or Form I-526E; and
- Had a loss for the same period at least equal to 20 percent of the troubled business’s net worth prior to the loss.[116]
For purposes of determining whether or not the troubled business has been in existence for 2 years, USCIS deems the successors-in-interest to the troubled business to have been in existence for the same period of time as the business they succeeded.[117]
New Commercial Enterprise Not Located Within a Regional Center
For a new commercial enterprise not located within a regional center, the full-time positions must be created directly by the new commercial enterprise to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.[118]
New Commercial Enterprise Located Within a Regional Center
For regional center-based petitions filed before July 1, 2021, the date that the previous authorization of the regional center program lapsed, full-time positions can be created either directly or indirectly by a new commercial enterprise located within a designated regional center.[119] For regional center-based petitions filed on or after March 15, 2022, up to 90 percent of full-time positions may be created indirectly.[120] The general EB-5 program requirements still apply to investors investing in new commercial enterprises in the regional center context except that they may rely on indirect job creation. Employees filling indirect jobs do not work directly for the new commercial enterprise. Immigrant investors must use reasonable methodologies to establish the number of indirect jobs created.[121]
Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs. For regional center-based petitions filed on or after March 15, 2022, direct jobs that count towards the requisite 10 percent of jobs include direct employees, including those estimated by economically and statistically valid methodologies, of both the new commercial enterprise and the job creating entity.[122]
Indirect jobs are those that are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise. For example, indirect jobs can include, but are not limited to, those held by employees of the job-creating entity (when the job-creating entity is not the new commercial enterprise) as well as employees of producers of materials, equipment, or services used by the new commercial enterprise or job-creating entity.
In addition, a sub-set of indirect jobs, known as induced jobs, are created when the new direct and indirect employees spend their earnings on consumer goods and services. Indirect jobs can qualify and be counted as jobs attributable to a new commercial enterprise associated with a regional center, based on reasonable methodologies, even if the jobs are located outside of the geographic boundaries of a regional center.
For petitions filed on or after May 15, 2022, Congress enacted certain limits on how jobs created by construction activity lasting less than 2 years can count towards estimated indirect and direct jobs.[123]
Due to the nature of accepted job creation modeling practices, USCIS relies upon reasonable economic models to determine that it is more likely than not that the indirect jobs are created. USCIS may request additional evidence that the indirect jobs created, or to be created, are full-time. USCIS may also request additional evidence to verify that the direct jobs (those held at the new commercial enterprise) will be or are full-time and permanent, which may include a review of W-2 forms or similar evidence.
Multiple Investors
For petitions filed on or after March 15, 2022, pooled investments with more than one EB-5 investor are only permitted under the regional center program.[124] For petitions filed before March 15, 2022, and all regional center-based petitions, when there are multiple investors in a new commercial enterprise, USCIS allocates the total number of full-time positions created for qualifying employees only to those immigrant investors who have used the establishment of the new commercial enterprise as the basis for their immigrant petition. An allocation does not need to be made among persons not seeking classification through the EB-5 category. Also, jobs need not be allocated to non-natural persons, such as corporations investing in a new commercial enterprise.[125] USCIS allocates full-time positions to immigrant investors based on the date their petition to remove conditions was filed, unless otherwise stated in the relevant documents.[126]
In general, multiple immigrant investors may not claim credit for the same job. An immigrant investor may not seek credit for the same specifically identified job position that has already been allocated to another immigrant investor in a previously approved case.
5. Evidence of Job Creation
To show that a new commercial enterprise will create no fewer than 10 full-time positions for qualifying employees, and except as provided below for regional center-based petitions filed on or after May 14, 2022, an immigrant investor must submit the following evidence:
- Documentation consisting of photocopies of relevant tax records, Employment Eligibility Verification (Form I-9), or other similar documents for 10 qualifying employees, if such employees have already been hired; or
- A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than 10 qualifying employees will result within the next 2 years and the approximate dates employees will be hired.[127]
The 2-year period[128] is deemed to begin 6 months after adjudication of Form I-526. The business plan filed with the immigrant petition should reasonably demonstrate that the requisite number of jobs will be created by the end of this 2-year period.
Troubled Business
In the case of a troubled business, a comprehensive business plan must accompany the other required evidentiary documents.[129]
Regional Center-Based Petitions Filed before July 1, 2021
In the case of a new commercial enterprise within a regional center, the direct or indirect job creation may be demonstrated by the types of documents identified in this section along with reasonable methodologies.[130] If a regional center immigrant investor seeks to rely on jobs that will be created to satisfy the job creation requirement, a comprehensive business plan is required.
Additionally, if the regional center immigrant investor seeks to demonstrate job creation through the use of an economic input-output model, USCIS requires the investor to demonstrate that the methodology is reasonable. For example, if the inputs into the input-output model reflect jobs created directly at the new commercial enterprise or job-creating entity, USCIS requires the investor to demonstrate that the direct jobs input is reasonable. Relevant documentation may include Form I-9, tax or payroll records or if the jobs are not yet in existence, a comprehensive business plan demonstrating how many jobs will be created and when the jobs will be created.
If the inputs into the model reflect expenditures, USCIS requires the investor to demonstrate that the expenditures input is reasonable. Relevant documentation may include receipts and other financial records for expenditures that have occurred and a detailed projection of sales, costs, and income projections such as a pro-forma cash flow statement associated with the business plan for expenditures that will occur.
If the inputs into the model reflect revenues, USCIS requires the investor to demonstrate that the revenues input is reasonable. Relevant documentation may include tax or other financial records for revenues that have occurred or a detailed projection of sales, costs, and income projections such as a pro-forma income statement associated with the business plan for revenues that will occur.
In reviewing whether an economic methodology is reasonable, USCIS analyzes whether the multipliers and assumptions about the geographic impact of the project are reasonable. For example, when reviewing the geographic level of the multipliers used in an input-output model, the following factors, among others, may be considered:
- The area’s demographic structure (for example, labor pool supply, work-force rate, population growth, and population density);
- The area’s contribution to supply chains of the project; and
- Connectivity with respect to socioeconomic variables in the area (for example, income level and purchasing power).
Regional Center-Based Petitions Filed on or after May 14, 2022
As of May 14, 2022, regional centers file a Form I-965F with USCIS before a regional center investor may file an individual petition.
6. Guidance on Tenant Occupancy Methodology
As of May 15, 2018, USCIS rescinded its prior guidance on tenant occupancy methodology. That update applies to all USCIS employees with respect to determinations of all the former Immigrant Petitions by Alien Investors (Form I-526),[131] Petitions by Investors to Remove Conditions on Permanent Resident Status (Form I-829), and the former Applications for Regional Center Designation Under the Immigrant Investor Program (Form I-924) filed on or after that date and prior to March 15, 2022.[132] USCIS also gives deference to Form I-526 and Form I-829 petitions directly related to projects approved before May 15, 2018, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination.[133]
Previously, on December 20, 2012, USCIS had issued policy guidance defining the criteria to be used in the adjudication of applications and petitions relying on tenant occupancy to establish indirect jobs.[134] In November 2016, USCIS published consolidated policy guidance on immigrant investors in this Policy Manual, including guidance on the tenant occupancy methodology. That guidance provided that investors could (1) map a specific amount of direct, imputed, or subsidized investment to new jobs, or (2) use a facilitation-based approach to demonstrate the project would remove a significant market-based constraint.
The first method requires mapping a specific amount of direct, imputed, or subsidized investment to new jobs such that there is an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. In practice, however, the construction of standard office or retail space alone does not lead to a sufficient connection for this type of mapping such that tenant jobs can be credited to the new commercial enterprise. The existence of numerous other factors, such as the identity of future tenants and demand for that type of business, makes it difficult to relate individual jobs to a specific space.
The second method looks at whether the investment removes a significant market-based constraint, referred to in the 2012 guidance as the “facilitation based approach.” In providing this approach as an option, USCIS explicitly allowed applicants and petitioners to avoid having to establish an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. As of May 15, 2018, however, USCIS determined that that allowance was ill-advised, because a direct financial connection between the EB-5 capital investment and the job creation is necessary to determine a sufficient nexus between the two. Reliance on a showing of constraint on supply or excess of demand by itself does not establish a causal link between specific space and a net new labor demand such that it would overcome the lack of a sufficient nexus.
Moreover, allowing applicants and petitioners to use prospective tenant jobs as direct inputs into regional growth models to generate the number of indirect and induced jobs that result from the credited tenant jobs leads to a more attenuated and less verifiable connection to the investment. There is also no reasonable test to confirm that jobs claimed through either tenant-occupancy methodology are new rather than relocated jobs such that they should qualify as direct inputs in the first place.
In sum, tenant-occupancy methodologies described in the 2012 Operational Guidance and previously incorporated into the Policy Manual result in a connection or nexus between the investment and jobs that is too tenuous[135] and therefore are no longer considered reasonable methodologies or valid forecasting tools under the regulations.[136]
As of May 14, 2022, regional center petitioners may include jobs estimated to be created under a methodology that attributes jobs to prospective tenants occupying commercial real estate created or improved by capital investments if the number of such jobs estimated to be created has been determined by an economically and statistically valid methodology and such jobs are not existing jobs that have been relocated.[137]
E. Burden of Proof
The petitioner or applicant must establish each element by a preponderance of the evidence.[138] The petitioner or applicant does not need to remove all doubt. Even if an officer has some doubt as to the truth, if the petitioner or applicant submits relevant, probative, and credible evidence that leads to the conclusion that the claim is more likely than not (that is, probably true), the petitioner or applicant has satisfied the preponderance of evidence standard.
F. Priority Dates
A priority date is the date the completed, signed petition is properly filed with USCIS.[139]
If an immigrant investor files an amended Form I-526E in the case of termination or debarment of the petitioner’s regional center, new commercial enterprise, or job-creating entity, the petitioner may use the priority date of their original petition for purposes of the amended Form I-526E filed on or after May 15, 2022, for which the petitioner qualifies.[140]
Footnotes
[^ 1] The effective date for the newly codified regional center program is 60 days after the March 15, 2022, enactment date. See Section 103(b)(2) of the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103 (PDF), 136 Stat. 49 (March 15, 2022).
[^ 2] See 8 CFR 204.6(e) (PDF). DHS published the EB-5 Immigrant Investor Program Modernization Rule, effective November 21, 2019. See 84 FR 35750 (PDF), 35808 (July 24, 2019). However, that rule was vacated by Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021). Therefore, all links to regulations in this chapter are to those in effect prior to that rule.
[^ 3] The effective date for the newly codified regional center program is 60 days after the March 15, 2022, enactment date. See Section 103(b)(2) of the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).
[^ 4] See 8 CFR 204.6(e) (PDF).
[^ 5] See INA 203(b)(5)(D)(ii).
[^ 6] See INA 203(b)(5)(D)(ii).
[^ 7] See Matter of Ho (PDF), 22 I&N Dec. 206 (Assoc. Comm. 1998).
[^ 8] See S. Rep. No. 101-55 (1989). See 8 CFR 204.6(e) (PDF). See INA 203(b)(5)(D)(ii) and INA 203(b)(5)(L). For more discussion of lawful source of funds requirements, see Subsection 4, Lawful Source of Funds [6 USCIS-PM G.2(A)(4)].
[^ 9] See INA 203(b)(5)(L)(iii). For more discussion of gifts and loans, see Subsection 4, Lawful Source of Funds [6 USCIS-PM G.2(A)(4)].
[^ 10] Perfecting a security interest relates to the additional steps required to make a security interest effective against third parties or to retain its effectiveness in the event of default by the grantor of the security interest.
[^ 11] See Matter of Hsiung (PDF), 22 I&N Dec. 201, 202 (Assoc. Comm. 1998).
[^ 12] See Matter of Hsiung (PDF), 22 I&N Dec. 201, 202-03 (Assoc. Comm. 1998).
[^ 13] See Matter of Izummi (PDF), 22 I&N Dec. 169, 193-94 (Assoc. Comm. 1998).
[^ 14] See 8 CFR 204.6(e) (PDF). USCIS no longer follows its interpretation of indebtedness as including the investment of loan proceeds as of November 30, 2018, the date of the district court decision Zhang v. USCIS, 978 F.3d 1314 (D.C. Cir. 2020).
[^ 15] See Matter of Izummi (PDF), 22 I&N Dec. 169, 195 (Assoc. Comm. 1998).
[^ 16] See INA 203(b)(5)(A)(i).
[^ 17] See INA 203(b)(5)(D)(ii)(III)(bb). See 8 CFR 204.6(e) (PDF).
[^ 18] See 8 CFR 204.6(j)(2) (PDF).
[^ 19] See Matter of Izummi (PDF), 22 I&N Dec. 169, 180-188 (Assoc. Comm. 1998). For petitions filed on or after March 15, 2022, INA 203(b)(5)(D)(ii)(III)(cc) also applies.
[^ 20] See Matter of Izummi (PDF), 22 I&N Dec. 169, 184 (Assoc. Comm. 1998).
[^ 21] The full definition of invest is provided at 8 CFR 204.6(e) (PDF).
[^ 22] See Matter of Izummi (PDF), 22 I&N Dec. 169, 183-188 (Assoc. Comm. 1998).
[^ 23] EB-5 regulations contain two basic requirements in order to have a legitimate qualifying investment: (1) 8 CFR 204.6(e) (PDF) defines “invest” to require a qualifying (that is, non-prohibited) contribution of capital; and (2) 8 CFR 204.6(j)(2) (PDF) requires a qualifying use of such capital (placing such capital at risk for the purpose of generating a return). In order to satisfy the evidentiary requirement set forth at 8 CFR 204.6(j)(2) (PDF), an investor must first properly contribute capital in accordance with the definition of invest at 8 CFR 204.6(e) (PDF). If the contribution of capital fails to meet the definition of invest, it is not a qualifying investment, even if it is at risk for the purpose of generating a return.
[^ 24] See Matter of Izummi (PDF), 22 I&N Dec. 169, 186-187 (Assoc. Comm. 1998).
[^ 25] See Matter of Izummi (PDF), 22 I&N Dec. 169, 188 (Assoc. Comm. 1998). Matter of Izummi (PDF) addressed redemption agreements in general, and not only those where the investor holds the right to repayment. USCIS generally disfavors redemption provisions that indicate a preconceived intent to exit the investment as soon as possible, and notes that one district court has drawn the line at whether the investor holds the right to repayment. See Chang v. USCIS, 289 F. Supp.3d 177 (D.D.C. Feb. 7, 2018).
[^ 26] See Matter of Izummi (PDF), 22 I&N Dec. 169 (185-86) (Assoc. Comm. 1998).
[^ 27] See Matter of Izummi (PDF), 22 I&N Dec. 169, 188 (Assoc. Comm. 1998). See Chang v. USCIS, 289 F. Supp.3d 177 (D.D.C. Feb. 7, 2018).
[^ 28] See INA 203(b)(5)(D)(ii)(III).
[^ 29] See INA 203(b)(5)(D)(ii)(IV).
[^ 30] See Matter of Ho (PDF), 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998).
[^ 31] See Matter of Ho (PDF), 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).
[^ 32] See Matter of Izummi (PDF), 22 I&N 169, 179, 189 (Assoc. Comm. 1998).
[^ 33] See Matter of Izummi (PDF), 22 I&N Dec. 169, 178-79 (Assoc. Comm. 1998).
[^ 34] See 8 CFR 204.6(j)(2) (PDF).
[^ 35] See Matter of Ho (PDF), 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).
[^ 36] When funds are held in escrow outside the United States, USCIS reviews currency exchange rates at the time of adjudicating the Form I-526 petition to determine if it is more likely than not that the petitioner will make the minimum qualifying capital investment. With the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829), USCIS reviews the evidence in the record, including currency exchange rates at the time of transfer, to determine that, when the funds were actually transferred to the United States, the petitioner actually made the minimum qualifying capital investment.
[^ 37] See Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829).
[^ 38] See Matter of Ho (PDF), 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi (PDF), 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).
[^ 39] See 8 CFR 204.6(e) (PDF).
[^ 40] Based on an internal review and analysis of typical EB-5 capital deployment structures, USCIS generally considers 12 months to be a reasonable amount of time to further deploy capital for most types of commercial enterprises but considers evidence showing that a longer period is reasonable for a specific type of commercial enterprise or into a specific commercial activity under the totality of the circumstances.
[^ 41] The requirement to make the full amount of capital available to the business(es) most closely responsible for creating the employment upon which the petition is based is generally satisfied through the initial deployment of capital resulting in the creation of the required number of jobs.
[^ 42] See 8 CFR 204.6(e) (PDF) for the definition of commercial enterprise.
[^ 43] This clarification is meant to address potential confusion among stakeholders regarding prior language about the “scope” of the new commercial enterprise while remaining consistent with applicable eligibility requirements.
[^ 44] See 8 CFR 103.2(b)(1). See Matter of Izummi (PDF), 22 I&N Dec. 169, 175-6, 189 (Assoc. Comm. 1998). See Chapter 3, Immigrant Petition Adjudication, Section C, Material Change [6 USCIS-PM G.3(C)].
[^ 45] See INA 203(b)(5)(A), which refers to a single new commercial enterprise: “Visas shall be made available . . . to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise.”
[^ 46] See INA 203(b)(5)(E)(iv) and INA 203(b)(5)(E)(v).
[^ 47] See INA 203(b)(5)(F)(v).
[^ 48] In a rule effective November 21, 2019, DHS raised the investment amounts to $1,800,000 and $900,000. See 84 FR 35750, 35808 (PDF) (July 24, 2019). On June 22, 2019, however, a federal court vacated that rule. See Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021). Therefore, all petitions filed before March 15, 2022, are subject to the original investment amounts set in 1990.
[^ 49] See INA 203(b)(5)(C).
[^ 50] The full amount of money must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based. See Matter of Izummi (PDF), 22 I&N Dec. 169, 179 (Assoc. Comm. 1998).
[^ 51] See 8 CFR 204.6(e) (PDF).
[^ 52] The effective date for the new lawful source of funds provisions outlined in the EB-5 Reform and Integrity Act of 2022 is 60 days after the Act’s March 15, 2022, enactment date. See Section 103(b)(2) of Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).
[^ 53] See 8 CFR 204.6(j)(3) (PDF). See Matter of Ho (PDF), 22 I&N Dec. 206, 210-11 (Assoc. Comm. 1998).
[^ 54] See 8 CFR 204.6(e) (PDF).
[^ 55] See 8 CFR 204.6(e) (PDF) and 8 CFR 204.6(j)(3) (PDF).
[^ 56] See 8 CFR 204.6(j)(3) (PDF).
[^ 57] As required under 8 CFR 204.6(j)(3)(ii) (PDF).
[^ 58] The effective date for these provisions outlined in the EB-5 Reform and Integrity Act of 2022 is 60 days after the Act’s March 15, 2022, enactment date. See Section 103(b)(2) of Div. BB of the Consolidated Appropriations Act of, 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).
[^ 59] See INA 203(b)(5)(L).
[^ 60] See INA 203(b)(5)(L)(iii)(I).
[^ 61] See INA 203(b)(5)(L)(iii)(II).
[^ 62] See INA 203(b)(5)(B)(ii) (prior to March 15, 2022). See INA 203(b)(5)(D)(viii).
[^ 63] See INA 203(b)(5)(B)(ii) (prior to March 15, 2022) and INA 203(b)(5)(D)(vii). See 8 CFR 204.6(e) (PDF).
[^ 64] See INA 203(b)(5)(B)(ii) (prior to March 15, 2022). See 8 CFR 204.6(e) (PDF).
[^ 65] See Matter of Izummi (PDF), 22 I&N Dec. 169, 174 (Assoc. Comm. 1998).
[^ 66] See 8 CFR 204.6(j)(6) (PDF). See Matter of Izummi (PDF), 22 I&N Dec. 169, 171-73 (Assoc. Comm. 1998).
[^ 67] See 8 CFR 204.6(j)(6)(i) (PDF).
[^ 68] In a rule effective November 21, 2019, DHS eliminated the ability for states to designate TEAs and set rules for how USCIS would make those determinations. See 84 FR 35750, 35808 (PDF) (July 24, 2019). On June 22, 2019, however, a federal court vacated that rule. See Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d (N.D. Cal. 2021). Therefore, all petitions filed before March 15, 2022, are subject to the previous rules on TEAs and may rely on state designations.
[^ 69] See 8 CFR 204.6(j)(6)(ii)(B) (PDF).
[^ 70] See 8 CFR 204.6(j)(6)(ii)(A) (PDF).
[^ 71] USCIS makes designations as part of the standalone petition adjudication. See INA 203(b)(5)(B)(ii). USCIS makes designations for regional center filings on or after May 14, 2022, as part of the Form I-956F adjudication. See INA 203(b)(5)(F). USCIS does not issue separate designation notices.
[^ 72] See 8 CFR 204.6(j)(6)(i) (PDF) and 8 CFR 204.6(j)(6)(ii)(B) (PDF).
[^ 73] See 8 CFR 204.6(j)(6)(i) (PDF).
[^ 74] See INA 203(b)(5)(F)(i) and INA 204(a)(1)(H)(i) requiring the filing of a Form I-956F before an investor in that offering can file a petition for classification.
[^ 75] For regional center petitions filed after May 14, 2022, USCIS makes the TEA determination at the project application stage and designations are valid for 2 years. See INA 203(b)(5)(B)(ii).
[^ 76] See INA 203(b)(5)(B)(ii)(IV).
[^ 77] See INA 203(b)(5)(B)(ii)(V).
[^ 78] See 8 CFR 204.6(j)(6)(i) (PDF).
[^ 79] See 8 CFR 204.6(j)(6)(ii)(B) (PDF).
[^ 80] See INA 203(b)(5)(D)(iv).
[^ 81] See INA 203(b)(5)(B)(iii)(I).
[^ 82] See Matter of Ho (PDF), 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).
[^ 83] See Matter of Ho (PDF), 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).
[^ 84] See Matter of Ho (PDF), 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).
[^ 85] See INA 203(b)(5)(F).
[^ 86] See 8 CFR 204.6(e) (PDF).
[^ 87] See 8 CFR 204.6(e) (PDF).
[^ 88] See 8 CFR 204.6(e) (PDF).
[^ 89] See 8 CFR 204.6(e) (PDF).
[^ 90] See INA 203(b)(5)(D)(vi).
[^ 91] See 8 CFR 204.6(h)(2) (PDF).
[^ 92] See Matter of Soffici (PDF), 22 I&N Dec. 158 (Assoc. Comm. 1998).
[^ 93] See 8 CFR 204.6(h)(3) (PDF).
[^ 94] See 8 CFR 204.6(h)(3) (PDF).
[^ 95] See 8 CFR 204.6(h)(3) (PDF).
[^ 96] See INA 204(a)(1)(H)(i).
[^ 97] See 8 CFR 204.6(g) (PDF).
[^ 98] For regional center-based petitions filed on or after May 14, 2022, USCIS reviews the new commercial enterprise as part of the Form I-965F for regional center-affiliated projects. See INA 203(b)(5)(F).
[^ 99] See 8 CFR 204.6(j)(1) (PDF).
[^ 100] See 8 CFR 204.6(j)(2)(i)-(v) (PDF).
[^ 101] See 8 CFR 204.6(j)(5) (PDF).
[^ 102] See 8 CFR 204.6(j)(5)(i) (PDF).
[^ 103] See 8 CFR 204.6(j)(5)(i) (PDF).
[^ 104] See 8 CFR 204.6(j)(5)(iii) (PDF).
[^ 105] Job maintenance is also permitted under certain circumstances. See Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].
[^ 106] See 8 CFR 204.6(j)(4)(i) (PDF).
[^ 107] See 8 CFR 204.6(j) (PDF) (stating that it is the new commercial enterprise that must create the 10 jobs).
[^ 108] See Matter of Izummi (PDF), 22 I&N Dec. 169, 179 (Assoc. Comm. 1998).
[^ 109] See 8 CFR 204.6(j) (PDF).
[^ 110] See INA 203(b)(5)(E)(iv) and INA 203(b)(5)(E)(v). See 8 CFR 204.6(e) (PDF).
[^ 111] See INA 203(b)(5)(A)(ii).
[^ 112] See INA 203(b)(5)(A)(ii).
[^ 113] See 8 CFR 204.6(e) (PDF).
[^ 114] See 8 CFR 204.6(e) (PDF).
[^ 115] See 8 CFR 204.6(j)(4)(ii) (PDF).
[^ 116] See 8 CFR 204.6(j)(4)(ii) (PDF).
[^ 117] See 8 CFR 204.6(e) (PDF).
[^ 118] See 8 CFR 204.6(e) (PDF).
[^ 119] See 8 CFR 204.6(j)(4)(iii) (PDF).
[^ 120] See INA 203(b)(5)(E)(iv)(I).
[^ 121] See 8 CFR 204.6(m)(1) (PDF) and 8 CFR 204.6(m)(7) (PDF). See INA 203(b)(5)(E)(v).
[^ 122] See INA 203(b)(5)(E)(iv)(I) and INA 203(b)(5)(E)(v).
[^ 123] See INA 203(b)(5)(E)(iv)(II) (limiting the percentage of estimated indirect jobs to 75 percent). See INA 203(b)(5)(E)(V)(II)(cc) (regarding the calculation of direct jobs).
[^ 124] See INA 204(a)(1)(H)(i).
[^ 125] See 8 CFR 204.6(g)(2) (PDF).
[^ 126] USCIS recognizes any reasonable agreement made among immigrant investors in regard to the identification and allocation of qualifying positions. See 8 CFR 204.6(g)(2) (PDF).
[^ 127] See 8 CFR 204.6(j)(4)(i) (PDF).
[^ 128] The 2-year period is described in 8 CFR 204.6(j)(4)(i)(B) (PDF).
[^ 129] See 8 CFR 204.6(j)(4)(ii) (PDF).
[^ 130] See 8 CFR 204.6(j)(4)(iii) (PDF).
[^ 131] In response to the EB-5 Reform and Integrity Act of 2022, Division BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103 (PDF), 136 Stat. 49, 1070 (March 15, 2022), USCIS bifurcated and renamed the Form I-526, resulting in the Immigrant Petition by Standalone Investor (Form I-526) and the Immigrant Petition by Regional Center Investor (Form I-526E).
[^ 132] See INA 203(b)(5)(E)(v)(II)(aa), allowing regional center investors to rely on relocated jobs.
[^ 133] See Chapter 3, Immigrant Petition Adjudication, Section A, Petitions Associated with Regional Centers, Subsection 2, Previous Determinations and Amendments [6 USCIS-PM G.3(A)(2)].
[^ 134] See Operational Guidance for EB-5 Cases Involving Tenant-Occupancy, GM-602-0001, issued December 20, 2012.
[^ 135] See, for example, Matter of Izummi (PDF), 22 I&N Dec. 169, 179 (Assoc. Comm. 1998) (holding that the full amount of the money must be made available to the business(es) most closely responsible for creating the employment on which the petition is based).
[^ 136] See 8 CFR 204.6(j)(4)(iii) (PDF) and 8 CFR 204.6(m)(3) (PDF).
[^ 137] See INA 203(b)(5)(E)(v)(II).
[^ 138] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375-376 (AAO 2010). For general information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].
[^ 139] See 8 CFR 204.6(d) (PDF).
[^ 140] See INA 203(b)(M)(v)(I). Priority date preservation was included in the EB-5 Modernization Rule, effective November 21, 2019. See 84 FR 35750, 35808 (PDF) (July 24, 2019). That rule, however, was vacated. See Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021).
Chapter 3 - Immigrant Petition Adjudication
An immigrant investor must file an initial immigrant petition, either Immigrant Petition by Standalone Investor (Form I-526) or Immigrant Petition by Regional Center Investor (Form I-526E), and supporting documentation to receive employment-based 5th preference (EB-5) immigrant classification.[1] Upon adjustment of status or admission to the United States, the immigrant investor will be a conditional permanent resident (CPR).[2]
A. Petitions Associated with Regional Centers
1. Initial Filing
Each regional center investor must demonstrate that they invested, or are actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within a designated regional center in the United States.[3] The investor must also demonstrate that this investment will create at least 10 direct or indirect full-time jobs for qualifying employees.[4]
For petitions filed on or after May 14, 2022, the investor can only file Form I-526E after the regional center files the Application for Approval of an Investment in a Commercial Enterprise (Form I-956F) (project application).[5] The investor may file Form I-526E while the project application remains pending. However, USCIS does not make a final decision on a regional center investor’s immigrant visa petition until USCIS makes a final decision on the regional center’s associated project application.
To show that a regional center investor has invested, or is actively in the process of investing, in a new commercial enterprise located within a regional center, the investor should submit a receipt notice documenting that the regional center has filed a project application and evidence of the investment.[6]
2. Previous Determinations and Amendments
When adjudicating Form I-526 petitions, USCIS generally defers to prior determinations on regional center filings and reviews amendments according to the relevant law and policy at the time of the filing date.
Petitions Filed Before May 14, 2022
If the regional center requested to expand its geographic area, the instructions for Application for Regional Center Designation Under the Immigrant Investor Program (Form I-924)[7] required that a Form I-924 amendment be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must have been approved before a Form I-526 petitioner may demonstrate eligibility at the time of filing their petition based on an investment in the expanded area.[8]
There are distinct eligibility requirements at each stage of the EB-5 immigration process. Where USCIS has previously evaluated and approved certain aspects of an investment, USCIS generally defers to that favorable determination at a later stage in the process. This deference policy promotes predictability for immigrant investors, new commercial enterprises, and their employees. Deference also conserves agency resources, which should not be used to duplicate previous efforts.
As a general matter, USCIS does not reexamine determinations made earlier in the EB-5 process, and presumes that such earlier determinations were properly decided. When USCIS has previously concluded that an economic methodology is reasonable to project future job creation as applied to the facts of a particular project, USCIS defers to this determination for all related adjudications directly linked to the specific project for which the economic methodology was previously approved.
For example, if USCIS approved Form I-924 or Form I-526 presenting a comprehensive business plan[9] and a specific economic methodology, USCIS will defer to the earlier finding that the methodology was reasonable in subsequent adjudications of Form I-526 presenting the same related facts and methodology. However, USCIS still conducts a de novo review of each prospective immigrant investor’s lawful source of funds and other individualized eligibility criteria.
Conversely, USCIS does not defer to a previously favorable decision in later proceedings when, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or willful misrepresentation, or the previously favorable decision is determined to be legally deficient. A change is material if it would have a natural tendency to influence, or is predictably capable of affecting, the decision.[10]
When a new filing involves a different project from a previous approval, or the same previously approved project with material changes to the project plan, USCIS does not defer to the previous adjudication.
Since USCIS presumes that prior determinations were properly decided, USCIS does not consider a prior favorable determination to be legally deficient for purposes of according deference unless the prior determination involved an objective mistake of fact or an objective mistake of law evidencing ineligibility for the benefit sought, but excluding those subjective evaluations related to evaluating eligibility. Unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, officers should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, officers should not re-adjudicate prior agency determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.
Petitions Filed On or After May 14, 2022
The approval of the regional center’s Form I-956F project application[11] is binding for purposes of the adjudication of a related regional center investor’s petitions seeking benefits based on investment in that offering, unless:
- The applicant engaged in fraud, misrepresentation, or criminal misuse;
- Such approval would threaten public safety or national security;
- There has been a material change that affects eligibility;
- The discovery of other evidence affecting program eligibility was not disclosed by the applicant during the adjudication process; or
- The previous adjudication involved a material mistake of law or fact.[12]
In addition, upon approval of a timely filed amendment to an approved project application, any changes reflected in the amendment may be incorporated into and considered in the adjudication of a related investor’s petition.[13]
B. Standalone Petitions
An immigrant investor not associated with a regional center must, together with the Form I-526 petition, demonstrate that they have invested, or are actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within the United States that will create at least 10 direct full-time jobs for qualifying employees.[14] For petitions filed on or after March 15, 2022, an immigrant investor seeking to pool their investment with one or more additional immigrant investors seeking EB-5 classification must file for such classification in association with a regional center.[15]
C. Material Change
1. In General
A petitioner must establish eligibility at the time of filing. USCIS does not approve petitions if, after filing, the immigrant investor becomes eligible under a new set of facts or circumstances. Changes that are considered material that occur after the filing of an immigrant investor petition result in the investor’s ineligibility if the investor has not obtained CPR status.[16]
If material changes occur after the approval of the immigrant petition, but before the investor has obtained CPR status, such changes would generally constitute good and sufficient cause to issue a notice of intent to revoke and, if not overcome, would generally constitute good cause to revoke the approval of the petition. A change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision.[17]
Changes that occur in accordance with a business plan and other supporting documents as filed will generally not be considered material. For example, if at the time of filing the immigrant petition no jobs have yet been created, but after approval of the immigrant petition and before the investor has obtained CPR status, the investment in the new commercial enterprise results in the creation of 10 jobs in accordance with the investor’s business plan as filed, such a change would generally not be considered material.
If the organizational documents for a new commercial enterprise contain a liquidation provision that does not otherwise constitute an impermissible debt arrangement, the documents may generally be amended to remove such a provision in order to allow the new commercial enterprise to continue to operate through the regional center investor’s period of CPR status. Such an amendment would generally not be considered a material change because facts related to the immigrant investor’s eligibility would not change.
In general, if, at the time of adjudication, the investor is asserting eligibility under a materially different set of facts that did not exist when they filed the immigrant petition, the investor must file a new immigrant petition.
2. Material Changes to Regional Center Project Applications for Petitions Filed on or After March 15, 2022
In general, an approved Form I-956F project application is binding in the adjudication of associated petitions unless there has been a material change that affects eligibility.[18] However, a regional center may submit a timely filed amendment to an approved project application reflecting such changes and, if approved, those changes may be incorporated into and considered in determining eligibility when adjudicating the related investor petitions.[19]
D. Decision
1. Approval
If the petitioner properly filed the petition and the petitioner has met the required eligibility standards, the officer approves the petition.
After a petition has been approved and an immigrant visa is available, an immigrant investor may apply for an immigrant visa with U.S. Department of State or, if eligible, adjust status to CPR status if in the United States.[20]
2. Denial
If the petitioner has not established eligibility, the officer denies the petition.
The officer should write the denial in clear and comprehensive language and cover all grounds for denial.[21] In the denial, the officer should refer to the controlling statute or regulations and to any relevant precedent or adopted decisions. The decision must include information about the petitioner’s right to appeal to the Administrative Appeals Office and the opportunity to file a motion to reopen or reconsider.
USCIS may deny a petition if USCIS determines, in its discretion, that it was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse[22] or that the approval of such petition is contrary to the national interest of the United States for reasons relating to threats to public safety or national security.[23]
3. Revocation
USCIS, in its discretion, may revoke the approval of any petition for good and sufficient cause.[24] A petition may also be withdrawn upon a written request for withdrawal of the petition filed by the petitioner.[25]
As of May 14, 2022, USCIS may also revoke the approval of a petition on the following bases:
- USCIS has reason to believe the petitioner was a knowing participant in the conduct that led to the termination of a regional center, new commercial enterprise or job-creating entity;[26]
- USCIS determines, in its discretion, that approval of the petition is contrary to the national interest of the United States for reasons relating to threats to public safety or national security;[27] or
- USCIS determines, in its discretion, that the petition was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse.[28]
E. Good Faith Investors Following Program Noncompliance by a Regional Center, New Commercial Enterprise, or Job-Creating Entity
Following the termination or debarment from the program of a regional center, new commercial enterprise, or job creating entity, investors with a pending or approved petition, including petitions filed prior to enactment of the EB-5 Reform and Integrity Act of 2022, may retain eligibility under certain circumstances.
In the case of the termination of a regional center, the investor may retain eligibility if their new commercial enterprise associates with an approved new regional center (regardless of its approved geographical boundaries) or if the investor makes a qualifying investment in another new commercial enterprise.[29]
In the case of debarment of a new commercial enterprise or job-creating entity, the investor may retain eligibility if they associate with a new commercial enterprise in good standing and invest additional capital solely to the extent necessary to satisfy remaining job creation requirements.[30] The petitioner must generally file an amendment to their petition or otherwise notify USCIS that they continue to meet applicable eligibility requirements notwithstanding termination or debarment, as applicable, no later than 180 days after notification of termination or debarment.[31]
In these circumstances, investors may amend their petitions to demonstrate that they meet applicable eligibility requirements. For purposes of determining eligibility, USCIS will not consider changes to the business plan underlying the amendment as a material change. In addition, the investor may include any funds obtained or recovered by the investor, directly or indirectly, from claims against third parties, including insurance proceeds, or any additional investment capital provided by the investor, as their investment capital.[32]
Petitions that continue to meet applicable eligibility requirements in these circumstances, including following an amendment, retain the immigrant visa priority date related to the original petition and prevent age-out of derivative beneficiaries. USCIS may hold these petitions in abeyance and extend any applicable deadlines.[33]
USCIS may not approve an investor petition or remove the conditions of a conditional resident investor if, after providing notice and an opportunity to respond, it has reason to believe that the investor was a knowing participant in the conduct that led to the termination or debarment of a regional center, new commercial enterprise, or job-creating entity.[34]
Special Considerations for Investors Who Filed Their Form I-526 Petitions Before March 15, 2022
USCIS recognizes that there are distinct considerations that may apply to investors who filed their underlying Form I-526 prior to March 15, 2022, for purposes of retaining eligibility under INA 203(b)(5)(M). In general, these investors may continue to rely on direct and indirect job creation despite termination of their associated regional center. Specifically, officers may generally determine, in their discretion and on a case-by-case basis, that these investors continue to be eligible for classification notwithstanding termination of their associated regional center.
For example, where an investor’s capital remains invested and at-risk with their new commercial enterprise and the requisite jobs have been or will be created in accordance with their existing business plan, termination of their associated regional center for failure to pay the EB-5 Integrity Fund fee or for reasons related to a different new commercial enterprise would generally not, by itself, negatively impact the investor’s eligibility.
In other circumstances where an investor’s eligibility is impacted, such as where USCIS terminates or debars a regional center or debars a new commercial enterprise for misappropriating investor capital, the investor may seek to retain eligibility by reassociating with another regional center or making an investment in another new commercial enterprise.
USCIS generally reviews potentially impacted petitions in the normal course of adjudication and issues any necessary notice to the investor at that time. Until a new form is developed to standardize the filing of amendments to Form I-526 petitions filed before March 15, 2022, the investor may amend their petition for purposes of meeting applicable eligibility requirements by submitting new documentation within 180 days of USCIS notifying them of the termination or debarment.[35]
The new documentation when making a qualifying investment or reassociating with another new commercial enterprise may include evidence such as a subscription agreement, private placement memorandum, business plan, and economic impact analysis. If the investor’s new commercial enterprise is reassociating with a new regional center, the investor may include a new regional center affiliation agreement documenting the change and updated offering documents as applicable.
If the investor chooses to make a qualifying investment in another new commercial enterprise following regional center termination, the investment amount required is the amount required by statute at the time the investor initially filed the Form I-526.[36]
Footnotes
[^ 1] See INA 203(b)(5) and INA 204(a)(1)(H). See 8 CFR 103.2(b) and 8 CFR 204.6(a) (PDF). For information on EB-5 eligibility, see Chapter 2, Immigrant Petition Eligibility Requirements [6 USCIS-PM G.2].
[^ 2] See INA 216A(a). For information regarding removal of the conditional basis of the investor’s permanent resident status, see Chapter 7, Removal of Conditions [6 USCIS-PM G.7].
[^ 3] See INA 203(b)(5)(A)(i).
[^ 4] See INA 203(b)(5)(A)(ii).
[^ 5] See INA 203(b)(5)(F)(i) and INA 204(a)(1)(H)(i).
[^ 6] For information regarding evidence to demonstrate an investment in a new commercial enterprise, see Chapter 2, Immigrant Petition Eligibility Requirements, Section C, New Commercial Enterprise, Subsection 4, Investment in New Commercial Enterprise [6 USCIS-PM G.2(C)(4)].
[^ 7] On May 13, 2022, USCIS published the new Application for Regional Center Designation (Form I-956), replacing the Form I-924. This new form aligns with the new regional center requirements in the EB-5 Reform and Integrity Act of 2022, Division BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103 (PDF), 136 Stat. 49, 1070 (March 15, 2022).
[^ 8] If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or investor petition filed before February 22, 2017, and the request was ultimately approved, USCIS continues to adjudicate additional investor petitions associated with investments in that area under prior policy guidance issued on May 30, 2013. See EB-5 Adjudications Policy (PDF, 829.48 KB), PM-602-0083, issued May 30, 2013.
[^ 9] For a discussion of what constitutes a comprehensive business plan, see Chapter 2, Immigrant Petition Eligibility Requirements, Section B, Comprehensive Business Plan [6 USCIS-PM G.2(B)]. See Matter of Ho (PDF), 22 I&N Dec. 206 (Assoc. Comm. 1998).
[^ 10] See Kungys v. United States, 485 U.S. 759, 770-72 (1988).
[^ 11] For more information on the Form I-956F project application, see Chapter 5, Project Applications [6 USCIS-PM G.5].
[^ 12] See INA 203(b)(5)(F)(ii).
[^ 13] See INA 203(b)(5)(F)(iii)(II).
[^ 14] For discussion of eligibility and evidentiary requirements for standalone petitioners, see Chapter 2, Immigrant Petition Eligibility Requirements, Section D, Creation of Jobs [6 USCIS-PM G.2(D)].
[^ 15] See INA 204(a)(1)(H)(i).
[^ 16] See Matter of Izummi (PDF), 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). See 8 CFR 103.2(b)(1).
[^ 17] See Kungys v. United States, 485 U.S. 759, 770-72 (1988).
[^ 18] See INA 203(b)(5)(F)(ii)(III).
[^ 19] See INA 203(b)(5)(F)(iii)(II).
[^ 20] See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A]. For information on concurrent filing of the adjustment of status application either at the time of filing the immigrant visa petition or while the petition is pending, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section C, Concurrent Filings [7 USCIS-PM A.3(C)]. See Chapter 7, Removal of Conditions [6 USCIS-PM G.7] for the process of removing conditions on residence.
[^ 21] See 8 CFR 103.3(a)(1)(i).
[^ 22] See INA 203(b)(5)(O)(i). For more information on discretionary determinations, see Chapter 8, Sanctions and Discretionary Determinations, Section B, Discretionary Determinations [6 USCIS-PM G.8(B)].
[^ 23] See INA 203(b)(5)(N)(i). For more information on discretionary determinations, see Chapter 8, Sanctions and Discretionary Determinations, Section B, Discretionary Determinations [6 USCIS-PM G.8(B)].
[^ 25] See 8 CFR 205.1(a)(3)(iii)(C). An employment-based preference petition is automatically revoked upon written notice of withdrawal filed by the petitioner less than 180 days after approval unless an associated adjustment of status application has been pending for 180 days or more.
[^ 26] See INA 203(b)(5)(M)(vi).
[^ 27] See INA 203(b)(5)(N). For more information on discretionary determinations, see Chapter 8, Sanctions and Discretionary Determinations, Section B, Discretionary Determinations [6 USCIS-PM G.8(B)].
[^ 28] See INA 203(b)(5)(O)(i). For more information on discretionary determinations, see Chapter 8, Sanctions and Discretionary Determinations, Section B, Discretionary Determinations [6 USCIS-PM G.8(B)].
[^ 29] See INA 203(b)(5)(M)(ii)(I).
[^ 30] See INA 203(b)(5)(M)(ii)(II).
[^ 31] See INA 203(b)(5)(M)(iii).
[^ 32] See INA 203(b)(5)(M)(iii).
[^ 33] See INA 203(b)(5)(M)(v)(I).
[^ 34] See INA 203(b)(5)(M)(vi).
[^ 35] See INA 203(b)(5)(M)(iii)(I).
[^ 36] For more information on the impact of sanctions, see Chapter 4, Regional Center Applications, Section H, Terminations, Suspensions, and Other Sanctions [6 USCIS-PM G.4(H)] and Chapter 8, Sanctions and Discretionary Determinations [6 USCIS-PM G.8].
Chapter 4 - Regional Center Applications
The goal of the Regional Center Program is to stimulate economic growth in a specified geographic area.[1] Regional centers allow investors to pool their investments with other investors in already defined investment opportunities.
As of May 14, 2022, an entity seeking regional center designation to participate in the Regional Center Program submits a proposal using the Application for Regional Center Designation (Form I-956) accompanied by the Bona Fides of Persons Involved with Regional Center Program (Form I-956H).[2]
As of May 14, 2022, a designated regional center may file an Application for Approval of an Investment in a Commercial Enterprise (Form I-956F) to request approval of each particular investment offering through an associated new commercial enterprise.[3] An investor in that offering may file an Immigrant Petition by Regional Center Investor (Form I-526E)[4] once the regional center has filed the project application. A regional center can be associated with one or more new commercial enterprises and files a Form I-956F for each particular investment offering.
A. Eligibility
A regional center must operate within a defined, contiguous, and limited geographic area as described in the application and consistent with the purpose of concentrating pooled investment within such area.[5] The application for regional center designation must demonstrate that the pooled investment will have a substantive economic impact on the proposed geographic area.[6]
B. Documentation and Evidence
In general, Form I-956 should include:
- Reasonable predictions, supported by economically and statistically valid and transparent forecasting tools, concerning the amount of investment that will be pooled, the kinds of commercial enterprises that will receive such investments, details of the jobs that will be created directly or indirectly as a result of such investments, and other positive economic effects such investments will have;
- A description of the policies and procedures in place reasonably designed to monitor new commercial enterprises and any associated job-creating entities to seek to ensure compliance with applicable federal and state laws;[7]
- A description of the policies and procedures in place that are reasonably designed to ensure program compliance;
- Form I-956H for all persons involved in the regional center, as defined in the following subsection, confirming that all persons involved in the regional center meet applicable requirements;[8] and
- A certification related to securities law compliance.[9]
1. Persons Involved with the Regional Center Program
In general, and unless USCIS determines otherwise, a person is involved with a regional center, a new commercial enterprise, or any affiliated job-creating entity, as applicable, if the person is, directly or indirectly, in a position of substantive authority to make operational or managerial decisions over pooling, securitization, investment, release, acceptance, or control or use of any funding that was procured under the Regional Center Program. A person may be in a position of substantive authority if the person serves as a principal, a representative, an administrator, an owner, an officer, a board member, a manager, an executive, a general partner, a fiduciary, an agent, or in a similar position at the regional center, new commercial enterprise, or job-creating entity, respectively.[10]
To be involved with a regional center, the person must be a national or a lawful permanent resident of the United States, and may not be in rescission or removal proceedings.[11]
In addition, no agency, official, or other similar entity or representative of a foreign government entity may provide capital to, or be directly or indirectly involved with the ownership or administration of, a regional center, a new commercial enterprise, or a job-creating entity. However, a foreign or domestic investment fund or other investment vehicle that is wholly or partially owned, directly or indirectly, by a bona fide foreign sovereign wealth fund or a foreign state-owned enterprise otherwise permitted to do business in the United States may be involved with the ownership, but not the administration, of an unaffiliated job-creating entity.[12]
Finally, a person may not be involved with any regional center, new commercial enterprise, or job-creating entity if the person:
- Has been found to have committed certain offenses;[13]
- Is subject to a final order, for the duration of any penalty imposed by such order, of a state securities commission (or an agency or officer of a state performing similar functions), a state authority that supervises or examines banks, savings associations, or credit unions, a state insurance commission (or an agency or officer of a state performing similar functions), an appropriate federal banking agency, the Commodity Futures Trading Commission, the Securities and Exchange Commission (SEC), a financial self-regulatory organization recognized by the SEC, or the National Credit Union Administration, which is based on a violation of certain laws or regulations;[14]
- Is determined by USCIS to be engaged in, has ever been engaged in, or seeks to engage in any illicit trafficking in any controlled substance or in any listed chemical;[15] any activity relating to espionage, sabotage, or theft of intellectual property; any activity related to money laundering;[16] any terrorist activity;[17] any activity constituting or facilitating human trafficking or a human rights offense; any Nazi persecution, genocide, or commission of torture or extrajudicial killing activity;[18] or the violation of any statute, regulation, or Executive Order regarding foreign financial transactions or foreign asset control; or
- Has been, during the preceding 10 years, included on the U.S. Department of Justice's List of Currently Disciplined Practitioners; or has received a reprimand or has otherwise been publicly disciplined for conduct related to fraud or deceit by a state bar association of which the person is or was a member.[19]
2. Geographic Area
An applicant should submit a map or illustration of the geographic area, which must be defined, contiguous, and limited. An applicant should also include a list of the geographic components that make up the proposed geographic area of the regional center.[20]
To demonstrate that the proposed geographic area is limited, the regional center applicant should submit evidence demonstrating the linkages between proposed economic activities within the proposed area based on different variables. Examples of variables to demonstrate linkages between economic activities include but are not limited to:
- Regional connectivity;
- The labor pool and supply chain; and
- Interdependence between projects.
Moreover, in assessing the likelihood that the proposed economic activity will have a substantive economic impact[21] on the proposed geographic area, an officer reviews the impact of the activity relative to relevant economic conditions. The size of the proposed area should be limited and consistent with the scope and scale of the proposed economic activity, as the regional center applicant is required to focus on a geographic region of the United States.[22]
3. Reasonable Predictions
An applicant must submit evidence that the regional center's pooled investment will have a substantive economic impact on the proposed geographic area. The proposal must include reasonable predictions, supported by economically and statistically valid and transparent forecasting tools, concerning the amount of investment that will be pooled, the kinds of commercial enterprises that will receive such investments, details of the jobs that will be created directly or indirectly as a result of such investments, and other positive economic effects such investments will have.[23]
4. Policies and Procedures
An applicant must provide a description of the policies and procedures in place reasonably designed to monitor new commercial enterprises and any associated job-creating entity to seek to ensure compliance with applicable federal and state laws as well as the employment-based 5th preference (EB-5) program.[24] Such evidence may include, but is not limited to, a written policy document that describes the policies and procedures in place reasonably designed to:
- Monitor new commercial enterprises and any associated job-creating entity to seek to ensure compliance with all applicable federal and state laws; and
- Ensure EB-5 program compliance.
Applicable federal and state laws that entities must comply with include:
- Applicable laws, regulations, and Executive Orders of the United States, including immigration laws, criminal laws, and securities laws; and
- All securities laws of each state in which securities offerings will be conducted, investment advice will be rendered, or the offerors or offerees reside.[25]
C. Adjudication
1. Approval
If the applicant properly filed the application and the applicant has met the required eligibility standards, the officer approves the application. The approval notice provides information about the responsibilities and obligations of the designated regional center. The approval notice also lists the evidence to submit in support of regional center-associated individual EB-5 petitions, as well as details on the reporting, oversight and other compliance requirements for regional centers.
2. Denial
If the applicant has not established eligibility for the benefit sought, the officer denies the application. The officer should write the denial in clear and comprehensive language and cover all grounds for denial.[26] In the denial, the officer should refer to the controlling statute or regulations and to any relevant precedent or adopted decisions. The decision must include information about the applicant’s right to appeal to the Administrative Appeals Office and the opportunity to file a motion to reopen or reconsider.
USCIS may deny an application if USCIS determines, in its discretion, that it was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse[27] or that the approval of such application is contrary to the national interest of the United States for reasons relating to threats to public safety or national security.[28]
D. Amendments
A designated regional center must notify USCIS no later than 120 days before the implementation of significant proposed changes to its organizational structure, ownership, or administration, including the sale of such center, or other arrangements which would result in individuals becoming involved with the regional center that were not previously subject to the requirements under INA 203(b)(5)(H).[29] Such notice is required within 5 business days after one of those changes if exigent circumstances are present.[30] USCIS will continue to adjudicate business plans and petitions during any notice period as long as the amendment to the business or petition does not negatively impact program eligibility.[31]
E. Record-Keeping and Audits
1. Record-Keeping
A regional center must make and preserve, during the 5-year period beginning on the last day of the federal fiscal year in which any transactions occurred, books, ledgers, records, and other documentation from the regional center, new commercial enterprise, or job-creating entity used to support:
- Any claims, evidence, or certifications contained in the regional center’s annual statements;[32] and
- Associated petitions by investors seeking EB-5 classification or removal of conditions.[33]
2. Audits
USCIS audits each regional center at least once every 5 years.[34] Each audit includes a review of any documentation required to be maintained under the record-keeping requirements described above for the preceding 5 fiscal years and a review of the flow of immigrant investor capital into any capital investment project.[35] To the extent multiple regional centers are located at a single site, USCIS may audit multiple regional centers in a single site visit.