Print  Print Manual

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.

About the Policy Manual

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.

How to use the USCIS Policy Manual website (PDF, 3.08 MB).

Adjudicator's Field Manual Transition

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 USCISPolicyManual@uscis.dhs.gov.

To find remaining AFM content, see the crosswalk (PDF, 319.74 KB) between the AFM and the Policy Manual.

 

Last Reviewed/Updated Date

Table of Contents

  • Part G - Notice to Appear
  • Part C - Visitors for Business or Tourism (B)
  • Part F - Students (F, M)
  • Part A - Protection and Parole Policies and Procedures
  • Part H - Reserved
  • Part I - Adjustment Based on Violence Against Women Act
  • Part R - Abandonment of Lawful Permanent Residence
  • Part A - Admissibility Policies and Procedures
  • Part D - Criminal and Related Grounds of Inadmissibility
  • Part E - Terrorism
  • Part H - Labor Certification and Select Immigrant Qualifications
  • Part L - Documentation Requirements
  • Part M - Citizenship Ineligibility
  • Part N - Aliens Previously Removed
  • 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 O - Victims of Trafficking
  • Part P - Crime Victims
  • Part Q - Violence Against Women Act Applicants
  • Part R - Other Waivers and Provisions Overcoming Inadmissibility

Updates

 

Updates(117)
POLICY ALERT - Nonimmigrant Cultural Visitor (Q) Visa Classification

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding the nonimmigrant cultural visitor visa classification, commonly known as the “Q” visa category.

Read More
POLICY ALERT - Temporary Protected Status and Eligibility for Adjustment of Status under Section 245(a) of the Immigration and Nationality Act

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding whether temporary protected status (TPS) beneficiaries are eligible for adjustment of status under section 245(a) of the Immigration and Nationality Act (INA).

Read More
POLICY ALERT - Inadmissibility Based on Membership in a Totalitarian Party

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address inadmissibility based on membership in or affiliation with the Communist or any other totalitarian party.

Read More
Technical Update - Clarifying Requests for Relief Under INA 204(l)

This technical update clarifies how applicants and petitioners may request relief under INA 204(l).

POLICY ALERT - Residency Requirements for Children of Service Members and Government Employees Residing Outside of the United States for Purposes of Acquisition of Citizenship

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding residency requirements under Section 320 of the Immigration and Nationality Act (INA), as amended by the Citizenship for Children of Military Members and Civil Servants Act.

Read More
POLICY ALERT - O Nonimmigrant Visa Classification

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update and consolidate guidance related to O nonimmigrant classifications.

Read More
Technical Update - Incorporating Existing Guidance into the Policy Manual

This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapter 33 of the AFM, related appendices, and policy memoranda.

Technical Update - Clarifying Dates of Absence for Continuous Residence

This technical update clarifies the examples provided to illustrate the impact of absences from the United States for purposes of the continuous residence requirement for naturalization, including the hypothetical dates used in the examples.

POLICY ALERT - Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule

U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements Final Rule, published in the Federal Register on August 3, 2020. This guidance becomes effective October 2, 2020. For information affecting implementation, see our litigation summary.

Read More
Technical Update - Removing Exemption from Discretion for Asylum Applicants Seeking Employment Authorization under 8 CFR 274a.12(c)(8)

This technical update removes the exemption from discretion for asylum applicants seeking employment authorization under 8 CFR 274a.12(c)(8). The Asylum Application, Interview, and Employment Authorization for Applicants Final Rule (Final Rule) (effective August 25, 2020) amended 8 CFR 274a.13(a)(1) to eliminate the exemption. Accordingly, asylum applicants who file applications for employment authorization on or after August 25, 2020 are subject to discretion like other applicants seeking employment authorization under 8 CFR 274a.12(c). Note: On September 11, 2020, the U.S. District Court for the District of Maryland in Casa de Maryland et al v. Chad Wolf provided limited injunctive relief to members of two organizations, CASA de Maryland (CASA) and the Asylum Seeker Advocacy Project (ASAP), in the application of the Final Rule to Form I-589s and Form I-765s filed by asylum applicants who are also members of CASA or ASAP. Therefore, while the rule is preliminarily enjoined, we will continue to apply the prior regulatory language and exempt from discretion CASA and ASAP members who file a Form I-765 based on an asylum application.

Technical Update - Braille-Related Accommodations for the Naturalization Test

This technical update incorporates references to Braille-related accommodations for the naturalization test.

POLICY ALERT - Clarifying Procedures for Terminating Asylum Status in Relation to Consideration of an Application for Adjustment of Status

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update and clarify the procedures USCIS officers follow when termination of asylum status is considered in relation to adjudicating an asylum-based adjustment of status application.

Read More
Technical Update - Foreign Residency Requirement

This technical update provides clarification on the 2-year foreign residence requirement for certain exchange visitors subject to INA 212(e).

Technical Update - Incorporating Existing Guidance into the Policy Manual

This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 22.3 and 26 of the AFM, related appendices, and policy memoranda.

POLICY ALERT - Clarifying Guidance for Deployment of Capital in Employment-Based Fifth Preference (EB-5) Category

U.S. Citizenship and Immigration Services (USCIS) is issuing clarifying policy guidance in the USCIS Policy Manual regarding deployment of investment capital, including further deployment after the job creation requirement is satisfied.

Read More
POLICY ALERT - Applying Discretion in USCIS Adjudications

U.S. Citizenship and Immigration Services (USCIS) is consolidating existing policy guidance in the USCIS Policy Manual regarding the discretionary analysis required in the adjudication of certain benefit requests, including certain applications for employment authorization.

Read More
Technical Update - Removing Obsolete Form I-508F

This technical update removes references to Form I-508F, Request for Waiver of Certain Rights, Privileges, Exemptions and Immunities. French nationals are covered by a special convention between France and the United States. Previously, French nationals were required to submit both Form I-508 and Form I-508F to USCIS. The 11/08/19 form edition combines information from both forms. Therefore, French nationals are now only required to submit Form I-508.

Technical Update - Removing WA Food Assistance Program from the List of Public Benefits Considered

This technical update removes the WA Food Assistance Program for Legal Immigrants from the list of examples of state, local, and tribal cash assistance programs that are considered income maintenance for purposes of the public charge inadmissibility determination.

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

Technical Update - National Interest Waiver Portability Provisions

This technical update clarifies guidance within the USCIS Policy Manual on portability for physicians with an approved immigrant petition based on a national interest waiver (NIW) applying for adjustment of status, and the applicability of the 2-year foreign residence requirement of INA 212(e) to certain NIW physicians.

Technical Update - Incorporating Existing Guidance into the Policy Manual

This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 1, 3.4, 10.2, 10.3(a), 10.3(c), 10.3(e), 10.3(i), 10.4, 10.22, 11.1(c), 13, 14, 17, 23.8, 31.7, 33.10, 34.5, 35, 41.6, 42, 44, 56.1, 56.3, 56.4, 62, 81, 82, 83.1, 83.2, and 83.3 of the AFM, related appendices, and policy memoranda.

POLICY ALERT - False Claim to U.S. Citizenship Ground of Inadmissibility and Matter of Zhang

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding the false claim to U.S. citizenship ground of inadmissibility.

Read More
Technical Update - Removing Obsolete Form I-864W

This technical update removes references to Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, which was discontinued by the Inadmissibility on Public Charge Grounds Rule and is no longer used by U.S. Citizenship and Immigration Services.

POLICY ALERT - Liberian Refugee Immigration Fairness

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding eligibility requirements, filing, and adjudication of adjustment of status applications based on the Liberian Refugee Immigration Fairness law.

Read More
Technical Update - Replacing the Term “Entrepreneur”

This technical update replaces instances of the term “entrepreneur” with “investor” throughout the Policy Manual in accordance with the EB-5 Immigrant Investor Program Final Rule.

Technical Update - Use of Photographs as Biometrics

U.S. Citizenship and Immigration Services (USCIS) is incorporating general information on USCIS’ use of photographs as biometrics.

POLICY ALERT - Submission of Benefit Requests

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding submission of benefit requests to USCIS.

Read More
POLICY ALERT - Effect of Breaks in Continuity of Residence on Eligibility for Naturalization

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address naturalization applicants’ absences from the United States of more than 6 months but less than 1 year during the statutorily required continuous residence period.

Read More
POLICY ALERT - Implementation of Guidance on Inadmissibility on Public Charge Grounds

This update incorporates into Volumes 2, 8, and 12 policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced February 5, 2020, implementing the Inadmissibility of Public Charge Grounds Final Rule. This guidance is in effect as of February 24, 2020 and applies nationwide to all applications and petitions postmarked on or after that date. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Final Rule. For more information about the classes of aliens who are exempt from the Final Rule, see the appendices related to applicability. For information on related litigation affecting implementation, see our page on the injunction.

Read More
POLICY ALERT - Public Charge Ground of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1. For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of aliens who are exempt from the final rule, see the appendices related to applicability.

Read More
POLICY ALERT - Accepting Petition for Alien Relative (Form I-130) Abroad

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the limited circumstances in which USCIS has delegated authority to the U.S. Department of State to accept and adjudicate the Form I-130 filed abroad at U.S. embassies and consulates. This guidance becomes effective February 1, 2020.

Read More
POLICY ALERT - Biometrics Services Updates

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the availability of mobile biometrics services and clarify guidance on the validity period for fingerprint waivers.

Read More
POLICY ALERT - Replacing Permanent Resident Card

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding eligibility requirements, filing, and adjudication of requests to replace Permanent Resident Cards using the Application to Replace Permanent Resident Card (Form I-90).

Read More
Technical Update - Naturalization of Spouses Subjected to Battery or Extreme Cruelty by U.S. Citizen Spouse

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to clarify that the spouse of a U.S. citizen who was subjected to battery or extreme cruelty by his or her U.S. citizen spouse does not need to establish that he or she is still married to the abusive spouse at the time he or she files the application for naturalization.

POLICY ALERT - Effect of Travel Abroad by Temporary Protected Status Beneficiaries with Final Orders of Removal

U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to clarify the effect of travel outside the United States by temporary protected status beneficiaries who have final removal orders.

Read More
Technical Update - Naturalization for Surviving Spouse, Child, or Parent of Service Member

U.S. Citizenship and Immigration Services (USCIS) is clarifying guidance in the USCIS Policy Manual to indicate that the spouse, child, or parent of a deceased U.S. citizen member of the U.S. armed forces who died “during a period of honorable service” (instead of as the result of honorable service) may be eligible for naturalization as the surviving relative of the service member, consistent with the statutory language in INA 319(d).

POLICY ALERT - Conditional Bar to Good Moral Character for Unlawful Acts

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual on unlawful acts during the applicable statutory period that reflect adversely on moral character and may prevent an applicant from meeting the good moral character requirement for naturalization.

Read More
POLICY ALERT - Implementing the Decisions on Driving Under the Influence Convictions on Good Moral Character Determinations and Post-Sentencing Changes

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding how post-sentencing changes to criminal sentences impact convictions for immigration purposes and how two or more driving under the influence convictions affects good moral character determinations. These updates incorporate two recent decisions issued by the Attorney General.

Read More
Technical Update - Health-Related Grounds of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) is updating existing guidance based on revised Centers for Disease Control and Prevention Technical Instructions regarding tuberculosis, gonorrhea, and syphilis and the change in nomenclature from leprosy to Hansen’s Disease. USCIS is also updating how USCIS submits a request to CDC for advisory opinion and removing the outdated vaccination chart.

Technical Update - Implementation of Fees for Submission of Benefit Requests

This technical update incorporates into Volume 1 the policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced October 25, 2019, regarding submission and acceptance of fees for immigration benefit requests. USCIS published this guidance with an effective date of December 2, 2019. Note: On December 11, 2019, the Federal District Court for the Northern District of California in Seattle v. DHS enjoined the Department of Homeland Security from requiring use of the new version of Form I-912, Request for Fee Waiver. USCIS has noted this in the corresponding Policy Manual guidance and reinstated the prior fee waiver policy guidance at AFM 10.9 (PDF, 2.87 MB) and 10.10 (PDF, 2.87 MB).

POLICY ALERT - Adjustment on New Basis After Termination of Conditional Permanent Residence

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update and clarify when USCIS may adjust the status of an applicant whose conditional permanent resident (CPR) status was terminated.

Read More
POLICY ALERT - USCIS Special Immigrant Juvenile Classification

U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual regarding the special immigrant juvenile (SIJ) classification.

Read More
POLICY ALERT - EB-5 Immigrant Investor Program Modernization Final Rule

U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the EB-5 Immigrant Investor Program Modernization Final Rule, published on July 24, 2019, and effective November 21, 2019.

Read More
Technical Update - Implementation of Policy Guidance on Defining “Residence” in Statutory Provisions Related to Citizenship

This technical update incorporates into Volume 12 the policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced August 28, 2019 addressing requirements for “residence” in statutory provisions related to citizenship. This guidance became effective October 29, 2019. 

POLICY ALERT - Fees for Submission of Benefit Requests

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding submission and acceptance of fees for immigration benefit requests, with an effective date of December 2, 2019. Note: On December 11, 2019, the Federal District Court for the Northern District of California in Seattle v. DHS enjoined the Department of Homeland Security from requiring use of the new version of Form I-912, Request for Fee Waiver. USCIS has noted this in the corresponding Policy Manual guidance and reinstated the prior fee waiver policy guidance at AFM 10.9 (PDF, 2.87 MB) (PDF, 2.87 MB) and 10.10 (PDF, 2.87 MB) (PDF, 2.87 MB).

Read More
Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Technical Update - Clarifying Policies and Procedures for Replacing Permanent Resident Cards

This technical update clarifies that, in circumstances involving the replacement or reissuance of a Permanent Resident Card, an Application to Replace Permanent Resident Card (Form I-90) is always required as outlined in form instructions and regulations. This may differ from the general reissuance policy.

POLICY ALERT - Defining “Residence” in Statutory Provisions Related to Citizenship

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address requirements for “residence” in statutory provisions related to citizenship, and to rescind previous guidance regarding children of U.S. government employees and members of the U.S. armed forces employed or stationed outside the United States. This guidance becomes effective October 29, 2019.

Read More
POLICY ALERT - Employment Authorization for Parolees

U.S. Citizenship and Immigration Services (USCIS) is updating its existing policies on the exercise of discretion to address the use of discretion when assessing if certain foreign nationals who are paroled into the United States should be employment authorized.

Read More
Technical Update - Civil Surgeon Designation and Revocation

This technical update changes language to state that USCIS officers “may” refer proposed civil surgeon designation revocations to the USCIS Office of Chief Counsel for review. Previously, the language specified that USCIS counsel “must” review any proposed civil surgeon designation revocation.

Technical Update - Fraud and Willful Misrepresentation and Department of State’s 90-Day Rule

This technical update incorporates clarifications regarding the Department of State (DOS)'s "90-day rule." While this "rule" does not apply to USCIS because it is DOS policy, USCIS is clarifying that it may also find that an applicant made a willful misrepresentation due to a status violation or conduct in the United States that is inconsistent with the applicant's prior representations, especially where the violation or conduct occurred shortly after the consular interview or admission to the United States.

POLICY ALERT - USCIS Public Services

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding services USCIS provides to the public, including general administration of certain immigration benefits, online tools, and up-to-date information.

Read More
Technical Update - Communicating with Centers for Disease Control and Prevention

This technical update removes references to sending documents to the Centers for Disease Control and Prevention (CDC) by mail or fax. CDC now prefers all requests for waiver consultations and any subsequent notifications from USCIS to be communicated by email.

Technical Update - Medical Certification for Disability Exceptions

This technical update incorporates minor clarifying editorial changes to the policy guidance regarding the Medical Certification for Disability Exceptions (Form N-648).

POLICY ALERT - Controlled Substance-Related Activity and Good Moral Character Determinations

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character (GMC) for naturalization even where that conduct would not be an offense under state law.

Read More
Technical Update - Implementation of Policy Guidance on Medical Certification for Disability Exceptions (Form N-648)

​This technical update incorporates into Volume 12 the policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced December 12, 2018 regarding the Medical Certification for Disability Exceptions (Form N-648). This guidance became effective February 12, 2019.

Technical Update - Visa Retrogression

​This technical update removes language that restricted USCIS officers’ ability to request a visa number from the Department of State in cases involving visa retrogression. As with all INA 245(a) adjustment cases, a visa must be available at the time of final adjudication.

Technical Update - Child Status Protection Act

This technical update clarifies that certain child beneficiaries of family-sponsored immigrant visa petitions who are ineligible for the Child Status Protection Act may continue their adjustment of status application if the petition is automatically converted to an eligible category.

POLICY ALERT - Policies and Procedures for Secure Identity Documents

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the general policies and procedures related to secure documents.

Read More
POLICY ALERT - Sufficiency of Medical Certification for Disability Exceptions (Form N-648)

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to update and clarify filing procedures and adjudications on the Medical Certification for Disability Exceptions (Form N-648). This guidance becomes effective February 12, 2019.

Read More
POLICY ALERT - Immigrant Investors and Debt Arrangements

U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to clarify its policy on debt arrangements.

Read More
POLICY ALERT - Use of Form G-325A

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove references to Biographic Information (Form G-325A).

Read More
POLICY ALERT - Validity of Report of Medical Examination and Vaccination Record (Form I-693)

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in Volume 8, Part B of the USCIS Policy Manual regarding the period of time during which a Form I-693 submitted in support of a related immigration benefits application is considered valid.

Read More
POLICY ALERT - Marriage and Living in Marital Union Requirements for Naturalization

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to clarify the marriage and living in marital union requirements under section 319(a) of the Immigration and Nationality Act (INA).

Read More
POLICY ALERT - Special Naturalization Provisions for Children

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance to amend the USCIS Policy Manual to clarify certain special naturalization provisions for children.

Read More
Technical Update - Authorized Medical Professionals

This technical update provides clarification on the medical professionals (medical doctors, doctors of osteopathy, and clinical psychologists) authorized to complete a written evaluation of medical condition in connection with an oath waiver request.

POLICY ALERT - Geographic Area of a Regional Center

U.S. Citizenship and Immigration Services (USCIS) is updating guidance in the USCIS Policy Manual regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests impact the filing of Form I-526, Immigrant Petition by Alien Entrepreneur.

Read More
Technical Update - Certificates of Citizenship for U.S. National Children

This technical update clarifies that a person who is born a U.S. national and is the child of a U.S. citizen may acquire citizenship and may obtain a Certificate of Citizenship without having to establish lawful permanent resident status.

Technical Update - Rescinding Tenant-Occupancy Methodology

This technical update clarifies that the rescission of the policy regarding the tenant-occupancy methodology does not affect petitions pending on May 15, 2018 (the date USCIS announced the rescission).

POLICY ALERT - Child Status Protection Act

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding the Child Status Protection Act (CSPA).

Read More
POLICY ALERT - Adjustment of Status Interview Guidelines and Waiver Criteria

U.S. Citizenship and Immigration Services (USCIS) is updating guidance regarding adjustment of status interview guidelines and interview waivers.

Read More
POLICY ALERT - Rescinding Tenant-Occupancy Methodology

U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to reflect that, as of May 15, 2018, USCIS no longer considers tenant occupancy to be a reasonable methodology to support economically or statistically valid forecasting tools.

Read More
POLICY ALERT - Documentation of Conditional Resident Status for Investors with a Pending Form I-829

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance regarding the documentation of conditional permanent resident (CPR) status for employment-based fifth preference (EB-5) immigrants.

Read More
POLICY ALERT - Acquisition of U.S. Citizenship for Children Born Out of Wedlock

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance to clarify certain requirements for U.S. citizenship for children born outside the United States and out of wedlock under INA 301 and 309. USCIS is making conforming edits to the USCIS nationality charts.

Read More
Technical Update - Fraud and Willful Misrepresentation and Department of State’s 90-Day Rule

This technical update incorporates changes that the Department of State (DOS) made to its Foreign Affairs Manual (FAM) regarding its interpretation of the term “misrepresentation.”

Technical Update - Military Accessions Vital to National Interest

This technical update clarifies that foreign nationals may apply for military naturalization after the certification of honorable service has been properly processed by the U.S. armed forces.

Technical Update - Authority to Administer the Oath of Allegiance

This technical update clarifies that the Secretary of Homeland Security has, through the Director of USCIS, delegated the authority to administer the Oath during an administrative naturalization ceremony to certain USCIS officials who can successively re-delegate the authority within their chains of command.

POLICY ALERT - Waiver Policies and Procedures

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance to address the general policies and procedures applicable to the adjudication of waivers of inadmissibility.

Read More
POLICY ALERT - Biometrics Requirements for Naturalization

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to specify that every naturalization applicant must provide biometrics regardless of age, unless the applicant qualifies for a fingerprint waiver due to certain medical conditions.

Read More
POLICY ALERT - Administrative Naturalization Ceremonies

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance on USCIS administrative naturalization ceremonies, to include guidance regarding participation from other U.S. government and non-governmental entities.

Read More
POLICY ALERT - Job Creation and Capital At Risk Requirements for Investors

U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to provide further guidance regarding the job creation and capital at risk requirements for Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status.

Read More
Technical Update - Clarifying Intent to Reside in United States for Naturalization Purposes

This technical update clarifies that naturalization applicants are not required to intend to reside permanently in the United States after becoming U.S. citizens. This update is in accordance with current statutes; prior to 1994, a person who became a naturalized U.S. citizen was expected to hold the intention of residing permanently in the United States. See Section 104 of the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416 (October 25, 1994).

Technical Update - Medical Codes for Purposes of Medical Certification for Disability Exceptions

This technical update clarifies that, for purposes of Form N-648, Medical Certification for Disability Exceptions, USCIS accepts the relevant medical codes recognized by the Department of Health and Human Services. This includes codes found in the Diagnostic and Statistical Manual of Mental Disorders and the International Classification of Diseases.

POLICY ALERT - Registration of Lawful Permanent Resident Status

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance addressing registration of lawful permanent resident (LPR) status.

Read More
POLICY ALERT - False Claim to U.S. Citizenship Ground of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) is issuing guidance to address the false claim to U.S. citizenship ground of inadmissibility under section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (INA). 

Read More
Technical Update - Clarifying Designated Periods of Hostilities for Naturalization under INA 329

This technical update clarifies that, for purposes of naturalization under INA 329, the current period designated by Presidential Executive Order 13269 (July 3, 2002), as a period in which the U.S. armed forces are considered to be engaged in armed conflict with a hostile foreign force, is still in effect. In addition, this update adds information about the USCIS Military Help Line in this part.

POLICY ALERT - Employment-Based Fifth Preference Immigrants: Investors

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the eligibility requirements for regional centers and immigrant investors.

Read More
POLICY ALERT - Definition of Certain Classes of Medical Conditions and Other Updates Relating to Health-Related Grounds of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) is updating guidance regarding health-related grounds of inadmissibility in accordance with the U.S. Department of Health and Human Services (HHS) rulemaking updating Title 42 of the Code of Federal Regulations, part 34 (42 CFR 34).

Read More
POLICY ALERT - Special Immigrant Juvenile Classification and Special Immigrant-Based Adjustment of Status

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the special immigrant juvenile (SIJ) classification and special immigrant-based (EB-4) adjustment of status, including adjustment based on classification as a special immigrant religious worker, SIJ, and G-4 international organization or NATO-6 employee or family member, among others.

Read More
POLICY ALERT - Determining Extreme Hardship

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance on determinations of extreme hardship to qualifying relatives as required by certain statutory waiver provisions. This guidance becomes effective December 5, 2016.

Read More
Technical Update - Military Accessions Vital to National Interest Program and Time of Filing for Naturalization

This technical update clarifies that, in general, Department of Defense (DOD) Military Accessions Vital to National Interest (MAVNI) enlistees may file an application for naturalization during basic training in the U.S. armed forces.

POLICY ALERT - Department of Defense Military Accessions Vital to National Interest Program

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance to provide information about the existing Department of Defense (DOD) Military Accessions Vital to National Interest (MAVNI) Program.

Read More
POLICY ALERT - Effective Date of Lawful Permanent Residence for Purposes of Citizenship and Naturalization

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the date of legal permanent residence (LPR) for naturalization and citizenship purposes. 

Read More
POLICY ALERT - Removing Obsolete Form I-643 from Filing Requirements for Certain Adjustment Applications

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual to remove obsolete Form I-643, Health and Human Services Statistical Data for Refugee/Asylee Adjusting Status, from the filing requirements for applications for adjustment of status under section 209 of the Immigration and Nationality Act (INA).

Read More
POLICY ALERT - Adjustment of Status Policies and Procedures and 245(a) Adjustment

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance addressing the general policies and procedures of adjustment of status as well as adjustment under section 245(a) of the Immigration and Nationality Act (INA).

Read More
POLICY ALERT - Media Representatives (I) Nonimmigrant Visa Classification

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the foreign information media representative nonimmigrant visa classification, commonly known as the “I” visa category.

Read More
POLICY ALERT - Modifications to Oath of Allegiance for Naturalization

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance to clarify the eligibility requirements for modifications to the Oath of Renunciation and Allegiance for naturalization.

Read More
Technical Update - Child Citizenship Act and Children of U.S. Government Employees Residing Abroad

This technical update clarifies that the child of a U.S. government employee temporarily stationed abroad is considered to be residing in the United States for purposes of acquisition of citizenship under INA 320.

Technical Update - Multiple Absences and Residence and Physical Presence

This technical update clarifies that along with reviewing for absences of more than 6 months, officers review whether an applicant for naturalization with multiple absences of less than 6 months is able establish the required residence and physical presence for naturalization.

POLICY ALERT - Effect of Assisted Reproductive Technology (ART) on Immigration and Acquisition of Citizenship Under the Immigration and Nationality Act (INA)

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance relating to the use of Assisted Reproductive Technology (ART).

Read More
Technical Update - Religious Missionaries Abroad and Residence and Physical Presence

This technical update clarifies who may be considered to be a missionary of a religious group for purposes of preserving residence and physical presence for naturalization while working abroad.

Technical Update - Treating Certain Peace Corps Contractors as U.S. Government Employees

This technical update clarifies that Peace Corps personal service contractors are considered U.S. Government employees under certain circumstances for purposes of preserving their residence for naturalization while working abroad.

POLICY ALERT - Nonimmigrant Trainees (H-3)

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance on the trainees (H-3) nonimmigrant visa category.  

Read More
POLICY ALERT - Customer Service

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance on its standards in customer service.

Read More
Technical Update - Validity of Same-Sex Marriages

This technical update addresses the Supreme Court ruling holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.

POLICY ALERT - Changes to Dates of Birth and Names on Certificates of Citizenship

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance relating to changes of dates of birth and names per court orders.

Read More
POLICY ALERT - Validity Period of the Medical Certification on the Report of Medical Examination and Vaccination Record (Form I-693)

U.S. Citizenship and Immigration Services (USCIS) is issuing an update to policy guidance in the USCIS Policy Manual addressing the validity period of civil surgeon endorsements on the Report of Medical Examination and Vaccination Record, Form I-693.

Read More
Technical Update - Civil Surgeon Applications and Evidentiary Requirements

This technical update clarifies that an applicant for civil surgeon designation must, at a minimum, submit a copy of the medical degree to show he or she is a Medical Doctor or Doctor of Osteopathy.

POLICY ALERT - Fraud and Willful Misrepresentation Grounds of Inadmissibility

U.S. Citizenship and Immigration Services (USCIS) is issuing guidance on the fraud and willful misrepresentation grounds of inadmissibility under INA 212(a)(6)(C)(i) and the corresponding waiver under INA 212(i).

Read More
Technical Update - Vaccination Requirements for Pregnant or Immuno-Compromised Applicants

This technical update replaces the list of vaccines contraindicated for pregnant or immuno-compromised applicants with a reference to the Centers for Disease Control and Prevention (CDC)'s Vaccination Technical Instructions. This ensures the Policy Manual guidance includes the most up-to-date information.

POLICY ALERT - Refugee and Asylee-Based Adjustment of Status under Immigration and Nationality Act (INA) Section 209

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address adjustment of status applications filed by refugees and asylees under INA sections 209(a) and 209(b).

Read More
POLICY ALERT - Health-Related Grounds of Inadmissibility and Waivers

U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual on the health-related grounds of inadmissibility under INA 212(a)(1) and corresponding waivers under INA 212(g).

Read More
POLICY ALERT - Civil Surgeon Designation and Centralization of the Designation Process at the National Benefits Center

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to centralize the civil surgeon designation process at the National Benefits Center, effective March 11, 2014.

Read More
Technical Update - Commonwealth of the Northern Mariana Islands

This technical update adds the Commonwealth of the Northern Mariana Islands to list of certain territories of the United States where, subject to certain requirements, persons may be U.S. citizens at birth.

Technical Update - Certified Court Dispositions

This technical update adds language addressing existing policy on circumstances where an applicant is required to provide a certified court disposition.

POLICY ALERT - Security-Related Positions Abroad

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address amendments to section 1059(e) of the National Defense Authorization Act of 2006 by Public Law 112-227.

Read More
POLICY ALERT - Comprehensive Citizenship and Naturalization Policy Guidance

USCIS is issuing updated and comprehensive citizenship and naturalization policy guidance in the new USCIS Policy Manual.

Read More

Volume 1 - General Policies and Procedures

Part A - Public Services

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 10 - An Overview of the Adjudication Process (External) (PDF, 2.87 MB)

Chapter 1 - Purpose and Background

A. Purpose

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

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

B. Background

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

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

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

C. Mission Statement

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

D. Legal Authorities

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

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

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

Footnotes


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

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

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

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

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

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

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 the following sub-sites:

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

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

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

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

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

B. Social Media

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

USCIS’ social media presence includes:

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

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

  • YouTube – for videos

  • Instagram – for photos and informational graphics

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

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

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

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

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

Footnotes


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

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

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

Chapter 3 - Forms of Assistance

A. In-Person

1. Local Field Office

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

2. Community Outreach

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

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

B. Online

1. USCIS Online Account

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

2. Online Messages

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

3. Emma and Live Web Chat

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

4. Email

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

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

C. Telephone

1. USCIS Contact Center

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

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

Multi-Tiered Structure

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

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

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

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

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

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

2. International Service

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

3. Military Help Line

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

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

4. Premium Processing Line

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

5. Intercountry Adoptions Line

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

D. Traditional Mail or Facsimile

1. Traditional Mail

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

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

2. Facsimile (Fax)

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

Footnotes


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

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

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

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

Chapter 4 - Service Request Management Tool

A. Generating Service Requests

1. USCIS-Generated

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

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

2. Self-Generated

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

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

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

  • Request regarding a case outside normal processing time;

  • Request for accommodations; [2] or

  • Request for correction of a typographic error.

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

B. Responding to Service Requests

1. Timely Response

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

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

2. Prioritized Requests

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

Change of Address

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

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

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

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

Expedite Requests [5]

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

Reasonable Accommodation [6]

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

Military Referral

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

Footnotes


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

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

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

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

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

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

Chapter 5 - Requests to Expedite Applications or Petitions

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

Expedite Criteria

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

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

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

  • Urgent humanitarian reasons;

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

  • Clear USCIS error.

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

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

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

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

Footnotes


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

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

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]

B. Reasonable Accommodation

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

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

Examples of accommodations include, but are not limited to:

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

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

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

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

C. Requesting Accommodation

1. How to Make a Disability Accommodation Request

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

2. USCIS Points-of-Contact

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

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

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

3. USCIS Review

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

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

4. Review Timeframe

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

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

5. Reconsideration of Denied Request

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

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

Footnotes


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

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

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

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

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

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

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.

Fair Information Practice Principles 

DHS Framework for Privacy Policy

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

4. Third-Party Information

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

5. Third-Party Government Inquiries

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

Congress

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

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

Law Enforcement Agencies

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

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

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

Federal Investigators

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

Other Third-Party Inquiries

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

E. VAWA, T, and U Cases

1. Confidentiality Provisions

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

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

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

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

2. Scope of Confidentiality

Duration of Confidentiality Requirement

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

Disclosure of Information

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

Exceptions for Disclosure of Information

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

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

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

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

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

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

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

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

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

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

3. USCIS Assistance

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

Change of Address

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

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

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

Telephonic Inquiries

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

F. Asylees and Refugees

1. Confidentiality Provisions

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

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

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

2. Breach of Confidentiality

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

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

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

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

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

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

3. USCIS Assistance

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

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

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

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

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

  • A Request for a Safe Third Country Agreement Determination;

  • A Request for a Credible Fear Determination;

  • A Request for a Reasonable Fear Determination; and

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

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

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

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

Change of Address Request

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

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

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

USCIS Contact Center Status Inquiries for Form I-590 Applications

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

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

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

General Inquiries

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

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

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

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

G. Temporary Protected Status

1. Confidentiality Provisions

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

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

  • The TPS applicant;

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

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

  • Any federal or state law enforcement agency.

2. USCIS Assistance

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

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

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

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

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

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

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

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

3. Exceptions for Disclosure

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

  • When it is mandated by a court order; or

  • With the written consent of the applicant.

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

H. Legalization

1. Confidentiality Provisions

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

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

  • To make a determination on the legalization application;

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

  • In preparation of certain reports to Congress.

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

2. USCIS Assistance

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

3. Exceptions for Disclosure

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

Law Enforcement Purposes

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

Requested by an Official Coroner

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

Statistical Information

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

Available from Another Source

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

I. Special Agricultural Workers

1. Confidentiality Provisions

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

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

2. USCIS Assistance

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

3. Exceptions for Disclosure

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

Law Enforcement Purposes

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

Requested by an Official Coroner

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

Criminal Convictions

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

J. S Nonimmigrant Visa Category

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

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

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

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

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

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

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

K. Witness Security Program

1. Program Participants

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

2. USCIS Assistance

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

Footnotes


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

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

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

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

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

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

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

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

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

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

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

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

13. [^] See 8 U.S.C. 1367.

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

15. [^] See 13 U.S.C. 8.

16. [^] See 8 U.S.C. 1641(c).

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

18. [^] See INA 101(i)(1).

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

20. [^] See 8 CFR 208.6.

21. [^] See 8 CFR 208.6.

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

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

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

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

26. [^] See 8 CFR 244.16.

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

28. [^] See INA 245A(c)(6).

29. [^] See INA 245A(c)(5)(E).

30. [^] See 13 U.S.C. 8.

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

32. [^] See INA 210(b)(6)(D).

33. [^] See INA 210(b)(7).

34. [^] See 8 CFR 274a.12(c)(21).

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

Chapter 8 - Conduct in USCIS Facilities

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, and Reporting Misconduct

A. Feedback

1. USCIS Contact Center

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

2. In-Person Appointments

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

3. USCIS Website

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

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

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

B. Complaints [1]

1. Ways of Submitting Complaints

Complaint in USCIS Office

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

Submit Written Complaint

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

Contact Office of Inspector General Directly [3]

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

File Complaint with USCIS Headquarters

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

Ask to Speak to Contact Center Supervisor

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

2. Complaints Received

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

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

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

C. Reporting Allegations of Misconduct

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

1. Employee Misconduct

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

  • Fraud, corruption, bribery, and embezzlement;

  • Sexual advances or sexual misconduct;

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

  • Perjury;

  • Physical assault; [6]

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

  • Drug use or possession;

  • Unauthorized use or misuse of sensitive official government databases;

  • Misuse of official position for private gain;

  • Misuse of a government vehicle or property;

  • Failure to properly account for government fund;

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

  • Falsification of travel documents; and

  • Falsification of employment application documents.

2. Reporting Employee Misconduct

Reporting Employee Misconduct

Contact Information [8]

DHS Office

Phone and Fax

Mail

USCIS OI

202-233-2453 (Fax)

Office of Investigations
Attn: Intake
Mail Stop: 2275
U.S. Citizenship and Immigration Services
633 Third Street NW, 3rd Floor, Suite 350
Washington, DC 20529-2275

DHS OIG

Toll-free hotline:

800-323-8603

202-254-4297 (Fax)

DHS Office of Inspector General, Mail Stop: 0305
Attn: Office of Investigations - Hotline
245 Murray Lane, SW
Washington, DC 20528-0305


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

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

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

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

3. Allegations of Discrimination

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

DHS Office for Civil Rights and Civil Liberties

Contact Information

Email

Fax

Mail

CRCLCompliance@hq.dhs.gov

202-401-4708

U.S. Department of Homeland Security
Office for Civil Rights and Civil Liberties
245 Murray Lane, SW, Building 410
Mail Stop: 0190
Washington, DC 20528

D. Reporting Fraud, Abuse, and Scams

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

In addition, immigration fraud can be reported to:

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

Footnotes


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

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

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

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

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

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

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

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

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

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

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

Part B - Submission of Benefit Requests

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 10 - An Overview of the Adjudication Process (External) (PDF, 2.87 MB)

Chapter 1 - Purpose and Background

A. Purpose

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

B. Background

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

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

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

Form Types

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

Common USCIS-Issued Immigration Benefits

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 Document (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

Footnotes


1. [^] See 8 CFR 103.2(a)(1).

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

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

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

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

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

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

8. [^] See 8 CFR 103.2(a)(1).

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 and Unacceptable Signatures

Acceptable

Unacceptable

  • Original signature

  • Handwritten “X,” or similar mark, in ink (including a fingerprint, if unable to write)

  • Abbreviated signature, if that is the normal signature

  • Signature of parent or legal guardian of benefit requestor if requestor is under 14 years of age

  • Signature by the benefit requestor’s legal guardian, surrogate, or person with a valid durable power of attorney or a similar legally binding document[7]

  • An original signature on the benefit request that is later photocopied, scanned, faxed, or similarly reproduced, unless otherwise required by form instructions

  • Electronic signature[8]

  • Typed name on signature line

  • Signature by an attorney or representative signing for the requestor or requestor's child

  • Signature created by a typewriter, word processor, stamp, auto-pen, or similar device[9]

C. Who May Sign

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

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

1. Benefit Requestors Themselves

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

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

2. Parents and Legal Guardians of Requestors

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

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

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

Legal Guardian

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

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

Designated Representative

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

Durable Power of Attorney Requirements

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

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

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

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

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

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

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

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

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

  • A duly authorized partner of a partnership;

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

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

  • An executor or administrator of an estate;

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

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

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

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

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

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

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

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

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

  • Bylaws;

  • Articles of organization;

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

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

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

D. Clarification Regarding Form G-28

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

Footnotes


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[^ 18] See 8 CFR 292.

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

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

Chapter 3 - Fees

Alert

On Sept. 29, 2020, the U.S. District Court for the Northern District of California in Immigration Legal Resource Center et al., v. Wolf, et al., 20-cv-05883-JWS, preliminarily enjoined DHS from implementing or enforcing any part of the USCIS Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements rule (PDF).

While the rule is preliminarily enjoined, we will continue to:
 

  • Accept USCIS forms with the current editions and current fees; and

  • Use the regulations and guidance currently in place to adjudicate applications and petitions. This includes accepting and adjudicating fee waiver requests as provided under Adjudicator's Field Manual (AFM) Chapters 10.9 (PDF, 2.87 MB) and 10.10 (PDF, 2.87 MB).

 

Alert

The Federal District Court for the Northern District of California in Seattle v. DHS has enjoined DHS from requiring use of the 10/24/19 edition of Form I-912, Request for Fee Waiver, and from adjudicating fee waiver requests in accordance with the October 25, 2019 USCIS Policy Alert or the USCIS Policy Manual Volume 1: General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 3, Fees and Chapter 4, Fee Waivers that were issued on October 25, 2019 and took effect on December 2, 2019.

DHS is also not requiring use of the 10/24/19 edition of Form I-912, Request for Fee Waiver, and will not apply the October 25, 2019 revisions to the USCIS Policy Manual Volume 1: General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 3, Fees and Chapter 4, Fee Waivers that took effect on December 2, 2019, or any of the other changes described by the October 25, 2019 USCIS Policy Alert (including supersession and rescission of the March 13, 2011 Policy Memorandum), pursuant to an order by the Federal District Court for the District of Columbia.

The 10/24/19 edition of the form and the provisions of Chapters 3 and 4 of the Policy Manual published on October 25, 2019 have been removed from the USCIS website. USCIS will accept the current 10/15/19 edition of Form I-912 and also accept prior editions or a written request. For applicable policies currently in effect, see Adjudicator's Field Manual (AFM) Chapters 10.9 (PDF, 2.87 MB) and 10.10 (PDF, 2.87 MB).

 

Chapter 4 - Fee Waivers

Alert

On Sept. 29, 2020, the U.S. District Court for the Northern District of California in Immigration Legal Resource Center et al., v. Wolf, et al., 20-cv-05883-JWS, preliminarily enjoined DHS from implementing or enforcing any part of the USCIS Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements rule (PDF).

While the rule is preliminarily enjoined, we will continue to:
 

  • Accept USCIS forms with the current editions and current fees; and

  • Use the regulations and guidance currently in place to adjudicate applications and petitions. This includes accepting and adjudicating fee waiver requests as provided under Adjudicator's Field Manual (AFM) Chapters 10.9 (PDF, 2.87 MB) and 10.10 (PDF, 2.87 MB).

 

Alert

The Federal District Court for the Northern District of California in Seattle v. DHS has enjoined DHS from requiring use of the 10/24/19 edition of Form I-912, Request for Fee Waiver, and from adjudicating fee waiver requests in accordance with the October 25, 2019 USCIS Policy Alert or the USCIS Policy Manual Volume 1: General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 3, Fees and Chapter 4, Fee Waivers that were issued on October 25, 2019 and took effect on December 2, 2019.

DHS is also not requiring use of the 10/24/19 edition of Form I-912, Request for Fee Waiver, and will not apply the October 25, 2019 revisions to the USCIS Policy Manual Volume 1: General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 3, Fees and Chapter 4, Fee Waivers that took effect on December 2, 2019, or any of the other changes described by the October 25, 2019 USCIS Policy Alert (including supersession and rescission of the March 13, 2011 Policy Memorandum), pursuant to an order by the Federal District Court for the District of Columbia.

The 10/24/19 edition of the form and the provisions of Chapters 3 and 4 of the Policy Manual published on October 25, 2019 have been removed from the USCIS website. USCIS will accept the current 10/15/19 edition of Form I-912 and also accept prior editions or a written request. For applicable policies currently in effect, see Adjudicator's Field Manual (AFM) Chapters 10.9 (PDF, 2.87 MB) and 10.10 (PDF, 2.87 MB).

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 USCIS website for more information on where and how to submit a particular benefit request, and what initial evidence is expected.[2]

Assembling and Submitting Application Package

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

Application Intake Inquiries

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

2. Electronic Submission

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

  • Set up and manage accounts;

  • Submit benefit requests and supporting documents electronically;

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

  • Receive and respond to notices and decisions electronically;

  • Make payments online; and

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

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

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

B. Intake Processing

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

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

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

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

  • The correct fees;[7] and

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

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

  • Incomplete benefit request;[9]

  • Improper signature or no signature;[10]

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

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

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

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

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

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

Effect of Returned Payment

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

Returned Payment for an Underlying Petition

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

Returned Payment for Premium Processing Service Requests

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

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

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

Response to a NOIR

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

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

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

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

C. Date of Receipt

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

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

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

Footnotes


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

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

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

4. [^] See 8 CFR 103.2(b)(19)(ii)(B).

5. [^] See 8 CFR 103.2.

6. [^] See 8 CFR 103.2(a).

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

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

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

10. [^] See 8 CFR 103.2(a)(2).

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

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

13. [^] See 8 CFR 103.2(a)(7)(iii).

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

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

16. [^] See 8 CFR 103.2(a)(7)(iii).

17. [^] See 8 CFR 205.2.

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

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

20. [^] See 8 CFR 103.3.

21. [^] See 8 CFR 103.2(a)(7)(ii).

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

Part C - Biometrics Collection and Security Checks

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 10 - An Overview of the Adjudication Process (External) (PDF, 2.87 MB)

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.

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

C. Legal Authorities

Footnotes


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

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

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

Chapter 2 - Biometrics Collection

A. Application Support Center Appointments

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

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

B. Mobile Biometrics Collection

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

Persons in Custody

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

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

C. Fingerprint Waivers

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

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

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

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

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

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

  • The person has fewer than 10 fingers;

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

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

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

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

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

D. Biometrics Collected [Partially Reserved]

1. Fingerprints [Reserved]

2. Photographs

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

3. Signatures [Reserved]

Footnotes


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

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

3. [^] See 8 CFR 103.2(b)(13)(ii).

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

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

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

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

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

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

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

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

Chapter 3 - Security Checks [Reserved]

Part D - Attorneys and Representatives

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 12 - Attorneys and Other Representatives (External) (PDF, 384.38 KB)

Part E - Adjudications

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 10 - An Overview of the Adjudication Process (External) (PDF, 2.87 MB)

AFM Chapter 11 - Evidence (External) (PDF, 316.09 KB)

AFM Chapter 15 - Interview Techniques (External) (PDF, 423.86 KB)

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

B. Background [Reserved]

C. Legal Authorities

  • Homeland Security Act of 2002[1] 

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

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

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

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

  • 8 CFR 103.2 – Submission and adjudication of benefit requests 

  • INA 291 – Burden of proof upon alien

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

Footnotes


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

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

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

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

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

Footnotes


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

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

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 an alien enters into a marriage while in exclusion, deportation, or removal proceedings, and to determine the citizenship of children born out of wedlock.[4]

Footnotes


[^ 1] See INA 291.

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

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

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

Chapter 5 - Verification of Identifying Information

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

A. Full Legal Name

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

  • Given name (first name);​

  • Middle name(s) (if any); and​

  • Family name (last name).

The legal name is one of the following:​

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

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

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

  • Civil marriage certificate;

  • Divorce decree;

  • Family registry;

  • Country identity document;

  • Foreign birth certificate;

  • Certificate of naming; or

  • Court order.   

Construction of Foreign Names

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

B. Personal Information

1. Date of Birth [Reserved]

2. Gender

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

  • A court order granting change of sex or gender;

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

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

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

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

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

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

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

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

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 his or her 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] See 8 CFR 204.2. See 8 CFR 320.3. See 8 CFR 322.3.

[^ 3] For more information, see 8 Foreign Affairs Manual (FAM) 403.1, Name Usage and Name Change.

[^ 4] Proof of sex reassignment surgery or any other specific medical treatment is not required to show changed gender; a licensed health care professional’s certification is sufficient.

[^ 5] See Appendix: Sample Language for Healthcare Certification.

Chapter 6 - Evidence [Reserved]

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.

Immigration Benefits Involving Discretionary Review

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

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

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

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

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

2. Adjudicative Discretion

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

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

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

3. Who Exercises Discretion

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

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

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

4. Discretion

Eligibility Threshold

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

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

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

Lack of Negative Factors

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

C. Adjudicating Discretionary Benefits

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

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

  • Is eligible to receive an immigrant visa;

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

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

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

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

1. Basic Adjudication Steps

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

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 alien warrants a favorable exercise of discretion.[46]

2. Identifying Discretionary Factors

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

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

Factors That May Be Considered

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

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

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

  • Hardship due to an adverse decision;[50]

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

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

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

  • History of employment;[54]

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

  • History of taxes paid;

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

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

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

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

  • Community service beyond any imposed by the courts;

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

  • Public safety or national security concerns;[60]

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

  • Findings of juvenile delinquency;[62]

  • Compliance with immigration laws;[63]

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

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

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

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

3. Weighing Factors

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

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

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

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

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

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

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

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

4. Supervisory Review[71]

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

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

D. Documenting Discretionary Determinations

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

Favorable Exercise of Discretion

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

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

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

Unfavorable Exercise of Discretion[72]

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

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

Articulating Analysis Separately for Discretion and Threshold Eligibility Requirements

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

Denying Benefit Requests as a Matter of Discretion

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

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

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

  • Identify, specifically, each negative factor;

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

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

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

Footnotes


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[^ 38] See INA 209(b).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter 9 - Rendering a Decision [Reserved]

Part F - Motions and Appeals

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 10 - An Overview of the Adjudication Process (External) (PDF, 2.87 MB)

Part G - Notice to Appear

Volume 2 - Nonimmigrants

Part A - Nonimmigrant Policies and Procedures

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 30 - Nonimmigrants in General (External) (PDF, 541.89 KB)

AFM Chapter 61 - Bonds (External) (PDF, 77.92 KB)

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, an alien must generally have a permanent residence abroad and qualify for the nonimmigrant classification sought.

B. Background

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

C. Legal Authorities

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 and Change of Status

Alert

On Sept. 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows DHS to resume implementing the Public Charge Ground of Inadmissibility final rule nationwide, including in New York, Connecticut and Vermont. The decision stays the July 29, 2020, injunction, issued during the coronavirus (COVID-19) pandemic, that prevented DHS from enforcing the public charge final rule during a national health emergency.

Therefore, we will apply the public charge final rule and related guidance in the USCIS Policy Manual, Volumes 2, 8 and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. If you send your application or petition by commercial courier (for example, UPS, FedEx, or DHL), we will use the date on the courier receipt as the postmark date.

For information about the relevant court decisions, please see the public charge injunction webpage.

A. Nonimmigrants Seeking Extension of Stay or Change of Status

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

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

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

B. Public Benefits Condition[5]

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

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

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

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

1. Exemption[13]

This public benefits condition does not apply if:

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

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

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

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

2. Evidence

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

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

3. Decision

Denial

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

Approval

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

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

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

Step-by-Step Overview: Determining How to Apply Public Benefits Condition

Step

If yes, then…

If no, then…

Step 1: Determine whether the application or petition was postmarked on or after February 24, 2020.

Proceed to Step 2.

The public benefits condition does not apply – proceed with the EOS or COS adjudication.

Step 2: Determine whether the nonimmigrant classification the alien seeks to extend or change to, is exempt from the public charge ground of inadmissibility or whether the alien received a waiver of the public charge ground of inadmissibility for the nonimmigrant classification.

The public benefits condition does not apply – proceed with adjudication of the EOS or COS request.

Proceed to Step 3.

Step 3: Determine whether the alien seeking EOS or COS received public benefits on or after February 24, 2020 in excess of 12 months, in the aggregate, within any 36-month period after the alien obtained the nonimmigrant status he or she seeks to extend or change from:

  • Review the responses to the public benefit receipt questions on Form I-539/I-539A or Form I-129/I-129CW; and

  • Review the file and available systems.

Deny the EOS or COS request for lack of eligibility based on the public benefits condition.

Proceed with the EOS or COS adjudication.

Footnotes


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

2. [^] See INA 248. See 8 CFR 248.

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

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

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

6. [^] See 8 CFR 214.1.

7. [^] See INA 248. See 8 CFR 248.

8. [^] See INA 212(a)(4).

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

10. [^] See 8 CFR 212.23.

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

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

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

14. [^] See 8 CFR 212.23.

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

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

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

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

Part B - Diplomatic and International Organization Personnel (A, G)

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 30 - Nonimmigrants in General (External) (PDF, 541.89 KB)

Part C - Visitors for Business or Tourism (B)

Part D - Exchange Visitors (J)

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 45 - Waiver of Section 212(e) Foreign Residence Requirement (External) (PDF, 178.03 KB)

Part E - Cultural Visitors (Q)

Chapter 1 - Purpose and Background

A. Purpose

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

B. Background

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

C. Legal Authorities

Footnotes


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

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

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

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

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

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, an alien lawfully admitted for permanent residence, or an alien provided temporary residence status under INA 210 or INA 245A.[6]

B. Program Requirements

1. Accessibility to the Public

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

2. Cultural Component

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

  • Seminars;

  • Courses;

  • Lecture series; or

  • Language camps.[9]

3. Work Component

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

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

4. Services in More than One Location

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

C. Participant Requirements

1. Participant Requirements

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

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

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

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

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

2. Family Members

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

Footnotes


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 multiple participants on one petition.[1] A participant may provide services, labor, or training for more than one employer at a time, provided each employer files a separate petition.[2]

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

B. Evidence

1. Evidence Relating to the Employer

The petitioner must provide evidence that demonstrates that the employer:

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

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

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

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

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

2. Evidence Relating to the Program

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

  • Catalogs;

  • Brochures;

  • Curriculum; or

  • Any other evidence describing the program.

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

Multiple Petitions in Same Calendar Year

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

3. Evidence Relating to the Alien Participants

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

  • Date of birth;

  • Country of nationality;

  • Level of education;

  • Position title; and

  • Job description. [10]

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

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

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

Footnotes


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

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

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

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

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

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

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

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

[^ 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).

[^ 14] See 8 CFR 214.2(q)(5)(ii).

[^ 15] See 8 CFR 214.2(q)(7)(iv).

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. 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.[8]

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.[9]

B. Denials

If the petitioner does not meet the eligibility requirements, the officer must deny the petition.[10] The officer may deny a petition for multiple participants in whole or in part.[11] 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.[12] 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[13] and the AAO has jurisdiction over any appeal.[14]

Footnotes


[^ 1] See 8 CFR 214.2(q)(7)(iii).

[^ 2] See Matter of R-C-C-S-D- (PDF, 356.08 KB), 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] See 8 CFR 214.2(q)(9)(iv).

[^ 9] See 8 CFR 214.2(q)(9)(v).

[^ 10] See 8 CFR 103.2(b)(8).

[^ 11] See 8 CFR 214.2(q)(8)(ii)

[^ 12] See 8 CFR 103.2(b)(19). See 8 CFR 103.3. See 8 CFR 214.2(q)(8)(i).

[^ 13] See 8 CFR 103.5(a)(1)(ii).

[^ 14] 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).

[^ 6] See 8 CFR 214.2(q)(5)(v).

Part F - Students (F, M)

Part G - Treaty Traders and Treaty Investors (E-1, E-2)

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 34 - Other Employment Authorized Nonimmigrants (E, I & R Classifications) (External) (PDF, 191.62 KB)

Part H - Specialty Occupation Workers (H-1B, E-3)

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 30 - Nonimmigrants in General (External) (PDF, 541.89 KB)

AFM Chapter 31 - Petitions for Temporary Workers (H Classifications) (External) (PDF, 798.91 KB)

AFM Chapter 34 - Other Employment Authorized Nonimmigrants (E, I & R Classifications) (External) (PDF, 191.62 KB)

Part I - Temporary Agricultural and Non-Agricultural Workers (H-2)

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 31 - Petitions for Temporary Workers (H Classifications) (External) (PDF, 798.91 KB)

Part J - Trainees (H-3)

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 31 - Petitions for Temporary Workers (H Classifications) (External) (PDF, 798.91 KB)

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 an alien with job-related training that is not available in his or her country for work that will ultimately be performed outside the United States.

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[.]”[3] 

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.[4] 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[.]”[5] 

Finally, the Immigration Act of 1990[6] 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[.]”[7] However, Congress indirectly expanded the classification by creating the Special Education Exchange Visitor Program,[8] which the legacy Immigration and Naturalization Service placed within the H-3 category.[9] Congress has not amended the statute since 1990.[10] 

C. Legal Authorities

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 Section 101(a)(15)(H)(iii) of the INA, Pub. L. 82-414, 66 Stat. 163, 168 (June 27, 1952).

[^ 4] See INA of April 7, 1970, Pub. L. 91-225, 84 Stat. 116, amending INA 101(a)(15)(H)(iii).

[^ 5] 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).

[^ 6] See Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649, 104 Stat. 4978 (November 29, 1990).

[^ 7] See IMMACT 90, Pub. L. 101-649, 104 Stat. 5022 (November 29, 1990). 

[^ 8] See IMMACT 90, Pub. L. 101-649, 104 Stat. 5028 (November 29, 1990).

[^ 9] See 56 FR 31553, 31554 (PDF) (Jul. 11, 1991) (proposed rule). See 56 FR 61111, 61119-61120 (PDF) (Dec. 2, 1991) (final rule). 

[^ 10] See INA 101(a)(15)(H)(iii).

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 alien’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 alien 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 alien 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). Multiple 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:

  • The overall schedule, including the type of training and supervision;

  • The structure of the training program;

  • The number of hours per week which will involve productive employment, if any;

  • The number of hours per week in classroom study; 

  • The number of hours per week in on-the-job training;

  • What skills the beneficiary will acquire (and how these skills relate to pursuing a career abroad); and

  • The source of any remuneration.

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: 

  • That the beneficiary has a full and unrestricted nursing license to work in the country where his or her nursing education was obtained, or 

  • That the education took place in the United States or Canada. 

In addition, petitioners seeking H-3 status for a nurse must also include a statement certifying:

  • That the beneficiary is qualified under the laws governing the place where the training will be received; 

  • That under those laws the petitioner is authorized to provide the training; 

  • That there is a genuine need for the nurse to receive the training;

  • That the training is designed to benefit the beneficiary upon returning to his or her country of origin; and

  • That the training is designed to benefit the beneficiary’s overseas employer.

Hospitals petitioning for externs must also:

  • Provide proof that the hospital has been approved by the American Medical Association (AMA) or the American Osteopathic Association (AOA) for either an internship or residence program, and

  • Provide proof that the extern is currently attending medical school abroad.

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 U.S. v. Cardozo-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 alien 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

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

If Requesting Premium Processing:

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).

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


[^ 1] See 8 CFR 214.2(h)(9)(iv).

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 aliens 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 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). 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, an alien who was previously granted H-4 dependent status and subsequently is granted H-3 classification, or an alien 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

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.

Classes of Applicants and Corresponding Codes of Admission

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].

Part L - Intracompany Transferees (L)

In May 2020, USCIS retired its Adjudicator’s Field Manual (AFM), a collection of our immigration policies and procedures. We are working quickly to update and incorporate all of the AFM content into the USCIS Policy Manual, the agency’s centralized online repository for immigration policies. Until then, we have moved any remaining AFM content 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 USCISPolicyManual@uscis.dhs.gov.

AFM Chapter 32 - Petitions for Intracompany Transferees (L Classification) (External) (PDF, 387.96 KB)

Part M - Aliens 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 nonimmigrant aliens 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 persons 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:

  • Aliens of extraordinary ability in the sciences, arts, education, business, or athletics (O-1 nonimmigrants);

  • Aliens of extraordinary achievement in the motion picture or television industry (O-1 nonimmigrants); and 

  • Certain aliens 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 Alien (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]

An O beneficiary may not petition for himself or herself.[2]

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[5]

A U.S. agent 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 (PDF, 790.07 KB),” issued on November 20, 2009.

6. [^] See 8 CFR 214.2(o)(2)(iv)(E).

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 a person 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 motion picture and television productions, a beneficiary (commonly referred to O-1B (MPTV)) 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 persons 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]

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 alien meets the relevant standard outlined in the statute and regulations.”[7] 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.[8] 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.[9] 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.[10]

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;[11]

  • O-1B (Arts) beneficiary has sustained national or international acclaim and has achieved distinction in the field of arts;[12] 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.[13]

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 an alien of extraordinary ability or achievement based on the relevant statutory and regulatory language.

C. O-1A Beneficiaries in Sciences, Education, Business, or Athletics

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).[14]

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) or at least three of the following forms of evidence:

  • Documentation of the beneficiary's receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

  • 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;

  • 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, which must include the title, date, and author of such published material, and any necessary translation;

  • 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;

  • Evidence of the beneficiary's original scientific, scholarly, or business-related contributions of major significance in the field;

  • Evidence of the beneficiary's authorship of scholarly articles in the field, in professional journals, or other major media;

  • Evidence that the beneficiary has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or

  • 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.[15]

If these criteria are not readily applicable to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.[16]

Petitioners should submit evidence outlined in the evidentiary criteria if the criteria readily apply to the beneficiary’s occupation.[17] 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.[18]

A petitioner is not required to show that all or a majority of the criteria does 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. 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.[19]

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.[20] 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 his or her field of endeavor.

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 and international acclaim, as described in the O statute and regulations.[21]

D. O-1B Beneficiaries in the Arts

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).[22]

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 in the particular field (such as an Academy Award, Emmy, Grammy, or Director’s Guild Award) or at least three of the following forms of evidence:

  • Evidence that the beneficiary has performed, and will perform, services as a lead or starring participant in productions or events that have a distinguished reputation, as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

  • Evidence that the beneficiary has achieved national or international recognition for achievements, as evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;

  • 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, as evidenced by articles in newspapers, trade journals, publications, or testimonials;

  • 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;

  • 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; or

  • 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.[23]

If these criteria are not readily applicable to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.[24]

Petitioners should submit evidence outlined in the evidentiary criteria if the criteria readily apply to the beneficiary’s occupation.[25] 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 does 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. 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.[26]

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.[27] 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 his or her field of endeavor.

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 and international acclaim, as described in the O statute and regulations.[28]

E. O-1B Beneficiaries in Motion Picture or Television

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. However, the productions need not require someone with a record of extraordinary achievement.

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 in the particular field (such as an Academy Award, Emmy, Grammy, or Director’s Guild Award) or at least three of the following forms of evidence:

  • Evidence that the beneficiary has performed, and will perform, services as a lead or starring participant in productions or events that have a distinguished reputation, as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

  • Evidence that the beneficiary has achieved national or international recognition for achievements, as evidenced by critical reviews or other published materials by or about the beneficiary in major newspapers, trade journals, magazines, or other publications;

  • 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, as evidenced by articles in newspapers, trade journals, publications, or testimonials;

  • 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;

  • Evidence that the beneficiary has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the beneficiary’s field. Such testimonials must be in a form that clearly indicates the author's authority, expertise, and knowledge of the beneficiary's achievements; or

  • 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.[29]

Petitioners for beneficiaries working in motion picture or television productions must submit evidence that applies to the criteria listed above; they may not rely on comparable evidence.[30]

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.[31]

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 an alien was recognized for a particular achievement, the officer should determine whether the alien continues to maintain a comparable level of acclaim in the field of expertise since the alien was originally afforded that recognition. An alien 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. [^] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(3)(ii).

8. [^] See 59 FR 41818, 41820 (Aug. 15, 1994).

9. [^] 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”).

10. [^] 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.

11. [^] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(3)(ii).

12. [^] See INA 101(a)(15)(O)(i). See 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”).

13. [^] See INA 101(a)(15)(O)(i). See 8 CFR 214.2(o)(3)(ii).

14. [^] See INA 101(a)(15)(O)(i).

15. [^] See 8 CFR 214.2(o)(3)(iii).

16. [^] See 8 CFR 214.2(o)(3)(iii)(C).

17. [^] See 8 CFR 214.2(o)(3)(iii).

18. [^] 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, 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.

19. [^] 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.” 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.

20. [^] 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.

21. [^] 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.

22. [^] See INA 101(a)(15)(O)(i).

23. [^] See 8 CFR 214.2(o)(3)(iv).

24. [^] 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.

25. [^] See 8 CFR 214.2(o)(3)(iv).

26. [^] 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.” 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.

27. [^] 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.

28. [^] 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.

29. [^] See 8 CFR 214.2(o)(3)(v).

30. [^] See 8 CFR 214.2(o)(3)(v).

31. [^] See Section B, Determining Eligibility for O-1 Classification [2 USCIS-PM M.4(B)].

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).

4. [^] See 8 CFR 214.2(o)(4)(ii)(A).

5. [^] See 8 CFR 214.2(o)(4)(ii)(C).

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).

[^ 2] See 8 CFR 214.2(o)(6)(iv).

[^ 3] 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]

More than one O-2 accompanying beneficiary 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.

Consultation Process for O Nonimmigrants

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).

20. [^] See 8 CFR 214.2(o)(5)(i)(E)-(F).

21. [^] See 8 CFR 214.2(o)(5)(ii)(B).

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 aliens of extraordinary ability or achievement, those accompanying and assisting the principal alien’s artistic or athletic performance, and dependents.

Classes of Beneficiaries and Corresponding Codes of Admission

Beneficiary

Code of Admission

Alien of extraordinary ability in the sciences, education, business, or athletics (principal)

O-1A

Alien of extraordinary ability in the arts (principal)

O-1B

Alien 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. USCIS considers all relevant evidence presented in deciding whether to revoke the petition.

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.[11]

Footnotes


1. [^] See U.S. v. Cardozo-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. [^] See 8 CFR 214.2(o)(9)(ii).

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 alien 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 he or she was admitted, plus an additional 10 days to allow the beneficiary to get his or her personal affairs in order.[14] There is no limit to the number of extensions of stay a petitioner can file for the same beneficiary.

USCIS should not deny requests for extensions of stay filed by the initial petitioner solely on the basis that the event that supported the initial petition has changed. USCIS also should not deny such requests filed by subsequent petitioners solely on the basis that the event or employer has changed. 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.[15]

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.[16]

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.[17] 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.[18]

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.[19]

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.[20]

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.[21]

Footnotes


1. [^] See 8 CFR 214.2(o)(6)(iii).

2. [^] See 8 CFR 214.2(o)(10)

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)(13).

16. [^] 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.

17. [^] See 8 CFR 248.3(a).

18. [^] There is no appeal from a change of status denial. See 8 CFR 248.3(g).

19. [^] See 8 CFR 214.2(o)(13).

20. [^] See 8 CFR 214.2(o)(2)(iv)(C).

21. [^] See 8 CFR 214.2(o)(2)(iv)(G).

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 nonimigrant 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

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. P-1A Internationally Recognized Athlete

The P-1A nonimmigrant classification may be either for an individual athlete with an internationally recognized reputation or a member of an athletic group or 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 that has an international reputation.

Individual athletes who are internationally recognized may also be coming to the United States to join a U.S.-based team.[2] A 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.[3]

2. COMPETE Act [Reserved]

3. P-1B Member of Internationally Recognized Entertainment Group

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.[4]

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.[5] 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.[6]

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.[7] “Member of a group” means a person who is actually performing the entertainment services.[8] It does not include persons who assist in the presentation who are not on the stage (such as lighting or sound technicians). These support aliens would need to be petitioned for as essential support (P-1S) and a separate petition must be filed for them.[9]

If a solo artist or entertainer traditionally performs on stage with the same group of aliens, 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.[10] 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. P-2 Individual Performer or Part of a Group Performing Under a Reciprocal Exchange Program

A P-2 nonimmigrant is an alien 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.[11]

2. P-3 Artist or Entertainer as Part of Culturally Unique Program

A P-3 nonimmigrant is an alien coming to the United States solely to perform, teach, or coach under a commercial or noncommercial program that is culturally unique.[12]

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 alien.[13]

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 alien’s stay being extended.   

Footnotes


[^ 1] See 8 CFR 214.2(p)(1)(ii)(A)(1). 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 COMPETE Act of 2006, 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)(ii)(A).

[^ 3] See 8 CFR 214.2(p)(4)(i)(B).

[^ 4] 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.

[^ 5] See 8 CFR 214.2(p)(4)(i)(B).

[^ 6] See 8 CFR 214.2(p)(4)(iii)(C).

[^ 7] See 8 CFR 214.2(p)(3).

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

[^ 9] See 8 CFR 214.2(p)(4)(iv).

[^ 10] See 8 CFR 214.2(p)(4)(i)(B).

[^ 11] See INA 101(a)(15)(P)(ii). See 8 CFR 214.2(p)(1)(ii)(B).

[^ 12] See 8 CFR 214.2(p)(1)(ii)(C).

[^ 13] 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 an alien 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 an alien who is present in the United States in another nonimmigrant classification must be filed on Form I-129.[3] If the alien 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 an alien 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 group seeking classification based on the reputation of the group.[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) (PDF, 790.07 KB), 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) (PDF, 790.07 KB), 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).

11. [^] See 8 CFR 214.2(p)(2)(i).

12. [^] 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]

Required Documentation to Establish Level of Skill and Talent by P-1 Nonimmigrant

Type of P-1 Nonimmigrant and Related Authority

Examples of Documents

Individual Athlete or Athletic Team

8 CFR 214.2(p)(4)(ii)(B)

Tendered contract with a major U.S. 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; and two forms of the following types of documentation:
 

  • Evidence of significant participation in a prior season with a major U.S. sports league;

  • 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 the governing body of the sport detailing the alien’s or team’s international recognition;

  • A written statement from a recognized expert or member of the sports media detailing the alien’s or team’s international recognition;

  • Evidence that the alien or team is ranked if the sport has international rankings; or

  • Evidence the alien or team has received a significant honor or award in the sport.

Entertainment Group

8 CFR 214.2(p)(4)(iii)(B)

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:

  • 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 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.

Circus Groups

8 CFR 214.2(p)(4)(iii)(C)

  • Evidence the alien is coming to join (perform in) a circus that has been recognized nationally as outstanding for a sustained and substantial period of time or as part of such a circus.

Essential Support Personnel

8 CFR 214.2(p)(4)(iv)

  • Statement describing the alien’s prior essentiality and skills and experience with the principal alien, group, or team.

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.[4]

B. Evidence for P-2 Nonimmigrant Classification

A petition filed on behalf of an alien seeking P-2 nonimmigrant classification should be submitted with the following supporting evidence: the consultation,[5] a copy of the reciprocal agreement, and evidence that the beneficiaries are subject to the reciprocal exchange.[6] 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.[7]

C. Evidence for P-3 Nonimmigrant Classification

A petition filed on behalf of an alien seeking P-3 nonimmigrant classification should be submitted with the following supporting evidence:[8]

  • Affidavits, testimonials, or letters from recognized experts attesting to the authenticity of the alien’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 alien’s or group’s skill; or

  • Documentation that the performance of the alien 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.[9] This consultation must be from an appropriate labor organization and address the nature of the work to be done and the alien’s qualifications or, for certain classifications, the organization may indicate it has no objection to approval of the petition.[10] 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.

Consultation Requirement

Petition

Source and Contents of Consultation

P-1

Consultation with an appropriate labor organization is required if one exists. The consultation must evaluate the alien's (group's) qualifications and state whether the services or performances are appropriate for an internationally recognized athlete or entertainment group.[11] 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.[12]

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.[13] 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.[14] 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.[15] The consultations are advisory in nature only and are not binding on USCIS.[16] 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 alien, 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.[17]

Footnotes


[^ 1] See 8 CFR 214.2(p)(4)(i).

[^ 2] See 8 CFR 214.2(p)(4)(iii).

[^ 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] See Pub. L. 109-463 (PDF) (December 22, 2006).

[^ 5] See Section D, Consultation Requirement [2 USCIS-PM N.4(D)].

[^ 6] See 8 CFR 214.2(p)(5)(ii).

[^ 7] See 8 CFR 214.2(p)(5)(ii).

[^ 8] See 8 CFR 214.2(p)(6)(ii). See Matter of Skirball Cultural Center (PDF), 25 I&N Dec. 799 (AAO 2012).

[^ 9] See INA 214(c)(4)(D). See INA 214(c)(4)(E).

[^ 10] See 8 CFR 214.2(p)(7).

[^ 11] See 8 CFR 214.2(p)(7)(ii). See 8 CFR 214.2(p)(7)(iii).

[^ 12] See 8 CFR 214.2(p)(7)(iv).

[^ 13] See 8 CFR 214.2(p)(7)(v).

[^ 14] See 8 CFR 214.2(p)(7)(vi).

[^ 15] See 8 CFR 214.2(p)(7)(i)(E).

[^ 16] See 8 CFR 214.2(p)(7)(i)(D).

[^ 17] 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 alien 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.

Approval Period for a P Nonimmigrant Petition

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 an alien 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 alien.[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) (PDF, 476.13 KB), 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) (PDF, 327.89 KB), 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 alien’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 alien will apply for a visa or immigration officer at a port of entry where the alien 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).

[^ 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 visit the petitioning employer's facility before issuing a decision.

C. Legal Authorities

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 (EB-4) 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 (PDF, 121.85 KB) (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).

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 aliens 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 (PDF, 367.52 KB)).

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, but may not be limited to, 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.

The petitioner cannot use a foreign address, as the employer must be in the United States in order to petition for religious workers.[12]

1. Pre-approval Inspection[13]

Through the Administrative Site Visit and Verification Program (ASVVP), USCIS conducts pre-approval compliance reviews on all petitioners for religious workers. USCIS closely monitors the site visit program to ensure that it does not cause undue delays in the adjudication process. Satisfactory completion of the pre-approval compliance review, which can include an on-site inspection, is a condition for approval of the petition. The inspection may include:

  • A tour of the organization’s facilities (including places of worship, if applicable) and, if appropriate, the organization’s headquarters or satellite locations;

  • An interview with the organization’s officials;

  • A review of the organization’s records related to compliance with immigration laws and regulations; and

  • Any other interviews or review of any other records that USCIS considers pertinent to the integrity of the organization.

2. Post-adjudication Inspection

In addition, as part of the compliance review process, USCIS may conduct a post-adjudication inspection of the beneficiary’s work location to verify the beneficiary’s work hours, compensation, and duties or where the petitioner has undergone substantial changes since its last filing.[14] USCIS may also conduct “for cause” post-adjudication inspection in cases where there is suspected fraud.

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:[15]

  • 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;[16] 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.[17] 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.[18]

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.[19]

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.

Summary of Evidence Requirements Relating to the R-1 Nonimmigrant Petition

Type of Petitioner

Required Evidence

Tax-Exempt 501(c)(3) Religious Organization

  • A currently valid determination letter from the IRS establishing that the organization is tax-exempt.

Group Tax-Exempt Religious Organization

  • A currently valid determination letter from the IRS establishing that the group is tax-exempt.

  • Documentation that the organization is covered under the group tax exemption, including, for example, a letter from the parent organization authorizing the petitioner to use its group tax exemption, a directory for that organization listing the petitioner as a member of the group, a membership listing on the parent organization’s website that confirms coverage under its exemption, or a letter from the IRS confirming the coverage.

  • If the submitted IRS determination letter does not identify the organization’s tax exemption as a religious organization, then evidence establishing its religious nature and purpose. Such evidence may include, but is not limited to, the entity’s articles of incorporation or bylaws, flyers, articles, brochures, or other literature that describes the religious purpose and nature of the organization.

Bona Fide Organization Affiliated with Religious Denomination

  • A currently valid determination letter from the IRS establishing that the organization is tax-exempt.

  • If the organization was granted tax-exempt status under IRC 501(c)(3) as something other than a religious organization, then:

    • documentation that establishes the religious nature and purpose of the organization, including, but not limited to, a copy of the organizing instrument that specifies the purposes of the organization, organizational literature, such as books, articles, brochures, calendars, flyers, and other literature describing the religious purpose and nature of the activities of the organization.

  • A Religious Denomination Certification signed by the religious denominational entity (not the petitioner) that the petitioner is affiliated with, which is part of the Petition for a Nonimmigrant Worker (Form I-129), R-1 Classification Supplement, certifying that the petitioning organization is affiliated with the religious denomination.

E. Employer Obligations[20]

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[21]

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.[22] 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.[23] 

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.[24]

When the beneficiary will receive salaried or non-salaried compensation, the petitioning employer may also submit verifiable evidence such as:[25]

  • 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.[26]

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.[27] 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.

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.[28]

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.[29]

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.[30]

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.[31] 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 employees, including R-1 nonimmigrants.

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. [^] See 8 CFR 214.2(r)(16).

13. [^] See 8 CFR 214.2(r)(16). See 73 FR 72276 (PDF) (Nov. 26, 2008).

14. [^4] See 8 CFR 214.2(r)(16).

15. [^] See 8 CFR 103.2(a) and 8 CFR 103.2(b)(1).

16. [^] 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.

17. [^] See 8 CFR 214.2(r)(9)(ii).

18. [^] See 8 CFR 214.2(r)(9)(iii)(D).

19. [^] See 8 CFR 214.2(r)(9)(iii).

20. [^] See 8 CFR 214.2(r)(14).

21. [^] See 8 CFR 214.2(r)(11).

22. [^] See 8 CFR 214.2(r)(11).

23. [^] See 8 CFR 214.2(r)(11).

24. [^] See 8 CFR 214.2(r)(11)(i).

25. [^] This is not a conclusive list and petitioners may submit other verifiable evidence acceptable to USCIS. See 8 CFR 214.2(r)(11)(i).

26. [^] 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).

27. [^] See 8 CFR 214.2(r)(11).

28. [^] See 8 CFR 214.2(r)(11)(ii)(A).

29. [^] See 8 CFR 214.2(r)(11)(ii)(B)(1)-(4).

30. [^] See 8 CFR 214.2(r)(11)(ii)(C)(1)-(5).

31. [^1] See 8 CFR 214.2(r)(8)(v)–(vi).

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).

[^ 19] See 8 CFR 214.2(r)(4)(ii)(A).

[^ 20] See 8 CFR 214.2(r)(4)(ii)(B).

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.

Classes of Beneficiaries and Corresponding Codes of Admission

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. USCIS must consider all relevant evidence presented in deciding whether to revoke the approval of the petition.[11]

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.[12] 

Footnotes


1. [^] 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). 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. [^] See 8 CFR 214.2(r)(18)(iii)(B).

12. [^] 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.

Extension of Stay Requests: Evidence of Beneficiary’s Compensation

Beneficiary’s Previous Compensation

Required Evidence

Salary

  • The petitioner must submit IRS documentation showing that the beneficiary received a salary, 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 or the period of stay if less than 2 years.

Non-Salary

  • If IRS documentation is available, the petitioner must submit IRS documentation of the non-salaried compensation.

  • If IRS documentation is not available, the petitioner must explain the lack of IRS documentation and submit verifiable evidence of all financial support, such as stipends, room and board, or other support for the beneficiary along with a description of the location where the beneficiary lived, or a lease for the beneficiary. The petitioner may also submit other evidence acceptable to USCIS.

No Salary, But Provided Own Support

  • Provide verifiable documents to show how support was maintained, such as audited financial statements, financial institution records, brokerage account statements, trust documents signed by an attorney, or other evidence acceptable to USCIS.

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