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Volume 6 - Immigrants

Resources

Legal Authorities

20 CFR 656 - Labor Certification Process for Permanent Employment of Aliens in the United States

20 CFR 656.10 - General Instructions

20 CFR 656.15 - Applications for labor certification for Schedule A occupations

20 CFR 656.17 - Basic labor certification process

20 CFR 656.20 - Audit Procedures

20 CFR 656.26 - Board of Alien Labor Certification Appeals review of denials of labor certification

20 CFR 656.3 - Definitions

20 CFR 656.5 - Schedule A

26 U.S.C. 501 - Exemption from tax on corporations, certain trusts, etc.

73 FR 72275 (PDF) - Special immigrant and nonimmigrant religious workers

8 CFR 103.3 - Denials, appeals, and precedent decisions

8 CFR 103.5 - Reopening or reconsideration

8 CFR 204.5 - Petitions for employment-based immigrants

8 CFR 204.9 - Special immigrant status for certain aliens who have served honorably (or are enlisted to serve) in the Armed Forces of the United States for at least 12 years

8 CFR 205.1(a)(3)(iv) - Reasons for automatic revocation

8 CFR 205.2 - Revocation on notice

8 CFR 216.3 - Termination of conditional permanent resident status

INA 101(a)(27) - Definitions of certain special immigrants

INA 101(a)(27)(J), 8 CFR 204.11 - Special immigrant juveniles

INA 101(b) - Definition of child

INA 201 - Worldwide level of immigration

INA 202 - Numerical limitations on individual foreign states

INA 203 - Allocation of immigrant visas

INA 203(b)(2) - Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability

INA 203(b)(3) - Skilled workers, professionals, and other workers

INA 203(b)(4) - Certain special immigrants

INA 203(b)(5), 8 CFR 204.6 - Employment creation immigrants

INA 204(a)(1)(G)(i) - Petitioning procedure

INA 2048 CFR 204 - Procedure for granting immigrant status

INA 212(a)(5) - Labor certification and qualifications for certain immigrants

INA 216A, 8 CFR 216.6 - Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

INA 245(h) - Adjustment of special immigrant juveniles

INA 287(h) - Protecting abused juveniles

Legal Settlement Notice (PDF, 44.09 KB) - Ruiz-Diaz v. United States

Pub. L. 102-395 (as amended) (PDF) (PDF, 83.2 KB) - Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993

Pub. L. 102-395 (PDF) - Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993

Pub. L. 109-163 (PDF) - Section 1059 of the National Defense Authorization Act for Fiscal Year 2006, as amended – Special immigrant status for persons serving as translators with U.S. armed forces

Pub. L. 110-181 (PDF) - Section 1244 of the National Defense Authorization Act for Fiscal Year 2008, as amended – Special immigrant status for certain Iraqis

Pub. L. 111-8 (PDF) - Section 602(b), Title VI of the Afghan Allies Protection Act of 2009

Appendices

Appendix: Sample Notice of Filing

There is no specific form that petitioning employers must use to comply with the notice of filing requirements for Schedule A petitions. The following is a sample notice of filing that petitioners may elect to use in the workplace. USCIS developed this sample for stakeholders’ convenience. It is not intended to be relied upon to create or confer any right(s) or benefit(s), substantive or procedural, enforceable at law by any person or other party in benefit applications before USCIS, in removal proceedings, in litigation with the United States, or in any other form or manner.

Officers should accept notices that are modeled after the sample, but should not require use of the exact sample. Petitioning employers may use other notice formats as long as they comply with the DOL regulations.

Notice of the Filing of the Application for Permanent Employment Certification

This notice is being provided as a result of the filing of an Application for Permanent Employment Certification (ETA Form 9089). The employer intends to permanently employ a foreign national in the job opportunity described below.

Any person may provide documentary evidence bearing on the application to the Certifying Officer of the U.S. Department of Labor. The address of the Certifying Officer is:

_____________________________________________________________________

This Notice of Filing will be posted between 30 and 180 days before filing the permanent labor certification application.

INFORMATION ABOUT THE JOB OPPORTUNITY

EMPLOYER’S NAME: _________________________________________________________

POSITION TITLE: ____________________________________________________________

POSITION DUTIES: __________________________________________________________

___________________________________________________________________________

RATE OF PAY: $________ per ____________

ADDRESS(ES) OF EMPLOYMENT: ______________________________________________

____________________________________________________________________________

EMPLOYER STATES:

  • There is no bargaining representative for the job opportunity with the employer in the location(s) of intended employment.

  • This notice was clearly visible and unobstructed while posted. It was posted for at least ten (10) consecutive business days in a conspicuous location in the workplace, where the employer’s U.S. workers could readily read the posted notice, including but not limited to locations in the immediate vicinity of the wage and hour notices.

  • DATE POSTED: __________________________________ 

  • DATE REMOVED: ________________________________ 

  • LOCATION(S) WHERE THE NOTICE WAS POSTED: ___________________________________________________________________________________________________________________________

 [SIGNATURE]                                             DATE

___________________________       ___________________________

[PRINTED NAME AND TITLE]

___________________________

Appendix: Update to Special Immigrant Juvenile Policy and Administrative Procedure Act (APA) Considerations

On November 19, 2019, USCIS provided more clarity on several requirements for special immigrant juvenile (SIJ) classification, including the following:

  • USCIS reaffirmed and clarified that the petitioner must have been a juvenile under the relevant state law definition of “juvenile” (or equivalent term) when the juvenile court order was issued;[1] 

  • USCIS clarified the definition of a juvenile court for purposes of SIJ classification and provides examples of the types of evidence that may be provided to establish that a court is acting as a qualifying juvenile court;[2] 

  • USCIS clarified guidance on what constitutes a qualifying “dependency” or “custody” determination from the juvenile court for the purposes of SIJ classification eligibility;[3]

  • USCIS clarified guidance on the statutorily-mandated USCIS consent function;[4]

  • USCIS clarified guidance on what qualifies as a similar basis to abuse, neglect, or abandonment under state law;[5] and

  • USCIS reaffirmed for officers that the agency no longer requires that the juvenile court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification.[6]

These updates and clarifications of current USCIS policy guidance are based on USCIS interpretation of the applicable terms in DHS regulations and the Immigration and Nationality Act (INA). An agency is not required to use the Administrative Procedure Act’s (APA) notice-and-comment procedures to issue an interpretive rule or one that amends or repeals an existing interpretive rule,[7] or when modifying rules of agency organization, procedure, or practice.[8] However, the instruction to not require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification was a policy change in response to the resource strain of ongoing litigation. As with all other policy guidance USCIS issues, these updates and clarifications to officers do not add to the substantive regulations, create legally binding rights, obligations, or change the substantive standards by which USCIS will evaluate SIJ petitions. Accordingly, USCIS published no Federal Register notices requesting public comment because public notice is not required for these internal policy changes and clarifications.

Unfair Surprise and Reliance Interest

An agency can change its interpretation of a regulation at different times in its history as long as the interpretative changes create no unfair surprise.[9] In this case, USCIS is not changing its policy regarding SIJ adjudications. USCIS is updating this guidance to clarify what the law and regulations permit or require because of potential confusion. It has never been USCIS official policy to grant SIJ classification based on a state judge’s order that is sought primarily to permit the alien to obtain lawful immigration status. 

USCIS has analyzed the potential for and taken into account serious reliance interests that may be engendered by the practices USCIS officers may have followed prior to this clarification. USCIS acknowledges that a person who may have been approved for SIJ classification before this policy alert may no longer be approved by an officer following this clarifying guidance in rendering their decision. An advocate or representative of an SIJ petitioner, not knowing of this policy, may erroneously petition the state court judge who is handling their client’s case to issue an order with findings of fact in support of the petitioner’s eligibility for SIJ that does not provide relief from parental abuse, neglect, abandonment or a similar basis under state law. However, the statutory and regulatory eligibility criteria have never permitted SIJ classification to be approved using such state court orders, nor has it been official USCIS policy. Therefore, an SIJ petitioner cannot be said to have acted in reliance on the continuation of a practice and policy that has not been a USCIS practice and policy and which is contrary to the law. USCIS must limit the approval of SIJ classification to cases who are eligible based on a valid court order as required by the INA regardless of its effects on parties who may rely on erroneous state court orders. 

With respect to the policy change to no longer require evidence that a state court had jurisdiction to place the juvenile in the custody of the unfit parent(s) in order to make a qualifying determination regarding the viability of parental reunification, USCIS made that change in response to the strain of litigation. USCIS anticipated that the change would not negatively impact petitioners with potential reliance interests, rather it would reduce their evidentiary burden.

Implementation

USCIS implemented this policy update immediately, as it was merely a clarification. However, USCIS still allowed interested parties an opportunity to comment by providing a 10-day comment period, as is generally provided for Policy Manual publications.

Footnotes


[^ 1] See Chapter 2, Eligibility Requirements, Section A, General [6 USCIS-PM J.2(A)] and Section B, Age-out Protections For Filing with USCIS [6 USCIS-PM J.2(B)].

[^ 2] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order [6 USCIS-PM J.2(C)].

[^ 3] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 1, Dependency or Custody [6 USCIS-PM J.2(C)(1)].

[^ 4] See Chapter 2, Eligibility Requirements, Section D, USCIS Consent [6 USCIS-PM J.2(D)].

[^ 5] See Chapter 3, Documentation and Evidence, Section A, Juvenile Court Order(s) and Administrative Documents, Subsection 1, Qualifying Juvenile Court Determinations [6 USCIS-PM J.3(A)(1)].

[^ 6] See Chapter 2, Eligibility Requirements, Section C, Juvenile Court Order, Subsection 2, Parental Reunification [6 USCIS-PM J.2(C)(2)].

[^ 7] See Perez v. Mortgage Bankers Assoc., 135 S.Ct. 1199 (2015).

[^ 8] James v. Hurson Associates, Inc. v. Glickman, 229 F.3d 277 (D.C. Cir. 2000)

[^ 9] See Long Island Care at Home Ltd. v. Coke, 551 U.S. 158, 171 (2007). See Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012).

Updates

POLICY ALERT - Schedule A Designation

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address Schedule A designations.

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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.

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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, 327.05 KB) between the AFM and the Policy Manual.

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.

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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.

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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.

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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”].

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.

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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.

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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 - 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.

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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.

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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.

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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.

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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.

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