Chapter 8 - Certain Iraqi Nationals
The National Defense Authorization Act for Fiscal Year 2008 (NDAA 2008),[1] which included the Refugee Crisis in Iraq Act of 2007 (RCIA),[2] was signed into law on January 28, 2008. Section 1244 of this legislation,[3] entitled “Special Immigrant Status for Certain Iraqis,” created a new category of special immigrant visas for Iraqi nationals who have provided faithful and valuable service to the U.S. government, while employed by or on behalf of the U.S. government in Iraq, for not less than 1 year beginning on or after March 20, 2003, and who have experienced or are experiencing an ongoing serious threat as a consequence of that employment.
A. Number of Visas
In prior legislation, Congress established a numerical limitation of 5,000 principal noncitizens who may be provided special immigrant status under this program per year for Fiscal Years 2008 through 2012.[4] The unused number from Fiscal Year 2012 was allocated toward Fiscal Year 2013. Subsequent legislation extended this program until December 31, 2013.[5]
Subsequently, Congress allowed for an additional 2,500 visas to be approved after January 1, 2014, provided that the service occurred between March 20, 2003 and September 30, 2013, and that the noncitizen submitted an application for Chief of Mission (COM), the principal officer in charge of a diplomatic mission, approval by September 30, 2014.[6] Since then, Congress has not modified the deadline or authorized additional visa numbers for Iraqis, effectively terminating the RCIA once all eligible applicants have been issued visas.
B. Filing
An Iraqi citizen or national who has worked for or on behalf of the U.S. government may file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) on his or her own behalf. The petitioner must file Form I-360 with the proper fee, according to the form instructions.[7]
C. Eligibility
To obtain approval of a petition for special immigrant status as an Iraqi who worked for or on behalf of the U.S. government under the RCIA,[8] the petitioner must establish that the petitioner:[9]
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Is a citizen or national of Iraq;
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Was employed by, or on behalf of, the U.S. government in Iraq on or after March 20, 2003, and before September 30, 2013, for a period of not less than 1 year;
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Provided faithful and valuable service to the U.S. government, as documented in a positive recommendation or evaluation by the petitioner’s supervisor;
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Has experienced or is experiencing an ongoing serious threat as a consequence of the petitioner’s employment by the U.S. government;
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Has cleared a background check and appropriate screening as determined by the Secretary of Homeland Security; and
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Is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence.[10]
D. Documentation and Evidence
The petitioner must submit the following evidence along with a completed Form I-360:
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A copy of the petitioner’s passport, nationality or birth certificate, or national identification card showing that the petitioner is a citizen or national of Iraq, along with a certified English translation, if the document is in a foreign language;
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A positive recommendation from:
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U.S. citizen or national who is the petitioner’s senior supervisor;
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U.S. citizen or national who occupies the supervisor’s position;
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U.S. citizen or national who is more senior if the senior supervisor has left the employer or has left Iraq; or
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The petitioner’s senior supervisor, provided the U.S. citizen or national responsible for the contract co-signs the letter, confirming employment of not less than 1 year beginning on or after March 20, 2003, and ending before September 30, 2013, if it is not possible to obtain a recommendation from a supervisor who is a U.S. citizen or national;
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Proof of COM approval based on an independent review of this recommendation conducted by the COM, Embassy Baghdad, or the petitioner’s designee, of records maintained by the U.S. government or hiring organization or entity, to confirm employment and faithful and valuable service to the U.S. government;[11]
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Proof of risk assessment conducted by the COM, Embassy Baghdad, or the petitioner’s designee, establishing that the petitioner has experienced or is experiencing an ongoing serious threat as a consequence of his or her employment by the U.S. government; and
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If the petition is filed by a petitioner in the United States, a copy of the front and back of the petitioner’s Arrival/Departure Record (Form I-94).
E. Derivative Beneficiaries
The spouse and unmarried child(ren) younger than 21 years old accompanying or following to join a principal immigrant may be accorded the same special immigrant classification as the principal immigrant. Visas issued to derivative spouses and children do not count toward the numerical limitations on special immigrant visas for principal immigrants.
Deceased Principal Noncitizen (No Pending or Approved Form I-360)
Family members of the principal immigrant may still be eligible for special immigrant classification even if the principal immigrant dies.
A surviving spouse and children may be eligible for special immigrant classification if the deceased principal noncitizen had:
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Submitted a COM application[12] that included the surviving relative(s) as an accompanying spouse or child; and
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The COM or COM designee revoked or terminated (or otherwise rendered invalid) such application due to the death of the principal. If not for the death of the principal noncitizen, the COM or COM designee would have approved such application.
In this case, as long as the deceased principal noncitizen met the employment requirements for classification as a special immigrant[13] as of the date the principal noncitizen filed the COM application for the first time, the COM or COM designee may continue to process the application.[14]
Even if the principal noncitizen had not filed a COM application as described above, the surviving spouse and children may still be eligible for special immigrant classification by filing an application with the COM or COM designee themselves, so long as the principal noncitizen completed the qualifying employment requirements as of the date of the principal noncitizen’s death.[15]
Following COM approval, the surviving spouse or children must then submit Form I-360 establishing that the deceased principal noncitizen met the special immigrant eligibility requirements.[16]
When submitting the Form I-360, a surviving spouse or child must submit evidence of the qualifying relationship with the deceased principal noncitizen and that such relationship existed at the time of the principal noncitizen’s death.
Deceased Principal Noncitizen (Pending or Approved Form I-360)
Where the principal noncitizen had a pending or an approved Form I-360 petition, the eligibility of the surviving spouse and children is also affected by INA 204(l),[17] since the surviving spouse and children are derivative beneficiaries of an employment-based immigrant visa petition.[18] In light of the interrelationship between Section 1244 of NDAA 2008 and INA 204(l):
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USCIS may approve a pending immigrant visa petition under Section 1244 despite the death of the principal noncitizen while the petition is pending; or
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After the death of the principal noncitizen, USCIS may favorably exercise discretion to reinstate the approval of a visa petition under Section 1244.
Footnotes
[^ 1] See Pub. L. 110-181 (PDF) (January 28, 2008).
[^ 2] See Subtitle C of Title XII, Division A of NDAA 2008, Pub. L. 110-181 (PDF), 122 Stat. 3, 395 (January 28, 2008).
[^ 3] See NDAA 2008, Pub. L. 110-181 (PDF), 122 Stat. 3, 396 (January 28, 2008) (Section 1244 was amended by Section 1 of Pub. L. 110-242 (PDF), 122 Stat. 1567, 1567 (June 3, 2008)).
[^ 4] See Pub. L. 110-181 (PDF), 122 Stat. 3 (Jan. 28, 2008).
[^ 5] See Section 1244(g) of the National Defense Authorization Act for FY 2008, as amended by Section 1 of Pub. L. 110-242 (PDF), 122 Stat. 1567 (June 3, 2008), and Section 1244 of the Defense Authorization Act for FY 2008, as amended by section 1 of Pub. L. 113-42 (PDF), 127 Stat. 552 (October 4, 2013).
[^ 6] See Section 1218 of the National Defense Authorization Act for FY 2014, Pub. L. 113-66 (PDF), 127 Stat. 672, 910 (December 26, 2013).
[^ 7] Current information about filing locations, fees, and other information about how to file can be found at uscis.gov/i-360.
[^ 8] See Section 1244 of Pub. L. 110-181 (PDF), 122 Stat. 3, 396 (January 28, 2008).
[^ 9] The surviving spouse and unmarried children under the age of 21 of a deceased principal noncitizen may be classified as special immigrants. See Section E, Derivative Beneficiaries [6 USCIS-PM H.8(E)].
[^ 10] In the determination of such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) relating to “public charge” do not apply.
[^ 11] See Section 1218 of the National Defense Authorization Act for FY 2014, Pub. L. 113-66 (PDF), 127 Stat. 672, 910 (December 26, 2013). Applicants must have applied for COM approval no later than September 30, 2014.
[^ 12] Section 403 of the Emergency Security Supplemental Appropriations Act of 2021, Pub. L. 117-31 (PDF), 135 Stat. 309, 318 (July 30, 2021) removed the requirement that, at the time of the principal noncitizen’s death, the deceased principal noncitizen have a petition for special immigrant classification approved, in order for the surviving spouse and children of the principal noncitizen to remain eligible to apply to obtain special immigrant classification. Instead, as of July 30, 2021, the principal noncitizen is only required to have, at the time of the principal noncitizen’s death, submitted an application for COM approval under Section 1244 of Pub. L. 110-181 (PDF), 122 Stat. 3, 396 (January 28, 2008) or Section 1059 of the National Defense Authorization Act for FY 2006, Pub. L. 109–163 (PDF), 119 Stat. 3136, 3443 (January 6, 2006) that included the surviving relative as an accompanying spouse or child. Alternatively, the surviving spouse and children may submit a new application for COM approval if the principal noncitizen completed the qualifying employment requirements at the time of the noncitizen’s death.
[^ 13] See Section 1244(b)(1) of Pub. L. 110-181 (PDF), 122 Stat. 3, 396 (January 28, 2008).
[^ 14] See 9 FAM 502.5-12(B), Certain Iraqi and Afghan Nationals Employed by or on Behalf of the U.S. Government in Iraq or Afghanistan, and Certain Afghan Nationals Employed by the International Security Assistance Force or a Successor Mission.
[^ 15] See 9 FAM 502.5-12(B).
[^ 16] See Section 1244(b)(3) of NDAA 2008, Pub. L. 110-181 (PDF), 122 Stat. 3, 397 (January 28, 2008).
[^ 17] As amended by Section 568(d) of the DHS Appropriation Act, 2010, Pub. L. 111-83 (PDF), 123 Stat. 2142, 2187 (October 28, 2009).
[^ 18] Filed under INA 203(b).