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Chapter 9 - Certain Afghan Nationals

Section 602(b) of the Afghan Allies Protection Act of 2009 (AAPA),[1] created a new special immigrant category for Afghan nationals who worked for or on behalf of the U.S. government in Afghanistan. The President signed the AAPA into law on March 11, 2009.

A. Number of Visas

The AAPA for Afghans who worked for or on behalf of the U.S. government initially provided for a limit of 1,500 immigrant visas for principal aliens for each fiscal year from 2009 through 2013. However, for each fiscal year from 2010 through 2013, the total number was increased by the difference between 1,500 and the number of visas actually used during the immediately prior fiscal year. For example, if the numerical limitation for fiscal year 2013 is not reached, any unused numbers from that year may be used in fiscal year 2014.

Subsequently, the program has been extended multiple times and additional visas have been added. Most recently, Congress amended the AAPA to add another 4,000 visas and to extend the program through 2020.[2] To date, Congress has authorized the issuance of 22,500 visas, and the program will end when all the visas have been issued.[3]

B. Filing

An Afghan 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.[4]

C. Eligibility

To obtain approval of a petition for special immigrant status as an Afghan who worked for or on behalf of the U.S. government under the AAPA, the petitioner must establish that he or she:

  • Is a citizen or national of Afghanistan;

  • Was or is employed by, or on behalf of, the U.S. government in Afghanistan on or after October 7, 2001, and before December 31, 2020, for a period of not less than 1 year or 2 years for petitioners submitting COM applications after September 30, 2015;[5]

  • Provided faithful and valuable service to the U. S. government;

  • Has experienced or is experiencing an ongoing serious threat as a consequence of the petitioner’s employment by the U.S. government;

  • Has cleared a background check and appropriate screening as determined by the Secretary of Homeland Security; and

  • Is otherwise eligible to receive an immigrant visa and is otherwise admissible to the United States for permanent residence.[6]

D. Documentation and Evidence

The petitioner must submit the following evidence along with a completed Form I-360:

  • A copy of the petitioner’s passport, birth certificate, or national identification card showing that the petitioner is a citizen or national of Afghanistan, along with a certified English translation, if the document is in a foreign language;

  • A positive recommendation from:

    • U.S. citizen or national who is the petitioner’s senior supervisor;

    • U.S. citizen or national who occupies the supervisor’s position; or

    • U.S. citizen or national who is more senior if the senior supervisor has left the employer or has left Afghanistan, confirming employment of not less than 2 years beginning on or after October 7, 2001,if it is not possible to obtain a recommendation from a supervisor who is a U.S. citizen or national;[7]

  • Proof of COM approval based on an independent review of this recommendation conducted by the COM, Embassy Kabul, or his or her 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;

  • Proof of risk assessment conducted by the COM, Embassy Kabul, or his or her 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

  • 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 alien. Visas issued to derivative spouses and children do not count toward the cap on special immigrant visas for nationals of Afghanistan.

Deceased Principal

A surviving spouse and children continue to remain eligible for special immigrant status if the principal alien had a visa petition approved under Section 602(b) of the AAPA but died after the approval. The eligibility of the surviving spouse and children is also affected by INA 204(l),[8] since the surviving spouse and children are derivative beneficiaries of an employment-based immigrant visa petition.[9] In light of the interrelationship between Section 602(b)(2)(C) of the AAPA and INA 204(l):

  • A pending visa petition under Section 602(b) may be approved, despite the death of the principal alien while the petition is pending; and

  • After the death of the principal alien, USCIS may favorably exercise discretion to reinstate the approval of a visa petition under Section 602(b).

Footnotes


[^ 1] See Title VI of Pub. L. 111-8 (PDF), 123 Stat. 524, 807 (March 11, 2009).

[^ 2] See Section 1219(b) of the National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020), Pub. L. 116-92 (PDF) (December 20, 2019).

[^ 3] For program extensions and visa number information, see the Department of State website. This website is updated periodically but may not reflect the latest updates.

[^ 4] Current information about filing locations, fees, and other information about how to file can be found at uscis.gov/i-360.

[^ 5] NDAA 2020 amended the definition of “principal alien” to revert the definition to the original, namely employed “by, or on behalf of, the United States Government[.]” See Section 1219(a) of NDAA 2020, Pub. L. 116-92 (PDF) (December 20, 2019).

[^ 6] In the determination of such admissibility, the grounds for inadmissibility specified in INA 212(a)(4) relating to “public charge” do not apply.

[^ 7] Under Department of State policy, the COM will approve the recommendation only if made by a U.S. citizen or national (or endorsed by the U.S. citizen or national responsible for the contract under which the petitioner’s service was provided). 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.

[^ 8] As amended by Section 568(d) of the DHS Appropriation Act of 2010, Pub. L. 111-83 (PDF), 123 Stat. 2142, 2187 (October 28, 2009).

[^ 9] Filed under INA 203(b).

Resources

Legal Authorities

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

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

INA 201 - Worldwide level of immigration

INA 202 - Numerical limitations on individual foreign states

INA 203 - Allocation of immigrant visas

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

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

INA 2048 CFR 204 - Procedure for granting immigrant status

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

No appendices available at this time.

Updates

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.

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 - 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”].