Chapter 10 - Certain Afghan and Iraqi Nationals

A. Purpose and Background

During the wars in Afghanistan and Iraq, the U.S. government employed many Afghans and Iraqis as interpreters, translators, and other roles to assist in the war effort. Some face ongoing, serious threats because of their employment with the U.S. government and the vital assistance they provided. As a result, Congress created three special immigrant programs to allow such qualified noncitizens to immigrate to the United States with their families.^[1]

This special immigrant category applies to an:^[2]

• Afghan or Iraqi national who worked with the U.S. armed forces as a translator;^[3]
• Iraqi national who was employed by or on behalf of the U.S. government;^[4] and
• Afghan national who was employed by or on behalf of the U.S. government or in the International Security Assistance Force (ISAF) (or any successor name for the ISAF) in Afghanistan.^[5]

B. Legal Authorities

• INA 245; 8 CFR 245 – Adjustment of status of nonimmigrant to that of person admitted for permanent residence
• Section 1059 of the National Defense Authorization Act for Fiscal Year 2006, as amended – Special immigrant status for persons serving as translators with United States armed forces^[6]
• Section 1244 of the National Defense Authorization Act for Fiscal Year 2008, as amended – Special immigrant status for certain Iraqis^[7]
• Section 602(b) of the Afghan Allies Protection Act of 2009, as amended – Special immigrant status for certain Afghans^[8]

C. Eligibility Requirements

To adjust to lawful permanent resident (LPR) status as a special immigrant for certain Afghan and Iraqi nationals, an applicant must meet the following eligibility requirements:^[9]

1. Eligibility to Receive an Immigrant Visa^[16]

To be eligible to receive an immigrant visa to adjust status as an Afghan or Iraqi special immigrant, the principal applicant must generally obtain such classification from USCIS by filing a Form I-360.^[17] However, an Afghan national who was employed for or on behalf of the U.S. government or the ISAF (or any successor name for the ISAF) in Afghanistan must obtain classification by filing a Form DS-157 when applying for Chief of Mission (COM) approval with DOS, unless the Afghan national is in one of the limited circumstances where filing Form I-360 with USCIS is permitted.^[18]

Verifying the Underlying Basis to Adjust Status and Determining Ongoing Eligibility^[19]

The special immigrant petition should already be adjudicated and approved when the officer adjudicates the adjustment application. USCIS does not re-adjudicate the special immigrant petition at the time of the adjudication of the adjustment application. However, the officer should ensure that the applicant remains classified in one of the eligible special immigrant Afghan and Iraqi national categories and therefore is eligible to adjust as a special immigrant. In other words, the officer must verify the status of any underlying immigrant petition that forms the basis for adjustment.

2. Bars to Adjustment

Certain adjustment bars do not apply to Afghanistan and Iraq nationals and their dependents.^[20] If these special immigrants fall under any other adjustment bar, however, they are not eligible to adjust status.^[21]

3. Admissibility and Waiver Requirements

In general, an applicant who is inadmissible to the United States may only obtain LPR status if the applicant obtains a waiver or other form of relief, if available.^[22] In general, if a ground of inadmissibility applies, an applicant must apply for a waiver or other form of relief to overcome that inadmissibility.^[23] If a waiver or other form of relief is granted, USCIS may approve the application to adjust status if the applicant is otherwise eligible.

The following table specifies which grounds of inadmissibility apply and which do not apply to applicants seeking LPR status based on the Afghanistan and Iraq national classification.^[24]

4. Treatment of Family Members

The derivative spouse or child(ren) (unmarried and under 21 years of age) of a principal special immigrant citizen or national from Afghanistan or Iraq may, if otherwise eligible, accompany or follow-to-join^[25] the principal applicant and apply to adjust status under the same immigrant category and priority date.

Any derivative spouse and children are eligible to adjust status as long as they continue to maintain the requisite relationship with the principal special immigrant.^[26] A surviving spouse or child may also adjust status as a special immigrant of a deceased principal special immigrant if eligible to receive a special immigrant visa.^[27]

Unique to this special immigrant category, these family members do not count against the numerical limitations of the relevant program or against the general numerical limitations of the employment-based fourth preference category (EB-4).^[28]

5. Potential for Conversion of Special Immigrant Petition from One Classification to Another

In some cases the underlying petition may have been approved as an Afghan or Iraq translator and converted to an approval as an Afghanistan or Iraq national who worked for, or on behalf of, the U.S. government. This conversion allows an applicant to obtain a visa from a program with a larger number of visas available. The conversion does not affect adjustment eligibility. The officer should ensure that the application is adjudicated under the correct program.

6. Applicants Admitted as Refugees

To be eligible for adjustment of status as an Afghanistan or Iraq national special immigrant, a person must have been either paroled into the United States or admitted as a nonimmigrant.^[29] A person who last entered the United States as a refugee is not paroled and is admitted as a refugee, not a nonimmigrant. Thus, the person admitted as a refugee cannot adjust status under any of the Afghanistan or Iraq programs as refugees have their own basis for adjusting status.^[30]

D. Documentation and Evidence

An applicant should submit the following documentation to adjust status as a special immigrant Afghan or Iraqi national:

• Application to Register Permanent Residence or Adjust Status (Form I-485);
• Evidence of an approved petition on either a Form I-360 or Form DS-157 for the principal applicant’s special immigrant petition;^[31]
• Two passport-style photographs;
• Copy of a government-issued identity document with photograph;
• Copy of birth certificate;
• Copy of passport page with nonimmigrant visa (if applicable);
• Copy of passport page with admission or parole stamp (if applicable);
• Copy of Arrival/Departure Record (Form I-94) or copy of U.S. Customs and Border Protection (CBP) admission or parole stamp on the travel document (if applicable);^[32]
• Evidence of continuously maintaining a lawful status since arrival in the United States;
• Any other evidence, as needed, to show that an adjustment bar does not apply;^[33]
• Report of Immigration Medical Examination and Vaccination Record (Form I-693);^[34]
• Certified police and court records of criminal charges, arrests, or convictions (if applicable);
• Application for Waiver of Grounds of Inadmissibility (Form I-601) or other form of relief (if applicable); and
• Documentation of past or present J-1 or J-2 nonimmigrant status, including proof of compliance with or waiver of the 2-year foreign residence requirement under INA 212(e) (if applicable).

In addition, a spouse or child who is filing as a derivative applicant should submit the following:

• A copy of documentation showing relationship to the principal applicant, such as a marriage certificate or adoption decree (if applicable); and
• A copy of the approval or receipt notice (Form I-797) for the principal applicant’s Form I-485 or a copy of the principal applicant’s permanent resident card (Form I-551) (if applicable and not filing together with the principal applicant).

E. Adjudication^[35]

1. Filing

An applicant seeking adjustment of status as a special immigrant Afghan or Iraqi national may file the adjustment application with USCIS after USCIS approves the special immigrant petition^[36] or, in the case of an Afghan national who obtained classification by filing a Petition for Special Immigrant Classification for Afghan SIV Applicants (Form DS-157) with DOS, when applying for COM approval (as long as the petition is still valid), provided:

• USCIS has jurisdiction over the adjustment application;^[37] and
• The visa availability requirements are met.^[38]

These applicants may not file an adjustment application concurrently with Form I-360.

2. Interview

All adjustment applications under these programs must be relocated to the appropriate field office for an interview. Relocation of the case occurs after USCIS has completed the required background and security checks.

3. Decision

Approval

The officer must determine that the applicant meets all the eligibility requirements as well as merits the favorable exercise of discretion before approving the application to adjust status as a special immigrant Afghan or Iraqi translator (or family member).^[39] If the adjustment application is approvable, the officer must determine if a visa is available at the time of final adjudication.^[40]

If approved, USCIS assigns the following codes of admission to applicants adjusting under this category:

The applicant becomes an LPR as of the date of approval of the adjustment application.^[41]

Denial

If the officer determines that the applicant is ineligible for adjustment, the officer must deny the adjustment application. The officer must provide the applicant a written reason for the denial.^[42] If the adjustment application must be denied, an officer must provide the applicant a written reason for the denial.^[43] Although there are no appeal rights for the denial of an adjustment application, the applicant may file a motion to reopen or reconsider. The denial notice should include instructions for filing a Notice of Appeal or Motion (Form I-290B).

Footnotes

[^ 1] For more information on special immigrants, see Volume 6, Immigrants, Part H, Designated and Special Immigrants [6 USCIS-PM H].

[^ 2] Only principal applicants are counted against the annual numerical limitations. Derivative spouses or children do not count against the visa cap in any of these programs.

[^ 3] See Volume 6, Immigrants, Part H, Designated and Special Immigrants, Chapter 10, Certain Iraqi and Afghan Translators and Interpreters [6 USCIS-PM H.10]. No more than 50 visas are allotted each year. The allotment was temporarily increased to 500 for Fiscal Years (FY) 2007 and 2008.

[^ 4] See Volume 6, Immigrants, Part H, Designated and Special Immigrants, Chapter 8, Certain Iraqi Nationals [6 USCIS-PM H.8]. The National Defense Authorization Act for Fiscal Year 2008 extended U.S. Department of State’s (DOS) authority to issue special immigrant visas to Iraqi nationals. As of January 1, 2014, 2,500 visas may be issued to principal applicants under this program. This program will continue until all visas have been issued or all qualified applicants, if less than the number of visas allocated, have received visas.

[^ 5] See Volume 6, Immigrants, Part H, Designated and Special Immigrants, Chapter 9, Certain Afghan Nationals [6 USCIS-PM H.9]. DOS’s authority to issue special immigrant visas (SIVs) to Afghan nationals under Section 602(b) of the Afghan Allies Protection Act of 2009, Title VI of Pub. L. 111-8 (PDF), 123 Stat. 807, 809 (March 11, 2009), has been amended and extended several times. The National Defense Authorization Act for Fiscal Year 2016, Pub. L. 114-92 (PDF) (November 25, 2015), expanded the Afghan SIV program to include certain Afghans who were employed by the ISAF or a successor mission to ISAF. Section 401 of the Emergency Security Supplemental Appropriations Act, 2021, Pub. L. 117-31 (PDF), 135 Stat. 309, 315 (July 30, 2021), extended the deadline to apply for Chief of Mission (COM) approval from December 31, 2022, to December 31, 2023; reduced the minimum length of required service from 2 years to 1 year for Afghans who were employed on or after October 7, 2001; and allocated an additional 8,000 special immigrant visas for a total of 34,500 since December 19, 2014. For current program extensions and visa number information, see the Green Card for an Afghan Who Was Employed by or on Behalf of the U.S. Government webpage or DOS’s Special Immigrant Visas for Afghans – Who Were Employed by/on Behalf of the U.S. Government webpage. DOS updates its webpage periodically, but the webpage may not reflect the latest updates.

[^ 6] See Pub. L. 109-163 (PDF), 119 Stat. 3136, 3443 (January 6, 2006).

[^ 7] See Pub. L. 110-181 (PDF), 122 Stat. 3, 396 (January 28, 2008).

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

[^ 9] See INA 245(a) and (c). See 8 CFR 245. See Instructions to Form I-485.

[^ 10] For more information, see Subsection 1, Eligibility to Receive an Immigrant Visa [7 USCIS-PM F.10(C)(1)].

[^ 11] See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)].

[^ 12] See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)]. For information on Visa Availability and Priority Dates, see the DOS Visa Bulletin.

[^ 13] See INA 245(c). See Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 14] For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 15] See INA 245(a). For more information, see Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A] and Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 16] See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6] and Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section C, Eligible to Receive an Immigrant Visa [7 USCIS-PM B.2(C)].

[^ 17] See Form I-360 instructions. There is no filing fee for a Form I-360 filed on behalf of a special immigrant Afghanistan or Iraq national. See 8 CFR 103.7(b)(1)(T)(4).

[^ 18] For more information, see Volume 6, Immigrants, Part H, Designated and Special Immigrants, Chapter 9, Certain Afghan Nationals, Section B, Filing [6 USCIS-PM H.9(B)]. 

[^ 19] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 20] See Section 602(b)(9) of the Afghan Allies Protection Act of 2009, Title VI of Pub. L. 111-8 (PDF), 123 Stat. 807, 809 (March 11, 2009) which states that INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) do not apply to special immigrant Iraq and Afghan nationals who were employed by or on behalf of the U.S. government (for Section 602(b) and 1244 adjustment applicants who were either paroled into the United States or admitted as nonimmigrants). See Section 1(c) of Pub. L. 110-36 (PDF), 121 Stat. 227, 227 (June 15, 2007), which amended Section 1059(d) of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163 (PDF), 119 Stat. 3136, 3444 (January 6, 2006) to state that INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) do not apply to Iraq or Afghan translator adjustment applicants.

[^ 21] See INA 245(c). For more information on the bars to adjustment, see Part B, 245(a) Adjustment, Chapter 8, Inapplicability of Bars to Adjustment, Section C, Certain Special Immigrants [7 USCIS-PM B.8(C)].

[^ 22] See INA 212(a) for the specific grounds of inadmissibility.

[^ 23] See Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM]. See Application for Waiver of Grounds of Inadmissibility (Form I-601) and Application for Permission to Reapply for Admission into the United States after Deportation or Removal (Form I-212).

[^ 24] See Section 1244(a)(3) of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. 110-181 (PDF), 122 Stat. 3, 396 (January 28, 2008), as amended by Pub. L. 110-242 (PDF) (June 3, 2008). See Section 602(b)(1)(C) of the Afghan Allies Protection Act of 2009, Title VI of Pub. L. 111-8 (PDF), 123 Stat. 807, 807 (March 11, 2009).

[^ 25] Although INA 101(a)(27)(D), INA 101(a)(27)(E), INA 101(a)(27)(F), and INA 101(a)(27)(G) refer to the accompanying spouse and children, INA 203(d) encompasses following-to-join relatives as well and applies to all employment-based immigrants, including these special immigrants.

[^ 26] Generally, the qualifying relationship must exist at the time the adjustment application is filed and the time the application is adjudicated. For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section B, Determine Ongoing Eligibility, Subsection 2, Qualifying Family Relationship Continues to Exist [7 USCIS-PM A.6(B)(2)].

[^ 27] 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 Afghan or Iraqi SIV classification approved, in order for the surviving spouse or children of the deceased principal noncitizen to remain eligible to apply to obtain special immigrant classification. Instead, as of July 30, 2021, the principal noncitizen is 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 noncitizen 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 employment requirements at the time of the noncitizen’s death. For more information, see Volume 6, Immigrants, Part H, Designated and Special Immigrants, Chapter 8, Certain Iraqi Nationals, Section E, Derivative Beneficiaries [6 USCIS-PM H.8(E)] and Chapter 9, Certain Afghan Nationals, Section E, Derivative Beneficiaries [6 USCIS-PM H.9(E)].

[^ 28] See Section 602(b)(3) of the Afghan Allies Protection Act of 2009, Title VI of Pub. L. 111-8 (PDF), 123 Stat. 807, 808 (March 11, 2009).

[^ 29] Section 602(b)(9) of the Afghan Allies Protection Act of 2009, Title VI of Pub. L. 111-8 (PDF), 123 Stat. 807, 809 (March 11, 2009).

[^ 30] See INA 209. For more information, see Part L, Refugee Adjustment [7 USCIS-PM L].

[^ 31] The principal applicant should submit a copy of the approval notice (Form I-797) of the Form I-360 from USCIS or evidence that DOS approved the Form DS-157. The notice of the approved Form DS-157 appears on the COM approval letter and states that the signed Form DS-157 submitted with the application for COM approval by the principal applicant is approved as a petition and the principal applicant is classified as a special immigrant under INA 203(b)(4).

[^ 32] Noncitizens admitted to the United States by CBP at an airport or seaport after April 30, 2013 may be issued an electronic Form I-94 by CBP instead of a paper Form I-94. Such noncitizens may visit the CBP website to obtain a paper version of an electronic Form I-94.

[^ 33] Such as evidence that the INA 245(c)(2) adjustment bar does not apply because the applicant’s failure to maintain status was through no fault of the applicant’s own or for technical reasons. See 8 CFR 245.1(d)(2). See Part B, 245(a) Adjustment, Chapter 4, Status and Nonimmigrant Visa Violations (INA 245(c)(2) and INA 245(c)(8)), Section E, Exceptions [7 USCIS-PM B.4(E)].

[^ 34] The applicant may submit Form I-693 together with Form I-485 or later at USCIS’ request. See the USCIS website for more information. For more information on when to submit Form I-693, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 4, Review of Medical Examination Documentation [8 USCIS-PM B.4].

[^ 35] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 36] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) or Petition for Special Immigrant Classification for Afghan SIV Applicants (Form DS-157).

[^ 37] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section D, Jurisdiction [7 USCIS-PM A.3(D)].

[^ 38] The applicant must have an immigrant visa immediately available when he or she filed the adjustment of status application and at the time of final adjudication. See Chapter 7, Special Immigrant Juveniles, Section C, Eligibility Requirements [7 USCIS-PM F.7(C)].

[^ 39] See INA 245(a). For more information, see Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A], and Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 40] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

[^ 41] The date of approval is shown in the USCIS approval notice mailed to the applicant; that date is also shown on the actual Permanent Resident Card (Form I-551) the applicant receives after adjustment approval.

[^ 42] See 8 CFR 103.2(b)(19) and 8 CFR 103.3(a).

[^ 43] See 8 CFR 103.2(b)(19).