Chapter 10 - Certain Afghanistan and Iraq 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 faced 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 foreign nationals to immigrate to the United States with their families. 

This special immigrant category applies to a: [1] 

  • Special immigrant Afghanistan or Iraq national who worked with the U.S. armed forces as a translator; [2] 

  • Special immigrant Iraq national who was employed by or on behalf of the 

  • U.S. government; and [3] 

  • Special immigrant Afghanistan national who was employed by or on behalf of the U.S. government or in the International Security Assistance Force (ISAF) in Afghanistan. [4] 

B. Legal Authorities

  • INA 2458 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 [5] 

  • ​Section 1244 of the National Defense Authorization Act for Fiscal Year 2008, as amended – Special immigrant status for certain Iraqis [6] 

  • ​Section 602(b) of the Afghan Allies Protection Act of 2009, as amended – Special immigrant status for certain Afghans [7] 

C. Eligibility Requirements

To adjust to lawful permanent resident (LPR) status as a special immigrant for certain Afghanistan and Iraq nationals, an applicant must meet the following eligibility requirements: [8] 

Special Immigrant Afghanistan and Iraq Nationals

Adjustment of Status Eligibility Requirements 

The applicant has been inspected and admitted as a nonimmigrant or inspected and paroled into the United States.

The applicant is physically present in the United States at the time of filing and adjudication of an adjustment application. 

The applicant is eligible to receive an immigrant visa because the applicant is the beneficiary of an approved Form I-360 classifying him or her as a special immigrant Afghanistan or Iraq national.

The applicant had an immigrant visa immediately available when he or she filed the adjustment of status application [9] and at the time of final adjudication. [10] 

The applicant is not subject to any applicable bars to adjustment of status. [11] 

The applicant is admissible to the United States or eligible for a waiver of inadmissibility or other form of relief. [12] 

The applicant merits the favorable exercise of discretion. [13] 

1. Eligibility to Receive an Immigrant Visa [14]

To be eligible to receive an immigrant visa to adjust status as a special immigrant Afghanistan or Iraq national, the principal applicant must obtain such classification from USCIS by filing a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). [15] 

Verifying the Underlying Basis to Adjust Status and Determining Ongoing Eligibility [16] 

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 Afghanistan and Iraq National categories and thus 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. [17] If these special immigrants fall under any other adjustment bar, however, they are not eligible to adjust status. [18] 

3. Admissibility and Waiver Requirements

In general, an applicant who is inadmissible to the United States may only obtain LPR status if he or she obtains a waiver or other form of relief, if available. [19] In general, if a ground of inadmissibility applies, an applicant must apply for a waiver or other form of relief to overcome that inadmissibility. [20] 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. [21] 

Applicability of Grounds of Inadmissibility: Special Immigrant Afghanistan and Iraq Nationals

Ground of Inadmissibility

Applies

Exempt or

Not Applicable

INA 212(a)(1) – Health-Related

X

 

INA 212(a)(2) – Crime-Related

X

 

INA 212(a)(3) – Security-Related

X

 

INA 212(a)(4) – Public Charge

 

X

INA 212(a)(5) – Labor Certification and Qualifications for Certain Immigrants 

 

X

INA 212(a)(6) – Illegal Entrants and Immigration Violators

X

 

INA 212(a)(7)(A) – Documentation Requirements for Immigrants

X

 

INA 212(a)(8) – Ineligibility for Citizenship

X

 

INA 212(a)(9) – Foreign Nationals Previously Removed

X

 

INA 212(a)(10) – Practicing Polygamists, Guardians Required to Accompany Helpless Persons, International Child Abductors, Unlawful Voters, and Former Citizens who Renounced Citizenship to Avoid Taxation

X

 

4. Treatment of Family Members

The spouse or child (unmarried and under 21 years of age) of a principal special immigrant Afghanistan or Iraq national adjustment applicant may, if otherwise eligible, accompany or follow-to-join [22] the principal applicant and apply to adjust status under the same immigrant category and priority date.

Any accompanying spouse and children are eligible to adjust status as long as they continue to maintain the requisite relationship with the principal special immigrant. [23] Unique to this special immigrant category, these family members do not count against the numerical limitations of the relevant program. However, they are counted against the general quota limitations of the employment-based fourth preference category (EB-4).

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. [24] 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. [25] 

D. Documentation and Evidence

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

  • Application to Register Permanent Residence or Adjust Status (Form I-485), with the correct fee or with a Request for Fee Waiver (Form I-912);Copy of approval notice (Form I-797) for the principal applicant’s special immigrant petition; [26] 

  • 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); [27] 

  • 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; [28] 

  • Report of Medical Examination and Vaccination Record (Form I-693); [29] 

  • 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 [30]

1. Filing

An applicant seeking adjustment of status as a special immigrant Afghanistan or Iraqi national may file his or her adjustment application with USCIS after USCIS approves the special immigrant petition [31] (as long as the petition is still valid), provided:

  • USCIS has jurisdiction over the adjustment application; [32] and

  • ​The visa availability requirements are met. [33] 

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).[34] If the adjustment application is approvable, the officer must determine if a visa is available at the time of final adjudication. [35] 

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

Classes of Applicants and Codes of Admission

Applicant

Code of

Admission

Special Immigrant Afghan or Iraqi Translator

SI6

Spouse of Translator (SI6)

SI7

Child of Translator (SI6)

SI8

Special Immigrant Afghanistan or Iraq U.S. Government Employee

SQ6

Spouse of Government Employee (SQ6)

SQ7

Child of Government Employee (SQ6)

SQ8

The applicant becomes an LPR as of the date of approval of the adjustment application. [36] 

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. [37] If the adjustment application must be denied, an officer must provide the applicant a written reason for the denial. [38] 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. [^] Only principal applicants are counted against the annual numerical limitations. Accompanying spouses or children do not count against the visa cap in any of these programs.

2. [^] No more than 50 visas are allotted each year. The allotment was temporarily increased to 500 for fiscal years (FY) 2007 and 2008.

3. [^] The Department of State’s (DOS) authority to issue special immigrant visas to Iraqi nationals under the National Defense Authorization Act of 2008 was extended. 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.

4. [^] DOS authority to issue Special Immigrant Visas (SIVs) to Afghan nationals under section 602(b) of the Afghan Allies Protection Act of 2009, as amended, has been extended. The National Defense Authorization Act for FY 2016 as signed by President Obama on November 25, 2015, allocates 3,000 additional visas for Afghan principal applicants, for a total of 7,000 since December 19, 2014. The Afghan SIV program will end when all 7,000 visas are issued. The deadline to apply for Chief of Mission approval is extended from December 31, 2015 to December 31, 2016. The National Defense Authorization Act for FY 2016 amends the Afghan SIV program by increasing the minimum required length of service from one year to two years for applicants who submit petitions after September 30, 2015. The National Defense Authorization Act for FY 2016 expands the Afghan SIV program to include certain Afghans who were employed by the ISAF or a successor mission to ISAF.

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

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

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

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

9. [^] 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)].

10. [^] 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.

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

12. [^] For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers [9 USCIS-PM].

13. [^] 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].

14. [^] 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)].

15. [^] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). 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).

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

17. [^] 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. 

18. [^] 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)].

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

20. [^] See Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers [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).

21. [^] 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).

22. [^] 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.

23. [^] 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)].

24. [^] 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).

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

26. [^] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).

27. [^] Foreign nationals 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 foreign nationals may visit the CBP website to obtain a paper version of an electronic Form I-94. CBP does not charge a fee for this service.

28. [^] 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 his or her 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)].

29. [^] 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].

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

31. [^] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). 

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

33. [^] 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)].

34. [^] 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].

35. [^] 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)].

36. [^] 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.

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

38. [^] See 8 CFR 103.2(b)(19).

INA 212(a) - Excludable aliens; classes of aliens ineligible for visas or admission

INA 212(e) - Educational visitor status; foreign residence requirement and waiver

INA 2458 CFR 245 - Adjustment of status of nonimmigrant to that of person admitted for permanent residence

Pub. L. 109-163 - 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 - Section 1244 of the National Defense Authorization Act for Fiscal Year 2008, as amended – Special immigrant status for certain Iraqis

Appendices


No appendices available at this time.

POLICY ALERT - Use of Form G-325A

October 25, 2018

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).

AFFECTED SECTIONS

 

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

October 26, 2016

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.

AFFECTED SECTIONS

 
Current as of

CHAPTERS

Current as of