Chapter 9 - Amerasian Immigrants

A. Purpose and Background

During the Korean and Vietnam Wars, some U.S. military personnel fathered children with Asian nationals while stationed in Asia. Congress enacted legislation for humanitarian reasons to allow for the admission and immigration of certain Amerasian children fathered by U.S. citizens.

Congress enacted the Amerasian Act^[1] on October 22, 1982 to allow a person born in Korea, Vietnam, Laos, Kampuchea (Cambodia), or Thailand after December 31, 1950 and before October 22, 1982, and fathered by a U.S. citizen, to seek admission to the United States and adjustment of status to lawful permanent resident (LPR).

Congress later passed the Amerasian Homecoming Act^[2] in 1987, which allowed mothers and other immediate family members of certain Vietnamese Amerasians to relocate to the United States with their Amerasian children. Unlike the original Amerasian program, only a person born in Vietnam is eligible as a principal applicant under the Amerasian Homecoming Act.^[3] Persons fathered by a U.S. citizen could be granted admission to the United States provided they were born in Vietnam after January 1, 1962 and before January 1, 1976, if they were residing in Vietnam on or after March 22, 1988. Although the program was originally limited to 2 years, subsequent amendments removed the time limitation and left the program with no end date.

While most qualified Amerasian immigrants have now been admitted or adjusted to LPR status, officers may still encounter an Amerasian case since the programs are open indefinitely. This chapter covers both the petition and adjustment of status application process for eligible Amerasians.

B. Legal Authorities

• The Amerasian Act of 1982^[4]
• Section 584 of the Amerasian Homecoming Act of 1987^[5]
• INA 204(f) – Preferential treatment for children fathered by United States citizens and born in Korea, Vietnam, Laos, Kampuchea, or Thailand after 1950 and before October 22, 1982
• 8 CFR 204.4 – Amerasian child of a United States citizen

C. Eligibility Requirements

1. General Eligibility Requirements

There are two separate programs relating to Amerasians. The first is the original Amerasian Act program.^[6] The second is the Amerasian Homecoming Act program.^[7] Each has its own requirements.

Amerasian Act Applicants

An Amerasian Act applicant must:

• Demonstrate that there is reason to believe that he or she was born in Korea, Vietnam, Laos, Kampuchea, or Thailand after December 30, 1950 and before October 22, 1982;
• Demonstrate that there is reason to believe that he or she was fathered by a U.S. citizen;
• Have a financial sponsor in the United States who is 21 years of age or older, of good moral character, and is either a U.S. citizen or LPR;
• Be admissible to the United States (for adjustment applicants); and
• Have an immigrant visa immediately available to him or her (for adjustment applicants).^[8]

USCIS no longer requires applicants to submit an Affidavit of Financial Support and Intent to Petition for Legal Custody (Form I-361)^[9] because any remaining qualified applicants are now adults. Instead, sponsors must submit an Affidavit of Support (Form I-134) and agree to provide 5 years of support to an Amerasian immigrant.

Amerasian Homecoming Act Applicants

An Amerasian Homecoming Act principal applicant must:

• Have been born in Vietnam after January 1, 1962 and before January 1, 1976;
• Have been fathered by a U.S. citizen;
• Be admissible to the United States (for adjustment applicants); and
• Have an immigrant visa immediately available to him or her (for adjustment applicants).^[10]

The Amerasian Homecoming Act allows certain relatives of the principal applicant to accompany or follow to join the principal applicant as derivatives. Relatives of the principal applicant who may qualify as derivatives include:

• The principal applicant's spouse;
• The principal applicant’s child(ren); and
• One of the following:
  • The applicant’s birth mother (and her spouse and other children, if any); or
  • A noncitizen who acted in effect as the principal applicant’s mother, father, or next of kin (and that person’s spouse or child(ren), if any).^[11]

The officer, in his or her discretion, must determine that the noncitizen who acted in effect as the principal applicant’s mother, father, or next of kin:

• Has a bona fide relationship with the principal applicant similar to that which exists between close family members; and
• The admission of such noncitizen is necessary for humanitarian purposes or to assure family unity.^[12]

Also, if a noncitizen who acted in effect as the principal applicant’s mother, father, or next of kin is admitted to the United States, the principal applicant’s natural mother may not be accorded any right, privilege, or status under the Immigration and Nationality Act (INA) based on that parent-child relationship.^[13]

2. Bars to Adjustment

Unless exempt, applicants seeking adjustment of status based on either the Amerasian Act or the Amerasian Homecoming Act are ineligible to adjust if any of the bars to adjustment apply.^[14]

3. Admissibility and Waiver Requirements

Amerasian Act Applicants

Amerasian Act applicants seeking adjustment of status are subject to all grounds of inadmissibility.^[15] 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.^[16] If a ground of inadmissibility applies, an applicant must apply for a waiver or other form of relief to overcome the inadmissibility as described under INA 212(a).^[17] Applicants requesting a waiver must file an Application for Waiver of Grounds of Inadmissibility (Form I-601). If a waiver or other form of relief is granted, USCIS may approve the adjustment application if the applicant is otherwise eligible.

Amerasian Homecoming Act Applicants

Amerasian Homecoming Act adjustment applicants are subject to all grounds of inadmissibility, except:

• Public Charge – INA 212(a)(4);
• Labor Certification – INA 212(a)(5); and
• Documentation Requirements – INA 212(a)(7)(A).

Like other adjustment applicants, an applicant seeking to adjust based on the Amerasian Homecoming Act 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.^[18] If a ground of inadmissibility applies, an applicant must apply for a waiver or other form of relief to overcome the inadmissibility.^[19]

The Amerasian Homecoming Act has its own waiver provisions. USCIS may waive grounds of inadmissibility on an individual basis for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. Applicants requesting a waiver must file an Application for Waiver of Grounds of Inadmissibility (Form I-601).

D. Petition for Amerasian

Filing a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) is the first step for an Amerasian beneficiary to become an LPR. However, the filing or approval of the petition does not give the beneficiary any immigration status or benefit. Generally, if the petition is approved, the beneficiary can file an Application to Register Permanent Residence or Adjust Status (Form I-485) to apply to become an LPR. Applicants are not eligible to file the adjustment application concurrently with the Form I-360 petition.

1. Documentation and Evidence

The petitioner must file the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) in accordance with the form instructions.^[20] The petition may be filed by:

• A person claiming to be eligible for Amerasian classification (the beneficiary);
• Any person who is 18 years of age or older (or an emancipated minor) who is filing on behalf of the beneficiary; or
• A corporation in the United States that is filing on behalf of the beneficiary.^[21]

The petitioner should submit all required evidence^[22] in accordance with the form instructions.^[23] The officer must carefully evaluate the evidence submitted to determine whether there is sufficient evidence to demonstrate that there is reason to believe that the beneficiary was fathered by a U.S. citizen.^[24] USCIS may ask the claimed father and the beneficiary to submit DNA tests.

2. Adjudication

Expeditious Processing

To the extent possible, for humanitarian reasons, officers should expedite the processing of petitions for Amerasian classification.

Two-Step Process

USCIS generally adjudicates Amerasian petitions in two steps, as outlined in the table below.

USCIS generally conducts a two-step adjudication so that the petitioner does not have to meet the more complex requirements relating to the second step unless USCIS finds the beneficiary to be tentatively eligible in the first step.

However, if all required evidence^[25] is available when the petition is initially filed, the petitioner may submit it at that time. In that case, USCIS considers all evidence at the same time.

First Step Processing

In the first step, the officer examines the required evidence for preliminary processing submitted by the petitioner,^[26] including evidence of the beneficiary’s date and place of birth and evidence that the beneficiary was fathered by a U.S. citizen.

If the first step is completed in a satisfactory manner, the officer sends the petitioner a notification, accompanied by a blank Form I-134 (if the sponsor has not already submitted one). If the sponsor has not already appeared for a biometrics capture, USCIS also sends the sponsor a notice of a biometrics appointment.

Second Step Processing

Second step processing requirements include:

• Financial sponsorship;^[27]
• Placement and legal custody in the case of a beneficiary under 18 years of age;^[28]
• A fingerprint background check of the sponsor to determine whether he or she is of good moral character;^[29] and
• An overseas investigation to confirm that the beneficiary is eligible for the benefit sought, when necessary.^[30]

Upon completion of all requirements for second step processing, the officer determines whether the beneficiary qualifies for the benefit.^[31] If the petitioner does not submit all required documents within 1 year of the date the petition was filed, USCIS advises the petitioner in writing that the petition is considered abandoned.

3. Decision

Approvals

If there is no adverse information and the petitioner has demonstrated that the beneficiary is eligible for the benefit sought, the officer approves the petition. If the officer approves the petition, USCIS sends an approval notice^[32] to the petitioner and the petitioner’s legal representative, if any.^[33]

If the beneficiary intends to apply for an immigrant visa from outside of the United States, the officer forwards the approved petition and supporting evidence to the National Visa Center. If the beneficiary is in the United States and is eligible for adjustment of status, the officer retains the approved petition in the beneficiary’s file and invites the beneficiary to apply for adjustment of status.^[34]

Denials

If the petitioner fails to establish that the beneficiary is eligible for the benefit sought, the officer denies the petition and notifies the petitioner and any representative (if any) of the reasons in writing.^[35] The officer must include in the decision information about appeal rights and the opportunity to file a motion to reopen or reconsider.

Revocation

If adverse information becomes known after USCIS approves the petition, USCIS may revoke the approved petition. USCIS sends a revocation notice, as applicable, that provides the petitioner notice of the derogatory information and the petitioner’s options.^[36]

E. Adjustment Application

1. Documentation and Evidence

If USCIS approves the petition, the beneficiary may seek adjustment of status. An applicant applying to adjust based on either the Amerasian Act or the Amerasian Homecoming Act should submit the following documentation:

• Application to Register Permanent Residence or Adjust Status (Form I-485);
• Copy of the approval notice (Form I-797) for the principal applicant’s Petition for Amerasian, Widow, or Special Immigrant (Form I-360);
• Two passport-style photos;
• Copy of 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);
• Report of Immigration Medical Examination and Vaccination Record (Form I-693);
• Certified police and court records of criminal charges, arrests, or convictions (if applicable); and
• Application for Waiver of Grounds of Inadmissibility (Form I-601) or other form of relief (if applicable).

In addition, a family member who is filing as a derivative applicant should submit the following:

• Copy of documentation showing relationship to the principal applicant, such as a marriage or birth certificate;
• Copy of the receipt or approval notice (Form I-797) for the principal applicant’s Form I-360; and
• Copy of the receipt or approval 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).

2. Decision

Approvals

The officer must determine that the applicant meets all the eligibility requirements as well as merits the favorable exercise of discretion before approving the adjustment application. As part of the adjudication process, USCIS may also schedule an interview for the adjustment applicant.

USCIS assigns the following codes of admission to applicants adjusting under this category as shown in the table below.

Denials

If an officer determines that the applicant is ineligible for adjustment, the officer denies the adjustment application. The officer must provide the applicant a written reason for the denial.^[40] Although there are no appeal rights for the denial of an Amerasian-based adjustment application, the applicant may file a motion to reopen or reconsider. The officer should include in the denial notice information on filing a Notice of Appeal or Motion (Form I-290B).

Footnotes

[^ 1] See Pub. L. 97-359 (PDF), 96 Stat. 1716 (October 22, 1982).

[^ 2] See Section 584 of Pub. L. 100-202 (PDF), 101 Stat. 1329, 1329-183 (December 22, 1987).

[^ 3] See Section 584 of Pub. L. 100-202 (PDF), 101 Stat. 1329, 1329-183 (December 22, 1987).

[^ 4] See Pub. L. 97-359, 96 Stat. 1716 (October 22, 1982). The Amerasian Act of 1982 amended INA 204(f) and the regulations at 8 CFR 204.3.

[^ 5] See Pub. L. 100-202 (PDF), 101 Stat. 1329, 1329-183 (December 22, 1987), as amended by Pub. L. 101-167 (PDF), 103 Stat. 1211 (November 21, 1989); Pub. L. 101-513 (PDF), 104 Stat. 1979 (November 5, 1990); Pub. L. 101-649 (PDF), 104 Stat. 4978 (November 29, 1990); and Pub. L. 102-232 (PDF), 105 Stat. 1733 (December 12, 1991). The Amerasian Homecoming Act of 1987 and its requirements are only found in the public law and not the Immigration and Nationality Act (INA) or Title 8 of the Code of Federal Regulations (CFR).

[^ 6] See Pub. L. 97-359 (PDF), 96 Stat. 1716 (October 22, 1982).

[^ 7] See Section 584 of Pub. L. 100-202 (PDF), 101 Stat. 1329, 1329-183 (December 22, 1987).

[^ 8] See Pub. L. 97-359, 96 Stat. 1716 (October 22, 1982).

[^ 9] See 8 CFR 204.4(f)(1)(ii)(A).

[^ 10] See Pub. L. 100-202 (PDF), 101 Stat. 1329 (December 22, 1987).

[^ 11] See Section 584(b)(1)(B)-(C) of Pub. L. 100-202 (PDF), 101 Stat. 1329, 1329-183 (December 22, 1987).

[^ 12] See Section 584(b)(2) of Pub. L. 100-202 (PDF), 101 Stat. 1329, 1329-183 (December 22, 1987).

[^ 13] See Section 584(b)(2) of Pub. L. 100-202 (PDF), 101 Stat. 1329, 1329-183 (December 22, 1987).

[^ 14] See INA 245(c). For more information, see Part B, 245(a) Adjustment, Chapter 3, Unlawful Immigration Status at Time of Filing (INA 245(c)(2)) [7 USCIS-PM B.3] through Chapter 6, Unauthorized Employment (INA 245(c)(2) and INA 245(c)(8)) [7 USCIS-PM B.6].

[^ 15] Under INA 212(a). For more information, see Volume 8, Admissibility [8 USCIS-PM].

[^ 16] See INA 212(a) for the specific grounds of inadmissibility. For more information on waivers and other forms of relief, see Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 17] 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).

[^ 18] See INA 212(a) for the specific grounds of inadmissibility. For more information on waivers and other forms of relief, see Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 19] As described in INA 212(a). 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).

[^ 20] See instructions for Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).

[^ 21] See 8 CFR 204.4(b).

[^ 22] See 8 CFR 204.4(f).

[^ 23] See instructions for Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).

[^ 24] See INA 204(f). 

[^ 25] See 8 CFR 204.4(f)(1)(i)-(ii).

[^ 26] See 8 CFR 204.4(f)(1)(i).

[^ 27] In every case, a U.S. citizen or LPR sponsor at least 21 years of age must sign a guarantee of financial responsibility. The sponsor must agree to support the beneficiary for 5 years or until the beneficiary becomes 21 years of age, whichever period of time is longer. See INA 204(f)(4)(A). See 8 CFR 204.4(f)(1)(ii)(A). See INA 204(f)(4)(B).

[^ 28] See INA 204(f)(4)(A)(ii). See INA 204(f)(2)(C). See 8 CFR 204.4(f)(1)(i)(D). See 8 CFR 204.4(f)(1)(ii)(A). See 8 CFR 204.4(f)(1)(ii)(C). See 8 CFR 204.4(f)(1)(iii).

[^ 29] See 8 CFR 204.4(f)(1)(ii)(A).

[^ 30] See INA 204(f)(3). USCIS may, in its discretion, accept certifications from agencies and foundations as all or part of the evidence if these certifications are convincing, without requesting overseas investigations. On the other hand, USCIS may request an investigation if warranted.

[^ 31] See INA 204(f). To determine eligibility, USCIS consults with appropriate governmental officials and officials of private voluntary organizations in the country of the beneficiary's birth and considers any evidence provided by the petitioner, amongst other adjudicative actions.

[^ 32] See the Notice of Action (Form I-797).

[^ 33] See 8 CFR 103.2(b)(19). For additional information on approvals, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 34] See Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A].

[^ 35] See 8 CFR 103.2(b)(19) and 8 CFR 103.3(a). For additional information on denials, see Volume 1, General Policies and Procedures, Part E, Adjudications [1 USCIS-PM E].

[^ 36] See 8 CFR 205.1(a)(3)(ii).

[^ 37] The A11 code is assigned to those admitted as LPRs at a U.S. port of entry (after consular processing abroad) based on their classification as an unmarried Amerasian son or daughter of a U.S. citizen.

[^ 38] The A31 code is assigned to those admitted as LPRs at a U.S. port of entry (after consular processing abroad) based on their classification as a married Amerasian son or daughter of a U.S. citizen.

[^ 39] The AM1 code is assigned to those admitted as LPRs at a U.S. port of entry (after consular processing abroad) based on their classification as an Amerasian, born in Vietnam after January 1, 1962 and before January 1, 1976 and fathered by a U.S. citizen.

[^ 40] See 8 CFR 103.2(b)(19) and 8 CFR 103.3(a).