USCIS Policy Manual

Current as of October 16, 2018

About the Policy Manual

U.S. Citizenship and Immigration Services (USCIS) makes decisions on benefit and service requests that not only affect foreign nationals and their future, but also the well-being of U.S. citizens, families, organizations, businesses, industries, localities, states, the nation, and international communities. Accordingly, USCIS strives to secure America’s promise as a nation of immigrants by providing accurate and useful information, promoting awareness and understanding of citizenship rights and responsibilities, and making adjudication decisions in a consistent and accurate manner that furthers the goals and integrity of our nation’s immigration system. Our policies drive our benefit and services decisions and ensure that our guidance to USCIS officers who make those decisions reflects our agency’s mission, and strategic vision. These policies also greatly affect our interaction with USCIS’ diverse stakeholder community.

USCIS has undertaken a comprehensive review of our immigration policies to improve quality, transparency, and efficiency. As a result of this extensive and ongoing review, USCIS has created the USCIS Policy Manual, which is the agency’s centralized online repository for USCIS’ immigration policies. The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM), the USCIS Immigration Policy Memoranda site, and other policy repositories. The manual is structured to house several volumes pertaining to different areas of immigration benefits administered by the agency such as citizenship and naturalization, adjustment of status, admissibility, protection and parole, nonimmigrants, refugees, asylees, immigrants, waivers, and travel and employment.

The USCIS Policy Manual is organized into different volumes, parts, and chapters that present policies in a logical and sequential manner. The USCIS Policy Manual provides several user-friendly features and enhancements. These features include up-to-the-minute comprehensive policy updates, an expanded table of contents, and links to related Immigration and Nationality Act (INA) sections, Code of Federal Regulations (CFR), and public use forms. The manual is also equipped with a keyword search function, which will make locating policy and related information faster, easier, and less time consuming. Citations of statutes, regulations, case law, authoritative sources, and other explanatory references appear in footnotes rather than the body of the text. Tables and charts supplement and simplify policy information to facilitate understanding of complex topics and instructions.

The USCIS Policy Manual provides transparency, including outlining policies that are easy to understand, while also furthering consistency, quality, and efficiency. The USCIS Policy Manual contains the official policies of USCIS and must be followed by all USCIS officers in the performance of their duties. The Policy Manual does not create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.

Table of Contents

Volume 1 - General Policies and Procedures

Part A - Customer Service

Chapter 1 - Guiding Principles

Chapter 2 - Delivery of Services

Chapter 3 - USCIS Contact Center

Chapter 4 - InfoPass

Chapter 5 - Privacy and Confidentiality in Customer Service

Chapter 6 - Handling Customer Complaints

Chapter 7 - Assessing Customer Satisfaction and Continuous Service Improvement

Chapter 8 - Service Request Management Tool (SRMT)

Chapter 9 - Web-Based Customer Information

Chapter 10 - Reporting Allegations of Misconduct or Other Inappropriate Behavior

Chapter 11 - Disability Accommodation Requests

Chapter 12 - Requests to Expedite Applications or Petitions

Chapter 13 - Cell Phone Usage in USCIS Offices

Part B - Submission of Benefit Requests

Part C - Biometrics Collection and Security Checks

Part D - Attorneys and Representatives

Part E - Adjudications

Part F - Motions and Appeals

Part G - Notice to Appear

Volume 2 - Nonimmigrants

Part A - Nonimmigrant Policies and Procedures

Part B - Diplomatic and International Organization Personnel (A, G)

Part C - Visitors for Business or Tourism (B)

Part D - Exchange Visitors (J)

Part E - Cultural Visitors (Q)

Part F - Students (F, M)

Part G - Treaty Traders and Treaty Investors (E-1, E-2)

Part H - Specialty Occupation Workers (H-1B, E-3)

Part I - Temporary Agricultural and Non-Agricultural Workers (H-2)

Part J - Trainees (H-3)

Chapter 1 - Purpose and Background

Chapter 2 - H-3 Categories

Chapter 3 - Trainee Program Requirements

Chapter 4 - Special Education Exchange Visitor Program Requirements

Chapter 5 - Family Members of H-3 Beneficiaries

Chapter 6 - Adjudication

Chapter 7 - Admissions, Extensions of Stay, and Change of Status

Part K - Media Representatives (I)

Chapter 1 - Purpose and Background

Chapter 2 - Eligibility

Chapter 3 - Distinction between News and Entertainment

Chapter 4 - Family Members

Chapter 5 - Adjudication

Part L - Intracompany Transferees (L)

Part M - Individuals of Extraordinary Ability or Achievement (O)

Part N - Athletes and Entertainers (P)

Part O - Religious Workers (R)

Part P - NAFTA Professionals (TN)

Part Q - Nonimmigrants Intending to Adjust Status (K, V)

Volume 3 - Protection & Parole

Part A - Protection and Parole Policies and Procedures

Part B - Victims of Trafficking

Part C - Victims of Crimes

Part D - Temporary Protected Status and Deferred Enforced Departure

Part E - Parolees

Part F - Deferred Action

Part G - Humanitarian Emergencies

Volume 4 - Refugees

Volume 5 - Asylees

Volume 6 - Immigrants

Part A - Immigrant Policies and Procedures

Part B - Family-Based Immigrants

Part C - International Orphans and Adoptees

Part D - Immigrants Filing Under Violence Against Women Act

Part E - Employment-Based Immigration

Part F - Employment-Based Classifications

Part G - Investors

Chapter 1 - Purpose and Background

Chapter 2 - Eligibility Requirements

Chapter 3 - Regional Center Designation, Reporting, Amendments, and Termination

Chapter 4 - Immigrant Petition by Alien Entrepreneur (Form I-526)

Chapter 5 - Removal of Conditions

Chapter 6 - Deference

Part H - Designated and Special Immigrants

Part I - Family-Based Conditional Permanent Residents

Chapter 1 - Purpose and Background

Chapter 2 - Terms and Conditions of Conditional Permanent Resident Status

Chapter 3 - Petition to Remove Conditions

Chapter 4 - Waiver to File Jointly

Chapter 5 - Review in Removal Proceedings

Part J - Special Immigrant Juveniles

Chapter 1 - Purpose and Background

Chapter 2 - Eligibility Requirements

Chapter 3 - Documentation and Evidence

Chapter 4 - Adjudication

Chapter 5 - Appeals, Motions to Reopen, and Motions to Reconsider

Chapter 6 - Data

Volume 7 - Adjustment of Status

Part A - Adjustment of Status Policies and Procedures

Chapter 1 - Purpose and Background

Chapter 2 - Eligibility Requirements

Chapter 3 - Filing Instructions

Chapter 4 - Documentation

Chapter 5 - Interview Guidelines

Chapter 6 - Adjudicative Review

Chapter 7 - Child Status Protection Act

Chapter 8 - Transfer of Underlying Basis

Chapter 9 - Death of Petitioner or Principal Beneficiary

Chapter 10 - Legal Analysis and Use of Discretion

Chapter 11 - Decision Procedures

Part B - 245(a) Adjustment

Chapter 1 - Purpose and Background

Chapter 2 - Eligibility Requirements

Chapter 3 - Unlawful Immigration Status at Time of Filing - INA 245(c)(2)

Chapter 4 - Status and Nonimmigrant Visa Violations - INA 245(c)(2) and INA 245(c)(8)

Chapter 5 - Employment-Based Applicant Not in Lawful Nonimmigrant Status - INA 245(c)(7)

Chapter 6 - Unauthorized Employment - INA 245(c)(2) and INA 245(c)(8)

Chapter 7 - Other Barred Adjustment Applicants

Chapter 8 - Inapplicability of Bars to Adjustment

Part C - 245(i) Adjustment

Chapter 1 - Purpose and Background

Chapter 2 - Grandfathering Requirements

Chapter 3 - Grandfathering Considerations for Spouse or Child of a “Grandfathered Alien”

Chapter 4 - Physical Presence Requirement

Chapter 5 - Adjustment Requirements

Part D - Family-Based Adjustment

Chapter 1 - Purpose and Background

Chapter 2 - Marriages Less Than Two Years Old at Time of Adjustment

Chapter 3 - Marriages within Five Years of Obtaining Permanent Resident Status

Chapter 4 - Marriages While in Removal Proceedings

Chapter 5 - Adjustment of Status after the Death of the Petitioner or Principal Beneficiary

Chapter 6 - Fiancé(e) Adjustment Applications based on Form I-129F

Chapter 7 - Adjustment of Status of Stepchildren

Chapter 8 - Priority Date Considerations

Chapter 9 - Family-Based Visa Retrogressed Cases

Chapter 10 - Benefits for Military Family Members

Part E - Employment-Based Adjustment

Chapter 1 - Purpose and Background

Chapter 2 - Employment-Based Priority Dates

Chapter 3 - Labor Certification Substitutions

Chapter 4 - Portability and Other AC21 Provisions

Chapter 5 - Adjustment of Status after the Death of the Principal Beneficiary

Chapter 6 - Treatment of Long-Delayed Visa Retrogressed Cases

Chapter 7 - National Interest Waiver (NIW) Physician Adjustment Cases

Part F - Special Immigrant-Based (EB-4) Adjustment

Chapter 1 - Purpose and Background

Chapter 2 - Religious Workers

Chapter 3 - International Employees of U.S. Government Abroad

Chapter 4 - Panama Canal Zone Employees

Chapter 5 - Certain Physicians

Chapter 6 - Certain G-4 or NATO-6 Employees and Their Family Members

Chapter 7 - Special Immigrant Juveniles

Chapter 8 - Members of the U.S. Armed Forces

Chapter 9 - Certain Broadcasters

Chapter 10 - Certain Afghanistan and Iraq Nationals

Part G - Diversity Visa Adjustment

Part H - Criminal or Terrorist Informant-Based Adjustment

Part I - VAWA-Based Adjustment

Part J - Trafficking Victim-Based Adjustment

Part K - Crime Victim-Based Adjustment

Part L - Refugee Adjustment

Chapter 1 - Purpose and Background

Chapter 2 - Eligibility Requirements

Chapter 3 - Admissibility and Waiver Requirements

Chapter 4 - Documentation and Evidence

Chapter 5 - Adjudication Procedures

Chapter 6 - Termination of Status and Notice to Appear Considerations

Chapter 7 - Precedent Decisions

Part M - Asylee Adjustment

Chapter 1 - Purpose and Background

Chapter 2 - Eligibility Requirements

Chapter 3 - Admissibility and Waiver Requirements

Chapter 4 - Documentation and Evidence

Chapter 5 - Adjudication Procedures

Chapter 6 - Termination of Status and Notice to Appear Considerations

Chapter 7 - Precedent Decisions

Part N - Legalization

Part O - Registration

Chapter 1 - Presumption of Lawful Admission

Chapter 2 - Presumption of Lawful Admission Despite Certain Errors Occurring at Entry

Chapter 3 - Foreign Nationals Born in the United States to Accredited Diplomats

Chapter 4 - Foreign Nationals Who Entered the United States Prior to January 1, 1972

Part P - Special Adjustment Programs

Part Q - Rescission of Lawful Permanent Residence

Part R - Abandonment of Lawful Permanent Residence

Volume 8 - Admissibility

Part A - Admissibility Policies and Procedures

Part B - Health-Related Grounds of Inadmissibility

Chapter 1 - Purpose and Background

Chapter 2 - Medical Examination and Vaccination Record

Chapter 3 - Applicability of Medical Examination and Vaccination Requirement

Chapter 4 - Review of Medical Examination Documentation

Chapter 5 - Review of Overall Findings

Chapter 6 - Communicable Diseases of Public Health Significance

Chapter 7 - Physical or Mental Disorder with Associated Harmful Behavior

Chapter 8 - Drug Abuse or Drug Addiction

Chapter 9 - Vaccination Requirement

Chapter 10 - Other Medical Conditions

Chapter 11 - Inadmissibility Determination

Chapter 12 - Waiver Authority

Part C - Civil Surgeon Designation and Revocation

Chapter 1 - Purpose and Background

Chapter 2 - Application for Civil Surgeon Designation

Chapter 3 - Blanket Civil Surgeon Designation

Chapter 4 - Termination and Revocation

Chapter 5 - Civil Surgeon List

Part D - Criminal and Related Grounds of Inadmissibility

Chapter 1 - Purpose and Background

Chapter 2 - Convictions

Chapter 3 - Crimes Involving Moral Turpitude

Chapter 4 - Types of Crimes Involving Moral Turpitude

Chapter 5 - Inadmissibility Based on Conviction of a CIMT

Chapter 5 - Traditional Approach: Determining Whether a Conviction is a CIMT

Chapter 7 - Silva-Trevino Approach: Determining Whether a Conviction is a CIMT

Chapter 8 - Controlled Substance Offenses

Chapter 9 - Multiple Criminal Convictions

Chapter 10 - Controlled Substance Traffickers

Chapter 11 - Prostitution and Commercialized Vice

Chapter 12 - Asserting Immunity from Prosecution

Chapter 13 - Foreign Government Officials Who Commit Violations of Religious Freedom

Chapter 14 - Significant Traffickers in Persons

Chapter 15 - Money Laundering

Part E - Terrorism

Part F - National Security

Part G - Public Charge

Part H - Labor Certification and Select Immigrant Qualifications

Part I - Illegal Entrants and Other Immigration Violators

Part J - Fraud and Willful Misrepresentation

Chapter 1 - Purpose and Background

Chapter 2 - Overview of Fraud and Willful Misrepresentation

Chapter 3 - Adjudicating Inadmissibility

Chapter 4 - Exemptions, Exceptions, and Waiver Authority

Part K - False Claim to U.S. Citizenship

Chapter 1 - Purpose and Background

Chapter 2 - Determining False Claim to U.S. Citizenship

Chapter 3 - Adjudication

Chapter 4 - Exceptions and Waivers

Part L - Documentation Requirements

Part M - Citizenship Ineligibility

Part N - Aliens Previously Removed

Part O - Aliens Unlawfully Present

Part P - Alien Present After Previous Immigration Violation

Part Q - Practicing Polygamists, International Child Abductors, Unlawful Voters, and Tax Evaders

Volume 9 - Waivers

Part A - Waiver Policies and Procedures

Chapter 1 - Purpose and Background

Chapter 2 - Forms of Relief

Chapter 3 - Review of Inadmissibility Grounds

Chapter 4 - Waiver Eligibility and Evidence

Chapter 5 - Discretion

Chapter 6 - Validity of an Approved Waiver

Chapter 7 - Denials, Appeals, and Motions

Part B - Extreme Hardship

Chapter 1 - Purpose and Background

Chapter 2 - Extreme Hardship Policy

Chapter 3 - Adjudicating Extreme Hardship Claims

Chapter 4 - Qualifying Relative

Chapter 5 - Extreme Hardship Considerations and Factors

Chapter 6 - Extreme Hardship Determinations

Chapter 7 - Discretion

Part C - Waivers for Health-Related Grounds of Inadmissibility

Chapter 1 - Purpose and Background

Chapter 2 - Waiver of Communicable Disease of Public Health Significance

Chapter 3 - Waiver of Immigrant Vaccination Requirement

Chapter 4 - Waiver of Physical or Mental Disorder Accompanied by Harmful Behavior

Chapter 5 - Waiver of Drug Abuse and Addiction

Part D - Waivers for Criminal and Related Grounds of Inadmissibility

Chapter 1 - Purpose and Background

Chapter 2 - Waiver for Immigrant Visa and Adjustment of Status Applicants

Chapter 3 - Criminal Waiver Based on Rehabilitation

Chapter 4 - Criminal Waiver Based on Extreme Hardship

Chapter 5 - Criminal Waiver Based on Status as a VAWA Self-Petitioner

Chapter 6 - Discretionary Analysis and the Impact of Violent or Dangerous Crimes

Chapter 7 - Effect of Granting a Waiver of Inadmissibility for Criminal Grounds

Part E - Aliens Subject to Civil Penalty

Part F - Alien Smuggling

Part G - Waivers for Fraud or Willful Misrepresentation

Chapter 1 - Purpose and Background

Chapter 2 - Adjudication of Fraud and Willful Misrepresentation Waivers

Chapter 3 - Effect of Granting a Waiver

Part H - Unlawful Presence

Part I - Provisional Unlawful Presence

Part J - National Interest

Part K - Family Unity, Humanitarian Purposes, or Public Interest

Part L - Nonimmigrant

Part M - Other Provisions Overcoming Inadmissibility

Part N - Motions and Appeals

Volume 10 - Consent to Reapply

Part A - Consent to Reapply Policies and Procedures

Part B - Adjudications

Part C - Motions and Appeals

Volume 11 - Travel, Employment, & Identity Documents

Part A - Permanent Resident Cards

Chapter 1 - Purpose and Background

Chapter 2 - Replacement or Renewal of a Permanent Resident Card

Chapter 3 - Commuter Cards

Part B - Employment Authorization Documentation

Chapter 1 - Purpose and Background

Chapter 2 - Filing an Application for Employment Authorization

Chapter 3 - Adjudicating an Application for Employment Authorization

Chapter 4 - Employment Authorization Eligibility Categories

Chapter 5 - Pending Applications

Chapter 6 - Special Locations

Chapter 7 - Diplomats, Employees, and Representatives of International Organizations

Chapter 8 - Students, Practical Training, and Exchange Visitors

Chapter 9 - Employment-based Nonimmigrant Visa Eligibility Categories

Chapter 10 - Deferred Enforced Departure (DED)

Chapter 11 - Department of Justice and Executive Office for Immigration Review (EOIR) Cases

Chapter 12 - Victim Protection, Deferred Action Status, and Parole

Chapter 13 - Legalization Programs

Chapter 14 - Temporary Protected Status (TPS)

Chapter 15 - Asylum Applicants, Asylees, and Refugees

Chapter 16 - Expedite Requests

Chapter 17 - Card Production and Card Correction

Chapter 18 - Revocation and Termination

Chapter 19 - Appeals and Motions

Part C - Refugee Travel Documents

Chapter 1 - Purpose and Background

Chapter 2 - General Eligibility Requirements

Chapter 3 - Application for Refugee Travel Document

Chapter 4 - Overseas Applications

Chapter 5 - Results of Application for Refugee Travel Document

Chapter 6 - Replacement of a Refugee Travel Document

Part D - Reentry Permits

Chapter 1 - Purpose and Background

Chapter 2 - Eligibility Requirements for a Reentry Permit

Chapter 3 - Application for a Reentry Permit

Chapter 4 - Results of Application for a Reentry Permit

Chapter 5 - Replacement of a Reentry Permit

Part E - Advance Parole

Chapter 1 - Purpose and Background

Chapter 2 - General Eligibility Requirements

Chapter 3 - Advance Parole Based on a Pending Adjustment of Status Application

Chapter 4 - Advance Parole Based on Temporary Protected Status (TPS)

Chapter 5 - Advance Parole Based on a Grant of Deferred Action for Childhood Arrivals

Chapter 6 - Advance Parole for Applicants with U.S. Visa Interviews Scheduled in Third Countries

Chapter 7 - Application and Required Documentation

Chapter 8 - Results of Application for Advance Parole

Part F - Identity Documents

Chapter 1 - Identification Cards for Naturalized U.S. Citizens

Chapter 2 - Texas Band of Kickapoo Indians

Chapter 3 - Northern Marianas Identification Card

Volume 12 - Citizenship & Naturalization

Part A - Citizenship and Naturalization Policies and Procedures

Chapter 1 - Purpose and Background

Chapter 2 - Becoming a U.S. Citizen

Chapter 3 - USCIS Authority to Naturalize

Part B - Naturalization Examination

Chapter 1 - Purpose and Background

Chapter 2 - Background and Security Checks

Chapter 3 - Naturalization Interview

Chapter 4 - Results of the Naturalization Examination

Chapter 5 - Motion to Reopen

Chapter 6 - USCIS Hearing and Judicial Review

Part C - Accommodations

Chapter 1 - Purpose and Background

Chapter 2 - Accommodation Policies and Procedures

Chapter 3 - Types of Accommodations

Part D - General Naturalization Requirements

Chapter 1 - Purpose and Background

Chapter 2 - Lawful Permanent Resident (LPR) Admission for Naturalization

Chapter 3 - Continuous Residence

Chapter 4 - Physical Presence

Chapter 5 - Modifications and Exceptions to Continuous Residence and Physical Presence

Chapter 6 - Jurisdiction, Place of Residence, and Early Filing

Chapter 7 - Attachment to the Constitution

Chapter 8 - Educational Requirements

Chapter 9 - Good Moral Character

Part E - English and Civics Testing and Exceptions

Chapter 1 - Purpose and Background

Chapter 2 - English and Civics Testing

Chapter 3 - Medical Disability Exception (Form N-648)

Part F - Good Moral Character

Chapter 1 - Purpose and Background

Chapter 2 - Adjudicative Factors

Chapter 3 - Evidence and the Record

Chapter 4 - Permanent Bars to Good Moral Character (GMC)

Chapter 5 - Conditional Bars for Acts in Statutory Period

Part G - Spouses of U.S. Citizens

Chapter 1 - Purpose and Background

Chapter 2 - Marriage and Marital Union for Naturalization

Chapter 3 - Spouses of U.S. Citizens Residing in the United States

Chapter 4 - Spouses of U.S. Citizens Employed Abroad

Chapter 5 - Conditional Permanent Resident Spouses and Naturalization

Part H - Children of U.S. Citizens

Chapter 1 - Purpose and Background

Chapter 2 - Definition of Child for Citizenship and Naturalization

Chapter 3 - United States Citizens at Birth (INA 301 and 309)

Chapter 4 - Automatic Acquisition of Citizenship after Birth (INA 320)

Chapter 5 - Child Residing Outside of the United States (INA 322)

Chapter 6 - Special Provisions for the Naturalization of Children

Part I - Military Members and their Families

Chapter 1 - Purpose and Background

Chapter 2 - One Year of Military Service during Peacetime (INA 328)

Chapter 3 - Military Service during Hostilities (INA 329)

Chapter 4 - Permanent Bars to Naturalization

Chapter 5 - Application and Filing for Service Members (INA 328 and 329)

Chapter 6 - Required Background Checks

Chapter 7 - Revocation of Naturalization

Chapter 8 - Posthumous Citizenship (INA 329A)

Chapter 9 - Spouses, Children, and Surviving Family Benefits

Part J - Oath of Allegiance

Chapter 1 - Purpose and Background

Chapter 2 - The Oath of Allegiance

Chapter 3 - Oath of Allegiance Modifications and Waivers

Chapter 4 - General Considerations for All Oath Ceremonies

Chapter 5 - Administrative Naturalization Ceremonies

Chapter 6 - Judicial and Expedited Oath Ceremonies

Part K - Certificates of Citizenship and Naturalization

Chapter 1 - Purpose and Background

Chapter 2 - Certificate of Citizenship

Chapter 3 - Certificate of Naturalization

Chapter 4 - Replacement of Certificate of Citizenship or Naturalization

Chapter 5 - Cancellation of Certificate of Citizenship or Naturalization

Part L - Revocation of Naturalization

Chapter 1 - Purpose and Background

Chapter 2 - Grounds for Revocation of Naturalization

Chapter 3 - Effects of Revocation of Naturalization

Volume 1 - General Policies and Procedures

Part A - Customer Service

Chapter 1 - Guiding Principles

A. Purpose

USCIS’ customer service policy goals are to:

Achieve excellent customer service each time USCIS interacts with its customers.

Ensure the delivery of accurate, useful, and timely information to USCIS customers.

Identify issues and provide solutions to enhance consistency and to increase customer confidence.

Provide USCIS employees and contractors with clear and concise customer service guidance and standards.

USCIS will ensure its employees have the knowledge and tools needed to administer the immigration laws and policies with professionalism. USCIS will ensure educational and case-specific information is accessible, reliable, and accurate.

B. Core Principle

Meeting customer service expectations can be challenging. The performance of agency duties inevitably means that some customers will be disappointed if their cases are denied. Good customer service means that everyone USCIS affects will be treated with dignity and courtesy regardless of the outcome of the decision. USCIS will not approve a benefit unless all eligibility requirements have been met. Similarly, USCIS will not approve a benefit until all national security and public safety concerns have been appropriately addressed.

USCIS will approach each case objectively and adjudicate each case in a thorough and fair manner. USCIS will carefully administer every aspect of its immigration mission so that its customers can hold in high regard the privileges and advantages of U.S. immigration.

C. Governing Principles

The following principles will govern every action USCIS takes:

1. Respect

USCIS will demonstrate respect for its customers. USCIS will be responsive to customers’ inquiries and provide information and services that demonstrate courtesy and cultural awareness. Through its service, USCIS will be an example of how to treat customers with respect, courtesy, and dignity.

2. Competency

USCIS will provide employees with the comprehensive training necessary to perform their duties. Employees will diligently seek facts through appropriate resources to ensure that customers receive thorough, accurate information and decisions.

3. Consistency

USCIS will administer the immigration laws, regulations, and policies in a consistent manner.

4. Confidentiality

USCIS will comply with all applicable federal privacy and confidentiality laws and policies. USCIS will utilize all available measures to safeguard records that may contain sensitive personal information.

Chapter 2 - Delivery of Services

A. Responding to Customer Inquiries

Inquiries to USCIS may come from different sources and in various formats, but they all have one thing in common: the person making the inquiry has a question or concern and is reaching out to USCIS for a response or resolution.

All inquiries should be reviewed with the goal of First Contact Resolution,” that is, giving an accurate and complete answer the first time to eliminate the need for a subsequent inquiry about the same issue.

Once USCIS determines that the inquiry is not a complaint, the inquiry is resolved either through standard processing or special handling. [1] See Chapter 6, Handling Customer Complaints [1 USCIS-PM A.6].

1. Standard Processing

Most customer inquiries are routine, requesting general information or general assistance. These inquiries can be successfully resolved by regular procedures that are established for daily business operations. Such inquiries do not contain unusual circumstances which may require special handling.

2. Special Handling

Inquiries that contain unusual circumstances may require deviation from regular procedures to obtain proper results. An employee who receives such an inquiry should determine which of the following options should be used to process the inquiry:

Inquiries Not Within USCIS’ Jurisdiction

In situations where USCIS receives an inquiry that falls under the jurisdiction of another agency or department, USCIS redirects the inquiry as appropriate and provides the contact information of the correct agency or department to the customer.

Expedite Processing

Urgent situations that require accelerated processing should be expedited. Expedite cases may require the use of alternate procedures to ensure a rapid resolution.

B. In-Person Contact

There are a variety of ways in which customers can communicate in person to USCIS with any questions or concerns they may have:

1. InfoPass [2] For more information on InfoPass, see Chapter 4, Infopass [1 USCIS-PM A.4].

USCIS provides a free service called InfoPass that allows customers to schedule an appointment with USCIS through the internet. [3] See the USCIS website for information on InfoPass. Whenever possible, customers or their representatives who reside in the United States (domestically) should use InfoPass to schedule appointments if they would like to discuss their cases in person at their local USCIS field office. Customers and their representatives may also use InfoPass to cancel or reschedule appointments.

Customers residing overseas should review the International Immigration Offices overview page to determine which office has jurisdiction over their country of residence and information on scheduling appointments. [4] See the USCIS website for information on International Immigration Offices.

2. Community Outreach Events

USCIS engages in community outreach programs to educate and increase public awareness, increase dialogue and visibility, and solicit feedback on USCIS operations. During outreach events, USCIS employees do not respond to case-specific inquiries. Customers asking case-specific questions at outreach events should be directed to submit their inquiry through appropriate channels.

C. Telephonic Inquiries

Customers may contact USCIS by phone:

1. USCIS Contact Center Inquiries

For the convenience of its customers located within the United States (and territories), USCIS provides a toll-free telephone number answered by the USCIS Contact Center.

USCIS Contact Center: 1-800-375-5283 (TDD for the deaf or hard of hearing: 1-800-767-1833) [5] See Chapter 3, USCIS Contact Center [1 USCIS-PM A.3].

2. International Customers

Customers located outside of the United States should contact the overseas office with jurisdiction over their place of residence. USCIS provides a complete listing of jurisdictions and overseas field offices and their phone numbers. [6] A complete listing of jurisdictions, overseas field offices and their phone numbers can be found in the USCIS website’s International Immigration Offices page.

3. Military Help Line


USCIS has established a toll-free military help line exclusively for members of the military and their families. USCIS customer service specialists are available to answer calls Monday through Friday from 8 a.m. until 4:30 p.m. (CST), excluding federal holidays. After-hours callers receive an email address that they can use to contact USCIS for assistance.

Military Help Line: 1-877-CIS-4MIL (1-877-247-4645)

4. Premium Processing Line

USCIS has established a special phone number and email address for each service center. These special communication channels are available only to Premium Processing Service customers. [7] See the USCIS website for more information on Premium Processing Service. See Request for Premium Processing Service (Form I-907).

Premium Processing Line: 1-866-315-5718

5. Hague Adoptions Line

USCIS has established a toll-free line for questions about adoptions from Hague Convention countries. [8] See the USCIS website for more information on the Hague Process.

Hague Adoptions Line: 1-877-424-8374

D. Correspondence

Customers may contact USCIS by mail:

1. Traditional Mail

General mailing addresses are publicly available to allow the submission of applications and petitions, responses to requests for evidence, or customer Service Requests in a hard copy format. [9] A Service Request is a tool that allows the customer to place an inquiry with USCIS for certain applications, petitions, and services. Service Requests may also be submitted through the USCIS Contact Center or online. Dedicated mailing addresses are available, as appropriate, to aid specific USCIS processes. Mailing addresses are available at the Find a USCIS Office page on the USCIS website.

2. Email

USCIS Service Centers

USCIS service centers provide designated email boxes for customers to inquire about their pending or adjudicated petitions or applications. The email addresses for the service centers are as follows:

California Service Center: csc-ncsc-followup@dhs.gov

Vermont Service Center: vsc.ncscfollowup@dhs.gov

Nebraska Service Center: ncscfollowup.nsc@dhs.gov

Texas Service Center: tsc.ncscfollowup@dhs.gov

Prior to submitting an inquiry to one of the service centers’ email addresses, the customer must have called the USCIS Contact Center to submit a Service Request. If the customer has not received a response within 15 days of the call to the USCIS Contact Center, then the customer may submit an inquiry to the service center where the case is pending.

Any email submitted to a service center must include the Service Request reference number provided by the USCIS Contact Center at the time the Service Request was created. If the customer has not received a response within 21 days of the email to the service center, the customer may contact the USCIS Headquarters Office of Service Center Operations. [10] The customer may contact the USCIS Headquarters Office of Service Center Operations by emailing SCOPSSCATA@dhs.gov.

International USCIS Offices

Each USCIS overseas office has one or more email addresses that are accessible to the public, depending on the type of inquiry. [11] See the USCIS website for information on International Immigration Offices. The USCIS International Operations Division has also activated a public inquiry mailbox for USCIS customers in Canada. The inquiry mailbox, USCIS.Canada@dhs.gov, is monitored and managed by the USCIS Mexico City field office whose administrative jurisdictional responsibilities include Canada.

USCIS officers should use caution when responding to email inquiries requesting case-specific information, as issues of privacy and identity may arise.

3. Facsimile

USCIS does not provide general delivery facsimile numbers. [12] The Verification Division publishes the E-Verify Photo Tool fax number for general public use. USCIS does not publish dedicated facsimile numbers but USCIS offices have the discretion to provide the facsimile number for customers to submit documentation electronically when appropriate to aid in the efficient resolution of a case or as a method to expedite delivery of requested documents or information. Customers should not submit documents via facsimile unless they are specifically asked to do so by a USCIS employee.

4. Service Request Management Tool (SRMT)

The Service Request Management Tool (SRMT) provides USCIS Customer Service staff the ability to record and transfer unresolved Service Requests from customers to the appropriate USCIS service center, domestic USCIS field office, or USCIS asylum office where the customer's application or petition is pending a decision or was adjudicated.

The USCIS office receiving a Service Request should take the necessary steps to communicate directly to the customer about the inquiry or timely relocate the inquiry to another office or organization when appropriate. [13] See Chapter 8, Service Request Management Tool (SRMT) [1 USCIS-PM A.8].

Footnotes

1.

See Chapter 6, Handling Customer Complaints [1 USCIS-PM A.6].

 

2.

For more information on InfoPass, see Chapter 4, Infopass [1 USCIS-PM A.4].

 

3.

See the USCIS website for information on InfoPass.

 

4.

See the USCIS website for information on International Immigration Offices.

 

5.

See Chapter 3, USCIS Contact Center [1 USCIS-PM A.3].

 

6.

A complete listing of jurisdictions, overseas field offices and their phone numbers can be found in the USCIS website’s International Immigration Offices page.

 

7.

See the USCIS website for more information on Premium Processing Service. See Request for Premium Processing Service (Form I-907).

 

8.

See the USCIS website for more information on the Hague Process.

 

9.

A Service Request is a tool that allows the customer to place an inquiry with USCIS for certain applications, petitions, and services. Service Requests may also be submitted through the USCIS Contact Center or online.

 

10.

The customer may contact the USCIS Headquarters Office of Service Center Operations by emailing SCOPSSCATA@dhs.gov.

 

11.

See the USCIS website for information on International Immigration Offices.

 

12.

The Verification Division publishes the E-Verify Photo Tool fax number for general public use.

 

13.

See Chapter 8, Service Request Management Tool (SRMT) [1 USCIS-PM A.8].

 

Chapter 3 - USCIS Contact Center

A. USCIS Contact Center Organization

For the convenience of its customers within the United States, [1] Customers located outside of the United States should direct their inquiries to the overseas USCIS field office with jurisdiction over their place of residence. USCIS provides a toll-free telephone number, which is answered by the USCIS Contact Center. The USCIS Contact Center provides escalating levels of service to handle inquiries of increasing complexity and consists of an Interactive Voice Response (IVR) system and a multi-tiered level of live assistance.

Callers initially have the opportunity to have their questions answered directly by the IVR system. If additional assistance is needed, callers may request live assistance by selecting that option from within the IVR.

Tier 1 Contact Center Customer Service Representatives (CSRs) offer the first level of live assistance. CSRs may be contract employees. CSRs provide basic case-specific and general non-case-specific information to customers. Information provided by Tier 1 will be limited in verbiage and format by informational response scripts that are created and provided by USCIS.

When unable to completely resolve an inquiry, the Tier 1 CSR may transfer the call to the Tier 2 live assistance level to be answered by a USCIS officer.

Customers may, at any time, request to have a call directed to a supervisor.

Inquiries that may need to be resolved by a USCIS domestic field office that physically has the case file require the creation of a Service Request. The Service Request is automatically routed to the USCIS office that can best provide a resolution to the customer inquiry.

For inquiries that may need to be resolved by a USCIS overseas field office that has the hard copy case file, the customer should be referred to the appropriate overseas field office and given that office’s contact information.

B. Levels of Assistance

The following provides additional information regarding the levels of assistance available through the USCIS Contact Center.

1. Interactive Voice Response (IVR)

At the start of a USCIS Contact Center call, the customer interfaces with the IVR telephone system, which is a versatile key technology for automating customer access to services.

IVR enables callers to navigate a telephonic recorded menu to reach specific information or assistance.

The IVR system is available to customers 24 hours a day, 7 days a week.

2. Live Assistance - Tier 1

Live assistance is available at published times for questions not answered by the IVR system.

After interacting with the IVR, the caller has the option to be transferred to a CSR at the Tier 1 Contact Center.

When unable to completely resolve the customer’s inquiry, the CSR may create a Service Request for the USCIS office that is processing the customer’s case, escalate the call to a Tier 2 USCIS officer, or route the call to a supervisor, as appropriate.

3. Live Assistance - Tier 2

If the customer has spoken with the CSR at a Tier 1 Contact Center and has not been able to obtain a resolution, the call may be escalated to a Tier 2 Contact Center if applicable.

Tier 2 is staffed by USCIS officers with access to applicable USCIS systems. USCIS officers may also escalate callers to a supervisor when necessary.

4. Live Assistance - Tier 2 (Supervisor)

When appropriate, the USCIS officer may escalate the call to a supervisory USCIS officer. Calls will be routed to a supervisor when:

Customer requests to speak to a supervisor;

Customer is unusually upset and believes the proposed resolution is improper; or

The matter requires urgent or expedited assistance by another office to resolve in a timely manner.

A USCIS Tier 2 supervisor has the ability to contact USCIS field offices, asylum offices, service centers, and the National Benefits Center through designated points of contact to address any issues that require immediate action or direct assistance. When appropriate for the situation, a supervisor may:

Verify the information provided to the customer by the USCIS officer.

Directly contact the appropriate USCIS office to determine if any additional options may be available to resolve the caller’s issue (if needed).

Create a Service Request if the issue cannot be resolved by the USCIS Contact Center.

Request that the appropriate office take action to alleviate any unnecessary additional wait times, if the caller’s issue resulted from a USCIS error.

Footnotes

1.

Customers located outside of the United States should direct their inquiries to the overseas USCIS field office with jurisdiction over their place of residence.

 

Chapter 4 - InfoPass

A. InfoPass System

In 2004, USCIS implemented a customer-friendly appointment system called InfoPass in domestic field offices nationwide. The InfoPass system, an Internet-based application, allows customers to self-schedule an appointment to visit a USCIS public information room to speak with an officer on a day and time of their choosing within a two-week timeframe. In addition, many of the USCIS overseas field offices have also recently implemented InfoPass. InfoPass provides USCIS with an efficient and effective method of managing its workload and meeting customer demand. InfoPass is a free service USCIS offers to its customers.

B. Scheduling an InfoPass Appointment

To schedule an appointment, customers should visit the InfoPass page on the USCIS website. Customers who do not have access to a computer may visit a USCIS field office and schedule an appointment at an InfoPass kiosk. USCIS officers may assist customers with creating InfoPass appointments as needed.

The InfoPass scheduling menu provides the option of scheduling an appointment in one of 12 languages:

Arabic;

Chinese;

Creole;

English;

French;

Korean;

Polish;

Portuguese;

Spanish;

Tagalog;

Russian; and

Vietnamese.

Chapter 5 - Privacy and Confidentiality in Customer Service

A. Privacy in Customer Service

1. Background

Broadly stated, the purpose of the Privacy Act is to balance the government’s need to maintain personal information with the rights and protections against unwarranted invasions of privacy stemming from federal agencies’ collection, maintenance, use, and disclosure of personal information. [1] See 5 U.S.C. 552a.


​Under the Privacy Act, a federal agency must provide certain protection
s for personally identifiable information (PII) that it collects, disseminates, uses, or maintains. In particular, the Privacy Act covers systems of records that an agency maintains and retrieves by a person’s name or other personal identifier (for example, Social Security number). The Privacy Act requires that privacy information in the custody of the federal government be protected from unauthorized disclosure; violations of these requirements may result in civil and criminal penalties.

2. Application of the Privacy Act in Customer Service

The Department of Homeland Security (DHS) defines PII as any information that permits the identity of a person to be directly or indirectly inferred, including any information which is linked or linkable to that person regardless of whether the person is a U.S. citizen, lawful permanent resident, visitor to the United States, or a DHS employee or contractor.

Sensitive PII is defined as information which, if lost, compromised, or disclosed without authorization, could result in substantial harm, embarrassment, inconvenience, or unfairness to a person. Some examples of PII that USCIS customer service personnel may encounter include:

Name

A-number

Address

Date of birth

Social Security number

Certificate of Naturalization or Citizenship number

USCIS employees have a professional and legal responsibility to protect the PII the agency collects, disseminates, uses, or maintains about persons. All USCIS employees must exercise due care when handling all PII and all information encountered in the course of their work. All USCIS employees processing PII must know and follow the policies and procedures for storing, handling, and sharing PII. Specifically, USCIS employees must:

Collect PII only when authorized;

Limit the access and use of PII;

Secure PII when not in use;

Share PII, only as authorized, with persons who have a need to know; and

Complete and remain current with all PII training mandates.

Providing information to a customer about his or her case often involves releasing information covered under the Privacy Act. It is imperative that USCIS employees and contractors verify the identity of the customer, his or her authorized representative, or both, and ensure that they are entitled to receive case information. USCIS employees and contractors should never release PII over the phone until the identity of the caller and his or her need to know the information have been confirmed.

In addition, written responses to Service Requests or other inquiries are sent to the address of record. If the customer provides an address for a response that is different than the address listed in USCIS systems or in the applicant’s or petitioner’s file, the response should indicate that the customer must update his or her address before USCIS is able to send any correspondence to that address.

3. Congressional and Other Third-Party Releases

Numerous laws, regulations, and policies limit the disclosure of information contained in USCIS files and USCIS data systems. While the Privacy Act is limited to the protection of information regarding a lawful permanent resident or U.S. citizen, by policy, this protection is extended to all persons. In addition, specific statutory, regulatory, and policy protections may apply to certain cases, such as Violence Against Women Act (VAWA), T, and U cases.

Information from other agencies, such as U.S. Immigration and Customs Enforcement (ICE) or the Federal Bureau of Investigation (FBI), may be located in USCIS files and systems. This information must not be released in response to an inquiry, although it may be appropriate to refer the inquiry to another agency.

Case inquiries from Congressional offices are covered by guidance provided by the USCIS Office of Legislative Affairs (OLA) and any such inquiries must be handled by OLA or a designated congressional liaison in accordance with the OLA Standard Operating Procedures.

Generally speaking, the Privacy Act prohibits the disclosure of information subject to the protections of the Act without the consent of the person to whom the information relates. There are enumerated exceptions of the Act that may apply.

One of those exceptions authorizes disclosure to either House of Congress, or any Congressional committee or subcommittee, joint committee, or subcommittee of a joint committee if the matter is within their jurisdiction. For all other requests from members of Congress, such as constituent requests, USCIS requires that a written, signed, and notarized privacy release be obtained from the applicant or petitioner before any information is released.

Similarly, prior to responding to a non-Congressional third-party case inquiry, a written, signed, and notarized privacy release must be obtained from the applicant or petitioner.

4. Requests from Law Enforcement Agencies (LEAs)

Information may be shared with other DHS components under the existing DHS information sharing policy, which considers all DHS components one agency. Requests from LEAs outside of DHS should be referred to the Fraud Detection and National Security (FDNS) supervisor for the office. For requests from federal, state, or local government agency representatives who want to review or want copies of documents from an A-file, USCIS employees should refer to USCIS records procedures regarding outside agency requests for USCIS files.

If an Office of Personnel Management (OPM) or DHS Office of Inspector General (OIG) investigator requests information, the USCIS employee should provide the information upon verifying the requestor’s identity. USCIS employees and contractors are also reminded that they must provide prompt access for auditors, inspectors, investigators, and other personnel authorized by the OIG to any files, records, reports, or other information that may be requested either orally or in writing, and this cooperation may not be impeded by supervisors.

B. Maintaining Confidentiality of VAWA, T, and U Cases

1. Background

Applicants and recipients of immigration relief under the Violence Against Women Act of 1994 (VAWA) [2] See Pub. L. 103-322 (Sept. 13, 1994). and the Victims of Trafficking and Violence Prevention Act of 2000 [3] See Pub. L. 106-386 (Oct. 28, 2000). (T and U nonimmigrant status for victims of trafficking and other serious crimes) are entitled to special protections with regard to privacy and confidentiality. The governing statute prohibits the unauthorized disclosure of information about VAWA, T, and U cases to anyone other than an officer or employee of DHS, the Department of Justice (DOJ), or the Department of State (DOS) who has a need to know. [4] See 8 U.S.C. 1367.

This confidentiality provision is commonly referred to as “Section 384” because it originally became law under Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, [5] See Pub. L. 104-208, 110 Stat. 3009-546, 3009-652 (September 30, 1996). which protects the confidentiality of victims of domestic violence, trafficking, and other crimes who have filed for or have been granted immigration relief.

Because an unauthorized disclosure of information regarding a VAWA, T, or U case can have significant consequences, it is imperative that USCIS employees maintain confidentiality in these cases. Victims of domestic violence, victims of trafficking, and victims of crimes can be put at risk, as can their family members, if information is provided to someone who is not authorized. Anyone who willfully uses, publishes, or permits any information pertaining to such victims to be disclosed in violation of the above-referenced confidentiality provisions may face disciplinary action and be subject to a civil penalty of up to $5,000 for each violation.

2. Scope of Confidentiality

Duration of Confidentiality Requirement

By law, the confidentiality provisions apply while a VAWA, T, or U case is pending and after it is approved, and ends when the application for immigration relief is denied and all opportunities for appeal of the denial have been exhausted. However, as a matter of policy, USCIS has extended the confidentiality to include denied petitions.

Disclosure of Information

USCIS cannot release any information regarding VAWA, T, and U cases until the identity of the requestor of information is verified and that person’s authorization to know or receive the protected information is verified. Such identity and eligibility verification must be done before responding to any inquiry, expedite request, referral, or other correspondence.

Exceptions for Disclosure of Information

USCIS is permitted to disclose information pertaining to VAWA, T, and U cases in certain, limited circumstances. These circumstances include:

Census InformationDisclosure of information may be made in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce. [6] See 13 U.S.C. 8.

Legitimate Law Enforcement PurposesDisclosure of information may be made to law enforcement officials to be used solely for a legitimate law enforcement purpose.

Judicial Review Information can be disclosed in connection with judicial review of a determination provided it is in a manner that protects the confidentiality of the information.

Applicant Waives Confidentiality Adults can voluntarily waive the confidentiality provision; if there are multiple victims in one case, they must all waive the restrictions.

Public Benefits Information may be disclosed to federal, state, and local public and private agencies providing benefits, to be used solely in making determinations of eligibility for benefits. [7] See 8 U.S.C. 1641(c).

Congressional Oversight Authority (for example, Government Accountability Office audits)The Attorney General and the Secretary of Homeland Security can disclose information on closed cases to the chairmen and ranking members of Congressional Committees on the Judiciary, for the exercise of Congressional oversight authority. The disclosure must be in a manner that protects the confidentiality of the information and omits PII (including location-related information about a specific person).

Communication with Non-Governmental Organizations (NGO) – Government entities adjudicating applications for relief [8] This applies to application for relief under 8 U.S.C. 1367(a)(2). and government personnel carrying out mandated duties under the Immigration and Nationality Act (INA) [9] See INA 101(i)(1). may, with the prior written consent of the foreign national involved, communicate with nonprofit NGO victims’ service providers for the sole purpose of assisting victims in obtaining victim services. Agencies receiving referrals are bound by the confidentiality provisions.

National Security Purposes The Secretary of Homeland Security, the Secretary of State, or the Attorney General may provide in their discretion the disclosure of information to national security officials to be used solely for a national security purpose in a manner that protects the confidentiality of such information.

3. Providing Customer Service in VAWA, T, and U Cases

When an applicant for VAWA, T, or U benefits requests customer service, USCIS employees must handle the request with care to ensure confidentiality is maintained.

Change of Address

A change of address can be made by submitting a written request with an original signature to the Vermont Service Center (VSC). Applicants with VAWA, T, or U related cases should not use change of address resources online. Instead, these applicants should submit a Change of Address (Form AR-11), or call the USCIS Contact Center to change their address.

If the case has been transferred to a USCIS field office, the VSC transfers the change of address request to the appropriate office. A change of address in VAWA, T, or U cases that has been transferred to a field office can only be made by a supervisor.

An applicant may also appear in person at a USCIS field office to request a change of address. The applicant’s identity must be verified prior to making the requested change. If the case is at the VSC, the field office must also notify the VSC of the change of address.

Telephonic Inquiries to the USCIS Contact Center

As previously noted, the identity of the person inquiring about a confidential case must be verified and that person’s eligibility to receive information must also be verified. Such verification cannot be effectuated telephonically.

C. Asylum, Refugees, Credible Fear Determinations, and Reasonable Fear Determinations

1. Background

Federal regulations generally prohibit the disclosure to third parties of information contained in or pertaining to asylum applications, credible fear determinations, and reasonable fear determinations. [10] See 8 CFR 208.6. This includes information contained in the Refugee and Asylum Processing System (RAPS) or the Asylum Pre-Screening System (APSS), except under certain limited circumstances. As a matter of policy, this regulation is extended to Registration for Classification as Refugee (Form I-590) as well as Refugee/Asylee Relative Petitions (Form I-730).

These regulations safeguard information that, if disclosed publicly, could subject the claimant to retaliatory measures by government authorities or non-state actors in the event the claimant is repatriated, or could endanger the security of the claimant’s family members who may still be residing in the country of origin.

Moreover, public disclosure might give rise to a plausible protection claim by the claimant where one would not otherwise exist by bringing an otherwise ineligible claimant to the attention of the government authority or non-state actor against which the claimant has made allegations of mistreatment.

Confidentiality is breached when information contained in or pertaining to an asylum application (including information contained in RAPS or APSS), refugee application, or I-730 petition is disclosed to a third-party in violation of the regulations, and the unauthorized disclosure is of a nature that allows the third-party to link the identity of the applicant to:

The fact that the applicant or petitioner has applied for asylum or refugee status;

Specific facts or allegations pertaining to the individual asylum or refugee claim contained in an asylum or refugee application; or

Facts or allegations that are sufficient to give rise to a reasonable inference that the applicant has applied for asylum or refugee status.

The same principles generally govern the disclosure of information related to credible fear and reasonable fear determinations, as well as to applications for withholding or deferral of removal under Article 3 of the Convention Against Torture, which are encompassed within the asylum application. As mentioned above and as a matter of policy, USCIS extends the regulatory safeguards to include refugee case information as well as Form I-730 information.

In the absence of the asylum or refugee applicant’s written consent or the Secretary of Homeland Security’s specific authorization, disclosure may be made only to U.S. government officials or contractors and U.S. federal or state courts on a need-to-know basis related to certain administrative, law enforcement, and civil actions.

The release of information relating to an asylum or refugee application, credible fear determination, or reasonable fear determination (including information contained in RAPS or APSS) to an official of another government or to any entity for purposes not specifically authorized by the regulations without the written consent of the claimant requires the express permission of the Secretary of Homeland Security.

2. Inquiries Related to an Asylum or Refugee Application or Credible or Reasonable Fear Determination

Information contained in, or pertaining to, any asylum or refugee application must not be disclosed to any third-party without the written consent of the applicant, except as permitted by regulation or at the discretion of the Secretary of Homeland Security. [11] See 8 CFR 208.6.

This includes neither confirming nor denying that a particular person filed:

Application for Asylum and Withholding of Removal (Form I-589);

Registration for Classification as Refugee (Form I-590); or

Refugee/Asylee Relative Petition (Form I-730).

USCIS employees should respond to inquiries related to Form I-589, Form I-590, and Form I-730 applications in different ways depending on the inquiry:

Request for Disability Accommodation at an Upcoming Form I-589 Interview

Tier 2 officers may create a Service Request Management Tool (SRMT) request and submit the request to the asylum office with jurisdiction over the pending asylum application. The asylum office then contacts the applicant to arrange for disability accommodation at the interview. While officers must not confirm or deny the existence of a pending asylum application, those making disability accommodation requests for upcoming asylum interviews should be told that the request is being recorded and will be forwarded to the appropriate office for follow-up.

Change of Address Request

Tier 2 officers may create a Service Request and submit it to the asylum office or service center with jurisdiction over the pending asylum application or Form I-730 petition. The office then fulfills the Service Request. While officers must not confirm or deny the existence of a pending asylum application, those making address change requests should be told that the request is being recorded and will be forwarded to the appropriate office.

USCIS Contact Center Status Inquiries for Form I-589 Applications and Form I-730 Petitions

USCIS Contact Center personnel may not respond to any status inquiries, and may not confirm or deny the existence of an application or petition. Instead, USCIS Contact Center personnel should direct the caller to the local office with jurisdiction over the application. The office with jurisdiction over the application must respond to the inquiry.

USCIS Contact Center Status Inquiries for I-590 Applications

USCIS Contact Center personnel may not respond to any status inquiries and may not confirm or deny the existence of an application or petition. Instead, USCIS Contact Center personnel should obtain all relevant information from the inquirer and refer the inquiry to the USCIS Headquarters Refugee Affairs Division (RAD) for response.

Inquiries Regarding Subsequent Applications or Petitions Based on Underlying Form I-589, Form I-590, or Form I-730

Officers may respond to inquiries regarding subsequent applications or petitions that are based on an underlying Form I-589, Form I-590, or Form I-730 (including Application for Travel Document (Form I-131), Application for Employment Authorization (Form I-765), or Application to Register Permanent Residence or Adjust Status (Form I-485) applications or petitions). Officers may not confirm or deny the existence of the underlying application.

General Inquiries

USCIS employees may respond to general questions about the asylum program, the U.S. Refugee Admission Program (USRAP), and credible and reasonable fear screenings. [12] Examples of general inquiries include: Who can apply for asylum or refugee status, how to apply for asylum or access the USRAP, bars to protection, whether applicants are eligible for work authorization, number of days it normally takes before an interview is scheduled. However, for all specific case status questions relating to I-589 applications or I-730 petitions, the inquirers must be directed to contact the local asylum office or service center with jurisdiction over the application. For specific case status questions relating to I-590 refugee applications, the inquiry must be referred to RAD for response.

Asylum offices may accept case inquiries from the applicant or the applicant’s attorney or representative with a properly completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file.

Asylum offices may receive case inquiries in a variety of ways, such as by mail, email, phone, fax, or in person. When it is possible to verify the identity of the applicant or attorney or representative inquiring, offices may respond using any of those communication channels. If it is not possible to verify the identity of the inquirer, asylum offices should respond to inquiries by providing a written response to the last address the applicant provided.

RAD does not respond to inquiries over the phone, but instead asks the inquirer to put his or her request in writing so that the signature and return address can be compared to information on file. RAD responds to an inquiry received by email only if the email address matches the information the applicant submitted to the Resettlement Support Center.

D. Temporary Protected Status (TPS)

1. Background

Like refugee and asylum cases, information pertaining to TPS cases may not be disclosed to certain third parties because unauthorized disclosure of information may put the applicant or the applicant’s family at risk. [13] See INA 244(c)(6). See 8 CFR 244.16.

The law prohibits the release of information contained in the TPS application or in supporting documentation to third parties without the written consent of the applicant. A third party is defined as anyone other than:

The TPS applicant;

The TPS applicant’s attorney or authorized representative (with a properly executed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file);

A DOJ officer, which has also been extended to include a DHS officer following the transfer of certain immigration functions from DOJ to DHS; or

Any federal or state law enforcement agency.

2. Inquiries Related to TPS

USCIS may not release any information contained in any TPS application and supporting documents in any form to any third party, without a court order or the written consent of the applicant. [14] See 8 CFR 244.16 for exceptions.

Status inquiries may not confirm or deny the existence of a TPS application, or whether a person has TPS, until the identity of the inquirer has been confirmed and it has been determined the inquirer is not a third party to whom information may not be released.

USCIS employees must adhere to these same TPS confidentiality provisions regarding the disclosure of information to third parties even if the information is contained in a TPS-related form such as the Application for Employment Authorization (Form I-765), which every TPS applicant must file; a TPS-related waiver requested on Application for Waiver of Grounds of Inadmissibility (Form I-601); or a TPS-related Application for Travel Document (Form I-131). With respect to confidentiality, employees must treat these records as they do other TPS supporting documentation in the TPS application package.

USCIS employees may respond to general questions about the TPS program. [15] Examples of general inquiries include: Who can apply for TPS, how to apply for TPS, bars to TPS, whether applicants are eligible for work authorization, and the number of days it normally takes to adjudicate an application for TPS. However, for all case-specific questions relating to Form I-821 applications, identity must first be confirmed and eligibility to receive such information must first be established.

Offices must not take or respond to inquiries about the status of a TPS application made by telephone, fax, or email because it is not possible to sufficiently verify the identity of the inquirer. Offices may accept written status requests signed by the applicant (or the applicant’s attorney or representative with a properly completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file).

3. Exceptions for Disclosure

Information about TPS applications and information contained in supporting documentation can be disclosed to third parties in two instances:

When it is mandated by a court order; or

With the written consent of the applicant.

Information about TPS cases can be disclosed to officers of DOJ, DHS, or any federal or state law enforcement agency since they are not considered third parties. [16] See 8 CFR 244.16. Information disclosed pursuant to the requirements of the TPS confidentiality regulation may be used for immigration enforcement or in any criminal proceeding.

E. Legalization

1. Background

Statutory and regulatory provisions require confidentiality in legalization cases and Legal Immigration Family Equity (LIFE) Act legalization cases, prohibiting the publishing of any information that may be identified with a legalization applicant. [17] See INA 245A(c)(4)-(5). See 8 CFR 245a.2(t), 8 CFR 245a.3(n), and 8 CFR 245a.21. The laws also do not permit anyone other than sworn officers and employees of DHS and DOJ to examine individual applications.

Information contained in the legalization application can only be used in the following circumstances:

To make a determination on the legalization application;

For criminal prosecution of false statements violations; [18] See INA 245A(c)(6). or

In preparation of certain reports to Congress.

A breach in confidentiality of legalization cases can result in a $10,000 fine.

2. Exceptions for Disclosure of Information

USCIS is permitted to disclose information pertaining to legalization cases in certain, limited circumstances. These circumstances include:

Law Enforcement Purposes

USCIS is required to disclose information to a law enforcement entity in connection with a criminal investigation or prosecution, when that information is requested in writing.

Requested by an Official Coroner

USCIS is also required to disclose information to an official coroner for purposes of affirmatively identifying a deceased person (whether or not the person died as a result of a crime).

Census Information

Disclosure of information may be made in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce. [19] See 13 U.S.C. 8.

Available from Another Source

USCIS may disclose information furnished by an applicant pursuant to the legalization application, or any other information derived from the application, provided that it is available from another source (for example, another application or if the information is publicly available).

3. Inquiries Related to Legalization

Case-specific information may be provided to the applicant and the applicant’s attorney or authorized representative (with a properly completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file) after the inquirer’s identity has been verified. No others are authorized to receive legalization information unless one of the enumerated exceptions to disclosure noted above applies.

F. Special Agricultural Workers (SAW)

1. Background

Material in A-files filed pursuant to the SAW program is protected by strict confidentiality provisions. [20] See INA 210. This pertains to the 1987-1988 SAW program. The statute provides that the employee who knowingly uses, publishes, or permits information to be examined in violation of the confidentiality provisions shall be fined not more than $10,000. In general, USCIS may not use information furnished by the SAW applicant for any purpose other than to make a determination on the application, for termination of temporary residence, or for enforcement actions relating to false statements in applications. [21] See INA 210(b)(7). The applicant may not waive the confidentiality provisions and they even survive the death of the applicant.

2. Exceptions for Disclosure and Use of Information

It is appropriate for DHS and DOJ employees to have access to SAW material. The materials are subject to the above mentioned penalties for unlawful use, publication, or release. USCIS is permitted to disclose information pertaining to SAW cases in certain, limited circumstances. These circumstances include:

Law Enforcement Purposes

USCIS is required to disclose information to a law enforcement entity in connection with a criminal investigation or prosecution, when that information is requested in writing.

Requested by an Official Coroner

USCIS is also required to disclose information to an official coroner for purposes of affirmatively identifying a deceased person (whether or not the person died as a result of a crime).

Criminal Convictions

Information concerning whether the SAW applicant has at any time been convicted of a crime may be used or released for immigration enforcement or law enforcement purposes.

3. Inquiries Related to Special Agricultural Workers

In general, it is permissible to disclose only that an applicant has applied for SAW and the outcome of the adjudication. Case information may be provided to the applicant and the applicant’s attorney or authorized representative (with a properly completed Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) on file) after the inquirer’s identity has been verified. No others are authorized to receive SAW information unless one of the enumerated exceptions to disclosure noted above applies.

G. Nonimmigrants under S Visa Category

Nonimmigrants under the S visa category are foreign national witnesses or informants. An S nonimmigrant is not readily identified in USCIS systems. However, if a USCIS employee discovers that a customer is an S nonimmigrant or has applied for such status, the case must be handled carefully. Inquiries regarding an Interagency Alien Witness and Informant Record (Form I-854) as well as inquiries regarding an Application for Employment Authorization (Form I-765) filed on the basis of being a principal nonimmigrant witness or informant in S classification, and qualified dependent family members should come from a law enforcement entity. [22] See 8 CFR 274a.12(c)(21).

If a customer makes an inquiry regarding the status of a Form I-854 or a Form I-765 filed as an S nonimmigrant, the USCIS employee must neither confirm nor deny the existence of such applications and should inform the customer that inquiries on these applications must be submitted through appropriate law enforcement channels.

Also, under no circumstances may USCIS employees ask questions about the S nonimmigrant’s role in cooperating with law enforcement, the type of criminal activity for which the nonimmigrant is an informant or witness, or any specific information about the case in which the S nonimmigrant may be involved.

H. Applicants in the Witness Security Program

Applicants in the Witness Security Program (commonly known as the Witness Protection Program) are not identifiable in USCIS systems. Such applicants should not tell anyone, including USCIS employees, that they are participants in the program. Identities of foreign nationals in the program must be in separate immigration files. However, one file will have documentation of a legal name change.

If an applicant indicates that he or she is in the Witness Security Program, the applicant should be referred to the U.S. Marshals Service. Also, under no circumstances should USCIS employees ask questions about why or how the applicant was placed in the Witness Security Program or any specific information about the case which resulted in the applicant being placed in the Witness Security Program.

Footnotes

1.

See 5 U.S.C. 552a.

 

2.

See Pub. L. 103-322 (Sept. 13, 1994).

 

3.

See Pub. L. 106-386 (Oct. 28, 2000).

 

4.

See 8 U.S.C. 1367.

 

5.

See Pub. L. 104-208, 110 Stat. 3009-546, 3009-652 (September 30, 1996).

 

6.

See 13 U.S.C. 8.

 

7.

See 8 U.S.C. 1641(c).

 

8.

This applies to application for relief under 8 U.S.C. 1367(a)(2).

 

9.

See INA 101(i)(1).

 

10.

See 8 CFR 208.6.

 

11.

See 8 CFR 208.6.

 

12.

Examples of general inquiries include: Who can apply for asylum or refugee status, how to apply for asylum or access the USRAP, bars to protection, whether applicants are eligible for work authorization, number of days it normally takes before an interview is scheduled.

 

13.

See INA 244(c)(6). See 8 CFR 244.16.

 

14.

See 8 CFR 244.16 for exceptions.

 

15.

Examples of general inquiries include: Who can apply for TPS, how to apply for TPS, bars to TPS, whether applicants are eligible for work authorization, and the number of days it normally takes to adjudicate an application for TPS.

 

16.

See 8 CFR 244.16.

 

17.

See INA 245A(c)(4)-(5). See 8 CFR 245a.2(t), 8 CFR 245a.3(n), and 8 CFR 245a.21.

 

18.

See INA 245A(c)(6).

 

19.

See 13 U.S.C. 8.

 

20.

See INA 210. This pertains to the 1987-1988 SAW program.

 

21.

See INA 210(b)(7).

 

22.

See 8 CFR 274a.12(c)(21).

 

Chapter 6 - Handling Customer Complaints

A. Submitting Complaints [1] This chapter specifically addresses complaints that do not involve egregious or criminal misconduct. For information on the Office of Security and Integrity’s policy on reporting criminal and egregious misconduct, see Chapter 10, Reporting Allegations of Misconduct or Other Inappropriate Behavior [1 USCIS-PM A.10].

Customers may file a complaint with USCIS in several ways:

Make a complaint while in a USCIS office by asking to speak to a supervisor

In these situations, a supervisor must be made available to the customer within a reasonable amount of time. The supervisor should take the customer’s name and information about the nature of the complaint. The supervisor should attempt to resolve the issue prior to the customer leaving the office, if possible.

Submit a written complaint by mail

Written complaints may include handwritten letters, emails, or faxes. [2] See Appendix: USCIS Customer Dissatisfaction Terms and Definitions for information on where to send complaints.

Contact the Office of Inspector General (OIG) directly [3] See Appendix: USCIS Customer Dissatisfaction Terms and Definitions for information on how to contact the OIG.

Contact information for the Department of Homeland Security (DHS) OIG can be found on both the USCIS website and on the DHS website. OIG contact information must also be displayed in a public area, visible to customers, in every USCIS field office.

File a complaint with USCIS Headquarters (HQ)

HQ contact information is provided on USCIS’ website. If the complaint is directed to the wrong directorate or program office, the complaint must be forwarded to the appropriate HQ entity.

Ask to speak to a call center supervisor

If a customer is unhappy with the service he or she received during a call to the USCIS Contact Center, the customer may ask to speak to a supervisor. [4] See Chapter 3, USCIS Contact Center [1 USCIS-PM A.3]. Both Tier 1 and Tier 2 customer service representatives must transfer the call to a supervisor.

B. Complaints Received

Customers should not be expected to know where to first submit a complaint or how to elevate a complaint if they feel that their issue has not been adequately addressed. Under no circumstances should a customer’s complaint be dismissed or disregarded because the customer did not follow the proper process for filing a complaint. All complaints received must be handled appropriately.

All complaints should be responded to either by providing a written response to the customer, calling the customer to address the complaint, or verbally addressing the complaint with the customer in situations where the customer submits his or her complaint in person. The response should explain steps taken to resolve the issue. In cases where the complaint cannot be resolved in a reasonable time, the response should acknowledge the receipt of the complaint, when a resolution is expected, and any additional action the customer should take.

Applicants with complaints about being victimized by a person engaged in the unauthorized practice of immigration law (UPIL) should be directed to USCIS’ website where they can find state-by-state reporting information as well as information on how to report UPIL to the Federal Trade Commission (FTC).

Footnotes

1.

This chapter specifically addresses complaints that do not involve egregious or criminal misconduct. For information on the Office of Security and Integrity’s policy on reporting criminal and egregious misconduct, see Chapter 10, Reporting Allegations of Misconduct or Other Inappropriate Behavior [1 USCIS-PM A.10].

 

2.

See Appendix: USCIS Customer Dissatisfaction Terms and Definitions for information on where to send complaints.

 

3.

See Appendix: USCIS Customer Dissatisfaction Terms and Definitions for information on how to contact the OIG.

 

4.

See Chapter 3, USCIS Contact Center [1 USCIS-PM A.3].

 

Chapter 7 - Assessing Customer Satisfaction and Continuous Service Improvement

A. Introduction

Customer satisfaction is generally understood to be the sense of satisfaction that customers feel when comparing their expectations with the actual service the customer received. In order to improve customer service, USCIS conducts periodic assessments of customer satisfaction.

B. Assessing Customer Satisfaction

1. USCIS Contact Center

USCIS conducts telephone interviews every month with customers who have called the USCIS Contact Center within the past 90 days. USCIS may contract with a private company to execute this task. The interviews that are conducted represent a statistically valid sample. At least 20 percent of these interviews are conducted in the Spanish language.

Interview questions assess satisfaction with each component of the USCIS Contact Center. USCIS develops the telephone interview questions in conjunction with the contracted company. These questions are reviewed annually for applicability and usefulness in assessing overall satisfaction with the services provided by the USCIS Contact Center.

2. InfoPass Appointments

Field offices may provide customer satisfaction feedback forms in their waiting rooms. If such forms are provided, field offices should also provide customers a place within the office to deposit their feedback forms. Offices should not distribute legacy-INS Report of Complaint (Form I-847).

3. USCIS Website

In February 2010, USCIS, through its Office of Communications, implemented the American Customer Satisfaction Index (ACSI) Survey on the USCIS website. This recognized instrument is a randomized, pop-up, online survey offered to users of the USCIS website. By participating in this survey, USCIS became part of the E-Government Satisfaction Index and joined more than one hundred other government organizations and agencies that have already implemented this survey and are receiving feedback.

USCIS reviews the results of the survey on a quarterly basis and identifies opportunities for improvement on the USCIS website. Survey data also informs USCIS where resources might best be used to affect overall customer satisfaction.

Survey questions are designed to gauge the overall user experience and customer satisfaction with USCIS’ website. Survey questions address the following USCIS website elements:

Content;

Functionality;

Appearance;

Navigation;

Search function; and

Performance (for example, speed).

A 10-point scale is used in survey questions. These individual scores are grouped according to the performance area, then weighted and translated into a 100-point customer satisfaction score. The survey also contains open-ended questions. Responses to these questions are examined for specific feedback and recommendations USCIS can implement on the site.

USCIS also reviews a wide assortment of research papers and other products available from the survey administrator to help USCIS in data gathering, analysis, and site improvement activities.

Chapter 8 - Service Request Management Tool (SRMT)

A. Introduction

SRMT is used domestically to record and respond to a customer or his or her authorized representative’s request for service. When the customer requests service by calling the USCIS Contact Center toll-free telephone number, a SRMT Service Request is created by USCIS Contact Center staff if the inquiry cannot be resolved during the call. Though the majority of SRMTs are created at the USCIS Contact Center, SRMTs are also created by officers, often when access to an A-file is needed to properly respond to the applicant’s question and the file is located elsewhere. Creating an SRMT allows the customer to receive a response without having to return to the office in most instances.

By using an online portal, customers living in the United States may create a request directly for change of address (COA) requests regarding most receipt types (excluding VAWA, T nonimmigrant, and U nonimmigrant applicants or petitioners). [1] For more information on confidentiality in VAWA, T, U, and other cases, see Chapter 5, Privacy and Confidentiality in Customer Service [1 USCIS-PM A.5]. Customers may also directly initiate SRMT inquiries online when certain pending applications or petitions are outside normal processing times.

B. Timely Response

USCIS responds to requests for service within the required timeframes. USCIS categorizes an SRMT request based upon the urgency and request type, and assigns a target completion date based on the category. USCIS completes requests within each category on a first-in first-out basis. In general, the goal for all other SRMT referrals is 15 calendar days from the date of creation.

The following requests receive processing priority and should be responded to within 7 calendar days from the date of creation:

1. Change of Address (COA)

USCIS must process change of address requests at the earliest opportunity in order to reduce the potential for undeliverable mail and associated concerns. Address records on all open associated application or petition receipts must be updated unless instructed otherwise by the customer. Address record changes are only limited to select identified receipts when the customer explicitly requests the change of address request be restricted.

When the address listed for the applicant in a request is different from the address listed in USCIS information systems, it is considered to be an address change request regardless of whether the request was for a COA or for another reason. The address in the request is then used to change address records on all directly related receipts.

However, no address change request is inferred if the Service Request was initiated by a representative and the address listed in the request is the representative’s address. Also, in these situations, a copy of the response should be mailed to the petitioner or applicant at his or her address of record.

USCIS does not accept COA requests on a VAWA, T nonimmigrant, or U nonimmigrant-related application or petition that are received through an SRMT. A hard-copy, signed COA request submitted through traditional mail is required. Offices should respond to VAWA, T nonimmigrant, and U nonimmigrant COA requests using the standard language. [2] See Chapter 5, Privacy and Confidentiality in Customer Service, Section B, Maintaining Confidentiality of VAWA, T, and U Cases, Subsection 3, Providing Customer Service in VAWA, T, and U Cases [1 USCIS-PM A.5(B)(3)].

2. Expedite Requests

Expedite service requests, including those involving Supplemental Security Income (SSI), are self-identified as urgent. The customer requesting expedited service may be required to submit evidence to support the expedite request. [3] See Chapter 12, Requests to Expedite Applications or Petitions [1 USCIS-PM A.12].

3. Reasonable Accommodation

Reasonable accommodation service requests must be responded to in accordance with the disability accommodations policy. [4] See Chapter 11, Disability Accommodation Requests [1 USCIS-PM A.11].

4. Military Referral

Military referrals have implied urgency based upon the uncertainty of reassignments and deployments.

5. Approaching Regulatory Timeframe

Approaching regulatory timeframe service requests are for an Application for Employment Authorization (Form I-765) that has been pending for more than 75 days.

USCIS considers the following in determining whether a case has been pending more than 75 days:

If USCIS issues a request for initial evidence on either the Form I-765 application itself or the principal application (for example, Form I-485), the 90-day regulatory timeframe starts over from the date of receipt of the initial evidence (USCIS will reset the “clock” to Day 1 upon receipt of the evidence).

If USCIS issues a request for additional evidence, the clock stops upon issuance of the request and resume from the same point upon receipt of the additional evidence.

6. Beyond Regulatory Timeframe

Beyond regulatory timeframe service requests are for a Form I-765 that has been pending more than 90 days. [5] For information on the calculation of how long the application has been pending where a request for evidence has been issued, see Subsection 5, Approaching Regulatory Timeframe [1 USCIS-PM A.8(B)(5)].

Footnotes

1.

For more information on confidentiality in VAWA, T, U, and other cases, see Chapter 5, Privacy and Confidentiality in Customer Service [1 USCIS-PM A.5].

 

2.

See Chapter 5, Privacy and Confidentiality in Customer Service, Section B, Maintaining Confidentiality of VAWA, T, and U Cases, Subsection 3, Providing Customer Service in VAWA, T, and U Cases [1 USCIS-PM A.5(B)(3)].

 

3.

See Chapter 12, Requests to Expedite Applications or Petitions [1 USCIS-PM A.12].

 

4.

See Chapter 11, Disability Accommodation Requests [1 USCIS-PM A.11].

 

5.

For information on the calculation of how long the application has been pending where a request for evidence has been issued, see Subsection 5, Approaching Regulatory Timeframe [1 USCIS-PM A.8(B)(5)].

 

Chapter 9 - Web-Based Customer Information

A. Introduction

As the web has expanded and evolved, the need to provide customers with timely information and service “where they live” has remained constant. An increasing number of customers expect to interact with institutions, not only through traditional websites, but also through social media and multimedia. Therefore, USCIS continuously strives toward a web presence that is built to fully engage its customers and meet their needs in a multi-dimensional and multi-channel format.

Social media provides an informal and compact means of communication, but also connects customers with core information and services on the USCIS website. In this way, social media complements the USCIS website and increases USCIS’ ability to communicate with customers.

B. Web-Based Customer Information Tools

The USCIS website provides customers with the following:

Timely and accurate information on immigration and citizenship services and benefits offered by USCIS;

Easy access to forms, form instructions, and other information required to successfully submit applications and petitions;

The latest news and policy updates;

Information on outreach events and efforts; and

Information on ways customers can contact USCIS.

In addition to USCIS.gov, USCIS also hosts the following sub-sites:

InfoPass (https://my.uscis.gov/appointment) – Allows customers to make appointments online

Customer Relationship Interface System (CRIS) (http://egov.uscis.gov) – Allows customers to check case status, change an address online, locate an office, and complete other tasks

Citizenship Resource Center (www.uscis.gov/citizenship) – Hosts information and resources designed to assist prospective citizens

Social media tools have also become an integral part of USCIS’ web presence. At present, these tools include:

Official blog of USCIS, “The Beacon

USCIS YouTube channel

USCIS Twitter account

USCIS Facebook page

1. USCIS Website

Redesigned in 2009, USCIS’ website provides customers with access to the most searched and visited pages as well as current news releases, alerts, and other updates. USCIS designed the website to accommodate easy navigation to highly trafficked pages directly from the homepage, as well as a logical structure and search capability for easy access to all other pages.

USCIS makes every effort to provide complete and accurate information on USCIS’ website. USCIS does its best to correct errors brought to its attention as soon as possible. When the USCIS webmaster receives notification from the public about a possible error, the webmaster forward the notification to the directorate or program office responsible for the content in question.

The responsible directorate or program office reviews the content and provides corrections or clarifications, if necessary. Both the English language and Spanish language pages are updated at the same time as appropriate. USCIS directorates and program offices that submit content for posting on the USCIS website are responsible for notifying the Office of Communications (OCOMM) when there are changes to that information.

2. USCIS Blog, The Beacon

USCIS uses The Beacon to communicate with customers and stakeholders. OCOMM serves as the executive agent for The Beacon and controls who at USCIS has access to make changes to the blog.

The Beacon was created to foster an ongoing dialogue regarding the immigration and naturalization process in the United States. Readers are encouraged to provide USCIS with comments, ideas, concerns, and constructive criticism. USCIS appreciates and considers comments received on The Beacon, especially as to how USCIS might improve its web presence and better serve customers.

The Department of Homeland Security (DHS) privacy policy [1] See the DHS Website Privacy Policy. and Privacy Impact Assessment (PIA) [2] See the DHS Privacy Resources for the DHS PIA “Use of Social Networking Interactions and Applications.” govern USCIS’ use of this blog from a privacy perspective. Any information posted on The Beacon is available to the person posting and to any and all users of The Beacon who are able to access the public-facing side of the account.

To protect privacy, readers of The Beacon who submit comments to blog posts should not include their full name, phone number, email address, Social Security number, case-number, or any other sensitive personally identifiable information (PII) in their submissions. Comments including this information will not be posted.

Further, USCIS may share information posted on The Beacon if there is a demonstrated need to know, and only posts information after it has been appropriately approved and vetted by OCOMM. The Beacon is a moderated blog. USCIS reviews all reader comments submitted before posting.


​USCIS does not guarantee or warrant that any information posted by persons on this blog is correct and disclaims any liability for any loss or damage resulting from reliance on any such information. USCIS may not be able to verify, does not warrant or guarantee, and assumes no liability for any comments posted on The Beacon by any other person. The views expressed on the site by commentators do not reflect the official views of USCIS or the U.S. Government.


​USCIS recognizes that the web is a
24/7 medium, and comments are welcome at any time. However, given the need to manage federal resources, USCIS moderates and posts comments during regular business hours on Monday through Friday. Comments submitted after hours, on weekends, or on federal holidays are reviewed and posted as early as possible; in most cases, these comments are posted the next business day.

3. USCIS Twitter Account

USCIS approaches its Twitter account in much the same way as the blog: USCIS’ Twitter account is another electronic channel that helps USCIS make information and services more widely available to the general public, and promote transparency and accountability.

Further, Twitter is used as a tool for short, real-time communication with the public. OCOMM serves as the executive agent for the USCIS Twitter account and controls who at USCIS has access to publish tweets. Like the blog, any information posted on the USCIS Twitter account is available to the person posting and to any and all users on the USCIS Twitter account who are able to access the public side of the account.

USCIS may share information posted on the USCIS Twitter account if there is a demonstrated need to know, and only posts information after it has been appropriately approved and vetted by OCOMM.

4. USCIS YouTube Channel

Before USCIS launched its own YouTube channel, many USCIS videos published on USCIS.gov were also available on the DHS YouTube channel. As the number of videos increased, a decision was reached to start a separate USCIS YouTube channel for USCIS-specific content. The USCIS channel remains accessible and searchable through the DHS channel.

Comments and video responses posted to the USCIS YouTube channel are subject to YouTube's usage policies. Comments are public and available to anyone visiting a USCIS channel or video. To protect one’s privacy and the privacy of others, users should not include their full names, phone numbers, email addresses, Social Security numbers, case numbers, or any other PII in comments or response videos.

USCIS does not moderate user comments on its channel prior to posting, but reserves the right to remove any materials that pose a security risk. Any opinions expressed on YouTube, except as specifically noted, are those of the individual commentators and do not reflect any agency policy, endorsement, or action. USCIS does not collect or retain comments in its records.

​Use of YouTube, including the posting of comments on this channel, is governed by the YouTube Privacy Policy.
[3] See YouTube Privacy Policy.

5. USCIS Facebook Page

USCIS social networking web pages welcome comments and postings. USCIS does not moderate comments on the USCIS Facebook page prior to posting, but reserves the right to remove any materials that pose a security or privacy risk. Only USCIS employees acting in their official capacity are authorized representatives to administer a USCIS Facebook page. All postings and content are considered property of USCIS, and USCIS retains the authority to remove or limit its distribution.

USCIS generally uses the Facebook page for external relations (for example, communications, outreach, public dialogue) to make information and services widely available to the general public, to promote transparency and accountability, and as a service for those seeking information about or services from USCIS.

DHS OCOMM serves as the executive agent for the USCIS Facebook page and controls who has and maintains access. USCIS may share information on the USCIS Facebook page if there is a demonstrated need to know, and only posts information after it has been appropriately approved and vetted by USCIS OCOMM.

Footnotes

1.

See the DHS Website Privacy Policy.

 

2.

See the DHS Privacy Resources for the DHS PIA “Use of Social Networking Interactions and Applications.

 

3.

See YouTube Privacy Policy.

 

Chapter 10 - Reporting Allegations of Misconduct or Other Inappropriate Behavior

USCIS customers should report allegations of misconduct by both government and contract employees. [1] USCIS employees are also subject to mandatory reporting requirements for known or suspected misconduct by federal employees and contractors.

A. Employee Misconduct to Report

Examples of alleged employee misconduct that should be reported immediately to the USCIS Office of Security and Integrity (OSI) and the DHS Office of the Inspector General include, but are not limited to:

Fraud, corruption, bribery, and embezzlement;

Sexual advances or sexual misconduct;

Theft or misuse of funds and theft of government property;

Perjury;

Physical assault; [2] Physical assault may include grabbing, fondling, hitting, or shoving.

Unauthorized release of classified information;

Drug use or possession;

Unauthorized use or misuse of sensitive official government databases;

Misuse of official position for private gain;

Misuse of a government vehicle or property;

Failure to properly account for government fund;

Unauthorized use or misuse of a government purchase or travel card;

Falsification of travel documents; and

Falsification of employment application documents.

B. How to Report Employee Misconduct

A person should report criminal and other serious misconduct allegations to the USCIS OSI Investigations Division. Customers may report employee misconduct by writing a letter to USCIS or reporting allegations directly to the DHS OIG.

USCIS Office of Security and Integrity

Contact Information

Fax

Mail

202-233-2453

Chief, Investigations Division
​Office of Security and Integrity

MS: 2275
​U.S. Citizenship & Immigration Services

​633 Third Street NW, 3rd Floor

​Washington, DC 20529-2275


USCIS OSI makes every effort to maintain the confidentiality of informational sources. However, be aware that for investigations in which an allegation is substantiated and disciplinary action is proposed, the subject is entitled to review documentation and evidence relied upon as the basis for the proposed action.

Depending upon the nature of any allegation included in the report, OSI may refer the matter to DHS OIG for review and investigative determination as required. If the allegation either does not meet the criteria for referral to DHS OIG or is not accepted by DHS OIG for investigation, OSI may resolve the matter by conducting an investigation; referring the matter for an official management inquiry, if appropriate; or referring the matter to the appropriate USCIS manager for information and action as necessary.

As a matter of procedure, OSI does not provide a complainant, victim, witness, or subject of a complaint with the initial investigative determination of a complaint, since a disclosure of this nature could adversely impact the investigative process.

Any allegation may also be reported by contacting DHS OIG directly either through a local OIG field office [3] A list of OIG Office of Investigations field offices is available on the DHS OIG’s website. or by one of the methods below.

DHS Office of Inspector General

Contact Information

Phone

Fax

Mail

Toll-free DHS Hotline at

800-323-8603

202-254-4297

DHS Office of Inspector General/MAIL STOP 0305
Attn: Office of Investigations -- Hotline

245 Murray Lane, SW
Washington, DC  20528-0305

C. Allegations of Discrimination

Customers should promptly report allegations of discrimination based on race, color, religion, sex, sexual orientation, parental status, protected genetic information, national origin, age, or disability to a USCIS supervisor or to the DHS Office for Civil Rights and Civil Liberties (CRCL). [4] See the DHS Website on how to File a Civil Rights Complaint. In addition, report allegations involving physical assault (such as grabbing, fondling, hitting, or shoving) to OSI or DHS OIG. CRCL’s website also contains detailed information about avenues for filing complaints with different offices and components of DHS. [5] See How to File a Complaint with the Department of Homeland Security, issued October 3, 2012.

DHS Office for Civil Rights and Civil Liberties

Contact Information

Email

Fax

Mail

CRCLCompliance@hq.dhs.gov

202-401-4708

Department of Homeland Security
Office for Civil Rights and Civil Liberties
245 Murray Lane, SW, Building 410

Mail Stop: 0190
Washington, DC  20528

D. Employee Misconduct to Report to a Supervisor

Report other types of conduct issues that do not fall under one of the bases of prohibited discrimination (for example, race, color, gender) to a USCIS supervisor. Types of conduct issues that may be reported through the supervisory chain include:

Dissatisfaction with an application or petition decision

Rude behavior such as profanity in the workplace

Insubordination or deliberate failure to comply with orders

Performance issues

Dress code issues

Supervisors should consult with their servicing Labor and Employee Relations Specialist to address employee performance and conduct issues.

Footnotes

1.

USCIS employees are also subject to mandatory reporting requirements for known or suspected misconduct by federal employees and contractors.

 

2.

Physical assault may include grabbing, fondling, hitting, or shoving.

 

3.

A list of OIG Office of Investigations field offices is available on the DHS OIG’s website.

 

4.

See the DHS Website on how to File a Civil Rights Complaint.

 

5.

See How to File a Complaint with the Department of Homeland Security, issued October 3, 2012.

 

Chapter 11 - Disability Accommodation Requests

A. Introduction

This chapter outlines USCIS policy for receiving and processing requests for accommodations from qualified customers and other persons with disabilities who use USCIS services and access USCIS facilities. This includes, but is not limited to, persons who:

USCIS schedules to have in-person contact with an officer (such as for an interview);

Wish to schedule an InfoPass appointment and are requesting an accommodation for that appointment; or

Wish to attend a USCIS-sponsored public event.

Implementing this policy ensures that USCIS is in compliance with Section 504 of the Rehabilitation Act of 1973. [1] See Pub. L. 93-112 (September 26, 1973). This law prescribes that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency.” [2] See Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 355, 394 (September 26, 1973), codified at 29 U.S.C. 794(a). See 6 CFR 15.3 for applicable definitions relating to enforcement of nondiscrimination on the basis of disability in Department of Homeland Security (DHS) federal programs or activities, which includes those conducted by USCIS.

B. Background

An applicant must satisfy all of the legal requirements to receive an immigration benefit; however, USCIS must provide reasonable accommodations to persons with a disability to afford those customers the opportunity to meet those requirements. Accommodations vary depending on the person’s disability. For example, a customer who is:

Unable to use his or her hands may be permitted to take a test orally rather than in writing;

Deaf or hard of hearing may be provided with a sign language interpreter for a USCIS-sponsored event; [3] In this scenario, “customer” refers to any member of the public who wants to attend the event, such as a naturalization ceremony or an Enlace engagement.

Unable to speak might be allowed to respond to questions in a previously agreed upon nonverbal manner;

Unable to travel to a designated USCIS location for an interview due to a disabling condition may be interviewed at his or her home or a medical facility.

The essential feature of an accommodation is that it allows the customer to participate in the process or activity. While USCIS is not required to make major modifications that would result in a fundamental change to the adjudication process or cause an undue burden for the agency, USCIS makes every effort to provide accommodations to customers with disabilities.

C. Disability Accommodation Requests

All USCIS offices are required to provide reasonable accommodations to qualified customers with disabilities. Doing so ensures all USCIS customers the same level of access to all USCIS-administered programs and services. USCIS has established a standard procedure for persons with disabilities to request accommodations when they:

Visit a USCIS field office, an Application Support Center (ASC), or asylum office; [4] Asylum offices do not handle requests for disability accommodations for asylum office customer fingerprint appointments. These requests are handled by the USCIS office that oversees the ASC that will be collecting the fingerprints.

Are physically unable to appear for an appointment at a USCIS facility; or

Schedule and appear for an InfoPass appointment.

The standard procedure is for customers to call the USCIS Contact Center to request an accommodation to complete any phase of the application process. If the customer needs an accommodation for multiple interviews during the adjudication process, customers should also call the USCIS Contact Center prior to each of the appointments.

Customer service representatives at the USCIS Contact Center enter the information about the accommodation request into the Service Request Management Tool (SRMT) system and forward to the appropriate USCIS office that serves the customer’s zip code. The adjudicating office must then contact the customer and take action on the accommodation request.

USCIS determines whether the office may reasonably comply with the accommodation within 7 calendar days of when the inquiry was received by the office, unless unusual circumstances exist (for example, USCIS is unable to reach the customer). If USCIS has a delay in the determination of the availability of the accommodation, the office explains the delay in the case notes section of the SRMT inquiry and completes its processing as soon as possible after the reason for the delay concludes. The office must provide the accommodation within a reasonable time frame.

Ideally, offices receive advance notice of the customer’s accommodation needs through the USCIS Contact Center so they are prepared to provide accommodations when needed. However, in the event that a customer contacts the field office, ASC, or asylum office directly to request a disability accommodation for an interview, the office creates an SRMT request, works with the customer to respond to the request, and marks the request as fulfilled when it is complete so that the request and the response are recorded.

To assure accountability, each field office, ASC, or asylum office must designate an employee(s) to be responsible for handling accommodation requests from customers. Regardless of how many employees are tasked with handling requests for accommodations, the entire office should be aware of the procedures for handling such requests.

If an accommodation is warranted for an office appointment, the field office, ASC, or asylum office should provide the accommodation on the date and time the customer is scheduled for his or her appearance. The field office, ASC, or asylum office should aim to provide the requested accommodation without having to reschedule the appointment. If an accommodation cannot be provided for the scheduled appointment, the customer and his or her attorney or accredited representative should be notified as soon as possible. The appointment should be rescheduled within a reasonable period of time.

Offices are encouraged to provide reasonable accommodation requests made by walk-in customers whenever practical. If the accommodation is not available, the office should inform the customer that the office is not able to provide the accommodation at that time, but will provide the accommodation for a future appointment. USCIS evaluates each request for a reasonable accommodation on a case-by-case basis. Offices are authorized to approve requests for a reasonable accommodation without consulting the Office of Equal Opportunity and Inclusion (OEOI).

While a customer is not required to include documentation of a medical condition in support of a reasonable accommodation request, an office may need documentation to evaluate the request in rare cases. In these situations, the office must consult OEOI for guidance before the USCIS office requests the customer provide medical documentation to support an accommodation request.

OEOI also provides assistance whenever a field office, ASC, or asylum office preliminarily believes that an alternative accommodation should be suggested or that an accommodation may not be required. The OEOI Disability Accommodation Manager must concur on any alternative accommodation offered or any accommodation denial before the office communicates either action to the customer.

Offices should understand that, while the inability to speak is considered a disability under the Rehabilitation Act, the inability to speak the English language (while being able to speak a foreign language) is not considered a disability under the Act. Therefore, no accommodation is required and one should not be provided if a customer is unable to speak English. No request for a translator should be approved unless the customer is otherwise eligible. [5] See, for example, 8 CFR 312.4.

D. Reconsideration Requests

To request a reconsideration of a denial of a disability accommodation request, the customer must call the USCIS Contact Center. Upon receiving the request, a customer service representative creates a new SRMT inquiry.

Upon receiving the SRMT inquiry, the relevant office must review the customer’s prior request and any additional information provided in the case notes section of the new SRMT inquiry. The office should contact the customer again if additional information is needed.

The USCIS employee in the office responsible for handling disability accommodations should coordinate the resolution of any reconsideration requests as necessary. The OEOI Disability Accommodation Manager must concur on any alternative accommodation offered or any accommodation denial before the office communicates either action to the customer. All affirmed denials must be approved by the field office director, ASC manager, or asylum office director, whichever applies.

Footnotes

1.

See Pub. L. 93-112 (September 26, 1973).

 

2.

See Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 355, 394 (September 26, 1973), codified at 29 U.S.C. 794(a). See 6 CFR 15.3 for applicable definitions relating to enforcement of nondiscrimination on the basis of disability in Department of Homeland Security (DHS) federal programs or activities, which includes those conducted by USCIS.

 

3.

In this scenario, “customer” refers to any member of the public who wants to attend the event, such as a naturalization ceremony or an Enlace engagement.

 

4.

Asylum offices do not handle requests for disability accommodations for asylum office customer fingerprint appointments. These requests are handled by the USCIS office that oversees the ASC that will be collecting the fingerprints.

 

5.

See, for example, 8 CFR 312.4.

 

Chapter 12 - Requests to Expedite Applications or Petitions

USCIS reviews all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met.

A. Expedite Criteria [1] For the expedited processing of an Application for Waiver of Grounds of Inadmissibility (Form I-601), see additional information provided on the USCIS website.

USCIS may expedite a petition or application if it meets one or more of the following criteria:

Severe financial loss to company or person;

Emergency situation; [2] For example, the applicant is gravely ill.

Humanitarian reasons; [3] For example, outbreak of war in the home country.

Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; [4] For example, an organization broadcasting in regional areas to promote democratic interests.

Department of Defense or national interest situation; [5] The request must come from an official U.S. government entity and state that delay will be detrimental to the government.

USCIS error; or

Compelling interest of USCIS.

B. Premium Processing 

USCIS does not consider petitions and applications that have Premium Processing Service available for expedited processing. The only exception is when the petitioner is a not-for-profit organization designated by the Internal Revenue Service that is acting in furtherance of the cultural and social interests of the United States. [6] For information on premium processing, see the USCIS webpage on “How Do I Use the Premium Processing Service?”

C. Making an Expedite Request

To make a request to expedite the processing of a domestically filed application or petition, the customer should contact the USCIS Contact Center at 1-800-375-5283. The USCIS Contact Center forwards the Service Request to the office with jurisdiction over the application or petition.

Customers may also visit a local office by scheduling an InfoPass appointment or writing a letter to the field office or service center. Applicants or petitioners outside the United States should submit their requests directly to the USCIS office with jurisdiction over their applications or petitions. For contact information for USCIS offices outside the United States, see the USCIS website.

Approval of such requests is discretionary and USCIS reserves the right to request documentation supporting the request to expedite an application or petition.

Footnotes

1.

For the expedited processing of an Application for Waiver of Grounds of Inadmissibility (Form I-601), see additional information provided on the USCIS website.

 

2.

For example, the applicant is gravely ill.

 

3.

For example, outbreak of war in the home country.

 

4.

For example, an organization broadcasting in regional areas to promote democratic interests.

 

5.

The request must come from an official U.S. government entity and state that delay will be detrimental to the government.

 

6.

For information on premium processing, see the USCIS webpage on “How Do I Use the Premium Processing Service?

 

Chapter 13 - Cell Phone Usage in USCIS Offices

Visitors of USCIS facilities may be permitted to possess cell phones, personal digital assistants (PDAs), and tablets. However, USCIS customers receiving services in facilities not controlled by USCIS should abide by cell phone policies established by the facility.

Customers may not use camera and recording capable devices (including cell phones) at a USCIS office except when observing naturalization or citizenship ceremonies. In addition, cell phones should be silenced while in the waiting area and any conversations should be kept to a low level so as not to disrupt others. Customers must completely turn off all phones during interviews or while being served by USCIS staff at the information counter.

To ensure successful implementation of this guidance, USCIS field offices are encouraged to:

Ensure all employees (federal and contract) are aware of the cell phone usage policies and the prohibition against using any type of device to take photographs inside USCIS common areas except during naturalization ceremonies;

Ensure all visitors are informed of the cell phone usage policies and prohibition against using any type of device to take photographs inside USCIS common areas (for example, waiting rooms, or restrooms), unless to record naturalization ceremonies; and

Display posters and signage regarding this guidance in common areas.

Volume 2 - Nonimmigrants

Part J - Trainees (H-3)

Chapter 1 - Purpose and Background

A. Purpose

The H-3 nonimmigrant visa category allows foreign nationals to come temporarily to the United States as either a:

Trainee who seeks to enter the United States at the invitation of an organization or person to receive training in any field of endeavor, other than graduate medical education or training; [1] See INA 101(a)(15)(H)(iii). See 8 CFR 214.2(h)(7)(i). or

Special Education Exchange Visitor who seeks to participate in a structured special education exchange visitor training program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities. [2] See 8 CFR 214.2(h)(7)(iv).

The H-3 nonimmigrant classification is not intended for productive employment. Rather, the H-3 program is designed to provide a foreign national with job-related training that is not available in his or her country for work that will ultimately be performed outside the United States.

B. Background

The Immigration and Nationality Act (INA) of 1952 contained the precursor to today’s H-3 nonimmigrant classification: “an alien having a residence in a foreign country which he has no intention of abandoning . . . who is coming temporarily to the United States as an industrial trainee[.]” [3] See Section 101(a)(15)(H)(iii) of the INA, Pub. L. 82-414, 66 Stat. 163, 168 (June 27, 1952).

In 1970, Congress expanded the class of foreign nationals eligible for nonimmigrant classification by deleting the word “industrial” as a modifier of “trainee” in the statute. [4] See INA of April 7, 1970, Pub. L. 91-225, 84 Stat. 116, amending INA 101(a)(15)(H)(iii). However, Congress narrowed the H-3 classification in 1976 by inserting the following language into the statute: “other than to receive graduate medical education or training[.]” [5] See Section 601(b)(3) of the Health Professions Educational Assistance Act of 1976, Pub. L. 94-484, 90 Stat. 2243, 2301 (October 12, 1976).

Finally, the Immigration Act of 1990 [6] See Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649, 104 Stat. 4978 (November 29, 1990). both limited and expanded the H-3 classification. Congress limited the H-3 nonimmigrant classification by adding the following language to the statute: “in a training program that is not designed primarily to provide productive employment[.]” [7] See IMMACT 90, Pub. L. 101-649, 104 Stat. 5022 (November 29, 1990). However, Congress indirectly expanded the classification by creating the Special Education Exchange Visitor Program, [8] See IMMACT 90, Pub. L. 101-649, 104 Stat. 5028 (November 29, 1990). which the legacy Immigration and Naturalization Service placed within the H-3 category. [9] See 56 FR 31553, 31554 (Jul. 11, 1991) (proposed rule). See 56 FR 61111, 61119-61120 (Dec. 2, 1991) (final rule). Congress has not amended the statute since 1990. [10] See INA 101(a)(15)(H)(iii).

C. Legal Authorities

INA 101(a)(15)(H)(iii) – H-3 definition

8 CFR 214.2(h)(1)(ii)(E) – H-3 definition

8 CFR 214.2(h)(7) – H-3 regulations

8 CFR 214.2(h)(8)(i)(D) – H-3 numerical limitations on special education exchange visitors

8 CFR 214.2(h)(9)(iii)(C) and 8 CFR 214.2(h)(9)(iv) – Validity of approved H-3 petitions and H-4 spouse and dependent(s)

8 CFR 214.2(h)(10) – Denial of petitions

8 CFR 214.2(h)(11) – Revocation of an approved H petition

8 CFR 214.2(h)(12) – Appeal of a denial or a revocation of a petition

8 CFR 214.2(h)(13) – Admission of H beneficiaries

8 CFR 214.2(h)(14) – Extension of H visa petition validity

8 CFR 214.2(h)(15)(ii)(D) – Extension of H-3 stay

8 CFR 214.2(h)(16)(ii)Effect of approval of a permanent labor certification or filing of a preference petition on H classification

8 CFR 214.2(h)(17) – Effect of a strike

Footnotes

1.

See INA 101(a)(15)(H)(iii). See 8 CFR 214.2(h)(7)(i).

 

2.

See 8 CFR 214.2(h)(7)(iv).

 

3.

See Section 101(a)(15)(H)(iii) of the INA, Pub. L. 82-414, 66 Stat. 163, 168 (June 27, 1952).

 

4.

See INA of April 7, 1970, Pub. L. 91-225, 84 Stat. 116, amending INA 101(a)(15)(H)(iii).

 

5.

See Section 601(b)(3) of the Health Professions Educational Assistance Act of 1976, Pub. L. 94-484, 90 Stat. 2243, 2301 (October 12, 1976).

 

6.

See Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649, 104 Stat. 4978 (November 29, 1990).

 

7.

See IMMACT 90, Pub. L. 101-649, 104 Stat. 5022 (November 29, 1990).

 

8.

See IMMACT 90, Pub. L. 101-649, 104 Stat. 5028 (November 29, 1990).

 

9.

See 56 FR 31553, 31554 (Jul. 11, 1991) (proposed rule). See 56 FR 61111, 61119-61120 (Dec. 2, 1991) (final rule).

 

10.

See INA 101(a)(15)(H)(iii).

 

Chapter 2 - H-3 Categories

A. Trainees [1] The H-3 nonimmigrant classification is defined in INA 101(a)(15)(H)(iii) as, “an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States as a trainee, other than to receive graduate medical education or training, in a training program that is not designated primarily to provide productive employment … ” The regulations impose additional requirements on the extern and nurse subcategories that do not apply to the general trainee category. See 8 CFR 214.2(h)(7)(i).

H-3 trainees are foreign nationals who have been invited to participate in a training program in the United States by a person, a business, or an organization. The training must be unavailable in the foreign national’s home country. There are no numerical limits on the number of people who can be granted H-3 visas as trainees each year.

An H-3 trainee cannot engage in productive employment in the United States unless such work is incidental and necessary to the training and must not be placed in a position which is in the petitioning entity’s normal operation and in which citizens and resident workers are regularly employed. Finally, the training must benefit the foreign national pursuing a career outside the United States.

An H-3 trainee must be invited by a person or organization for the purpose of receiving training (except as a physician), in any field including:

A purely industrial establishment

Agriculture

Commerce

Communications

Finance

Government

Transportation

Other professions [2] See 8 CFR 214.2(h)(7).

1. Externs [3] See 8 CFR 214.2(h)(7)(i)(A).

A hospital approved by the American Medical Association (AMA) or the American Osteopathic Association (AOA) for either an internship or residency program may petition to classify a medical student attending a medical school abroad as an H-3 trainee if the student’s training will be done as an extern during his or her medical school vacation. The hospital must also satisfy the H-3 trainee petition requirements.

2. Nurses [4] See 8 CFR 214.2(h)(7)(i)(B).

A petitioner may seek H-3 classification for a nurse if:

The nurse-beneficiary does not have H-1 status;

Such training is designed to benefit both the nurse-beneficiary and the overseas employer upon the nurse’s return to his or her country of origin; and

The petitioner establishes that there is a genuine need for the nurse-beneficiary to receive a brief period of training that is unavailable in his or her native country.

Additionally, the petitioner must: [5] See 8 CFR 214.2(h)(7)(i)(B)(1).

Satisfy the H-3 trainee requirements;

Establish that the nurse-beneficiary has a full and unrestricted license to practice professional nursing in the country where the beneficiary obtained a nursing education [6] See 8 CFR 214.2(h)(7)(i)(B)(1). or that such education was obtained in the United States or Canada; [7] See 8 CFR 214.2(h)(7)(i)(B)(1). and

Include a statement certifying that the nurse-beneficiary is fully qualified under the laws governing the place where the training will be received and that under those laws the petitioner is authorized to give the beneficiary the desired training. [8] See 8 CFR 214.2(h)(7)(i)(B)(2).

B. Special Education Exchange Visitors [9] See 8 CFR 214.2(h)(7)(iv).

H-3 special education exchange visitors are participants in a structured special education program that provides practical training and experience in the education of physically, mentally, or emotionally disabled children. This category is limited to an 18-month period of stay and to 50 visas per fiscal year. [10] See Section 223 of the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649, 104 Stat. 4978, 5028 (November 29, 1990). See 8 CFR 214.2(h)(7)(iv) and 8 CFR 214.2(h)(8)(D). See 55 FR 2606, 2628 (Jan. 26, 1990).

Footnotes

1.

The H-3 nonimmigrant classification is defined in INA 101(a)(15)(H)(iii) as, “an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States as a trainee, other than to receive graduate medical education or training, in a training program that is not designated primarily to provide productive employment … ” The regulations impose additional requirements on the extern and nurse subcategories that do not apply to the general trainee category. See 8 CFR 214.2(h)(7)(i).

 

2.

See 8 CFR 214.2(h)(7).

 

3.

See 8 CFR 214.2(h)(7)(i)(A).

 

4.

See 8 CFR 214.2(h)(7)(i)(B).

 

5.

See 8 CFR 214.2(h)(7)(i)(B)(1).

 

6.

See 8 CFR 214.2(h)(7)(i)(B)(1).

 

7.

See 8 CFR 214.2(h)(7)(i)(B)(1).

 

8.

See 8 CFR 214.2(h)(7)(i)(B)(2).

 

9.

See 8 CFR 214.2(h)(7)(iv).

 

10.

See Section 223 of the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649, 104 Stat. 4978, 5028 (November 29, 1990). See 8 CFR 214.2(h)(7)(iv) and 8 CFR 214.2(h)(8)(D). See 55 FR 2606, 2628 (Jan. 26, 1990).

 

Chapter 3 - Trainee Program Requirements

A. Training Program Conditions

An H-3 petitioner is required to submit evidence demonstrating that: [1] See 8 CFR 214.2(h)(7)(ii)(A).

The proposed training is not available in the trainee’s own country;

The trainee will not be placed in a position that is in the normal operation of the business and in which United States citizen and resident workers are regularly employed;

The trainee will not engage in productive employment unless it is incidental and necessary to the training; and

The training will benefit the trainee in pursuing a career outside the United States. [2] H-3 beneficiaries must also establish that they intend to return to their foreign residence upon the termination of their H-3 status. See INA 214(b) and INA 101(a)(15)(H)(iii).

B. Training Program Description

Each petition for a trainee must include a statement which: [3] See 8 CFR 214.2(h)(7)(ii)(B). See 55 FR 2628-29 (Jan. 26, 1990).

Describes the type of training and supervision to be given, and the structure of the training program;

Sets forth the proportion of time that will be devoted to productive employment;

Shows the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training;

Describes the career abroad for which the training will prepare the nonimmigrant;

Indicates the reasons why such training cannot be obtained in the trainee’s country and why it is necessary for the foreign national to be trained in the United States; and

Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training. [4] See 8 CFR 214.2(h)(7)(ii)(B).

C. Training Program Restrictions

A training program for a trainee may not be approved if it: [5] See 8 CFR 214.2(h)(7)(iii). Additionally, externs and nurses have further requirements. A hospital petitioning for an H-3 extern must also demonstrate that: It has been approved by either the American Medical Association (AMA) or the American Osteopathic Association (AOA) for either an internship or residency program; the beneficiary is currently attending medical school abroad; and that the beneficiary will engage in employment as an extern for the petitioner during his or her medical school vacation. See 8 CFR 214.2(h)(7)(i)(A). A petitioner seeking H-3 classification for a nurse must also provide a statement certifying that the beneficiary is fully qualified under the laws governing the place where the training will be received to engage in such training, and that under those laws the petitioner is authorized to give the beneficiary the desired training. See 8 CFR 214.2(h)(7)(i).

Deals in generalities with no fixed schedule, objectives, or means of evaluation;

Is incompatible with the nature of the petitioner’s business or enterprise;

Is on behalf of a trainee who already possesses substantial training and expertise in the proposed field of training; [6] A trainee may already be a professional in his or her own right and possess substantial knowledge in a field; however, such person may be using a training to further his or her skills or career through company-specific training that is only available in the United States. As always, the totality of the evidence must be examined and all other requirements must be met.

Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;

Will result in productive employment beyond that which is incidental and necessary to the training;

Is designed to recruit and train nonimmigrants for the ultimate staffing of domestic operations in the United States;

Does not establish that the petitioner has the physical plant and sufficiently trained workforce to provide the training specified; or

Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student. [7] For additional information about the training program and factors to consider during adjudications, see Chapter 6, Factors to Consider [2 USCIS-PM J.6].

D. Filing

The petitioner files the H-3 petition on the Petition for a Nonimmigrant Worker (Form I-129). Multiple trainees may be requested on a single petition if the trainees will be receiving the same training for the same period of time and in the same location. [8] See 8 CFR 214.2(h)(2)(ii).

Officers will review each piece of evidence for relevance, probative value, and credibility to determine whether the petitioner submitted sufficient evidence establishing that the petition is approvable. [9] The standard of proof applied in most USCIS adjudications, including H-3 petitions, and administrative immigration proceedings is the “preponderance of the evidence” standard. Therefore, if the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonesca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). If the officer can articulate a material doubt, it is appropriate for the officer to either request additional evidence or, if that doubt leads the officer to believe that the claim is probably not true, deny the application or petition. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M, 20 I&N Dec. 77, 79-80 (Comm. 1989)). The table below serves as a quick, non-exhaustive reference guide listing the forms and evidence required when filing a petition for an H-3 trainee.

Trainee (H-3) Petition Forms and Documentation

Petition for a Nonimmigrant Worker (Form I-129), Including H supplement

If the beneficiary is outside the United States, a copy of his or her passport

Application To Extend/Change Nonimmigrant Status (Form I-539) for dependents of an H-3 who are also in the U.S. dependents should fill out and sign this form, not the petitioner for the H-3 beneficiary (one Form I-539 and fee covers all dependents)

Copies of each dependent’s I-94 or other proof of lawful immigration status and proof of the family relationship with the primary H-3 beneficiary (such as marriage and birth certificates)

Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) (if applicable)

All Trainees Except Special Education Exchange Visitors Must Provide:

A detailed written statement from the petitioner containing:

The overall schedule, including the type of training and supervision;

The structure of the training program;

The number of hours per week which will involve productive employment, if any;

The number of hours per week in classroom study;

The number of hours per week in on-the-job training;

What skills the beneficiary will acquire (and how these skills relate to pursuing a career abroad); and

The source of any remuneration.

Evidence that the beneficiary will not be placed in a position which, in the normal operation of the business, U.S. citizen and resident workers are regularly employed.

Proof that the petitioner has the physical facility and sufficiently trained staff to provide the training described in the petition.

An explanation from the petitioner regarding benefits it will obtain by providing the training, including why it is willing to incur the cost of the training.

An explanation as to why the training must take place in the United States, instead of in the beneficiary’s country along with evidence that similar training is not available in beneficiary’s home country.

A summary of the beneficiary’s prior relevant training and experience, such as diplomas and letters from past employers.

If the beneficiary is a nonimmigrant student, evidence that the proposed training was not designed to extend the total allowable period of practical training.

Petitioners seeking H-3 status for a nurse must also provide proof:

That the beneficiary has a full and unrestricted nursing license to work in the country where his or her nursing education was obtained, or

That the education took place in the United States or Canada.

In addition, petitioners seeking H-3 status for a nurse must also include a statement certifying:

That the beneficiary is qualified under the laws governing the place where the training will be received;

That under those laws the petitioner is authorized to provide the training;

That there is a genuine need for the nurse to receive the training;

That the training is designed to benefit the beneficiary upon returning to his or her country of origin; and

That the training is designed to benefit the beneficiary’s overseas employer.

Hospitals petitioning for externs must also:

Provide proof that the hospital has been approved by the American Medical Association (AMA) or the American Osteopathic Association (AOA) for either an internship or residence program, and

Provide proof that the extern is currently attending medical school abroad.

If Requesting Premium Processing:

Request for Premium Processing Service (Form I-907) (see USCIS website for current fees)

Footnotes

1.

See 8 CFR 214.2(h)(7)(ii)(A).

 

2.

H-3 beneficiaries must also establish that they intend to return to their foreign residence upon the termination of their H-3 status. See INA 214(b) and INA 101(a)(15)(H)(iii).

 

3.

See 8 CFR 214.2(h)(7)(ii)(B). See 55 FR 2628-29 (Jan. 26, 1990).

 

4.

See 8 CFR 214.2(h)(7)(ii)(B).

 

5.

See 8 CFR 214.2(h)(7)(iii). Additionally, externs and nurses have further requirements. A hospital petitioning for an H-3 extern must also demonstrate that: It has been approved by either the American Medical Association (AMA) or the American Osteopathic Association (AOA) for either an internship or residency program; the beneficiary is currently attending medical school abroad; and that the beneficiary will engage in employment as an extern for the petitioner during his or her medical school vacation. See 8 CFR 214.2(h)(7)(i)(A). A petitioner seeking H-3 classification for a nurse must also provide a statement certifying that the beneficiary is fully qualified under the laws governing the place where the training will be received to engage in such training, and that under those laws the petitioner is authorized to give the beneficiary the desired training. See 8 CFR 214.2(h)(7)(i).

 

6.

A trainee may already be a professional in his or her own right and possess substantial knowledge in a field; however, such person may be using a training to further his or her skills or career through company-specific training that is only available in the United States. As always, the totality of the evidence must be examined and all other requirements must be met.

 

7.

For additional information about the training program and factors to consider during adjudications, see Chapter 6, Factors to Consider [2 USCIS-PM J.6].

 

8.

See 8 CFR 214.2(h)(2)(ii).

 

9.

The standard of proof applied in most USCIS adjudications, including H-3 petitions, and administrative immigration proceedings is the “preponderance of the evidence” standard. Therefore, if the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonesca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). If the officer can articulate a material doubt, it is appropriate for the officer to either request additional evidence or, if that doubt leads the officer to believe that the claim is probably not true, deny the application or petition. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M, 20 I&N Dec. 77, 79-80 (Comm. 1989)).

 

Chapter 4 - Special Education Exchange Visitor Program Requirements

There are requirements for H-3 petitions involving special education exchange visitors that are distinct from H-3 trainees. [1] Requirements for trainee petitions are not applicable to petitions for special education exchange visitors. See 8 CFR 214.2(h)(7)(ii) and 8 CFR 214.2(h)(7)(iii). See 8 CFR 214.2(h)(7)(iv)(A)(3). An H-3 beneficiary in a special education training program must be coming to the United States to participate in a structured program which provides for practical training and experience in the education of children with physical, mental, or emotional disabilities. No more than 50 visas may be approved in a fiscal year, [2] See 8 CFR 214.2(h)(8)(i)(D). and participants may remain in the United States for no more than 18 months. [3] See 8 CFR 214.2(h)(13)(iv).

The petition must be filed by a facility which has: a professionally trained staff; and a structured program for providing:

Education to children with disabilities; and

Training and hands-on experience to participants in the special education exchange visitor program. [4] See 8 CFR 214.2(h)(7)(iv)(A)(2).

The petition should include a description of:

The training the foreign national will receive;

The facility’s professional staff; and

The beneficiary’s participation in the training program. [5] See 8 CFR 214.2(h)(7)(iv)(B)(1).

In addition, the petition must show that the special education exchange visitor:

Is nearing the completion of a baccalaureate or higher degree program in special education;

Has already earned a baccalaureate or higher degree in special education; or

Has extensive prior training and experience teaching children with physical, mental, or emotional disabilities. [6] See 8 CFR 214.2(h)(7)(iv)(B)(2).

Any custodial care of children must be incidental to the beneficiary’s training.

Officers review each piece of evidence for relevance, probative value, and credibility to determine whether the petitioner submitted sufficient evidence establishing that the petition is approvable. [7] The standard of proof applied in most USCIS adjudications, including H-3 petitions, and administrative immigration proceedings is the “preponderance of the evidence” standard. The table below serves as a quick, non-exhaustive, reference guide listing the forms and evidence required when filing a petition for an H-3 special education exchange visitor.

Special Education Exchange Visitor H-3 Petition Forms and Documentation

Petition for a Nonimmigrant Worker (Form I-129), Including H supplement

If the beneficiary is in the United States, a copy of the I-94 or other proof of current lawful, unexpired immigration status (Note that Canadians who enter as a B-1 or a B-2 will not typically have an I-94)

Filing fee; see USCIS’ website for current fees

Application To Extend/Change Nonimmigrant Status (Form I-539) for dependents of an H-3 who are also in the U.S. dependents should fill out and sign this form, not the petitioner for the H-3 beneficiary (one Form I-539 and fee covers all dependents)

Copies of each dependent’s I-94 or other proof of lawful immigration status and proof of the family relationship with the primary H-3 beneficiary (such as marriage and birth certificates)

Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) (if applicable)

A copy of his or her passport, if the beneficiary is outside the United States

A description of the structured training program for providing education to children with disabilities and for providing hands-on experience to participants in the special education program, including noting the professionally trained staff, facilities, and how the exchange visitor will participate in the program

Evidence that any custodial care of children will be incidental to the training program

Evidence that participant has nearly completed a baccalaureate or higher degree in special education, already has a baccalaureate degree or higher degree in special education, or has extensive prior training and experience in teaching children with disabilities

If Requesting Premium Processing:

Request for Premium Processing Service (Form I-907) (see USCIS’ website for current fees)

Footnotes

1.

Requirements for trainee petitions are not applicable to petitions for special education exchange visitors. See 8 CFR 214.2(h)(7)(ii) and 8 CFR 214.2(h)(7)(iii). See 8 CFR 214.2(h)(7)(iv)(A)(3).

 

2.

See 8 CFR 214.2(h)(8)(i)(D).

 

3.

See 8 CFR 214.2(h)(13)(iv).

 

4.

See 8 CFR 214.2(h)(7)(iv)(A)(2).

 

5.

See 8 CFR 214.2(h)(7)(iv)(B)(1).

 

6.

See 8 CFR 214.2(h)(7)(iv)(B)(2).

 

7.

The standard of proof applied in most USCIS adjudications, including H-3 petitions, and administrative immigration proceedings is the “preponderance of the evidence” standard.

 

Chapter 5 - Family Members of H-3 Beneficiaries

An H-3 nonimmigrant’s spouse and unmarried minor children may accompany the H-3 nonimmigrant to the United States as H-4 nonimmigrants. H-4 dependents of H-3 nonimmigrants are not permitted to work in the United States. [1] See 8 CFR 214.2(h)(9)(iv).

Footnotes

1.

See 8 CFR 214.2(h)(9)(iv).

 

Chapter 6 - Adjudication

A. Adjudicative Issues

Officers must carefully review each petition for an H-3 trainee to ensure compliance with the intent of the H-3 category to train foreign nationals who will return to their home countries. Unless specifically provided otherwise, officers should apply a “preponderance of the evidence” standard when evaluating eligibility for the benefit sought. [1] See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M, 20 I&N Dec. 77, 79-80 (Comm. 1989)). The burden of proving eligibility for the benefit sought rests entirely with the petitioner. [2] See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966).

B. Factors to Consider

1. Career Abroad

The description of the training program should include a specific explanation of the position and duties for which the training will prepare the trainee. [3] Generalized assertions that the proposed training will expand the trainee’s skill set or make him or her more desirable to prospective employers are usually not sufficient to demonstrate the proposed training will prepare the beneficiary for an existing career abroad. See 8 CFR 214.2(h)(7)(iii). The trainee must demonstrate that the proposed training will prepare the beneficiary for an existing career outside the United States.

Trainings can be to prepare the trainee for something that is new and unavailable anywhere in the trainee’s country. For instance, a trainee may already be a professional in his or her own right and possess knowledge in the field of proposed training, but will be using the training to further his or her skills or career through company-specific training that a corporate organization makes available in the United States. This could include cases of mid-level and senior-level employees who possess knowledge in their field, but seek to further develop their skills in the proposed field of training. [4] Even if a new employee or current employee possesses knowledge in the proposed field of training, he or she could be considered a trainee if the company or organization decides he or she needs the training, so long as all other requirements are met (for example, so long as beneficiary does not possess substantial training and expertise in the proposed field of training). As always, the totality of the evidence is evaluated for each case and all other requirements must be met. [5] Although 8 CFR 214.2(h)(7)(iii)(C) states that a training program may not be approved if it is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training, this provision does not automatically prohibit professionals from participating in a training program. It remains the petitioner’s burden to demonstrate by a preponderance of the evidence that the training program is approvable.

Example: A U.S. company develops a new product for which training is unavailable in another country. The U.S. company may petition to train people to use that product, which will enable the trainees to train others to use the new product in their home country.

2. Instruction

Classroom-based Instruction

In cases where the program is entirely classroom-based, officers should review the evidence to ensure that the petitioner establishes by a preponderance of the evidence that the training cannot be made available in the beneficiary’s home country. [6] See 8 CFR 214.2(h)(7)(ii)(A)(1).

If a petitioner claims that the classroom training portion of their proposed training programs will take place online, the petition must provide an explanation as to why the training cannot take place in the beneficiary’s own country. Officers should also investigate whether the online training would be provided by an academic or vocational institution. [7] See 8 CFR 214.2(h)(1)(ii)(E)(1).

Online Instruction

In cases where the program is entirely online, officers must review each case and ensure that the petitioner has met their burden of proof (preponderance of the evidence) demonstrating that the training cannot be made available in the beneficiary’s home country. [8] If the petitioner does not meet the burden of demonstrating that the online training cannot be made available in the beneficiary’s home country, officers may consider issuing a Request for Evidence (RFE).

3. Description of the Training Program

The petitioner must specify the type of training, the level of supervision, and the structure of the training program. [9] See 8 CFR 214.2(h)(7)(ii)(B)(1). See Matter of Miyazaki Travel Agency, Inc., 10 I&N Dec. 644 (Reg. Comm. 1964) (denying petition for a trainee where the training program was deemed “unrealistic”). See Matter of Masauyama, 11 I&N Dec. 157 (Reg. Comm. 1965) (noting that the statute contemplates the training of an person rather than giving him further experience by day-to-day application of his skills). The petitioner should provide the officer with sufficient information to establish what the beneficiary will actually be doing, and should link the various tasks to specific skills that the beneficiary will gain by performing them.

On-The-Job Training Hours

The petitioner must specify the number of hours both supervised and unsupervised. [10] See 8 CFR 214.2(h)(7)(ii)(B)(3). See Matter of Frigon, 18 I&N Dec. 164, 166 (court noting that the number of hours devoted to on-the-job training without supervision is one of the factors to be considered). The unsupervised work should be minimal and the supervised work should always be oriented toward training.

Shadowing

There are limited circumstances where a proposed training program that consists largely or entirely of on-the-job training may be approved. Officers should carefully evaluate the totality of the evidence against a preponderance of the evidence standard, including whether a U.S. worker is being displaced and if the on-the-job training would allow the trainee to be placed into a position which is in the normal operation of the business and in which U.S. citizens and legal residents are regularly employed. [11] See Matter of St. Pierre, 18 I&N Dec. 308 (Reg. Comm. 1982) (holding that even though training will consist primarily of on-the-job training, the subject matter by its very nature can only be learned in that setting and since the beneficiary will not receive any payment from the petitioner, and will merely be observing field tests and not actively conducting them, he will not be engaging in productive employment which would displace a resident worker).

4. Remuneration

The petitioner must indicate the source of remuneration received by the trainee, and explain any training program benefits accrued by the petitioning company. [12] See 8 CFR 214.2(h)(7)(ii)(B)(6). See Matter of International Transportation Company, 12 I&N Dec. 389 (Reg. Comm. 1967) (even though training will be 75% on-the-job training, any “productive gain” received by the company from such work will be “offset by the time spent by employees in the training of the beneficiary”). Remuneration may come from any source, domestic or international. When assessing remuneration, the officer may consider whether the salary is in proportion to the training position. [13] See Matter of Kraus Periodicals, Inc., 11 I&N Dec. 63 (Reg. Comm. 1964) (H-3 petition was denied where the petitioner failed to set forth a training program, the specific position, duties, or skills in which the beneficiary is to be trained, and where the substantial salary the beneficiary would have received suggested that the training position was productive employment which may displace a U.S. citizen). See 8 CFR 214.2(h)(7)(ii)(B)(6).

5. Placement into Normal Operation of Business [14] See 8 CFR 214.2(h)(7)(ii)(A)(3) and 8 CFR 214.2(h)(7)(iii)(F).

Officers should consider whether the beneficiary will be placed in a position which is in the normal operations of the business, and U.S. citizens and residents are regularly employed. Factors to consider include:

Whether training that familiarizes the beneficiary with the individual operations of the petitioning company is similar to the training that would be expected of any new employee,

Indications that the beneficiary may remain in the United States working with the petitioner, and

Training where the foreign national is trained alongside U.S. workers. [15] See Matter of Glencoe Press, 11 I&N Dec. 764, 766 (Reg. Comm. 1966).

6. Practical Training

Petitioners frequently assert that beneficiaries will spend a certain amount of time in “practical training.” This assertion needs to be supported with a clear explanation of the type and degree of supervision that the beneficiary will receive during such periods. [16] See 8 CFR 214.2(h)(7)(ii)(B)(1) and 8 CFR 214.2(h)(7)(ii)(B)(2). If the officer determines that the “practical training” would actually be productive employment, then the petitioner must establish that it would be incidental to and necessary to the training. [17] See 8 CFR 214.2(h)(7)(ii)(A)(3) and 8 CFR 214.2(h)(7)(iii)(E).

7. Productive Employment

The proportion of time that will be devoted to productive employment must be specified. [18] If the job description and the proffered wage seem suspect, the officer may request more specific information from the petitioner as described in 8 CFR 214.2(h)(7)(ii)(B). Productive employment should be minimal because the beneficiary should be training and not performing productive work that displaces U.S. citizens or legal residents. [19] See 8 CFR 214.2(h)(7)(ii)(B)(2) and 8 CFR 214.2(h)(7)(iii)(E). A training program which devotes a significant percentage of time to productive employment should be closely scrutinized. [20] The regulations prohibit the approval of a petition involving a training program that will result in productive employment beyond that which is incidental and necessary to the training. See 8 CFR 214.2(h)(7)(iii)(E). Further, a significant percentage of time devoted to productive employment indicates that the beneficiary may be placed in a position which is in the normal operation of the business and in which U.S. workers are regularly employed. See 8 CFR 214.2(h)(7)(ii)(A)(3), 8 CFR 214.2(h)(7)(iii)(E), and 8 CFR 214.2(h)(7)(ii)(F). See Matter of Miyazaki Travel Agency, Inc., 11 I&N Dec. 424, 425 (Reg. Comm. 1964) (“An industrial trainee shall not be permitted to engage in productive employment if such employment will displace a United States resident”). See Matter of Sasano, 11 I&N Dec. 363, 364 (Reg. Comm. 1965) (“[I]t is concluded [that] the beneficiary would be involved in full-time productive employment and that any training received would be incidental thereto”). See Matter of St. Pierre, 18 I&N Dec. 308, 310 (Reg. Comm. 1982) (“The petitioner has established that the beneficiary will not be engaged in productive employment that might displace a resident worker”).

8. Substantial Training and Expertise in Field of Training

In order to establish that the beneficiary does not already possess substantial training and expertise in the proposed field of training, [21] See 8 CFR 214.2(h)(7)(iii)(C). See Matter of Masauyama, 11 I&N Dec. 157, 158 (Reg. Comm. 1965) (“It is conceded that practical day-to-day experience will increase proficiency in any line of endeavor. However, the statute involved here is one that contemplates the training of an person rather than giving him further experience by day-to-day application of his skills”). See Matter of Koyama, 11 I&N Dec. 424, 425 (Reg. Comm. 1965) (“While it is conceded that practical experience will increase a person’s efficiency in any line of endeavor, the intent of the statute involved here is to train rather than to gain experience”). the petitioner should submit as much information regarding the beneficiary’s credentials as possible. If related to the proposed H-3 training program, copies of the beneficiary’s diplomas and transcripts should be submitted, including any training and education received in the United States, copies of any relevant forms (for example, Certificate of Eligibility for Nonimmigrant (F-1) Student Status-For Academic and Language Students (Form I-20), Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019)). If possible, letters from prior employers detailing the beneficiary’s work experience should also be submitted.

9. Sufficiently Trained Staff

In order to establish that it has sufficiently trained staff to provide the training specified in the petition, [22] See 8 CFR 214.2(h)(7)(iii)(G). the petitioner should provide the names and credentials of the persons who will provide the training. The petitioner should specify the amount of time each trainer will spend training the beneficiary. The petitioner should also explain how the trainers’ normal responsibilities will be performed while they are training the beneficiary (this is especially important in cases involving relatively small entities, as larger percentages of their workforces will presumably be diverted in order to provide the training). [23] There are, of course, situations where allocation of a significant percentage of the company’s resources to train a single person would be reasonable and credible. As noted above, the regulation at 8 CFR 214.2(h)(7)(ii)(B)(6) requires the petitioner to describe “any benefit that will accrue to [it] for providing the training.”

10. Unavailability of the Training in Beneficiary’s Country

The petitioner must establish that the trainee cannot obtain the training in his or her country and demonstrate why it is necessary for the trainee to be trained in the United States. [24] See 8 CFR 214.2(h)(7)(ii)(B)(5). See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972) (rejecting petitioner’s argument that he only needs to go on record as stating that training is not available outside the United States).

C. Approvals

If all documentary requirements have been met and the petition appears approvable, officers should endorse the action block on the petition. The approval period should coincide with the period of training requested by the petitioner, but only up to 2 years for trainees and up to 18 months for special education training program participants. [25] See 8 CFR 214.2(h)(9)(iii)(C) and 8 CFR 214.2(h)(13)(v).

When approving a special education training program participant, officers need to enter H-3B in CLAIMS and annotate H-3B on the petition. Because of the numerical limitations applicable to the H-3 Special Education Exchange Visitor category, officers must contact the USCIS Service Center Operations office to obtain authorization before approving an H-3 Special Education Exchange Visitor petition. The number assigned should be recorded on the front of the petition in the "Remarks" section. The approved petition should also be annotated "Approved Pursuant to Sec. 223 of Pub. L. 101-649.”

D. Denials

If documentary requirements have not been met and the petition is not approvable, officers should prepare and issue a notice of denial and advise the petitioner of the right of appeal to the Administrative Appeals Office.

E. Transmittal of Petitions

USCIS sends all approved petitions to the Kentucky Consular Center (KCC). The KCC scans and uploads the documentation into the Consular Consolidated Database (CCD). [26] See 9 FAM 402.10-9(A), Evidence Forming Basis for H Visa Issuance. Consular officers and Customs and Border Protection officers have access to the CCD to verify and review documents.

Footnotes

1.

See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M, 20 I&N Dec. 77, 79-80 (Comm. 1989)).

 

2.

See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966).

 

3.

Generalized assertions that the proposed training will expand the trainee’s skill set or make him or her more desirable to prospective employers are usually not sufficient to demonstrate the proposed training will prepare the beneficiary for an existing career abroad. See 8 CFR 214.2(h)(7)(iii).

 

4.

Even if a new employee or current employee possesses knowledge in the proposed field of training, he or she could be considered a trainee if the company or organization decides he or she needs the training, so long as all other requirements are met (for example, so long as beneficiary does not possess substantial training and expertise in the proposed field of training).

 

5.

Although 8 CFR 214.2(h)(7)(iii)(C) states that a training program may not be approved if it is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training, this provision does not automatically prohibit professionals from participating in a training program. It remains the petitioner’s burden to demonstrate by a preponderance of the evidence that the training program is approvable.

 

6.

See 8 CFR 214.2(h)(7)(ii)(A)(1).

 

7.

See 8 CFR 214.2(h)(1)(ii)(E)(1).

 

8.

If the petitioner does not meet the burden of demonstrating that the online training cannot be made available in the beneficiary’s home country, officers may consider issuing a Request for Evidence (RFE).

 

9.

See 8 CFR 214.2(h)(7)(ii)(B)(1). See Matter of Miyazaki Travel Agency, Inc., 10 I&N Dec. 644 (Reg. Comm. 1964) (denying petition for a trainee where the training program was deemed “unrealistic”). See Matter of Masauyama, 11 I&N Dec. 157 (Reg. Comm. 1965) (noting that the statute contemplates the training of an person rather than giving him further experience by day-to-day application of his skills).

 

10.

See 8 CFR 214.2(h)(7)(ii)(B)(3). See Matter of Frigon, 18 I&N Dec. 164, 166 (court noting that the number of hours devoted to on-the-job training without supervision is one of the factors to be considered).

 

11.

See Matter of St. Pierre, 18 I&N Dec. 308 (Reg. Comm. 1982) (holding that even though training will consist primarily of on-the-job training, the subject matter by its very nature can only be learned in that setting and since the beneficiary will not receive any payment from the petitioner, and will merely be observing field tests and not actively conducting them, he will not be engaging in productive employment which would displace a resident worker).

 

12.

See 8 CFR 214.2(h)(7)(ii)(B)(6). See Matter of International Transportation Company, 12 I&N Dec. 389 (Reg. Comm. 1967) (even though training will be 75% on-the-job training, any “productive gain” received by the company from such work will be “offset by the time spent by employees in the training of the beneficiary”).

 

13.

See Matter of Kraus Periodicals, Inc., 11 I&N Dec. 63 (Reg. Comm. 1964) (H-3 petition was denied where the petitioner failed to set forth a training program, the specific position, duties, or skills in which the beneficiary is to be trained, and where the substantial salary the beneficiary would have received suggested that the training position was productive employment which may displace a U.S. citizen). See 8 CFR 214.2(h)(7)(ii)(B)(6).

 

14.

See 8 CFR 214.2(h)(7)(ii)(A)(3) and 8 CFR 214.2(h)(7)(iii)(F).

 

15.

See Matter of Glencoe Press, 11 I&N Dec. 764, 766 (Reg. Comm. 1966).

 

16.

See 8 CFR 214.2(h)(7)(ii)(B)(1) and 8 CFR 214.2(h)(7)(ii)(B)(2).

 

17.

See 8 CFR 214.2(h)(7)(ii)(A)(3) and 8 CFR 214.2(h)(7)(iii)(E).

 

18.

If the job description and the proffered wage seem suspect, the officer may request more specific information from the petitioner as described in 8 CFR 214.2(h)(7)(ii)(B).

 

19.

See 8 CFR 214.2(h)(7)(ii)(B)(2) and 8 CFR 214.2(h)(7)(iii)(E).

 

20.

The regulations prohibit the approval of a petition involving a training program that will result in productive employment beyond that which is incidental and necessary to the training. See 8 CFR 214.2(h)(7)(iii)(E). Further, a significant percentage of time devoted to productive employment indicates that the beneficiary may be placed in a position which is in the normal operation of the business and in which U.S. workers are regularly employed. See 8 CFR 214.2(h)(7)(ii)(A)(3), 8 CFR 214.2(h)(7)(iii)(E), and 8 CFR 214.2(h)(7)(ii)(F). See Matter of Miyazaki Travel Agency, Inc., 11 I&N Dec. 424, 425 (Reg. Comm. 1964) (“An industrial trainee shall not be permitted to engage in productive employment if such employment will displace a United States resident”). See Matter of Sasano, 11 I&N Dec. 363, 364 (Reg. Comm. 1965) (“[I]t is concluded [that] the beneficiary would be involved in full-time productive employment and that any training received would be incidental thereto”). See Matter of St. Pierre, 18 I&N Dec. 308, 310 (Reg. Comm. 1982) (“The petitioner has established that the beneficiary will not be engaged in productive employment that might displace a resident worker”).

 

21.

See 8 CFR 214.2(h)(7)(iii)(C). See Matter of Masauyama, 11 I&N Dec. 157, 158 (Reg. Comm. 1965) (“It is conceded that practical day-to-day experience will increase proficiency in any line of endeavor. However, the statute involved here is one that contemplates the training of an person rather than giving him further experience by day-to-day application of his skills”). See Matter of Koyama, 11 I&N Dec. 424, 425 (Reg. Comm. 1965) (“While it is conceded that practical experience will increase a person’s efficiency in any line of endeavor, the intent of the statute involved here is to train rather than to gain experience”).

 

22.

See 8 CFR 214.2(h)(7)(iii)(G).

 

23.

There are, of course, situations where allocation of a significant percentage of the company’s resources to train a single person would be reasonable and credible. As noted above, the regulation at 8 CFR 214.2(h)(7)(ii)(B)(6) requires the petitioner to describe “any benefit that will accrue to [it] for providing the training.”

 

24.

See 8 CFR 214.2(h)(7)(ii)(B)(5). See Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972) (rejecting petitioner’s argument that he only needs to go on record as stating that training is not available outside the United States).

 

25.

See 8 CFR 214.2(h)(9)(iii)(C) and 8 CFR 214.2(h)(13)(v).

 

26.

See 9 FAM 402.10-9(A), Evidence Forming Basis for H Visa Issuance.

 

Chapter 7 - Admissions, Extensions of Stay, and Change of Status

A. Admissions

H-3 trainees and externs should be admitted for the length of the training program, but for no longer than 2 years. [1] See 8 CFR 214.2(h)(9)(iii)(C)(1). H-3 visa special education exchange visitors should be admitted for the length of the training program, but for no longer than 18 months.

H-3 trainees and special education exchange visitors who respectively, have spent 2 years or 18 months in the United States, in either H-visa or L-visa classifications may not seek extension of, change of status to, or be readmitted in, either H-visa or L-visa status unless they have resided outside the United States for the previous six months. [2] See 8 CFR 214.2(h)(13)(iv).

There are limited exceptions to this rule. For example, the limitation does not apply to an H-3 nonimmigrant whose H or L status was seasonal, intermittent, or lasted for an aggregate of 6 months or less per year. [3] See 8 CFR 214.2(h)(13)(v).

Additionally, time spent as an H-4 dependent does not count against the maximum allowable periods of stay available to principals in H-3 status (or vice-versa). Thus, a foreign national who was previously granted H-4 dependent status and subsequently is granted H-3 classification, or a foreign national who was previously granted H-3 classification and subsequently is granted H-4 dependent status, may be eligible to remain in the United States for the maximum period of stay applicable to the classification.

For example, a husband and wife who come to the United States as a principal H-3 and dependent H-4 spouse may maintain status for one year, and then change status to H-4 and H-3 respectively, as long as the change of status application is properly filed before the principal H-3 has spent the maximum allowable period of stay in the United States. [4] Maintenance of H-4 status continues to be tied to the principal’s maintenance of H status. Thus, H-4 dependentsmay only maintain such status as long as the principal maintains the relevant principal H status.

B. Extensions of Stay

H-3 trainees and externs can only extend their stay if their original stay was less than 2 years, and the total period of stay, together with the extension period, does not exceed 2 years. H-3 special education exchange visitors can extend their stay in the United States only if their total period of stay does not exceed 18 months. [5] See 8 CFR 214.2(h)(15)(ii)(D).

To file for an extension, the petitioner must file another Petition for a Nonimmigrant Worker (Form I-129) and H Classification Supplement to Form I-129, fully documented in the same manner as the first petition, and also include:

A letter from the petitioner requesting an extension of status for the trainee, with an explanation of why the training has not yet been completed;

A copy of the beneficiary’s Arrival/Departure Record (Form I-94); and

A copy of the beneficiary’s first Notice of Action (Form I-797).

If the H-3 beneficiary has a dependent (a spouse, or unmarried child under the age of 21) in the United States, those dependents will need to submit an Application To Extend/Change Nonimmigrant Status (Form I-539).

C. Change of Status

Certain categories of nonimmigrants are eligible to change status to that of an H-3 nonimmigrant, including certain students and other temporary visa holders. [6] Certain categories generally cannot change status if they are in the United States, including nonimmigrants who entered the United States with the following visas: C, Travel without a Visa, D, K-1 or K-2, J-1, or M-1. Other nonimmigrants, such as B-1 and B-2, may change status to H-3. Such change of status requests must establish that:

The beneficiaries entered the United States legally;

The beneficiaries have never worked in the United States illegally, or otherwise violated the terms of their visa; and

The expiration date on the beneficiary’s I-94 has not passed. [7] See 8 CFR 248.1(b) for information on timely filing and maintenance of status, and circumstances when failure to file timely may be excused in the discretion of USCIS.

Footnotes

1.

See 8 CFR 214.2(h)(9)(iii)(C)(1).

 

2.

See 8 CFR 214.2(h)(13)(iv).

 

3.

See 8 CFR 214.2(h)(13)(v).

 

4.

Maintenance of H-4 status continues to be tied to the principal’s maintenance of H status. Thus, H-4 dependents

may only maintain such status as long as the principal maintains the relevant principal H status.

 

5.

See 8 CFR 214.2(h)(15)(ii)(D).

 

6.

Certain categories generally cannot change status if they are in the United States, including nonimmigrants who entered the United States with the following visas: C, Travel without a Visa, D, K-1 or K-2, J-1, or M-1. Other nonimmigrants, such as B-1 and B-2, may change status to H-3.

 

7.

See 8 CFR 248.1(b) for information on timely filing and maintenance of status, and circumstances when failure to file timely may be excused in the discretion of USCIS.

 

Part K - Media Representatives (I)

Chapter 1 - Purpose and Background

A. Purpose

The foreign information media representative nonimmigrant visa classification, commonly known as the “I” visa category, is intended to be used by representatives of the foreign media, including members of the following industries:

Press;

Radio;

Film; and

Print.

In addition, certain employees of independent production companies may also be eligible for a foreign information media representative visa classification under certain conditions.

B. Background

The foreign information media representative visa classification was created by the Immigration and Nationality Act (INA) of 1952 [1] See Pub. L. 82-414, 66 Stat. 163, 168-169 (June 27, 1952). in order to facilitate the exchange of information among nations. Foreign information media representatives do not require a visa petition approved by USCIS. Consular officers with the U.S. Department of State primarily adjudicate benefit requests for foreign information media representatives during the nonimmigrant visa application process. USCIS generally only receives a request for this visa classification when a nonimmigrant applies for a change of status or an extension of stay as a foreign information media representative.

C. Legal Authorities

INA 101(a)(15)(I) – Representatives of foreign media

8 CFR 214.2(i) – Representatives of information media

Footnotes

1.

See Pub. L. 82-414, 66 Stat. 163, 168-169 (June 27, 1952).

 

Chapter 2 - Eligibility

A foreign media representative is a foreign national who:

Is a bona fide representative of the foreign press, radio, film, or other foreign information media;

Has a home office in a foreign country whose government grants reciprocity for similar privileges to representatives with home offices in the United States; and

Seeks to enter or remain in the United States solely to engage in such a vocation. [1] See 9 FAM 402.11, Information Media Representatives - I Visas. See Department of State’s website, indicating that “[a]ctivities in the United States must be informational in nature and generally associated with the news gathering process and reporting on current events.” See Chapter 3, Distinction between News and Entertainment [2 USCIS-PM K.3].

Foreign nationals who meet the above definition may be eligible for classification as a foreign information media representative. Foreign information media representative nonimmigrants are admitted for the duration of their employment with the same foreign media organization in the same information medium. Foreign information media representatives must obtain authorization from USCIS to change employers or work in a different medium. [2] See 8 CFR 214.2(i).

Independent Production Companies [3] See 9 FAM 402.11-6, Film/Video Work, for information on employees of independent production companies.

Employees of independent production companies may also be eligible for foreign information media representative nonimmigrant status if, in addition to the above:

The employee holds a credential issued by a professional journalistic association;

The film or video footage produced will be used by a foreign-based television station or other media to disseminate information or news to a foreign audience; and

The film or video footage will not be used primarily for a commercial entertainment or advertising purpose.

Footnotes

1.

See 9 FAM 402.11, Information Media Representatives - I Visas. See Department of State’s website, indicating that “[a]ctivities in the United States must be informational in nature and generally associated with the news gathering process and reporting on current events.” See Chapter 3, Distinction between News and Entertainment [2 USCIS-PM K.3].

 

2.

See 8 CFR 214.2(i).

 

3.

See 9 FAM 402.11-6, Film/Video Work, for information on employees of independent production companies.

 

Chapter 3 - Distinction between News and Entertainment

A. Entertainment and Advertising

Camera persons and other workers engaged in producing films for entertainment or advertising purposes do not qualify under the foreign information media representative visa classification and should seek another visa classification for which they may qualify. For example, a foreign national intending to work on entertainment-oriented materials may be better suited to apply for nonimmigrant status on the basis of extraordinary ability or achievement; as an entertainer; or, if applicable, on the basis of providing essential support to certain O or P nonimmigrants. [1] See INA 101(a)(15)(O) for visa classification based on extraordinary ability or achievement (O visa category). See INA 101(a)(15)(P) for visa classification based on being an entertainer (P visa category).

Even if a camera person or other workers receive no payment from sources in the United States and the film or video footage produced is solely for foreign distribution as entertainment or advertisement, applicants under such circumstances may not qualify under the foreign information media representative visa classification.

B. Nonfiction Documentaries

Increasingly, because of the growing popularity of documentary-type biographies and similar nonfiction film productions, the distinction between commercial filmmaking for entertainment and genuine news gathering is less clear. For example, filmed biographies may be regarded as documentary filmmaking or as news gathering. In adjudicating such cases, the officer should consider whether the intended use is journalistic, informational, or educational, as opposed to entertainment. The officer should also consider the foreign distribution of the film or video footage in addition to other factors, including the timeliness of the project relative to the subject event.

C. Intended Use

An officer should examine the type of organization that employs the foreign information media representative and the proposed foreign distribution of the film or other produced material. Applicants should not use the foreign information media representative visa classification as a way of avoiding mandatory consultation required to obtain visa classification on the basis of extraordinary ability or achievement or as an entertainer. [2] See 8 CFR 214.2(o)(5). See 8 CFR 214.2(p)(7).

Footnotes

1.

See INA 101(a)(15)(O) for visa classification based on extraordinary ability or achievement (O visa category). See INA 101(a)(15)(P) for visa classification based on being an entertainer (P visa category).

 

2.

See 8 CFR 214.2(o)(5). See 8 CFR 214.2(p)(7).

 

Chapter 4 - Family Members

A foreign information media representative’s spouse and unmarried children (under age 21) may accompany the foreign media representative and be admitted under the “I” nonimmigrant visa classification. [1] Note that there is no separate classification for dependents of foreign media representative nonimmigrants (for example, there is no I-2 classification). See codes of admission in Chapter 5, Adjudication, Section B, Approvals [2 USCIS-PM K.5(B)]. If approved, such dependents may attend school in the United States without changing to F-1 nonimmigrant student status. However, the dependents are not authorized to work in the United States while in the foreign information media representative dependent status.

Footnotes

1.

Note that there is no separate classification for dependents of foreign media representative nonimmigrants (for example, there is no I-2 classification). See codes of admission in Chapter 5, Adjudication, Section B, Approvals

[2 USCIS-PM K.5(B)].

 

Chapter 5 - Adjudication

A. Extension of Stay or Change of Status

USCIS officers may receive an application for a change of status to that of a foreign information media representative nonimmigrant, or a request from a foreign information media representative nonimmigrant to change employers or information medium.

The applicant applies for a change of status or extension of stay by filing an Application To Extend/Change Nonimmigrant Status (Form I-539) together with evidence of current status and evidence from the employing media organization describing the employment and establishing that the applicant is a bona fide representative of that foreign media organization.

When reviewing a Form I-539 application involving a foreign information media representative, the officer must ensure the applicant:

Meets or continues to meet all the eligibility requirements for the foreign information media representative visa classification;

Is admissible to the United States; [1] See INA 248(a). See 8 CFR 214.1(a)(3)(i). See Volume 8, Admissibility [8 USCIS-PM]. and

Has not violated any terms or conditions of his or her current nonimmigrant status. [2] See 8 CFR 214.2(i). See 8 CFR 214.1(c)(4) and 8 CFR 248.1(b).

B. Approvals

If the applicant properly filed the Form I-539 application, meets all the eligibility requirements, and satisfies all the admission requirements, the officer may approve the application.

The table below provides a list of the classifications for foreign information media representatives. The code of admission is “I-1” for all eligible classes of applicants.

Classes of Applicants & Corresponding Codes of Admission

Applicant

Code of Admission

Foreign Information Media Representative (Principal)

I-1

Spouse of a Principal Foreign Information Media Representative

I-1

Child of a Principal Foreign Information Media Representative

I-1

C. Denials, Motions to Reopen, and Motions to Reconsider

If the applicant does not provide sufficient evidence to establish eligibility for status as a foreign information media representative, the officer prepares a denial notice explaining the specific reasons for the denial. If USCIS denies an application, the applicant may file a Motion to Reopen and/or Reconsider (Form I-290B).

There is no appeal from a denial of an application to change status or extend stay as a foreign information media representative. [3] See 8 CFR 214.1(c)(5). See 8 CFR 248.3(g). In certain situations, USCIS may certify the matter to the Administrative Appeals Office. [4] See 8 CFR 103.4.

Footnotes

1.

See INA 248(a). See 8 CFR 214.1(a)(3)(i). See Volume 8, Admissibility [8 USCIS-PM].

 

2.

See 8 CFR 214.2(i). See 8 CFR 214.1(c)(4) and 8 CFR 248.1(b).

 

3.

See 8 CFR 214.1(c)(5). See 8 CFR 248.3(g).

 

4.

See 8 CFR 103.4.

 

Volume 3 - Protection & Parole

Volume 4 - Refugees

Volume 5 - Asylees

Volume 6 - Immigrants

Part G - Investors

Chapter 1 - Purpose and Background

A. Purpose

The Immigration and Nationality Act (INA) makes visas available to qualified foreign nationals who will contribute to the economic growth of the United States by investing in U.S. businesses and creating jobs for U.S. workers. [1] See INA 203(b)(5). Congress created this employment-based fifth preference immigrant visa category (EB-5) to benefit the U.S. economy by providing an incentive for foreign capital investment that creates or preserves U.S. jobs.

The INA authorizes approximately 10,000 visas each fiscal year for immigrant investors (along with their spouses and unmarried children under the age of 21) who have invested or are actively in the process of investing in a new commercial enterprise and satisfy the applicable job creation requirements. Three thousand of the visas are set aside for immigrants, and their eligible family members, who invest in a new commercial enterprise within a USCIS-designated regional center. Regional centers are organized in the United States for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. [2] See Section 610(a) of the Judiciary Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992) as amended by Section 11037 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758, 1847 (November 2, 2002).

The INA established a threshold investment amount of $1,000,000 U.S. dollars per investor. To encourage investment in new enterprises located in areas that would most benefit from employment creation, the INA also sets aside at least 3,000 of the approximately 10,000 EB-5 visas annually for qualified immigrants who invest in new commercial enterprises that will create employment in targeted employment areas (TEA), which includes rural areas and areas with high unemployment. The minimum amount for investing in a TEA is currently set at $500,000 U.S. dollars per investor. [3] See INA 203(b)(5)(B)-(C). See 8 CFR 204.6(e)-(f).

Upon adjustment of status or admission to the United States, immigrant investors and their derivative family members receive conditional permanent resident status for a 2-year period. Ultimately, if the applicable requirements have been satisfied, USCIS removes the conditions and the immigrants become lawful permanent residents (LPR) of the United States without conditions.

B. Background

1. EB-5 Category Beginnings

In 1990, Congress created the EB-5 immigrant visa category. [4] See Section 121(a) of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990). The legislation envisioned LPR status, initially for a 2-year conditional period, for foreign nationals who established, [5] In 2002, Congress eliminated the requirement that an immigrant investor establish the new commercial enterprise. See Section 11036 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758, 1846 (November 2, 2002). invested (or were actively in the process of investing) in, and engaged in the management of job-creating or job-preserving for-profit enterprises. [6] See Sections 121(a)-(b)(1) of IMMACT90, Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990). Congress placed no restriction on the type of the business if the foreign national invested the required capital and directly created at least 10 jobs for U.S. workers.

2. Creation of the Regional Center Program

In 1992, Congress expanded the allowable measure of job creation for the EB-5 category by launching the Immigrant Investor Pilot Program (referred to in this guidance as the Regional Center Program). [7] See Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992). Congress designed this program to determine the viability of pooling investments in designated regional centers. [8] See S. Rep. 102-331 at 118 (July 23, 1992). Currently, the jurisdiction of a regional center is based on the regional center proposal submitted to and approved by USCIS.

The Regional Center Program is different from the direct job creation (stand-alone) model because it allows for the use of reasonable economic or statistical methodologies to demonstrate job creation. Reasonable methodologies are used, for example, to credit indirect (including induced) jobs to immigrant investors. Indirect jobs are jobs held outside the enterprise that receives immigrant investor capital.

3. Program Extensions

Congress initially approved the Regional Center Program as a trial pilot program, set to expire after 5 years. Congress has extended the program several times. [9] For information on the current expiration date, see the USCIS website.

Evolution of EB-5 Program

Act

Statutory Provisions

Sections 121(a)-(b) of the Immigration Act of 1990 [10] See Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990).

Congress creates the employment-based fifth preference immigrant visa category (EB-5).

EB-5 provides a path to permanent resident status, initially on a 2-year conditional basis, to qualified foreign nationals who contribute to U.S. economic growth by investing in domestic businesses and creating employment.

Intends for immigrant investors to establish, invest in, and engage in the management of job-creating commercial enterprises.

Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 [11] See Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992).

Congress creates an Immigrant Investor Pilot Program (Regional Center Program) to have a number of the available EB-5 visas set aside each fiscal year for foreign nationals (and eligible family members) who invest in a commercial enterprise associated with a designated Regional Center.

Regional centers designated for the promotion of economic growth.

The Regional Center Program allows foreign investors to claim credit for direct and indirect job creation. [12] For a discussion on indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs [6 USCIS-PM G.2(D)].

Sections 11035-37 of the 21st Century Department of Justice Appropriations Authorization Act [13] See Pub. L. 107-273, 116 Stat. 1758, 1846 (November 2, 2002).

Includes a specific reference to limited partnerships as commercial enterprises and eliminates the requirement that immigrant investors prove they have established a commercial enterprise themselves. Investors need only show they have invested or are actively in the process of investing in a commercial enterprise, among other requirements.

Defines full-time employment as employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.

Allows regional center proposals to be based on general but economically and statistically sound predictions submitted with the proposal concerning the kinds of enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of the investments, and other positive economic effects of the investments.

Section 1 of Pub. L. 112-176 [14] See 126 Stat. 1325, 1325 (September 28, 2012).

Eliminates the word pilot from the name of the Regional Center Program.

C. Legal Authorities

INA 203(b)(5); 8 CFR 204.6 – Employment creation immigrants

INA 216A; 8 CFR 216.6 – Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

8 CFR 216.3 – Termination of conditional permanent resident status

Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 [15] See Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.

Footnotes

1.

See INA 203(b)(5).

 

2.

See Section 610(a) of the Judiciary Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992) as amended by Section 11037 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758, 1847 (November 2, 2002).

 

3.

See INA 203(b)(5)(B)-(C). See 8 CFR 204.6(e)-(f).

 

4.

See Section 121(a) of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990).

 

5.

In 2002, Congress eliminated the requirement that an immigrant investor establish the new commercial enterprise. See Section 11036 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758, 1846 (November 2, 2002).

 

6.

See Sections 121(a)-(b)(1) of IMMACT90, Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990).

 

7.

See Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992).

 

8.

See S. Rep. 102-331 at 118 (July 23, 1992).

 

9.

For information on the current expiration date, see the USCIS website.

 

10.

See Pub. L. 101-649, 104 Stat. 4978, 4987 (November 29, 1990).

 

11.

See Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992).

 

12.

For a discussion on indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs [6 USCIS-PM G.2(D)].

 

13.

See Pub. L. 107-273, 116 Stat. 1758, 1846 (November 2, 2002).

 

14.

See 126 Stat. 1325, 1325 (September 28, 2012).

 

15.

See Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.

 

Chapter 2 - Eligibility Requirements

The immigrant investor category requires three main elements:

An investment of capital;

In a new commercial enterprise;

Which creates jobs.

Each element is explained in this chapter in the context of both the stand-alone program and the Regional Center Program.

For the general requirements, the term immigrant investor in this Part of the Policy Manual refers to any EB-5 investor-petitioner, whether investing through the stand-alone program or the Regional Center Program. Where distinctions between the two programs exist, the term non-regional center immigrant investor refers to petitioners using the stand-alone program, and the term regional center immigrant investor refers to petitioners using the Regional Center Program.

A. Investment of Capital

Congress created the immigrant investor category so the U.S. economy can benefit from an immigrant’s contribution of capital. This benefit is greatest when capital is at risk and invested in a new commercial enterprise that, because of the investment, creates at least 10 full-time jobs for U.S. workers. The regulations that govern the category define the terms capital and investment with this economic benefit in mind. [1] See 8 CFR 204.6(e).

1. Capital

The word capital does not mean only cash. Instead, the broad definition of capital takes into account the many different ways in which a person can make a contribution of financial value to a business. Capital includes cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the immigrant investor, provided the immigrant investor is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. [2] See 8 CFR 204.6(e). All capital must be valued at fair market value in U.S. dollars.

The immigrant investor must establish that he or she is the legal owner of the capital invested [3] See Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm. 1998). and has obtained the capital through lawful means. Any assets acquired directly or indirectly by unlawful means, such as criminal activity, will not be considered capital. [4] See INA 203(b)(5). See 8 CFR 204.6(e). To establish that the capital was obtained through lawful means, the immigrant investor’s petition must include (if applicable):

Foreign business registration records;

Corporate, partnership (or any other entity in any form which has filed in any country or subdivision thereof any return described in this list), and personal tax returns, including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind filed within 5 years with any taxing jurisdiction in or outside the United States by or on behalf of the immigrant investor;

Evidence identifying any other source(s) of capital; or

Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the immigrant investor from any court in or outside the United States within the past 15 years. [5] See 8 CFR 204.6(j)(3).

Promissory Notes

Capital can include the immigrant investor’s promise to pay (a promissory note), as long as the immigrant investor is personally and primarily liable for the promissory note debt and his or her assets adequately secure the note. Any security interest must be perfected [6] Perfecting a security interest relates to the additional steps required to make a security interest effective against third parties or to retain its effectiveness in the event of default by the grantor of the security interest. to the extent provided for by the jurisdiction in which the asset is located. [7] See Matter of Hsiung, 22 I&N Dec. 201, 202 (Assoc. Comm. 1998). Further, the assets securing the promissory note:

Cannot include assets of the company in which the immigrant is investing;

Must be specifically identified as securing the promissory note; and

Must be fully amenable to seizure by a U.S. noteholder. [8] See Matter of Hsiung, 22 I&N Dec. 201, 202-03 (Assoc. Comm. 1998).

The fair market value of a promissory note depends on its present value, not the value at any different time. In addition, to qualify as capital, nearly all of the money due under a promissory note must be payable within 2 years, without provisions for extensions. [9] See Matter of Izummi, 22 I&N Dec. 169, 193-94 (Assoc. Comm. 1998).

Using Loan Proceeds as Capital

Proceeds from a loan may qualify as investment capital provided the requirements placed on indebtedness are satisfied. [10] See 8 CFR 204.6(e).

When using loan proceeds as capital, an immigrant investor must demonstrate:

The immigrant investor is personally and primarily liable for the debt;

The indebtedness is secured by assets the immigrant investor owns; and

The assets of the new commercial enterprise are not used to secure any of the indebtedness.

The immigrant investor must have primary responsibility, under the loan documents, for repaying the debt used to satisfy his or her minimum required investment amount.

The immigrant investor must also demonstrate that his or her own collateral secures the debt, and that the value of the collateral is sufficient to secure the amount of debt that satisfies the immigrant investor’s minimum required investment amount. A loan secured by the immigrant investor’s assets qualifies as capital only up to the fair market value of the immigrant investor’s pledged assets.

2. Investment

The immigrant investor is required to invest his or her own capital. The petitioner must document the path of the funds to establish that the investment was made, or is actively in the process of being made, with the immigrant investor’s own funds. [11] See Matter of Izummi, 22 I&N Dec. 169, 195 (Assoc. Comm. 1998).

To invest means to contribute capital. A loan from the immigrant investor to the new commercial enterprise does not count as a contribution of capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the immigrant investor and the new commercial enterprise is not a capital investment. [12] See 8 CFR 204.6(e).

To qualify as an investment, the immigrant investor must actually place his or her capital at risk. The mere intent to invest is not sufficient. [13] See 8 CFR 204.6(j)(2).

Purchasing a share of a business from an existing shareholder, without more, will not qualify, since the payment goes to the former shareholder rather than to the new commercial enterprise.

Guaranteed Returns and Debt Arrangements

If the immigrant investor is guaranteed a return, or a rate of return on all or a portion of his or her capital, then the amount of any guaranteed return is not at risk. [14] See Matter of Izummi, 22 I&N Dec. 169, 180-188 (Assoc. Comm. 1998). For the capital to be at risk there must be a risk of loss and a chance for gain.

Additionally, if the investor is guaranteed the right to eventual ownership or use of a particular asset in consideration of the investor’s contribution of capital into the new commercial enterprise, the expected present value of the guaranteed ownership or use of such asset will count against the total amount of the investor’s capital contribution in determining how much money was placed at risk. For example, if the immigrant investor is given a right of ownership or use of real estate, the present value of that real estate will not be counted as investment capital put at risk of loss. [15] See Matter of Izummi, 22 I&N Dec. 169, 184 (Assoc. Comm. 1998).

Nothing prevents an immigrant investor from receiving a return on his or her capital in the form of a distribution of profits from the new commercial enterprise. This distribution of profits may happen during the conditional residency period and may happen before creating the required jobs. However, the distribution cannot be a portion of the investor’s minimum qualifying investment or guaranteed to the investor.

An arrangement under which funds have been contributed in exchange for an equity interest subject to a redemption agreement which provides that the investor may demand a return of some portion of his or her investment funds, including after obtaining conditional permanent resident status, is an impermissible debt arrangement, no different from the risk any business creditor incurs. Such funds do not constitute a qualifying contribution of capital [16] See Matter of Izummi, 22 I&N Dec. 169, 185 (Assoc. Comm. 1998). and, because the redemption provides for a guaranteed return to the immigrant investor, the funds are similarly not at risk. [17] See Matter of Izummi, 22 I&N Dec. 169, 183-188 (Assoc. Comm. 1998).

Business Activity

An immigrant investor must provide evidence of the actual undertaking of business activity. Merely establishing and capitalizing a new commercial enterprise and signing a commercial lease are not sufficient to show that an immigrant investor has placed his or her capital at risk. [18] See Matter of Ho, 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). Without some evidence of business activity, no assurance exists that the funds will be used to carry out the business of the commercial enterprise. [19] See Matter of Ho, 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).

Made Available

The full amount of the investment must be made available to the business​(​es​)​ most closely responsible for creating the employment upon which the petition is base​d​. [20] See Matter of Izummi, 22 I&N 169, 179, 189 (Assoc. Comm. 1998). ​In the regional center context, the immigrant investor must establish that the capital was ​invested into the new commercial enterprise and ​that the full amount ​was subsequently made available to the job-creating entity or entities, if separate.​ [21] A job-creating entity is most closely responsible for creating the employment upon which the petition is based. See Matter of Izummi, 22 I&N Dec. 169, 179 (Assoc. Comm. 1998). In some circumstances, the new commercial enterprise may also be the job-creating entity.

In cases with a separate job-creating entity or entities, ​the payment of ​​administrative fees, management fees, attorneys’ fees, finders’ fees, syndication fees, ​and​ other types of expenses or costs ​by ​the new commercial enterprise ​that erode the amount of capital ​made available to the job​-​creating entity ​do not count toward the minimum required investment amount. [22] See Matter of Izummi, 22 I&N Dec. 169, 178-79 (Assoc. Comm. 1998). The payment of these fees​ and expenses​ ​must ​be in addition to the ​minimum required​ capital investment​ amount​.

Sole Proprietors and Funds in Bank Accounts

A non-regional center investor who is operating a new commercial enterprise as a sole proprietor cannot consider funds in his or her personal bank account as capital committed to the new commercial enterprise. Funds in a personal bank account are not necessarily committed to the new commercial enterprise. The funds must be in business bank accounts. [23] See 8 CFR 204.6(j)(2). However, even a deposit into a business account over which petitioner exercises sole control, without more, may not satisfy the at-risk requirement. [24] See Matter of Ho, 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).

Escrow Accounts

An immigrant investor’s money may be held in escrow until the investor has obtained conditional permanent resident status if the immediate and irrevocable release of the escrowed funds is contingent only upon:

Approval of the Immigrant Petition by Alien Entrepreneur (Form I-526); and

Visa issuance and admission to the United States as a conditional permanent resident, or approval of the investor’s Application to Register Permanent Residence or Adjust Status (Form I-485).

An immigrant investor’s funds may be held in escrow within the United States to avoid any evidentiary issues that may arise with respect to issues such as significant currency fluctuations [25] When funds are held in escrow outside the United States, USCIS reviews currency exchange rates at the time of adjudicating the Form I-526 petition to determine if it is more likely than not that the petitioner will make the minimum qualifying capital investment. With the Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (Form I-829), USCIS reviews the evidence in the record, including currency exchange rates at the time of transfer, to determine that, when the funds were actually transferred to the United States, the petitioner actually made the minimum qualifying capital investment. and foreign capital export restrictions.

Use of foreign escrow accounts is not prohibited as long as the petition establishes that it is more likely than not that the minimum qualifying capital investment will be transferred to the new commercial enterprise in the United States upon the investor obtaining conditional permanent resident status.

When adjudicating the immigrant investor’s petition to remove conditions, [26] See Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (Form I-829). USCIS requires evidence verifying that the escrowed funds were released and that the investment was sustained in the new commercial enterprise for the period of the immigrant investor’s residence in the United States.

At-Risk Requirement Before the Job Creation Requirement is Satisfied

The full amount of capital must be used to undertake business activity that results in the creation of jobs. [27] See Matter of Ho, 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi, 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998). Before the job creation requirement is met, the following at-risk requirements apply:

The immigrant investor must have placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk;

There must be a risk of loss and a chance for gain;

Business activity must actually be undertaken; and

The full amount of the investment must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based. [28] See Matter of Ho, 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi, 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).

At-Risk Requirement After the Job Creation Requirement is Satisfied

Once the job creation requirement has been met, the capital is properly at risk if it is used in a manner related to engagement in commerce (in other words, the exchange of goods or services) consistent with the scope of the new commercial enterprise’s ongoing business. [29] See 8 CFR 204.6(e) for the definition of commercial enterprise. After the job creation requirement is met, the following at-risk requirements apply:

The immigrant investor must have placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk;

There must be a risk of loss and a chance for gain; and

Business activity must actually be undertaken. [30] See Matter of Ho, 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi, 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).

For example, if the scope of a new commercial enterprise was to loan pooled investments to a job-creating entity for the construction of a residential building, the new commercial enterprise, upon repayment of a loan that resulted in the required job creation, may further deploy the repaid capital into one or more similar loans to other entities. Similarly, the new commercial enterprise may also further deploy the repaid capital into certain new issue municipal bonds, such as for infrastructure spending, as long as investments into such bonds are within the scope of the new commercial enterprise in existence at the time the petitioner filed the Immigrant Petition by Alien Entrepreneur (Form I-526).

Officers must determine whether further deployment has taken place, or will take place, within a commercially reasonable time and within the scope of the new commercial enterprise’s ongoing business. [31] See 8 CFR 103.2(b)(1) (A petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication).

3. Required Amount of Investment

The immigrant investor must invest at least $1,000,000 in capital in a new commercial enterprise that creates not fewer than 10 jobs for U.S. workers. An exception exists if the immigrant investor invests his or her capital in a new commercial enterprise that is principally doing business in and creates jobs in a targeted employment area. In such a case, the immigrant investor must invest a minimum of $500,000 in capital.

This means that the present fair market value, in U.S. dollars, of the immigrant investor’s lawfully-derived capital must be at least $1,000,000, or $500,000 if investing in a targeted employment area. [32] See INA 203(b)(5)(C). See 8 CFR 204.6(e)-(f).

An immigrant investor may diversify his or her investment across a portfolio of businesses or projects, but only if the minimum investment amount is first placed in a single new commercial enterprise. In such a case, it is necessary to show how eligibility has been established (for example, the minimum investment amount, evidence of an at-risk investment, [33] The full amount of money must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based. See Matter of Izummi, 22 I&N Dec. 169, 179 (Assoc. Comm. 1998). and job creation) with respect to each job-creating entity at the time of filing.

For non-regional center investors, the capital may be deployed into a portfolio of wholly owned businesses, so long as all capital is deployed through a single commercial enterprise and all jobs are created directly within that commercial enterprise or through the portfolio of businesses that received the capital through that commercial enterprise.

For example, in an area in which the minimum investment amount is $1,000,000, the non-regional center investor can satisfy the statute by investing in a commercial enterprise that deploys $600,000 of the investment toward one business that the commercial enterprise wholly owns, and $400,000 of the investment toward another business that the commercial enterprise wholly owns. [34] See 8 CFR 204.6(e). In this example, the two wholly owned businesses would have to create an aggregate of 10 new jobs between them. However, a non-regional center investor cannot qualify by investing $600,000 in one commercial enterprise and $400,000 in a separate commercial enterprise, since these are not wholly owned by a single commercial enterprise.

In the regional center context, where indirect jobs may be counted, the commercial enterprise may create jobs indirectly through multiple investments in corporate affiliates or in unrelated entities, but the regional center investor cannot qualify by investing directly in those multiple entities. Instead, the regional center investor’s capital must still be invested in a single commercial enterprise, which can then deploy that capital to multiple job-creating entities as long as the portfolio of businesses or projects can create the required number of jobs.

4. Lawful Source of Funds

The immigrant investor must demonstrate by a preponderance of the evidence that the capital invested, or actively in the process of being invested, in the new commercial enterprise was obtained through lawful means. [35] See 8 CFR 204.6(j)(3). See Matter of Ho, 22 I&N Dec. 206, 210-11 (Assoc. Comm. 1998). Any assets acquired directly or indirectly by unlawful means, such as criminal activity, are not considered capital. [36] See 8 CFR 204.6(e). In establishing that the capital was acquired through lawful means, the immigrant investor must provide evidence demonstrating the direct and indirect source of his or her investment capital. [37] See 8 CFR 204.6(e) and 8 CFR 204.6(j)(3).

As evidence of the lawful source of funds, the immigrant investor’s petition must be accompanied, as applicable, by:

Foreign business registration records;

Corporate, partnership, or any other entity in any form which has filed in any country or subdivision thereof any return described in this list, and personal tax returns, including income, franchise, property (whether real, personal, intangible), or any other tax returns of any kind filed within 5 years, with any taxing jurisdiction in or outside the United States by or on behalf of the immigrant investor;

Evidence identifying any other source(s) of capital; or

Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the immigrant investor from any court in or outside the United States within the past 15 years. [38] See 8 CFR 204.6(j)(3).

The immigrant investor is required to submit evidence identifying any other source of capital. Such evidence may include:

Corporate, partnership, or other business entity annual reports;

Audited financial statements;

Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by the immigrant investor’s own assets, other than those of the new commercial enterprise, and for which the immigrant investor is personally and primarily liable;

Evidence of income such as earnings statements or official correspondence from current or prior employers stating when the immigrant investor worked for the company and how much income the immigrant investor received during employment;

Gift instrument(s) documenting gifts to the immigrant investor;

Evidence, other than tax returns, [39] As required under 8 CFR 204.6(j)(3)(ii). of payment of individual income tax, such as an individual income tax report or payment certificate, on the following:

Wages and salaries;

Income from labor and service or business activities;

Income or royalties from published books, articles, photographs, or other sources;

Royalties or income from patents or special rights;

Interest, dividends, and bonuses;

Rental income;

Income from property transfers;

Any incidental income or other taxable income determined by the relevant financial department;

Evidence of property ownership, including property purchase or sale documentation; or

Evidence identifying any other source of capital.

5. Targeted Employment Area

A targeted employment area (TEA) is a rural area or an area that has experienced high unemployment. [40] See INA 203(b)(5)(B)(ii). A rural area is any area not within either a metropolitan statistical area or the outer boundary of a city or town having a population of 20,000 or more. [41] See INA 203(b)(5)(B)(iii). See 8 CFR 204.6(e). A high unemployment area is an area that has experienced unemployment of at least 150 percent of the national average rate. [42] See INA 203(b)(5)(B)(ii). See 8 CFR 204.6(e).

Congress provided for a reduced investment amount in a targeted employment area to encourage investment in new commercial enterprises principally doing business in and creating jobs in areas of greatest need. For the lower capital investment amount to apply, the new commercial enterprise into which the immigrant invests or the actual job-creating entity must be principally doing business in the targeted employment area.

A new commercial enterprise is principally doing business in the location where it regularly, systematically, and continuously provides goods or services that support job creation. If the new commercial enterprise provides such goods or services in more than one location, it will be principally doing business in the location most significantly related to the job creation.

Factors considered in determining where a new commercial enterprise is principally doing business include, but are not limited to, the location of:

Any jobs directly created by the new commercial enterprise;

Any expenditure of capital related to the creation of jobs;

The new commercial enterprise’s day-to-day operation; and

The new commercial enterprise’s assets used in the creation of jobs. [43] See Matter of Izummi, 22 I&N Dec. 169, 174 (Assoc. Comm. 1998).

Investments through regional centers allow the immigrant investor to seek to establish indirect job creation. In these cases, principally doing business will apply to the job-creating entity rather than the new commercial enterprise. The job-creating entity must be principally doing business in the targeted employment area for the lower capital investment amount to apply. [44] See 8 CFR 204.6(j)(6). See Matter of Izummi, 22 I&N Dec. 169, 171-73 (Assoc. Comm. 1998).

The immigrant investor may seek to have an area designated as a targeted employment area. To do so, the immigrant investor must demonstrate that the targeted employment area meets the statutory and regulatory criteria by submitting:

Evidence that the area is outside of a metropolitan statistical area and outside of a city or town having a population of 20,000 or more;

Unemployment data for the relevant metropolitan statistical area or county; or

A letter from the state government designating a geographic or political subdivision located outside a rural area but within its own boundaries as a high unemployment area. [45] See 8 CFR 204.6(j)(6).

To promote predictability in the capital investment process, an officer identifies the appropriate date to examine in order to determine that the immigrant investor’s capital investment qualifies for the lower capital investment amount according to the following table:

Targeted Employment Area (TEA) Analysis

If the Investment of Capital…

Then…

Is made in to the new commercial enterprise, and made available to the job-creating entity in the case of investment through a regional center, prior to the filing of the Immigrant Petition by Alien Entrepreneur (Form I-526).

The TEA analysis should focus on whether the area in which the new commercial enterprise, or job-creating entity in the case of investment through a regional center, is principally doing business qualifies as a TEA at the time of the investment.

Has yet to be made in to the new commercial enterprise, or made available to the job-creating entity in the case of investment through a regional center, at the time of the Form I-526 petition filing.

The TEA analysis should focus on whether the area in which the new commercial enterprise, or job-creating entity in the case of investment through a regional center, is principally doing business qualifies as a TEA at the time of the filing of the Form I-526 petition.

A geographic area that once qualified as a TEA may no longer qualify as employment rates or population increase over time. Immigrant investors occasionally request eligibility for the reduced investment threshold based on the fact that other immigrant investors who previously invested in the same new commercial enterprise qualified for the lower capital investment amount. The immigrant investor must establish, however, that at the time of investment or at the time of filing the immigrant petition, as applicable, the geographic area in question qualified as a TEA. An immigrant investor cannot rely on previous TEA determinations made based on facts that have subsequently changed.

The area in question may qualify as a TEA at the time the investment is made or the Form I-526 immigrant petition is filed, whichever occurs first, but may cease to qualify by the time the Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (Form I-829) is filed. The investor is not required to demonstrate that the area in question remains a TEA at the time the Form I-829 petition is filed. Changes in population size or unemployment rates within the area during the period of conditional permanent residence are acceptable, since increased job creation is a primary goal, which has been met if the area was a TEA at the time the investment was made, or the Form I-526 was filed.

A State’s Designation of a Targeted Employment Area

A state government may designate a geographic or political subdivision within its boundaries as a targeted employment area based on high unemployment. Before the state may make such a designation, an official of the state must notify USCIS of the agency, board, or other appropriate state governmental body that will be delegated the authority to certify that the geographic or political subdivision is a high unemployment area. [46] See 8 CFR 204.6(i). The state may then send a letter from the authorized body of the state certifying that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. [47] See 8 CFR 204.6(j)(6)(ii)(B).

Consistent with the regulations, USCIS defers to state determinations of the appropriate boundaries of a geographic or political subdivision that constitutes the targeted employment area. However, for all TEA designations, USCIS must still ensure compliance with the statutory requirement that the proposed area designated by the state has an unemployment rate of at least 150 percent above the national average. To do this, USCIS reviews state determinations of the unemployment rate and assess the method or methods by which the state authority obtained the unemployment statistics.

Acceptable data sources for calculating unemployment include U.S. Census Bureau data (including data from the American Community Survey) and data from the Bureau of Labor Statistics (including data from Local Area Unemployment Statistics).

There is no provision allowing a state to designate a rural area.

B. Comprehensive Business Plan

A comprehensive business plan should contain, at a minimum, a description of the business, its products or services (or both), and its objectives. [48] See Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

The plan should contain a market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s products and pricing structures, and a description of the target market and prospective customers of the new commercial enterprise. The plan should list the required permits and licenses obtained. If applicable, it should describe the manufacturing or production process, the materials required, and the supply sources.

The plan should detail any contracts executed for the supply of materials or the distribution of products. It should discuss the marketing strategy of the business, including pricing, advertising, and servicing. The plan should set forth the business’s organizational structure and its personnel’s experience. It should explain the business’s staffing requirements and contain a timetable for hiring, as well as job descriptions for all positions It should contain sales, cost, and income projections and detail the basis of such projections.

Most importantly, the business plan must be credible. [49] See Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

USCIS reviews business plans in their totality. An officer must determine if it is more likely than not that the business plan is comprehensive and credible. A business plan is not required to contain all of the detailed elements, but the more details the business plan contains, the more likely it is that the plan will be considered comprehensive and credible. [50] See Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

C. New Commercial Enterprise

A new commercial enterprise is any commercial enterprise established after November 29, 1990. [51] See 8 CFR 204.6(e). Therefore, the immigrant investor can invest the required amount of capital in a commercial enterprise established after November 29, 1990, provided the remaining eligibility criteria are met.

A commercial enterprise is any for-profit activity formed for the ongoing conduct of lawful business. [52] See 8 CFR 204.6(e). This broad definition is consistent with the realities of the business world and the many different forms and structures that job-creating activities can have.

Types of commercial enterprises include, but are not limited to:

Sole proprietorship;

Partnership (whether limited or general);

Holding company;

Joint venture;

Corporation;

Business trust; or

Other entity, which may be publicly or privately owned. [53] See 8 CFR 204.6(e).

A commercial enterprise can consist of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. Noncommercial activities, including owning and operating a personal residence, do not qualify. [54] See 8 CFR 204.6(e).

The commercial enterprise must be formed to make a profit, unlike, for example, some charitable organizations.

1. Enterprise Established On or Before November 29, 1990

A new commercial enterprise also includes a commercial enterprise established on or before November 29, 1990, if the enterprise will be restructured or expanded through the immigrant’s investment of capital.

Purchase of an Existing Business that is Restructured or Reorganized

The immigrant investor can invest in a business that existed on or before November 29, 1990, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results. [55] See 8 CFR 204.6(h)(2). Cosmetic changes to the décor, a new marketing strategy, or a simple change in ownership do not qualify as restructuring. [56] See Matter of Soffici, 22 I&N Dec. 158 (Assoc. Comm. 1998).

However, a business plan that modifies an existing business, such as converting a restaurant into a nightclub or adding substantial crop production to an existing livestock farm, could qualify as a restructuring or reorganization.

Expansion of an Existing Business

The immigrant investor can invest in a business that existed on or before November 29, 1990, provided a substantial change in the net worth or number of employees results from the investment of capital. [57] See 8 CFR 204.6(h)(3).

Substantial change is defined as a 40 percent increase either in the net worth or in the number of employees, so that the new net worth or number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees. [58] See 8 CFR 204.6(h)(3).

Investment in a new commercial enterprise in this manner does not exempt the immigrant investor from meeting the requirements relating to the amount of capital that must be invested and the number of jobs that must be created. [59] See 8 CFR 204.6(h)(3).

2. Pooled Investments in Original EB-5 Program

A new commercial enterprise may be used as the basis for the petitions of more than one non-regional center immigrant investor. Each non-regional center immigrant investor must invest the required amount of capital and each immigrant investor’s investment must result in the required number of jobs. Furthermore, the new commercial enterprise can have owners who are not immigrant investors provided that the sources of all capital invested are identified and all invested capital has been derived by lawful means. [60] See 8 CFR 204.6(g).

3. Establishment of New Commercial Enterprise

To show that the new commercial enterprise has been established, the immigrant investor must present the following evidence, in addition to any other evidence that USCIS deems appropriate:

As applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or other similar organizational document for the new commercial enterprise;

A certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require any such certificate or the state or municipality does not issue such a certificate, a statement to that effect; or

Evidence that, after November 29, 1990, the required amount of capital for the area in which an enterprise is located has been transferred to an existing business, and that the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred.

This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth or number of employees. [61] See 8 CFR 204.6(j)-(j)(1).

4. Investment in New Commercial Enterprise

To show that the immigrant investor has committed the required amount of capital to the new commercial enterprise, the evidence presented may include, but is not limited to, the following:

Bank statements showing amounts deposited in U.S. business accounts for the enterprise;

Evidence of assets which have been purchased for use in the U.S. enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity;

Evidence of property transferred from abroad for use in the U.S. enterprise, including U.S. Customs and Border Protection commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property;

Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder’s request; or

Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing secured by the immigrant investor’s assets, other than those of the new commercial enterprise, and for which the immigrant investor is personally and primarily liable. [62] See 8 CFR 204.6(j)(2)(i)-(v).

5. Engagement in Management of New Commercial Enterprise

The immigrant investor must be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or through policy formulation. It is not enough that the immigrant investor maintain a purely passive role concerning his or her investment. [63] See 8 CFR 204.6(j)(5).

To show that the immigrant investor is or will be engaged in the exercise of day-to-day managerial control or policy formulation, the immigrant investor must submit:

A statement of the position title that the immigrant investor has or will have in the new enterprise and a complete description of the position’s duties;

Evidence that the immigrant investor is a corporate officer or a member of the corporate board of directors; or

If the new enterprise is a partnership, either limited or general, evidence that the immigrant investor is engaged in either direct management or policymaking activities. The immigrant investor is sufficiently engaged in the management of the new commercial enterprise if the investor is a limited partner and the limited partnership agreement provides the investor with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act. [64] See 8 CFR 204.6(j)(5)(i)-(iii).

D. Creation of Jobs

The creation of jobs for U.S. workers is a critical element of EB-5. It is not enough that the immigrant investor invests funds into the U.S. economy. The investment of the required amount of capital must be in a new commercial enterprise that creates [65] Job maintenance is also permitted under certain circumstances. See Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)]. at least 10 jobs for qualifying employees. It is important to recognize that while the investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs. [66] See 8 CFR 204.6(j)(4)(i).

Example: Non-Regional Center

Ten non-regional center immigrant investors seek to establish a hotel as their new commercial enterprise. The establishment of the new hotel requires capital to pay financing costs to unrelated third parties, purchase the land, develop the plans, obtain the licenses, build the structure, maintain the grounds, staff the hotel, as well as many other types of expenses involved in the development and operation of a new hotel.

The non-regional center immigrant investor’s capital can be used to pay part or all of these expenses. Each non-regional center immigrant investor’s investment of capital helps the new commercial enterprise (the new hotel) create 10 jobs. The 10 immigrants’ investments must result in the new hotel’s creation of 100 jobs (10 jobs for each investor’s capital investment) for qualifying employees. [67] See 8 CFR 204.6(j) (It is the new commercial enterprise that will create the 10 jobs).

1. Bridge Financing

A developer or principal of a new commercial enterprise, either directly or through a separate job-creating entity, may use interim, temporary, or bridge financing, in the form of either debt or equity, prior to receipt of immigrant investor capital. If the project starts based on the interim or bridge financing prior to receiving immigrant investor capital and subsequently replaces that financing with immigrant investor capital, the new commercial enterprise may still receive credit for the job creation under the regulations.

Generally, the replacement of temporary or bridge financing with immigrant investor capital should have been contemplated prior to acquiring the original temporary financing. However, even if the immigrant investor financing was not contemplated prior to acquiring the temporary financing, as long as the financing to be replaced was contemplated as short-term temporary financing that would be subsequently replaced by more permanent long-term financing, the infusion of immigrant investor financing could still result in the creation of, and credit for, new jobs.

For example, if traditional financing originally contemplated to replace the temporary financing is no longer available to the commercial enterprise, a developer is not precluded from using immigrant investor capital as an alternative source. Immigrant investor capital may replace temporary financing even if this arrangement was not contemplated prior to obtaining the bridge or temporary financing.

The full amount of the immigrant’s investment must be made available to the business or businesses most closely responsible for creating the jobs upon which eligibility is based. In the regional center context if the new commercial enterprise is not the job-creating entity, then the full amount of the capital must be invested first in the new commercial enterprise and then made available to the job-creating entity or entities. [68] See Matter of Izummi, 22 I&N Dec. 169, 179 (Assoc. Comm. 1998).

2. Multiple Job-Creating Entities

If invested in a single new commercial enterprise and where the offering and organizational documents provide, an investor’s full investment may be distributed to more than one job-creating entity in a portfolio investment strategy. The record must demonstrate that the new commercial enterprise will create the requisite jobs through the portfolio of projects. In addition, each investor must demonstrate that the full amount of money is made available to the business(es) most closely responsible for creating the employment upon which the petition is based, which may be one or multiple job-creating entities in a portfolio.

3. Full-Time Positions for Qualifying Employees

The investment into a new commercial enterprise must create full-time positions for not fewer than 10 qualifying employees. [69] See 8 CFR 204.6(j). An employee is defined as a person who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. In the case of the Regional Center Program, an employee also means a person who provides services or labor in a job that has been created indirectly through investment in the new commercial enterprise. [70] See 8 CFR 204.6(e).

Qualifying Employee

For the purpose of the job creation requirement, the employee must be a qualifying employee. A qualifying employee is a U.S. citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized for employment in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or a foreign national remaining in the United States under suspension of deportation. This definition does not include the immigrant investor, the immigrant investor’s spouse, sons, daughters, or any nonimmigrant. [71] See 8 CFR 204.6(e).

Full-Time Employment

For the purpose of the job creation requirement, the position must be a full-time employment position. [72] See INA 203(b)(5)(A)(ii). Full-time employment is defined as employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. [73] See INA 203(b)(5)(D). See 8 CFR 204.6(e). In the case of the Regional Center Program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.

Two or more qualifying employees can fill a full-time employment position in a job sharing arrangement. Job sharing is permissible so long as the 35 working hours per week requirement is met. However, the definition of full-time employment does not include combinations of part-time positions, even if those positions when combined meet the hourly requirement per week. [74] See 8 CFR 204.6(e).

A job-sharing arrangement whereby two or more qualifying employees share a full-time position shall count as full-time employment provided the hourly requirement per week is met. To demonstrate that a full-time position is shared by more than one employee, the following evidence, among others, may be relevant:

A written job-sharing agreement;

A weekly schedule that identifies the positions subject to a job sharing arrangement and the hours to be worked by each employee under the job sharing arrangement; and

Evidence of the sharing of the responsibilities or benefits of a permanent, full-time position between the employees subject to the job sharing arrangement.

Jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last at least 2 years are generally not considered intermittent, temporary, seasonal, or transient in nature.

4. Measuring Job Creation

The immigrant investor seeking to enter the United States through the EB-5 Program must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees. There are three methods of measuring job creation depending on the new commercial enterprise and where it is located.

Troubled Business

The U.S. economy benefits when the immigrant investor’s capital helps preserve the troubled business’s existing jobs. If the immigrant investor is investing in a new commercial enterprise that is a troubled business, he or she must show that the number of existing employees in the troubled business is being, or will be, maintained at no less than the pre-investment level for a period of at least 2 years. [75] See 8 CFR 204.6(j)(4)(ii). This applies in the regional center context as well.

The troubled business regulatory provision does not decrease the number of jobs required. An immigrant investor who invests in a troubled business must still demonstrate that 10 jobs have been preserved, created, or some combination of the two. For example, an investment in a troubled business that creates four qualifying jobs and preserves all six pre-investment jobs would satisfy the job creation requirement.

The regulatory definition of a troubled business is a business that has:

Been in existence for at least 2 years;

Has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the 12-month or 24-month period prior to the priority date on the Immigrant Petition by Alien Entrepreneur (Form I-526); and

Had a loss for the same period at least equal to 20 percent of the troubled business’s net worth prior to the loss. [76] See 8 CFR 204.6(j)(4)(ii).

For purposes of determining whether or not the troubled business has been in existence for 2 years, successors-in-interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded. [77] See 8 CFR 204.6(e).

New Commercial Enterprise Not Located Within a Regional Center

For a new commercial enterprise not located within a regional center, the full-time positions must be created directly by the new commercial enterprise to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees. [78] See 8 CFR 204.6(e).

New Commercial Enterprise Located Within a Regional Center

Full-time positions can be created either directly or indirectly by a new commercial enterprise located within a designated regional center. [79] See 8 CFR 204.6(j)(4)(iii). The general EB-5 program requirements still apply to investors investing in new commercial enterprises in the regional center context except that they may rely on indirect job creation. Employees filling indirect jobs do not work directly for the new commercial enterprise. Immigrant investors must use reasonable methodologies to establish the number of indirect jobs created. [80] See 8 CFR 204.6(m)(1). See 8 CFR 204.6(m)(7).

Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs. Indirect jobs are those that are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise. For example, indirect jobs can include, but are not limited to, those held by employees of the job-creating entity (when the job-creating entity is not the new commercial enterprise) as well as employees of producers of materials, equipment, or services used by the new commercial enterprise or job-creating entity.

In addition, a sub-set of indirect jobs, known as induced jobs, are created when the new direct and indirect employees spend their earnings on consumer goods and services. Indirect jobs can qualify and be counted as jobs attributable to a new commercial enterprise associated with a regional center, based on reasonable methodologies, even if the jobs are located outside of the geographic boundaries of a regional center.

Due to the nature of accepted job creation modeling practices, USCIS relies upon reasonable economic models to determine that it is more likely than not that the indirect jobs are created. USCIS may request additional evidence that the indirect jobs created, or to be created, are full time. USCIS may also request additional evidence to verify that the direct jobs (those held at the new commercial enterprise) will be or are full-time and permanent, which may include a review of W-2 forms or similar evidence.

Multiple Investors

When there are multiple investors in a new commercial enterprise, the total number of full-time positions created for qualifying employees will be allocated only to those immigrant investors who have used the establishment of the new commercial enterprise as the basis for their immigrant petition. An allocation does not need to be made among persons not seeking classification through the employment based fifth preference category. Also, jobs need not be allocated to non-natural persons, such as corporations investing in a new commercial enterprise. [81] See 8 CFR 204.6(g)(2). Full-time positions will be allocated to immigrant investors based on the date their petition to remove conditions was filed, unless otherwise stated in the relevant documents. [82] USCIS recognizes any reasonable agreement made among immigrant investors in regard to the identification and allocation of qualifying positions. See 8 CFR 204.6(g)(2).

In general, multiple immigrant investors may not claim credit for the same job. An immigrant investor may not seek credit for the same specifically identified job position that has already been allocated to another immigrant investor in a previously approved case.

5. Evidence of Job Creation

To show that a new commercial enterprise will create not fewer than 10 full-time positions for qualifying employees, an immigrant investor must submit the following evidence:

Documentation consisting of photocopies of relevant tax records, Employment Eligibility Verification (Form I-9), or other similar documents for 10 qualifying employees, if such employees have already been hired; or

A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than 10 qualifying employees will result within the next 2 years and the approximate dates employees will be hired. [83] See 8 CFR 204.6(j)(4)(i).

The 2-year period [84] The 2-year period is described in 8 CFR 204.6(j)(4)(i)(B). is deemed to begin 6 months after adjudication of Form I-526. The business plan filed with the immigrant petition should reasonably demonstrate that the requisite number of jobs will be created by the end of this 2-year period.

Troubled Business

In the case of a troubled business, a comprehensive business plan must accompany the other required evidentiary documents. [85] See 8 CFR 204.6(j)(4)(ii).

Regional Center Investors

In the case of a new commercial enterprise within a regional center, the direct or indirect job creation may be demonstrated by the types of documents identified in this section along with reasonable methodologies. [86] See 8 CFR 204.6(j)(4)(iii). If a regional center immigrant investor seeks to rely on jobs that will be created to satisfy the job creation requirement, a comprehensive business plan is required.

Additionally, if the regional center immigrant investor seeks to demonstrate job creation through the use of an economic input-output model, USCIS requires the investor to demonstrate that the methodology is reasonable. For example, if the inputs into the input-output model reflect jobs created directly at the new commercial enterprise or job-creating entity, USCIS requires the investor to demonstrate that the direct jobs input is reasonable. Relevant documentation may include Form I-9, tax or payroll records or if the jobs are not yet in existence, a comprehensive business plan demonstrating how many jobs will be created and when the jobs will be created.

If the inputs into the model reflect expenditures, USCIS requires the investor to demonstrate that the expenditures input is reasonable. Relevant documentation may include receipts and other financial records for expenditures that have occurred and a detailed projection of sales, costs, and income projections such as a pro-forma cash flow statement associated with the business plan for expenditures that will occur.

If the inputs into the model reflect revenues, USCIS requires the investor to demonstrate that the revenues input is reasonable. Relevant documentation may include tax or other financial records for revenues that have occurred or a detailed projection of sales, costs, and income projections such as a pro-forma income statement associated with the business plan for revenues that will occur.

In reviewing whether an economic methodology is reasonable, USCIS analyzes whether the multipliers and assumptions about the geographic impact of the project are reasonable. For example, when reviewing the geographic level of the multipliers used in an input-output model, the following factors, among others, may be considered:

The area’s demographic structure (for example, labor pool supply, work force rate, population growth, and population density);

The area’s contribution to supply chains of the project; and

Connectivity with respect to socioeconomic variables in the area (for example, income level and purchasing power).

6. Rescission of Guidance on Tenant Occupancy Methodology

As of May 15, 2018, USCIS rescinded its prior guidance on tenant occupancy methodology. That update applies to all USCIS employees with respect to determinations of all Immigrant Petitions by Alien Entrepreneurs (Form I-526), Petitions by Entrepreneurs to Remove Conditions on Permanent Resident Status (Form I-829), and Applications for Regional Center Designation Under the Immigrant Investor Program (Form I-924) filed on or after that date. USCIS also gives deference to Form I-526 and Form I-829 petitions directly related to projects approved before May 15, 2018, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination. [87] See Chapter 6, Deference [6 USCIS-PM G.6].

Previously, on December 20, 2012, USCIS had issued policy guidance defining the criteria to be used in the adjudication of applications and petitions relying on tenant occupancy to establish indirect jobs. [88] See Operational Guidance for EB-5 Cases Involving Tenant-Occupancy, GM-602-0001, issued December 20, 2012. In November 2016, USCIS published consolidated policy guidance on immigrant investors in this Policy Manual, including guidance on the tenant occupancy methodology. That guidance provided that investors could (1) map a specific amount of direct, imputed, or subsidized investment to new jobs, or (2) use a facilitation-based approach to demonstrate the project would remove a significant market-based constraint.

The first method requires mapping a specific amount of direct, imputed, or subsidized investment to new jobs such that there is an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. In practice, however, the construction of standard office or retail space alone does not lead to a sufficient connection for this type of mapping such that tenant jobs can be credited to the new commercial enterprise. The existence of numerous other factors, such as the identity of future tenants and demand for that type of business, makes it difficult to relate individual jobs to a specific space.

The second method looks at whether the investment removes a significant market-based constraint, referred to in the 2012 guidance as the “facilitation based approach.” In providing this approach as an option, USCIS explicitly allowed applicants and petitioners to avoid having to establish an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. As of May 15, 2018, however, USCIS determined that that allowance was ill-advised, because a direct financial connection between the EB-5 capital investment and the job creation is necessary to determine a sufficient nexus between the two. Reliance on a showing of constraint on supply or excess of demand by itself does not establish a causal link between specific space and a net new labor demand such that it would overcome the lack of a sufficient nexus.

Moreover, allowing applicants and petitioners to use prospective tenant jobs as direct inputs into regional growth models to generate the number of indirect and induced jobs that result from the credited tenant jobs leads to a more attenuated and less verifiable connection to the investment. There is also no reasonable test to confirm that jobs claimed through either tenant-occupancy methodology are new rather than relocated jobs such that they should qualify as direct inputs in the first place.

In sum, tenant-occupancy methodologies described in the 2012 Operational Guidance and previously incorporated into the Policy Manual result in a connection or nexus between the investment and jobs that is too tenuous [89] See, for example, Matter of Izummi, 22 I&N Dec. 169, 179 (Assoc. Comm’r 1998) (holding that the full amount of the money must be made available to the business(es) most closely responsible for creating the employment on which the petition is based). and thus are no longer considered reasonable methodologies or valid forecasting tools under the regulations. [90] See 8 CFR 204.6(j)(4)(iii) and (m)(3).

E. Burden of Proof

The petitioner or applicant must establish each element by a preponderance of the evidence. [91] See Matter of Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010). The petitioner or applicant does not need to remove all doubt. Even if an officer has some doubt as to the truth, if the petitioner or applicant submits relevant, probative, and credible evidence that leads to the conclusion that the claim is more likely than not (that is, probably true), the petitioner or applicant has satisfied the preponderance of evidence standard.

Footnotes

1.

See 8 CFR 204.6(e).

 

2.

See 8 CFR 204.6(e).

 

3.

See Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm. 1998).

 

4.

See INA 203(b)(5). See 8 CFR 204.6(e).

 

5.

See 8 CFR 204.6(j)(3).

 

6.

Perfecting a security interest relates to the additional steps required to make a security interest effective against third parties or to retain its effectiveness in the event of default by the grantor of the security interest.

 

7.

See Matter of Hsiung, 22 I&N Dec. 201, 202 (Assoc. Comm. 1998).

 

8.

See Matter of Hsiung, 22 I&N Dec. 201, 202-03 (Assoc. Comm. 1998).

 

9.

See Matter of Izummi, 22 I&N Dec. 169, 193-94 (Assoc. Comm. 1998).

 

10.

See 8 CFR 204.6(e).

 

11.

See Matter of Izummi, 22 I&N Dec. 169, 195 (Assoc. Comm. 1998).

 

12.

See 8 CFR 204.6(e).

 

13.

See 8 CFR 204.6(j)(2).

 

14.

See Matter of Izummi, 22 I&N Dec. 169, 180-188 (Assoc. Comm. 1998).

 

15.

See Matter of Izummi, 22 I&N Dec. 169, 184 (Assoc. Comm. 1998).

 

16.

See Matter of Izummi, 22 I&N Dec. 169, 185 (Assoc. Comm. 1998).

 

17.

See Matter of Izummi, 22 I&N Dec. 169, 183-188 (Assoc. Comm. 1998).

 

18.

See Matter of Ho, 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998).

 

19.

See Matter of Ho, 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).

 

20.

See Matter of Izummi, 22 I&N 169, 179, 189 (Assoc. Comm. 1998).

 

21.

A job-creating entity is most closely responsible for creating the employment upon which the petition is based. See Matter of Izummi, 22 I&N Dec. 169, 179 (Assoc. Comm. 1998). In some circumstances, the new commercial enterprise may also be the job-creating entity.

 

22.

See Matter of Izummi, 22 I&N Dec. 169, 178-79 (Assoc. Comm. 1998).

 

23.

See 8 CFR 204.6(j)(2).

 

24.

See Matter of Ho, 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).

 

25.

When funds are held in escrow outside the United States, USCIS reviews currency exchange rates at the time of adjudicating the Form I-526 petition to determine if it is more likely than not that the petitioner will make the minimum qualifying capital investment. With the Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (Form I-829), USCIS reviews the evidence in the record, including currency exchange rates at the time of transfer, to determine that, when the funds were actually transferred to the United States, the petitioner actually made the minimum qualifying capital investment.

 

26.

See Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (Form I-829).

 

27.

See Matter of Ho, 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi, 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).

 

28.

See Matter of Ho, 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi, 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).

 

29.

See 8 CFR 204.6(e) for the definition of commercial enterprise.

 

30.

See Matter of Ho, 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi, 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).

 

31.

See 8 CFR 103.2(b)(1) (A petitioner must establish that he or she is eligible for the requested benefit at the time of filing the benefit request and must continue to be eligible through adjudication).

 

32.

See INA 203(b)(5)(C). See 8 CFR 204.6(e)-(f).

 

33.

The full amount of money must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based. See Matter of Izummi, 22 I&N Dec. 169, 179 (Assoc. Comm. 1998).

 

34.

See 8 CFR 204.6(e).

 

35.

See 8 CFR 204.6(j)(3). See Matter of Ho, 22 I&N Dec. 206, 210-11 (Assoc. Comm. 1998).

 

36.

See 8 CFR 204.6(e).

 

37.

See 8 CFR 204.6(e) and 8 CFR 204.6(j)(3).

 

38.

See 8 CFR 204.6(j)(3).

 

39.

As required under 8 CFR 204.6(j)(3)(ii).

 

40.

See INA 203(b)(5)(B)(ii).

 

41.

See INA 203(b)(5)(B)(iii). See 8 CFR 204.6(e).

 

42.

See INA 203(b)(5)(B)(ii). See 8 CFR 204.6(e).

 

43.

See Matter of Izummi, 22 I&N Dec. 169, 174 (Assoc. Comm. 1998).

 

44.

See 8 CFR 204.6(j)(6). See Matter of Izummi, 22 I&N Dec. 169, 171-73 (Assoc. Comm. 1998).

 

45.

See 8 CFR 204.6(j)(6).

 

46.

See 8 CFR 204.6(i).

 

47.

See 8 CFR 204.6(j)(6)(ii)(B).

 

48.

See Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

 

49.

See Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

 

50.

See Matter of Ho, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

 

51.

See 8 CFR 204.6(e).

 

52.

See 8 CFR 204.6(e).

 

53.

See 8 CFR 204.6(e).

 

54.

See 8 CFR 204.6(e).

 

55.

See 8 CFR 204.6(h)(2).

 

56.

See Matter of Soffici, 22 I&N Dec. 158 (Assoc. Comm. 1998).

 

57.

See 8 CFR 204.6(h)(3).

 

58.

See 8 CFR 204.6(h)(3).

 

59.

See 8 CFR 204.6(h)(3).

 

60.

See 8 CFR 204.6(g).

 

61.

See 8 CFR 204.6(j)-(j)(1).

 

62.

See 8 CFR 204.6(j)(2)(i)-(v).

 

63.

See 8 CFR 204.6(j)(5).

 

64.

See 8 CFR 204.6(j)(5)(i)-(iii).

 

65.

Job maintenance is also permitted under certain circumstances. See Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].

 

66.

See 8 CFR 204.6(j)(4)(i).

 

67.

See 8 CFR 204.6(j) (It is the new commercial enterprise that will create the 10 jobs).

 

68.

See Matter of Izummi, 22 I&N Dec. 169, 179 (Assoc. Comm. 1998).

 

69.

See 8 CFR 204.6(j).

 

70.

See 8 CFR 204.6(e).

 

71.

See 8 CFR 204.6(e).

 

72.

See INA 203(b)(5)(A)(ii).

 

73.

See INA 203(b)(5)(D). See 8 CFR 204.6(e).

 

74.

See 8 CFR 204.6(e).

 

75.

See 8 CFR 204.6(j)(4)(ii).

 

76.

See 8 CFR 204.6(j)(4)(ii).

 

77.

See 8 CFR 204.6(e).

 

78.

See 8 CFR 204.6(e).

 

79.

See 8 CFR 204.6(j)(4)(iii).

 

80.

See 8 CFR 204.6(m)(1). See 8 CFR 204.6(m)(7).

 

81.

See 8 CFR 204.6(g)(2).

 

82.

USCIS recognizes any reasonable agreement made among immigrant investors in regard to the identification and allocation of qualifying positions. See 8 CFR 204.6(g)(2).

 

83.

See 8 CFR 204.6(j)(4)(i).

 

84.

The 2-year period is described in 8 CFR 204.6(j)(4)(i)(B).

 

85.

See 8 CFR 204.6(j)(4)(ii).

 

86.

See 8 CFR 204.6(j)(4)(iii).

 

87.

See Chapter 6, Deference [6 USCIS-PM G.6].

 

88.

See Operational Guidance for EB-5 Cases Involving Tenant-Occupancy, GM-602-0001, issued December 20, 2012.

 

89.

See, for example, Matter of Izummi, 22 I&N Dec. 169, 179 (Assoc. Comm’r 1998) (holding that the full amount of the money must be made available to the business(es) most closely responsible for creating the employment on which the petition is based).

 

90.

See 8 CFR 204.6(j)(4)(iii) and (m)(3).

 

91.

See Matter of Chawathe, 25 I&N Dec. 369, 375-376 (AAO 2010).

 

Chapter 3 - Regional Center Designation, Reporting, Amendments, and Termination

The goal of the Regional Center Program is to stimulate economic growth in a specified geographic area. The regional center model can offer an immigrant investor already defined investment opportunities, thereby reducing the immigrant investor’s responsibility to identify acceptable investment vehicles. If the new commercial enterprise is located within the geographic area, and falls within the economic scope of the defined regional center, reasonable methodologies can be used to demonstrate indirect job creation. [1] For a definition of indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs, Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)]. A regional center can be associated with one or more new commercial enterprises.

A regional center seeking to participate in the Regional Center Program must submit a proposal using the Application For Regional Center Under the Immigrant Investor Program (Form I-924).

USCIS may designate a regional center based on a general proposal for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. The statute further provides that a regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones.

In addition, the establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have on the area. [2] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.

The regulations state that the proposal must:

Clearly describe how the regional center focuses on a geographical region of the United States and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment;

Provide in verifiable detail how jobs will be created directly or indirectly;

Provide a detailed statement regarding the amounts and sources of capital which have been already committed to the regional center;

Provide a description of the promotional efforts taken and planned by the sponsors of the regional center;

Include a detailed prediction [3] An applicant can submit a general prediction which addresses the prospective impact of the capital investment projects sponsored by the regional center, regionally or nationally. See Form I-924 instructions. how the regional center will have a positive impact on the regional or national economy based on factors such as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and

Be supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, or multiplier tables. [4] See 8 CFR 204.6(m)(3).

The level of verifiable detail required for a Form I-924 to be approved and provided deference may vary depending on the nature of the application filing. [5] For more information about the types of regional center projects, see Section B, Types of Regional Center Projects [6 USCIS-PM G.3(B)].

A. Regional Center Application Proposals

The regional center proposal must include a management and operational plan to administer, oversee, and manage the proposed regional center, including but not limited to how the regional center:

Will be promoted to attract immigrant investors, including a description of the budget for promotional activities;

Will identify, assess, and evaluate proposed immigrant investor projects and enterprises;

Characterizes the structure of the investment capital it will sponsor; for example, whether the investment capital to be sought for job-creating companies will consist solely of immigrant investor capital or a combination of immigrant investor capital and domestic capital, and how the distribution of the investment capital will be structured (for example, loans to developers or venture capital); and

Will oversee all investment activities affiliated with, through, or under the sponsorship of the proposed regional center.

Geographic Area

An officer reviews the proposed geographic boundaries of a new regional center to determine if they are acceptable. USCIS considers geographic boundaries acceptable if the regional center applicant can establish by a preponderance of the evidence that the proposed economic activity will promote economic growth in the proposed area. [6] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i) (requiring a clear description of how the regional center focuses on a geographical region of the United States and how it will promote economic growth). The determination is fact-specific, and the law does not require any particular form of evidence, such as a county-by-county analysis.

In addition, a regional center’s geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones. [7] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. To demonstrate that the proposed geographic area is limited, the regional center applicant should submit evidence demonstrating the linkages between proposed economic activities within the proposed area based on different variables. Examples of variables to demonstrate linkages between economic activities can include but are not limited to:

Regional connectivity;

The labor pool and supply chain; and

Interdependence between projects.

Moreover, in assessing the likelihood that the proposed economic activity will promote economic growth in the proposed geographic area, an officer reviews the impact of the activity relative to relevant economic conditions. The size of the proposed area should be limited and consistent with the scope and scale of the proposed economic activity, as the regional center applicant is required to focus on a geographical region of the United States. [8] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i). The regional center applicant must present an economic analysis of its proposed economic activity in the proposed geographic area that is supported by economically or statistically valid forecasting tools. [9] See 8 CFR 204.6(m)(3). The Form I-924 instructions provide further information regarding the requirements of the economic analysis.

B. Types of Regional Center Projects

An actual project refers to a specific project proposal that is supported by a Matter of Ho compliant business plan. [10] See Chapter 2, Eligibility Requirements, Section B, Comprehensive Business Plan [6 USCIS-PM G.2(B)].

A hypothetical project refers to a project proposal that is not supported by a Matter of Ho compliant business plan.

The term exemplar refers to a sample Immigrant Petition by Alien Entrepreneur (Form I-526), filed with Form I-924 for an actual project. This type of regional center proposal contains copies of the commercial enterprise’s organizational and transactional documents, which USCIS reviews to determine if they are in compliance with established eligibility requirements.

1. Hypothetical Projects

If the Form I-924 projects are hypothetical projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment. A regional center applicant seeking review of a hypothetical project should clarify in the Form I-924 submission that the project is hypothetical. General proposals and predictions may include a description of the project parameters, such as:

Proposed project activities, industries, locations, and timelines;

A general market analysis of the proposed job creating activities and explanation regarding how the proposed project activities are likely to promote economic growth and create jobs; and

A description, along with supporting evidence, of the regional center principals’ relevant experience and expertise.

While hypothetical project submissions are sufficient for regional center designation, previous determinations based on hypothetical projects will not receive deference. Actual projects will receive a de novo officer review during subsequent filings (for example, through the adjudication of an amended Form I-924 application, including the actual project details or the first Form I-526 immigrant investor petition).

Organizational and transactional supporting documents are not required for a hypothetical project. If a regional center applicant desires a compliance review of organizational and transactional documents, the application must include an actual project with a Matter of Ho compliant business plan and an exemplar immigrant investor petition.

2. Actual Projects

Applications for regional center designation based on actual projects may require more details than a hypothetical project to demonstrate that the proposal contains verifiable details and is supported by economically or statistically sound forecasting tools. A regional center applicant seeking review of an actual project should clarify in the Form I-924 submission that the project is actual.

Actual projects require a Matter of Ho compliant comprehensive business plan that provides verifiable detail on how jobs will be created. Absent fraud, willful misrepresentation, or a legal deficiency, [11] Legal deficiency includes objective mistakes of law or fact made as part of the USCIS adjudication. USCIS defers to prior determinations based on actual projects when evaluating subsequent filings under the project involving the same material facts and issues.

Organizational and transactional documents for the new commercial enterprise are not required. If a regional center applicant desires review of organizational and transactional documents for program compliance, the regional center application must be accompanied by an exemplar Form I-526 immigrant investor petition.

If regional center applicants opt not to file a Form I-924 amendment, the investor should identify his or her Form I-526 immigrant investor petition as an actual project being presented for the first time. Additionally, the immigrant petition should contain an affirmative statement signed by a regional center principal confirming that the regional center is aware of the specific project being presented for the first time as part of the immigrant investor petition.

In cases where the regional center application is filed based on actual projects that do not contain sufficient verifiable detail, USCIS may approve the projects as hypothetical projects if they contain the requisite general proposals and predictions. The projects approved as hypotheticals, however, do not receive deference in subsequent filings.

In cases where some projects are approvable as actual projects, and others are not approvable or only approvable as hypothetical projects, the approval notice should identify which projects have been approved as actual projects and will be accorded deference. The approval notice should also identify projects that have been approved as hypothetical projects but will not be accorded deference.

3. Exemplar Filings

Regional center applications, based on actual projects, including a Form I-526 immigrant investor exemplar petition, require more details than a hypothetical or actual project submitted without an exemplar. A regional center applicant seeking review of an exemplar should state that the project is an actual project with a Form I-526 exemplar.

Exemplar filings require a Matter of Ho compliant comprehensive business plan that provides verifiable detail on how jobs will be created, as well as organizational and transactional documents for the new commercial enterprise.

Absent fraud, willful misrepresentation, or a legal deficiency, officer determinations based on exemplar filings are accorded deference in subsequent filings under the project with the same material facts and issues.

While an amended Form I-924 is not required to perfect a hypothetical project once the actual project details are available, some applicants may choose to file an amended Form I-924 application with a Form I-526 exemplar to obtain a favorable determination. These exemplar filings are accorded deference in subsequent related filings, absent material change, fraud, willful misrepresentation, or a legally deficient determination.

C. Regional Center Annual Reporting

Designated regional centers must file a Supplement to Form I-924 (Form I-924A) annually that demonstrates continued eligibility for designation as a regional center in the EB-5 Program. [12] See 8 CFR 204.6(m)(6). The regional center must file the form within 90 days of the end of the fiscal year (between October 1 and December 29). The Form I-924A instructions specifically list required information that must be submitted. [13] See Form I-924A instructions.

If the regional center fails to file the required annual report, USCIS issues a Notice of Intent to Terminate (NOIT) to the regional center for failing to provide the required information. This may ultimately result in the termination of the regional center’s designation if the regional center fails to respond or does not file a response which adequately demonstrates continued eligibility.

D. Regional Center Amendments

Because businesses’ strategies constantly evolve, with new opportunities identified and existing plans improved, a regional center may amend a previously approved designation. The Form I-924 instructions provide information regarding the submission of regional center amendment requests. [14] See Form I-924 instructions.

To improve processing efficiencies and predictability in subsequent filings, many regional centers may seek to amend the Form I-924 approval to reflect changes in economic analysis and job creation estimates. Such amendments, however, are not required in order for individual investors to proceed with filing the immigrant petitions or petitions to remove conditions on residence based on the additional jobs created, or to be created, in additional industries.

Formal amendments to an approved regional center’s designation are not required when a regional center changes its industries of focus, business plans, or economic methodologies; however, a regional center may find it advantageous to seek USCIS approval of such changes before they are adjudicated in individual immigrant investor petitions.

Requests to Change Geographic Area

When a regional center requests to expand its geographic area, the proposed geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones. [15] For a discussion of an officer’s review of a regional center’s proposed geographic area, see Section A, Regional Center Application Proposals [6 USCIS-PM G.3(A)].

Any requests for geographic area expansion made on or after February 22, 2017 are adjudicated under the current guidance in the Form I-924 instructions which requires that a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area.

If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017, and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under prior policy guidance issued on May 30, 2013. [16] See EB-5 Adjudication Policy Memo, PM-602-0083, issued May 30, 2013. That policy did not require a formal amendment to expand a regional center’s geographic area, and permitted concurrent filing of the Form I-526 prior to approval of the geographic area amendment.

E. Termination of a Regional Center Designation

USCIS issues a NOIT if:

USCIS determines that a regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment; or

The regional center fails to submit required information to USCIS. [17] See 8 CFR 204.6(m)(6).

The NOIT will provide the grounds for termination and provide at least 30 days from receipt of the NOIT for the regional center to respond to the allegations in the NOIT. The regional center may offer evidence to contest the allegations in the NOIT. If the regional center overcomes the allegations in the NOIT, USCIS issues a Notice of Reaffirmation that affirms the regional center’s designation.

If the regional center fails to overcome the allegations in the NOIT, USCIS terminates the regional center’s participation in the Regional Center Program. In this case, USCIS notifies the regional center of the termination, the reasons for termination, and the right to file a motion, appeal, or both. The regional center may appeal the decision to USCIS’ Administrative Appeals Office within 30 days after service of notice (33 days, if the notice was mailed). [18] See 8 CFR 103.3. See 8 CFR 204.6(m)(6).

Footnotes

1.

For a definition of indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs, Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].

 

2.

See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.

 

3.

An applicant can submit a general prediction which addresses the prospective impact of the capital investment projects sponsored by the regional center, regionally or nationally. See Form I-924 instructions.

 

4.

See 8 CFR 204.6(m)(3).

 

5.

For more information about the types of regional center projects, see Section B, Types of Regional Center Projects [6 USCIS-PM G.3(B)].

 

6.

See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i) (requiring a clear description of how the regional center focuses on a geographical region of the United States and how it will promote economic growth).

 

7.

See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended.

 

8.

See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395, 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i).

 

9.

See 8 CFR 204.6(m)(3).

 

10.

See Chapter 2, Eligibility Requirements, Section B, Comprehensive Business Plan [6 USCIS-PM G.2(B)].

 

11.

Legal deficiency includes objective mistakes of law or fact made as part of the USCIS adjudication.

 

12.

See 8 CFR 204.6(m)(6).

 

13.

See Form I-924A instructions.

 

14.

See Form I-924 instructions.

 

15.

For a discussion of an officer’s review of a regional center’s proposed geographic area, see Section A, Regional Center Application Proposals [6 USCIS-PM G.3(A)].

 

16.

See EB-5 Adjudication Policy Memo, PM-602-0083, issued May 30, 2013.

 

17.

See 8 CFR 204.6(m)(6).

 

18.

See 8 CFR 103.3. See 8 CFR 204.6(m)(6).

 

Chapter 4 - Immigrant Petition by Alien Entrepreneur (Form I-526)

An immigrant investor must file an initial immigrant petition and supporting documentation to receive EB-5 immigrant classification. [1] See 8 CFR 204.6(a). See 8 CFR 103.2(b). The immigrant investor will be a conditional permanent resident upon adjustment of status or admission to the United States. [2] See INA 216A(a). For information regarding removal of the conditional basis of the investor’s permanent resident status, see Chapter 5, Removal of Conditions [6 USCIS-PM G.5].

The petitioner must establish he or she meets the following eligibility requirements when filing the Immigrant Petition by Alien Entrepreneur (Form I-526):

The required amount of capital has been invested or is actively in the process of being invested in the new commercial enterprise;

The investment capital was obtained by the investor through lawful means;

The new commercial enterprise will create at least 10 full-time positions for qualifying employees; and

The immigrant investor is or will be engaged in the management of the new commercial enterprise.

If the immigrant investor seeks to qualify based on a $500,000 investment, instead of $1,000,000, it is necessary to show the new commercial enterprise or job-creating entity, as applicable, is principally doing business in a TEA.

At the preliminary Form I-526 filing stage, the immigrant investor must demonstrate his or her commitment to invest the capital, but does not need to establish the required capital already has been fully invested. The investment requirement is met if the immigrant investor demonstrates that he or she is actively in the process of investing the required capital. However, evidence of a mere intent to invest or of prospective investment arrangements entailing no present commitment will not suffice. [3] See 8 CFR 204.6(j)(2). See Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm. 1998).

At this preliminary stage, the immigrant investor does not need to establish the required jobs have already been created. The job creation requirement is met by the immigrant investor demonstrating it is more likely than not the required jobs will be created. [4] See 8 CFR 204.6(j)(4). See 8 CFR 204.6(m)(7).

A. Petitions Associated with Regional Centers

Each regional center investor must demonstrate that he or she has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within a designated regional center in the United States. The investor must also demonstrate that this investment will create at least 10 direct or indirect full-time jobs for qualifying employees.

As part of the determination of whether a regional center investor has invested, or is actively in the process of investing, in a new commercial enterprise located within a regional center, an officer reviews the regional center’s geographic boundaries. If the regional center has requested to expand its geographic area, USCIS adjudicates the petition based on the following:

Any requests for geographic area expansion made on or after February 22, 2017 are adjudicated under the current guidance in the Form I-924 instructions which require that a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area.

If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017, and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under prior policy guidance issued on May 30, 2013. [5] See EB-5 Adjudication Policy Memo, PM-602-0083, issued May 30, 2013. That policy did not require a formal amendment to expand a regional center’s geographic area, and permitted concurrent filing of the Form I-526 prior to approval of the geographic area amendment.

The immigrant investor must provide a copy of the regional center’s most recently issued approval letter. In addition, if the immigrant investor is relying on previously approved project-specific documentation (including the comprehensive business plan, economic analysis, and organizational and transactional documents) to satisfy his or her burden of proof, the immigrant investor must submit this documentation with his or her Form I-526 petition. This is required even though the regional center previously submitted and USCIS reviewed the documentation with a regional center’s Application for Regional Center Under the Immigrant Investor Program (Form I-924).

When USCIS has evaluated and approved certain aspects of an EB-5 investment, USCIS generally defers to that favorable determination at a subsequent stage in the EB-5 process. USCIS does not, however, defer to a previously favorable decision in later proceedings when, for example, the underlying facts upon which a favorable decision was made have materially changed, there is evidence of fraud or misrepresentation, or the previously favorable decision is determined to be legally deficient. [6] Legally deficient includes objective mistakes of law or fact made as part of the USCIS adjudication.

B. Stand-Alone Petitions

An immigrant investor not associated with a regional center must, together with the petition, demonstrate that he or she has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise located within the United States that will create at least 10 direct full-time jobs for qualifying employees.

C. Material Change

A petitioner must establish eligibility at the time of filing and a petition cannot be approved if, after filing, the immigrant investor becomes eligible under a new set of facts or circumstances. Changes that are considered material that occur after the filing of an immigrant investor petition will result in the investor’s ineligibility if the investor has not obtained conditional permanent resident status. [7] See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). See 8 CFR 103.2(b)(1).

If material changes occur after the approval of the immigrant petition, but before the investor has obtained conditional permanent residence, such changes would constitute good and sufficient cause to issue a notice of intent to revoke and, if not overcome, would constitute good cause to revoke the approval of the petition. A change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision. [8] See Kungys v. United States, 485 U.S. 759, 770-72 (1988).

Changes that occur in accordance with a business plan and other supporting documents as filed will generally not be considered material. For example, if at the time of filing the immigrant petition, no jobs have yet been created, but after approval of the immigrant petition and before the investor has obtained conditional permanent resident status, the investment in the new commercial enterprise results in the creation of 10 jobs in accordance with the investor’s business plan as filed, such a change would not be considered material.

If the new commercial enterprise undertakes the commercial activities presented in the initially filed business plan and creates the required number of jobs, the new commercial enterprise may further deploy the capital into another activity. The activity must be within the scope of the new commercial enterprise and further deployment must be within a commercially reasonable period of time. Further deployment of this nature will not cause the petition to be denied or revoked under certain circumstances.

In all cases where further deployment is envisioned, officers review the evidence submitted with the petition to determine whether the petitioner has presented sufficient evidence to demonstrate continuing eligibility with the capital at risk requirement. The investor must show that the capital is, and will remain, at risk of loss and gain and is and will be used in a manner related to engagement in commerce within the scope of the new commercial enterprise’s business. Further deployment of capital that occurs before the immigrant investor becomes a conditional permanent resident must be adequately described in the Form I-526 record.

If the organizational documents for a new commercial enterprise contain a liquidation provision, that does not otherwise constitute an impermissible debt arrangement, the documents may generally be amended to remove such a provision in order to allow the new commercial enterprise to continue to operate through the regional center immigrant investor’s period of conditional permanent residence. Such an amendment would generally not be considered a material change because facts related to the immigrant investor’s Form I-526 eligibility would not change.

If, at the time of adjudication, the investor is asserting eligibility under a materially different set of facts that did not exist when he or she filed the immigrant petition, the investor must file a new Form I-526 immigrant petition.

Further, if a regional center immigrant investor changes the regional center with which his or her immigrant petition is associated after filing the Form I-526 petition, the change constitutes a material change to the petition. Similarly, the termination of a regional center associated with a regional center immigrant investor’s Form I-526 petition constitutes a material change to the petition. [9] See 8 CFR 204.6(j). See 8 CFR 204.6(m)(7).

Footnotes

1.

See 8 CFR 204.6(a). See 8 CFR 103.2(b).

 

2.

See INA 216A(a). For information regarding removal of the conditional basis of the investor’s permanent resident status, see Chapter 5, Removal of Conditions [6 USCIS-PM G.5].

 

3.

See 8 CFR 204.6(j)(2). See Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm. 1998).

 

4.

See 8 CFR 204.6(j)(4). See 8 CFR 204.6(m)(7).

 

5.

See EB-5 Adjudication Policy Memo, PM-602-0083, issued May 30, 2013.

 

6.

Legally deficient includes objective mistakes of law or fact made as part of the USCIS adjudication.

 

7.

See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). See 8 CFR 103.2(b)(1).

 

8.

See Kungys v. United States, 485 U.S. 759, 770-72 (1988).

 

9.

See 8 CFR 204.6(j). See 8 CFR 204.6(m)(7).

 

Chapter 5 - Removal of Conditions

To seek removal of the conditions on permanent resident status, the immigrant investor must file a Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (Form I-829) within 90 days prior to the 2-year anniversary of the date conditional permanent resident status was granted (for example, adjustment of status application was approved or investor admitted into the United States on an immigrant visa).

The immigrant investor must submit the following evidence with his or her petition to remove conditions:

Evidence that the immigrant investor invested, or was actively in the process of investing the required capital and sustained the investment throughout the period of the immigrant investor’s residence in the United States; and

Evidence that the new commercial enterprise created or can be expected to create, within a reasonable time, at least 10 full-time positions for qualifying employees. [1] See 8 CFR 216.6(a)(4)(ii)-(iv). In the case of a troubled business, the investor must submit evidence that the commercial enterprise maintained the number of existing employees at no less than the pre-investment level for the period following his or her admission as a conditional permanent resident. [2] See 8 CFR 216.6(a)(4)(iv).

A. Evidence of Investment and Sustainment

1. Investment

The petition must be accompanied by evidence that the immigrant investor invested or was actively in the process of investing the requisite capital. Such evidence may include, but is not limited to, an audited financial statement or other probative evidence. [3] See 8 CFR 216.6(a)(4)(ii).

2. Sustainment of the Investment

The immigrant investor must provide evidence that he or she sustained the investment throughout the period of his or her status as a conditional permanent resident of the United States.

USCIS considers the immigrant investor to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement and continuously maintained his or her capital investment over the sustainment period. [4] See 8 CFR 216.6(c)(1)(iii). The sustainment period is the investor’s 2 years of conditional permanent resident status. USCIS reviews the investor’s evidence to ensure sustainment of the investment for 2 years from the date the investor obtained conditional permanent residence. An investor does not need to maintain his or her investment beyond the sustainment period. When filing a petition to remove conditions, the full amount of required capital does not need to have been invested, but the immigrant investor must provide evidence that he or she has substantially met the requirement. The evidence may include, but is not limited to:

Bank statements;

Invoices;

Receipts;

Contracts;

Business licenses;

Federal or state income tax returns; and

Federal or state quarterly tax statements. [5] See 8 CFR 216.6(a)(4)(iii).

B. Evidence of Job Creation

The immigrant investor can meet the job creation requirement by showing that at least 10 full-time positions for qualifying employees have been created, or will be created within a reasonable time. The non-regional center investor must show that the new commercial enterprise directly created these full-time positions for qualifying employees. The regional center investor may show that these jobs were directly or indirectly created by the new commercial enterprise. The evidence to prove job creation may include, but is not limited to the following:

For direct jobs created as a result of the immigrant investor’s investment, evidence such as payroll records, relevant tax documents, and Employment Eligibility Verification (Form I-9) showing employment by the new commercial enterprise;

For direct jobs maintained or created in a troubled business, evidence such as payroll records, relevant tax documents, and Form I-9 showing employment at the time of investment and at the time of filing the petition to remove the conditions on residence; or

For jobs created indirectly as a result of an investment in the regional center context, reasonable methodologies, including multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting devices.

If the regional center investor seeks to demonstrate job creation through the use of an economic input-output model, the investor must demonstrate that the methodology is reasonable. Further, the investor must submit relevant documents previously submitted with the Immigrant Petition by Alien Entrepreneur (Form I-526), including the comprehensive business plan and economic impact analysis, if he or she is relying on such documents to meet his or her burden of proof. This information is necessary to indicate whether there are material changes that would impact deference.

Where the inputs into the model reflect jobs created directly at the new commercial enterprise or job-creating entity, the investor must demonstrate that the direct jobs input is reasonable. Relevant documentation may include Form I-9, tax or payroll records, or if the jobs are not yet in existence, a comprehensive business plan demonstrating how many jobs will be created and when the jobs will be created.

If the inputs into the model reflect expenditures, the investor must demonstrate that the expenditures input is reasonable. Relevant documentation may include receipts and other financial records for expenditures that have occurred and a detailed projection of sales, costs, and income projections such as a pro-forma cash flow statement associated with the business plan for expenditures that will occur.

If the inputs into the model reflect revenues, the investor must demonstrate the revenues input is reasonable. Relevant documentation may include tax or other financial records for revenues that have occurred or a detailed projection of sales, costs, and income projections such as a pro-forma income statement associated with the business plan for revenues that will occur.

In making the determination as to whether or not the immigrant investor has created the requisite number of jobs, USCIS does not require that the jobs still be in existence at the time of the petition to remove conditions adjudication in order to be credited to the investor. Instead, the job creation requirement is met if the investor can show that at least 10 full-time jobs for qualifying employees were created by the new commercial enterprise as a result of his or her investment and such jobs were considered to be permanent jobs when created. [6] See Matter of Ho, 22 I&N Dec. 206, 212-13 (Assoc. Comm. 1998).

Full-time positions will be allocated to immigrant investors based on the date their petition to remove conditions was filed, unless otherwise stated in the relevant documents. [7] USCIS recognizes any reasonable agreement made among immigrant investors with regard to the identification and allocation of qualifying positions. See 8 CFR 204.6(g)(2). For example, if the new commercial enterprise creates 25 jobs, yet there are three immigrant investors associated with the new commercial enterprise, and the record is silent on the issue of allocation, the first two immigrant investors to file the petition to remove conditions will each get to count 10 of the 25 jobs. The third immigrant investor to file the petition to remove conditions is allocated the remaining five jobs.

Direct jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last for at least 2 years generally are not considered intermittent, temporary, seasonal, or transient in nature.

Although employment in some industries such as construction or tourism can be intermittent, temporary, seasonal or transient, officers should not exclude jobs simply because they fall into such industries. The focus of the adjudication will continue to be on whether the position, as described in the petition, is continuous full-time employment.

For example, if a petition reasonably describes the need for general laborers in a construction project that is expected to last several years and would require a minimum of 35 hours per week over the course of that project, the positions would meet the full-time employment requirement. However, if the same project called for electrical workers to provide services during a small number of 5-week periods over the course of the project, such positions would be deemed intermittent and not meet the definition of full-time employment.

1. Position Focused, Not Employee Focused

The full-time employment criterion focuses on the position, not the employee. Accordingly, the fact that the position may be filled by more than one employee does not exclude the position from consideration as full-time employment. For example, the positions described in the preceding paragraph would not be excluded from being considered full-time employment if the general laborers needed to fill the positions varied from day-to-day or week-to-week as long as the need for the positions remain constant.

2. Within a Reasonable Time Standard

A petitioner may demonstrate that jobs will be created within a reasonable period of time after adjudication of the Form I-829 petition. [8] See 8 CFR 216.6(a)(4)(iv). This permits a degree of flexibility to account for the realities and unpredictability of starting a business venture, but it is not an open-ended allowance. The business plan submitted with the Form I-526 immigrant petition must establish a likelihood of job creation within the next 2 years, [9] See 8 CFR 204.6(j)(4)(i)(B). demonstrating an expectation that EB-5 projects will generally create jobs within such a timeframe.

USCIS may determine, based upon a totality of the circumstances, that a lengthier timeframe is reasonable. USCIS has latitude under the law to request additional evidence concerning those circumstances. Because 2 years is the expected baseline period in which job creation will take place, jobs that will be created within a year of the 2-year anniversary of the immigrant investor’s admission as a conditional permanent resident or adjustment to conditional permanent resident may generally be considered to be created within a reasonable period of time.

Jobs projected to be created more than 3 years after the immigrant investor’s admission in, or adjustment to, conditional permanent resident status usually will not be considered to be created within a reasonable time unless extreme circumstances [10] For example, force majeure. are presented.

Not all of the goals of capital investment and job creation need to be fully realized before the conditions on the immigrant investor’s status have been removed. The investor must establish that it is more likely than not that the investor is in substantial compliance with the capital requirements and that the jobs will be created within a reasonable time.

C. Material Change

USCIS recognizes the process of carrying out a business plan and creating jobs depends on a wide array of variables of which an investor may not have any control. In order to provide flexibility to meet the realities of the business world, USCIS permits an immigrant investor who has been admitted to the United States on a conditional basis to remove those conditions when circumstances have changed.

An immigrant investor may proceed with the petition to remove conditions and present documentary evidence demonstrating that, notwithstanding the business plan contained in the initial Form I-526 immigrant petition, the requirements for the removal of conditions have been satisfied. USCIS does not deny petitions to remove conditions based solely on the failure to adhere to the business plan contained in the Form I-526 immigrant petition. An immigrant investor may pursue alternative business opportunities within an industry category not previously approved for the regional center.

Therefore, during the conditional residence period, an investment may be further deployed in a manner not contemplated in the initial Form I-526, as long as the further deployment otherwise satisfies the requirement to sustain the capital at risk. In addition, further deployment may be an option during the conditional residence period in various circumstances. For example, further deployment may be possible in cases where the requisite jobs were created by the investment in accordance with the business plan, as well as in cases where the requisite jobs were not created in accordance with the original business plan, and even if further deployment had not been contemplated at the time of the Form I-526 filing.

The initial Form I-526 immigrant petition must be filed in good faith and with full intention to follow the plan outlined in that petition. If the immigrant investor does not demonstrate that he or she filed the immigrant petition in good faith, USCIS may conclude that the investment in the commercial enterprise was made as a means of evading the immigration laws. Under these circumstances, USCIS may terminate the immigrant investor’s conditional status. [11] See INA 216A(b)(1)(A).

While USCIS allows this flexibility in Form I-829 filings, nothing in this policy relieves an immigrant investor from the requirements for removal of conditions. [12] See INA 216A(d)(1). See 8 CFR 216.6(a)(4). Therefore, even in the event of a change in course, an immigrant investor must always be able to demonstrate that:

The required funds were placed at risk throughout the period of the petitioner’s conditional permanent residence in the United States;

The required amount of capital was made available to the business or businesses most closely responsible for creating jobs (unless the job creation requirement has already been satisfied);

This at-risk investment was sustained throughout the period of the petitioner’s conditional permanent residence in the United States; and

The investor created (or maintained, if applicable), or can be expected to create within a reasonable period of time, the requisite number of jobs.

Accordingly, if an immigrant investor fails to meet any of these requirements, he or she would not be eligible for removal of conditions.

Further, with respect to the impact of regional center termination, an immigrant investor’s conditional permanent resident status, if already obtained, is not automatically terminated if he or she has invested in a new commercial enterprise associated with a regional center that USCIS terminates. The conditional permanent resident investor will continue to have the opportunity to demonstrate compliance with EB-5 program requirements, including through reliance on indirect job creation.

D. Extension of Conditional Permanent Residence While Form I-829 is Pending

USCIS automatically extends the conditional permanent resident status of an immigrant investor and certain dependents for 1 year upon receipt of a properly filed Form I-829. [13] See 8 CFR 216.6(a)(1). The receipt notice along with the immigrant’s permanent resident card provides documentation for travel, employment, or other situations in which evidence of conditional permanent resident status is required.

Within 30 days of the expiration of the automatic 1-year extension, or after expiration, a conditional permanent resident with a pending Form I-829 may take his or her receipt notice to the nearest USCIS field office and receive documentation showing his or her status for travel, employment, or other purposes.

In such a case, an officer confirms the immigrant’s status and provides the relevant documentation. USCIS continues to extend the conditional permanent resident status until the Form I-829 is adjudicated.

An immigrant investor whose Form I-829 has been denied may seek review of the denial in removal proceedings. [14] See INA 216A(c)(3)(D). See 8 CFR 216.6(d)(2). USCIS issues the immigrant a temporary Form I-551 until an order of removal becomes administratively final. An order of removal is administratively final if the decision is not appealed or, if appealed, when the appeal is dismissed by the Board of Immigration Appeals.

Footnotes

1.

See 8 CFR 216.6(a)(4)(ii)-(iv).

 

2.

See 8 CFR 216.6(a)(4)(iv).

 

3.

See 8 CFR 216.6(a)(4)(ii).

 

4.

See 8 CFR 216.6(c)(1)(iii). The sustainment period is the investor’s 2 years of conditional permanent resident status. USCIS reviews the investor’s evidence to ensure sustainment of the investment for 2 years from the date the investor obtained conditional permanent residence. An investor does not need to maintain his or her investment beyond the sustainment period.

 

5.

See 8 CFR 216.6(a)(4)(iii).

 

6.

See Matter of Ho, 22 I&N Dec. 206, 212-13 (Assoc. Comm. 1998).

 

7.

USCIS recognizes any reasonable agreement made among immigrant investors with regard to the identification and allocation of qualifying positions. See 8 CFR 204.6(g)(2).

 

8.

See 8 CFR 216.6(a)(4)(iv).

 

9.

See 8 CFR 204.6(j)(4)(i)(B).

 

10.

For example, force majeure.

 

11.

See INA 216A(b)(1)(A).

 

12.

See INA 216A(d)(1). See 8 CFR 216.6(a)(4).

 

13.

See 8 CFR 216.6(a)(1).

 

14.

See INA 216A(c)(3)(D). See 8 CFR 216.6(d)(2).

 

Chapter 6 - Deference

There are distinct eligibility requirements at each stage of the EB-5 immigration process. Where USCIS has previously evaluated and approved certain aspects of an investment, USCIS generally defers to that favorable determination at a later stage in the process. This deference policy promotes predictability for immigrant investors, new commercial enterprises, and their employees. Deference also conserves scarce agency resources, which should not ordinarily be used to duplicate previous efforts.

As a general matter, USCIS does not reexamine determinations made earlier in the EB-5 process, and such earlier determinations will be presumed to have been properly decided. When USCIS has previously concluded that an economic methodology is reasonable to project future job creation as applied to the facts of a particular project, USCIS defers to this determination for all related adjudications directly linked to the specific project for which the economic methodology was previously approved.

For example, if USCIS approves an Application For Regional Center Under the Immigrant Investor Program (Form I-924) or an Immigrant Petition by Alien Entrepreneur (Form I-526) presenting a Matter of Ho compliant business plan and a specific economic methodology, USCIS will defer to the earlier finding that the methodology was reasonable in subsequent adjudications of Form I-526 presenting the same related facts and methodology. However, USCIS will still conduct a de novo review of each prospective immigrant investor’s lawful source of funds and other individualized eligibility criteria.

Conversely, USCIS does not defer to a previously favorable decision in later proceedings when, for example, the underlying facts, upon which a favorable decision was made, have materially changed, there is evidence of fraud or misrepresentation, or the previously favorable decision is determined to be legally deficient. A change is material if it would have a natural tendency to influence, or is predictably capable of affecting, the decision. [1] See Kungys v. United States, 485 U.S. 759, 770-72 (1988).

When a new filing involves a different project from a previous approval, or the same previously approved project with material changes to the project plan, USCIS does not defer to the previous adjudication.

Since prior determinations will be presumed to have been properly decided, a prior favorable determination will not be considered legally deficient for purposes of according deference unless the prior determination involved an objective mistake of fact or an objective mistake of law evidencing ineligibility for the benefit sought, but excluding those subjective evaluations related to evaluating eligibility. Unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, officers should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, officers should not re-adjudicate prior agency determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.

Footnotes

1.

See Kungys v. United States, 485 U.S. 759, 770-72 (1988).

 

Part J - Special Immigrant Juveniles

Chapter 1 - Purpose and Background

A. Purpose

Congress initially created the special immigrant juvenile (SIJ) classification to provide humanitarian protection for abused, neglected, or abandoned child immigrants eligible for long-term foster care. This protection evolved to include children who cannot reunify with one or both parents because of abuse, neglect, abandonment, or a similar basis under state law. While there is no longer a requirement that a child be found eligible for long-term foster care, a juvenile court finding that reunification with one or both parents is not viable is still required for SIJ classification. [1] There is nothing in the Immigration and Nationality Act (INA) that allows or directs juvenile courts to rely upon provisions of the INA or otherwise deviate from reliance upon state law and procedure in issuing state court orders.

Children in a variety of different circumstances may be eligible for SIJ classification, including but not limited to:

Children who have been abused prior to their arrival in the United States, or while in the United States;

Children in federal custody with the U.S. Department of Health and Human Services, Office of Refugee Resettlement, Unaccompanied Children’s Services Program; [2] See Section 462 of the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, 2202 (November 25, 2002). or

Children in the state child welfare system in the custody of a state agency (for example, foster care), or in the custody of a person or entity appointed by a state or juvenile court.

B. Background

Congress first established the SIJ immigrant visa classification in 1990. Since then, Congress has enacted several amendments. The table below provides an overview of major legislation related to SIJ classification.

Special Immigrant Juvenile Classification: Acts and Amendments

Acts and Amendments

Key Changes

The Immigration Act of 1990 [3] See Pub. L. 101-649 (November 29, 1990).

Established an SIJ classification for children declared dependent upon a juvenile court in the United States, eligible for long-term foster care, and for whom it would not be in their best interest to return to their country of origin

Miscellaneous and Technical Immigration and Nationality Amendments of 1991 [4] See Pub. L. 102-232 (December 12, 1991).

Provided that children with SIJ classification were considered paroled for the purpose of adjustment of status to lawful permanent residence

Provided that foreign national children cannot apply for admission or be admitted to the United States in order to obtain SIJ classification

The Immigration and Nationality Technical Corrections Act of 1994 [5] See Pub. L. 103-416 (October 25, 1994).

Expanded eligibility from those declared dependent on a juvenile court to children whom such a court has legally committed to, or placed under the custody of, a state agency or department

The 1998 Appropriations Act [6] See Pub. L. 105-119 (November 26, 1997).

Limited eligibility to children declared dependent on the court because of abuse, neglect, or abandonment

Provided that children are eligible only if the Attorney General (later changed to the Secretary of the Department of Homeland Security) expressly consents to the juvenile court order serving as a precondition to the grant of status

Prohibited juvenile courts from determining the custody status or placement of a child who is in the custody of the federal government, unless the Attorney General (later changed to the Secretary of the Department of Health and Human Services) specifically consents to the court’s jurisdiction

Violence Against Women Act of 2005 [7] See Pub. L. 109-162 (January 5, 2006).

Prohibited compelling an SIJ petitioner to contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for SIJ classification

The Trafficking Victims Protection and Reauthorization Act (TVPRA 2008) [8] See Pub. L. 110-457 (December 23, 2008).

Removed the need for a juvenile court to deem a child eligible for long-term foster care and replaced it with a requirement that the juvenile court find that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law

Expanded eligibility to include children whom a juvenile court has placed under the custody of a person or entity appointed by a state or juvenile court

Provided age-out protections so that SIJ classification may not be denied to anyone, based solely on age, who was under 21 years of age on the date that he or she properly filed the SIJ petition, regardless of the petitioner’s age at the time of adjudication

Simplified the consent requirement: The Secretary of Homeland Security now consents to the grant of SIJ classification instead of expressly consenting to the juvenile court order

Altered the “specific consent” function for those children in federal custody by vesting this authority with the Secretary of Health and Human Services, rather than the Secretary of the Department of Homeland Security

Added a timeframe for adjudication: USCIS shall adjudicate SIJ petitions within 180 days of filing

C. Legal Authorities

INA 101(a)(27)(J); 8 CFR 204.11 [9] Certain portions of the regulations have been superseded. This part provides up-to-date guidance. Special immigrant status for certain children declared dependent on a juvenile court (special immigrant juvenile)

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

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

INA 245(h) – Adjustment of special immigrant juveniles

INA 287(h) – Protecting abused juveniles

8 CFR 205.1(a)(3)(iv) – Reasons for automatic revocation

8 CFR 205.2 Revocation on notice

Footnotes

1.

There is nothing in the Immigration and Nationality Act (INA) that allows or directs juvenile courts to rely upon provisions of the INA or otherwise deviate from reliance upon state law and procedure in issuing state court orders.

 

2.

See Section 462 of the Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, 2202 (November 25, 2002).

 

3.

See Pub. L. 101-649 (November 29, 1990).

 

4.

See Pub. L. 102-232 (December 12, 1991).

 

5.

See Pub. L. 103-416 (October 25, 1994).

 

6.

See Pub. L. 105-119 (November 26, 1997).

 

7.

See Pub. L. 109-162 (January 5, 2006).

 

8.

See Pub. L. 110-457 (December 23, 2008).

 

9.

Certain portions of the regulations have been superseded. This part provides up-to-date guidance.

 

Chapter 2 - Eligibility Requirements

A. Determining Eligibility

The special immigrant juvenile (SIJ) classification is available to children who have been subject to state juvenile court proceedings related to abuse, neglect, abandonment, or a similar basis under state law. If a juvenile court has made certain findings, under state law, on dependency or custody, parental reunification, and the best interests of the child, then the child may be eligible for SIJ classification.

USCIS determines if the petitioner meets the requirements for SIJ classification by adjudicating a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). [1] USCIS also adjudicates the Application to Register Permanent Residence or Adjust Status (Form I-485), which determines eligibility for adjustment of status to lawful permanent residence. See Volume 7, Adjustment of Status, Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juvenile [7 USCIS-PM F.7]. USCIS’ adjudication of the SIJ petition includes review of the petition, the juvenile court order (or orders), and supporting evidence to determine if the petitioner is eligible for SIJ classification. USCIS generally defers to the court on matters of state law and does not go behind the juvenile court order to reweigh evidence and make independent determinations about abuse, neglect, or abandonment.

B. General

A petitioner must satisfy the following requirements to qualify for SIJ classification:

General Eligibility Requirements for SIJ Classification

Physically present in the United States

Unmarried

Under the age of 21 on the date of filing the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360)

Juvenile court order (or orders) issued in the United States that meets the specified requirements

U.S. Department of Homeland Security consent

U.S. Department of Health and Human Services (HHS) consent, if applicable

C. Age-out Protections


​In general, a “child” is an unmarried person under 21 years of age for purposes of SIJ classification.
[2] USCIS interprets the use of the term “child” in Section 235(d)(6) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457, 122 Stat. 5044, 5080 (December 23, 2008), to refer to the definition of child in INA 101(b)(1), which states that a child is an unmarried person under 21 years of age. USCIS considers the petitioner’s age at the time the SIJ petition is filed when determining whether the petitioner has met the age requirement. [3] Section 235(d)(6) of the TVPRA 2008, Pub. L. 110-457, 122 Stat. 5044, 5080 (December 23, 2008), provides age-out protection to SIJ petitioners.

If a petitioner was under 21 years of age on the date of the proper filing of Form I-360, USCIS cannot deny SIJ classification solely because the petitioner is older than 21 years of age at the time of adjudication.

D. Juvenile Court Order

To be eligible for SIJ classification, a juvenile court in the United States must have issued order (or orders) with the following findings:

Dependency or CustodyDeclares the petitioner dependent on the court, or legally commits or places the petitioner under the custody of either a state agency or department, or a person or entity appointed by a state or juvenile court; [4] For information on which state courts USCIS considers a juvenile court, see Chapter 3, Documentation and Evidence, Section A, Juvenile Court Orders and Administrative Documents, Subsection 1, Qualifying Juvenile Court Proceedings [6 USCIS-PM J.3(A)(1)].

Parental Reunification – Declares, under the state child welfare law, that the petitioner cannot reunify with one or both of the petitioner’s parents prior to aging out of the juvenile court’s jurisdiction due to abuse, neglect, abandonment, or a similar basis under state law; and

Best Interests – Finds that it would not be in the petitioner’s best interest to be returned (to a placement) in the petitioner’s, or his or her parent’s, country of nationality or last habitual residence.

1. Dependency [5] This requires that the petitioner has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while he or she is in the United States and under the jurisdiction of the court. See 8 CFR 204.11(c)(3). For an example of state law governing declarations of dependency, see California Welfare and Institutions Code Section 300. or Custody

The petitioner must be the subject of a juvenile court order that declares him or her dependent on a juvenile court, or legally commits to or places the petitioner under the custody of either an agency or department of a state, or a person or entity appointed by a state or juvenile court. Placing the petitioner “under the custody of” a person requires physical custody. A qualifying court-appointed custodial placement could be with one parent, if reunification with the other parent is found to be not viable due to that parent’s abuse, neglect, or abandonment of the petitioner.

Court-ordered dependency or custodial placements that are intended to be temporary generally do not qualify for the purpose of establishing eligibility for SIJ classification. [6] USCIS generally requires that the court order be valid at the time of filing and must determine that the court intends that the child will not reunify with at least one parent until the child reaches the age of majority. See 8 CFR 204.11(c)(5). See Subsection 2, Parental Reunification [6 USCIS-PM J.2(D)(2)]. A court-appointed custodian that is acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent, [7] See Black’s Law Dictionary (10th ed. 2014) (defining “in loco parentis”). is not considered a custodian for purposes of establishing SIJ eligibility. [8] A department or agency of a State, or an individual or entity appointed by a State court or juvenile court located in the United States, acting in loco parentis, shall not be considered a legal guardian for purposes of this section or section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279). See Section 235(d)(5) of the TVPRA 2008, Pub. L. 110-457, 122 Stat. 5044, 5080 (December 23, 2008).

2. Parental Reunification [9] The TVPRA 2008 replaced the need for a juvenile court to deem a juvenile eligible for long-term foster care with a requirement that the juvenile court find reunification with one or both parents not viable. The term “eligible for long-term foster care” is defined at 8 CFR 204.11(a), as requiring that family reunification no longer be viable and that this determination would be expected to remain in place until the child reached the age of majority. USCIS interprets the TVPRA changes as a clarification that petitioners do not need to be eligible for or placed in foster care and that they may be reunified with one parent or other family members. However, USCIS requires that the reunification no longer be a viable option with at least one parent, and USCIS maintains that the court’s determination is meant to be in place until the child reaches the age of majority. See 8 CFR 204.11(a). See Section 235(d)(1)(A) of TVPRA 2008, Pub. L. 110-457, 122 Stat. 5044, 5079 (December 23, 2008).

The juvenile court must find that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under the relevant state child welfare laws. Lack of viable reunification generally means that the court intends its finding that the child cannot reunify with his or her parent (or parents) remains in effect until the child ages out of the juvenile court’s jurisdiction. [10] For example, when parental reunification is no longer the goal of the child welfare authority’s plan for a permanent living situation for the child (known as a “permanency plan”). The temporary unavailability of a child’s parent does not meet the eligibility requirement that family reunification is not viable. However, actual termination of parental rights is not required.

The findings must be based upon the person (or persons) who is the petitioner’s parent (or parents) [11] The term “parent” does not encompass a step-parent unless the step-parent is recognized as the petitioner’s legal parent under state law, such as when a step-parent has adopted the petitioner. under state law. If the juvenile court order establishes that the person (or persons) is the petitioner’s parent (or parents), USCIS generally considers this requirement met. However, if the record does not establish that the person (or persons) is the petitioner’s parent (or parents), USCIS may request additional evidence. For example, if the findings are based on a father not listed on the petitioner’s birth certificate, a determination that the claimed father is the father under state law should be established in the juvenile court order.

3. Best Interests

Juvenile courts do not have the authority to make decisions on the removal or deportation of a child to another country. However, it must be determined by the juvenile court (or in administrative proceedings recognized by the juvenile court) that it would not be in the best interest of the petitioner to be returned to the country of nationality or last habitual residence of the petitioner or his or her parents. Accordingly, this requires a determination by the juvenile court that a placement in the child’s, or his or her parents’, country of nationality or last habitual residence is not in the child’s best interest.

While the standards for making best interests determinations may vary between states, a best interests determination generally involves the deliberation that courts undertake under state law when deciding what types of services, actions, and orders will best serve a child, as well as a deliberation regarding who is best suited to take care of a child. [12] See U.S. Department of Health and Human Services, Child Welfare Information Gateway, Determining the Best Interests of the Child. The court’s finding that a particular custodial placement is the best alternative available to the petitioner in the United States does not necessarily establish that a placement in the petitioner’s country of nationality would not be in the child’s best interest. [13] See 58 FR 42843-01, 42848 (August 12, 1993). USCIS defers to the juvenile court in making this determination and as such does not require the court to conduct any analysis other than what is required under state law.

4. Validity of Order

Issued under State Law

The juvenile court order must have been properly issued under state law to be valid for the purposes of establishing eligibility for SIJ classification. This includes the need for the juvenile court to follow their state laws on jurisdiction. [14] For an order to be considered an eligible juvenile court order, the court must have jurisdiction under state law to make judicial determinations about the care and custody of juveniles. See 8 CFR 204.11(a). See Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005) at paragraph 8. For example, a juvenile court may not be able to take jurisdiction and issue a dependency or custody order for a juvenile who is 18 years of age or older even though the juvenile may file his or her petition with USCIS until the age of 21. There is nothing in USCIS guidance that should be construed as instructing juvenile courts on how to apply their own state law.

Continuing Jurisdiction

In general, the petitioner must remain under the jurisdiction of the juvenile court at the time of the filing and adjudication of the SIJ petition, subject to some exceptions discussed below. If the petitioner is no longer under the jurisdiction of the juvenile court for a reason related to their underlying eligibility for SIJ classification, the petitioner is not eligible for SIJ classification. This may include cases in which the petitioner is no longer under the jurisdiction of the court because:

The court vacated or terminated its findings that made the petitioner eligible because of subsequent evidence or information that invalidated the findings; or

The court reunified the petitioner with the parent with whom the court previously deemed reunification was not viable because of abuse, neglect, abandonment, or a similar basis under state law.

However, this requirement does not apply if the juvenile court jurisdiction ended solely because:

The petitioner was adopted, or placed in a permanent guardianship; or

The petitioner was the subject of a valid order that was terminated based on age before or after filing the SIJ petition (provided the petitioner was under 21 years of age at the time of filing the SIJ petition). [15] See Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005).

A petitioner with a juvenile court order who moves to the jurisdiction of a different juvenile court may need to either submit evidence that the petitioner is still under the jurisdiction of the court that issued the order or submit a new court order.

A juvenile court order does not necessarily terminate because of a petitioner’s move to another court’s jurisdiction. In general, a court maintains jurisdiction when it orders the child placed in a different state or makes a custody determination and the legal custodian relocates to a new jurisdiction. [16] Some states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Interstate Compact for the Placement of Children (ICPC). The UCCJEA is a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws. The UCCJEA is effective only upon adoption by state legislatures. See Sections 201-204 of UCCJEA available at the Uniform Law Commission website on UCCJEA. ICPC is a binding contract between member jurisdictions. The ICPC establishes uniform legal and administrative procedures governing the interstate placement of children. Each state and the District of Columbia have enacted the provisions of the ICPC under state law. If, however, a child relocates to a new jurisdiction and is not living in a court ordered placement or with the court ordered custodian, then the petitioner must submit:

Evidence that the court is still exercising jurisdiction over the petitioner; or

A new juvenile court order from the court that has jurisdiction. [17] See 8 CFR 204.11(c)(5).

If the original order is terminated due to the relocation of the child but another order is issued in a new jurisdiction, USCIS considers the dependency or custody to have continued through the time of adjudication of the SIJ petition, even if there is a lapse between court orders.

5. USCIS Consent

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008) [18] See Pub. L. 110-457 (December 23, 2008). simplified but did not remove the Department of Homeland Security (DHS) consent requirement. In order to consent, USCIS must review the juvenile court order to conclude that the request for SIJ classification is bona fide, which means that the juvenile court order was sought to obtain relief from abuse, neglect, abandonment, or a similar basis under state law, and not primarily or solely to obtain an immigration benefit. [19] See INA 101(a)(27)(J)(iii) (consent requirement). See H.R. Rep. No. 105-405, at 130 (1997). The court ordered dependency or custodial placement of the child is the relief being sought from the juvenile court, and the factual basis of each of the required findings is evidence that the request for SIJ classification is bona fide.

USCIS relies on the expertise of the juvenile court in making child welfare decisions and does not reweigh the evidence to determine if the child was subjected to abuse, neglect, abandonment, or a similar basis under state law. In order to exercise the statutorily mandated DHS consent function, USCIS requires that the juvenile court order or other supporting evidence contain or provide a reasonable factual basis for each of the findings necessary for classification as a SIJ. The evidence needed does not have to be overly detailed, but must confirm that the juvenile court made an informed decision in order to be considered “reasonable.” USCIS generally consents to the grant of SIJ classification when the order includes or is supplemented by a reasonable factual basis for all of the required findings.

USCIS recognizes that there may be some immigration motive for seeking the juvenile court order. For example, the court may make findings in separate hearings and the petitioner may request an order that compiles the findings of several orders into one order to establish eligibility for SIJ classification. A special order issued to help clarify the findings that were made so that USCIS can determine the petitioner’s eligibility for SIJ classification does not mean that the order is not bona fide.

E. HHS Consent

If a petitioner is currently in the custody of the U.S. Department of Health and Human Services (HHS) and seeks a juvenile court order that also alters [20] See Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005). his or her custody status or placement, HHS must consent to the juvenile court’s jurisdiction. HHS consent is not required if the order simply restates the petitioner’s current placement.

F. Inadmissibility and Waivers


​Grounds of inadmissibility do not apply to the adjudication of the
SIJ petition. [21] For discussion on the applicability of inadmissibility grounds to SIJ-based applicants for adjustment of status, see Volume 7, Adjustment of Status, Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juvenile [7 USCIS-PM F.7]. Therefore, a petitioner does not need to apply for a waiver of any applicable grounds of inadmissibility in order to be eligible for SIJ classification.

G. Family Members

Unlike some other immigrant visa petitions, SIJ classification does not allow the petitioner’s family members to be included on the petition as derivative beneficiaries. SIJ petitioners that have adjusted status to that of a lawful permanent resident may petition for qualifying family members through the family-based immigration process. However, a petitioner who adjusts status as a result of an SIJ classification may not confer an immigration benefit to his or her natural or prior adoptive parents. [22] See INA 101(a)(27)(J)(iii)(II). This prohibition also applies to a non-abusive, custodial parent, if applicable.

Footnotes

1.

USCIS also adjudicates the Application to Register Permanent Residence or Adjust Status (Form I-485), which determines eligibility for adjustment of status to lawful permanent residence. See Volume 7, Adjustment of Status, Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juvenile [7 USCIS-PM F.7].

 

2.

USCIS interprets the use of the term “child” in Section 235(d)(6) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457, 122 Stat. 5044, 5080 (December 23, 2008), to refer to the definition of child in INA 101(b)(1), which states that a child is an unmarried person under 21 years of age.

 

3.

Section 235(d)(6) of the TVPRA 2008, Pub. L. 110-457, 122 Stat. 5044, 5080 (December 23, 2008), provides age-out protection to SIJ petitioners.

 

4.

For information on which state courts USCIS considers a juvenile court, see Chapter 3, Documentation and Evidence, Section A, Juvenile Court Orders and Administrative Documents, Subsection 1, Qualifying Juvenile Court Proceedings [6 USCIS-PM J.3(A)(1)].

 

5.

This requires that the petitioner has been declared dependent upon a juvenile court located in the United States in accordance with state law governing such declarations of dependency, while he or she is in the United States and under the jurisdiction of the court. See 8 CFR 204.11(c)(3). For an example of state law governing declarations of dependency, see California Welfare and Institutions Code Section 300.

 

6.

USCIS generally requires that the court order be valid at the time of filing and must determine that the court intends that the child will not reunify with at least one parent until the child reaches the age of majority. See 8 CFR 204.11(c)(5). See Subsection 2, Parental Reunification [6 USCIS-PM J.2(D)(2)].

 

7.

See Black’s Law Dictionary (10th ed. 2014) (defining “in loco parentis”).

 

8.

A department or agency of a State, or an individual or entity appointed by a State court or juvenile court located in the United States, acting in loco parentis, shall not be considered a legal guardian for purposes of this section or section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279). See Section 235(d)(5) of the TVPRA 2008, Pub. L. 110-457, 122 Stat. 5044, 5080 (December 23, 2008).

 

9.

The TVPRA 2008 replaced the need for a juvenile court to deem a juvenile eligible for long-term foster care with a requirement that the juvenile court find reunification with one or both parents not viable. The term “eligible for long-term foster care” is defined at 8 CFR 204.11(a), as requiring that family reunification no longer be viable and that this determination would be expected to remain in place until the child reached the age of majority. USCIS interprets the TVPRA changes as a clarification that petitioners do not need to be eligible for or placed in foster care and that they may be reunified with one parent or other family members. However, USCIS requires that the reunification no longer be a viable option with at least one parent, and USCIS maintains that the court’s determination is meant to be in place until the child reaches the age of majority. See 8 CFR 204.11(a). See Section 235(d)(1)(A) of TVPRA 2008, Pub. L. 110-457, 122 Stat. 5044, 5079 (December 23, 2008).

 

10.

For example, when parental reunification is no longer the goal of the child welfare authority’s plan for a permanent living situation for the child (known as a “permanency plan”).

 

11.

The term “parent” does not encompass a step-parent unless the step-parent is recognized as the petitioner’s legal parent under state law, such as when a step-parent has adopted the petitioner.

 

12.

See U.S. Department of Health and Human Services, Child Welfare Information Gateway, Determining the Best Interests of the Child.

 

13.

See 58 FR 42843-01, 42848 (August 12, 1993).

 

14.

For an order to be considered an eligible juvenile court order, the court must have jurisdiction under state law to make judicial determinations about the care and custody of juveniles. See 8 CFR 204.11(a). See Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005) at paragraph 8.

 

15.

See Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005).

 

16.

Some states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Interstate Compact for the Placement of Children (ICPC). The UCCJEA is a Uniform Act drafted by the National Conference of Commissioners on Uniform State Laws. The UCCJEA is effective only upon adoption by state legislatures. See Sections 201-204 of UCCJEA available at the Uniform Law Commission website on UCCJEA. ICPC is a binding contract between member jurisdictions. The ICPC establishes uniform legal and administrative procedures governing the interstate placement of children. Each state and the District of Columbia have enacted the provisions of the ICPC under state law.

 

17.

See 8 CFR 204.11(c)(5).

 

18.

See Pub. L. 110-457 (December 23, 2008).

 

19.

See INA 101(a)(27)(J)(iii) (consent requirement). See H.R. Rep. No. 105-405, at 130 (1997).

 

20.

See Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005).

 

21.

For discussion on the applicability of inadmissibility grounds to SIJ-based applicants for adjustment of status, see Volume 7, Adjustment of Status, Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juvenile [7 USCIS-PM F.7].

 

22.

See INA 101(a)(27)(J)(iii)(II).

 

Chapter 3 - Documentation and Evidence


​A petitioner seeking special immigrant juvenile (SIJ) classification must submit all of the following documentation to USCIS:

Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360); [1] See Instructions for Form I-360. There is no fee to file Form I-360 to seek SIJ classification.

A copy of the petitioner’s birth certificate or other evidence of the petitioner’s age; [2] For more information on evidence that can be used to provide proof of age see 8 CFR 204.11(d)(1).

Copies of the juvenile court order (or orders) and administrative document (or orders), as applicable, that establish eligibility and evidence of the factual basis for the juvenile court’s findings; and

A copy of U.S. Department of Health and Human Services (HHS) consent, if applicable.

The petitioner may file Form I-360 alone or concurrently with his or her Application to Register Permanent Residence or Adjust Status (Form I-485), if there is an immigrant visa currently available for the SIJ immigrant classification and he or she is otherwise eligible. [3] For information on SIJ-based adjustment of status, see Volume 7, Adjustment of Status, Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juvenile [7 USCIS-PM F.7].

A. Juvenile Court Orders and Administrative Documents

1. Qualifying Juvenile Court Proceedings


​A juvenile court is defined as a U.S. court having jurisdiction under state law to make judicial determinations about the custody and care of children.
[4] See 8 CFR 204.11(a). The title and the type of court that may meet the definition of a juvenile court will vary from state to state. Examples of state courts that may meet this definition include: juvenile, family, dependency, orphans, guardianship, probate, and delinquency courts.

The juvenile court may make the required determination that it is not in the petitioner’s best interest to be returned (to a placement) in the petitioner’s or his or her parent’s country of nationality or last habitual residence. However, other judicial or administrative bodies authorized or recognized by a juvenile court may also make this required determination. If a particular juvenile court establishes or endorses an alternate process for a best interest determination, a finding from that process may satisfy this requirement.

2. Findings [5] The term “findings” refers to the conclusions of law.


The juvenile court order (or orders) must provide the required findings regarding dependency or custody, parental reunification, and best interests. These findings may be made in a single juvenile court order or in separate juvenile court orders. The order (or orders) should use language establishing that the specific findings (conclusions of law) were made under state law. The order (or orders) should not just mirror or cite to immigration law and regulations. The juvenile court order may use different legal terms than those found in the INA as long as the findings have the same meaning as the requirements for SIJ classification. [6] See 101(a)(27)(J).

There is nothing in USCIS guidance that should be construed as instructing juvenile courts on how to apply their own state law. Juvenile courts should follow their state laws on issues such as when to exercise their authority, evidentiary standards, and due process.

The language of the order may vary based on individual state child welfare law. If a juvenile court order makes the findings based upon a state law similar to abuse, neglect, or abandonment, [7] For example, under Connecticut law, a child may be found “uncared for” if the child is “homeless” or if his or her “home cannot provide the specialized care that the physical, emotional or mental condition of the child requires.” See Conn. Gen. Stat. Ann. section 46b-120(9). “Uncared for” may be similar to abuse, neglect, or abandonment because children found “uncared for” are equally entitled to juvenile court intervention and protection. The outcomes for children found “uncared for” are the same as they are for children found abused, neglected, or abandoned. See Conn. Gen. Stat. Ann. section 46b-120(8),(9); 121(a). the petitioner must establish that the nature and elements of the state law are indeed similar to the nature and elements of laws on abuse, neglect, or abandonment. Petitioners are encouraged to submit the juvenile court’s findings of how the basis is similar to abuse, neglect, or abandonment and copies of the relevant laws.

3. Factual Basis and USCIS Consent

Template orders that simply recite the immigration statute or regulatory language are generally not sufficient. Orders that have the necessary findings or rulings and include, or are supplemented by, the factual basis for the court’s findings (for example, the judicial findings of fact) are usually sufficient to establish eligibility. If a petitioner cannot obtain a court order that includes facts that establish a factual basis for all of the required findings, USCIS may request evidence of the factual basis for the court’s findings.

USCIS does not require specific documents to establish the factual basis or the entire record considered by the court. However, the burden is on the petitioner to provide the factual basis for the court’s findings. Examples of documents that a petitioner may submit to USCIS that may support the factual basis for the court order include:

Any supporting documents submitted to the juvenile court, if available;

The petition for dependency or complaint for custody or other documents which initiated the juvenile court proceedings;

Affidavits summarizing the evidence presented to the court and records from the judicial proceedings; and

Affidavits or records that are consistent with the findings made by the court.

4. Supporting Evidence

The order or supporting evidence should specifically indicate:

With whom the child is placed (for example, the name of the person, or entity, or agency if the child is adjudicated dependent) and the factual basis for this finding;

Which of the specific grounds (abuse, neglect, abandonment, or similar basis under state law) apply to which of the parent (or parents) and the factual basis for the court’s findings on non-viability of parental reunification; and

The factual basis for the determination that it is not in the petitioner’s best interest to return to (a placement in) the petitioner’s or his or her parents’ country of nationality or last habitual residence (for example, addressing family reunification with family that remains in the child’s country of nationality or last habitual residence).

B. Limitations on Additional Evidence


​USCIS is mindful that there are often confidentiality rules that govern disclosure of records from juvenile-related proceedings. For this reason, officers generally do not request information or documents from sources other than the SIJ petitioner or his or her legal representative.
[8] USCIS Fraud Detection and National Security (FDNS) officers conducting fraud investigations follow separate FDNS procedures on documentation requests.

Children often do not share personal accounts of their family life with an unknown adult until they have had the opportunity to form a trusting relationship with that adult. Therefore, officers exercise careful judgment when considering statements made by children at the time of initial apprehension by immigration or law enforcement officers to question the findings made by the juvenile court.

Additionally, the juvenile court may make child welfare placement, custody, and best interest decisions that differ from the child’s stated intentions at the time of apprehension. However, if there is significant contradictory information in the file that the juvenile court was likely not aware of or that may impact whether a reasonable factual basis exists for the court’s findings, officers may request additional evidence from the petitioner or his or her legal representative.

However, officers may not require or request an SIJ petitioner to contact the person or family members of the person who allegedly abused, neglected, or abandoned the SIJ petitioner. [9] See Violence Against Women Act of 2005, Pub. L. 109-162 (January 5, 2006), codified at INA 287(h).

Footnotes

1.

See Instructions for Form I-360. There is no fee to file Form I-360 to seek SIJ classification.

 

2.

For more information on evidence that can be used to provide proof of age see 8 CFR 204.11(d)(1).

 

3.

For information on SIJ-based adjustment of status, see Volume 7, Adjustment of Status, Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juvenile [7 USCIS-PM F.7].

 

4.

See 8 CFR 204.11(a).

 

5.

The term “findings” refers to the conclusions of law.

 

6.

See 101(a)(27)(J).

 

7.

For example, under Connecticut law, a child may be found “uncared for” if the child is “homeless” or if his or her “home cannot provide the specialized care that the physical, emotional or mental condition of the child requires.” See Conn. Gen. Stat. Ann. section 46b-120(9). “Uncared for” may be similar to abuse, neglect, or abandonment because children found “uncared for” are equally entitled to juvenile court intervention and protection. The outcomes for children found “uncared for” are the same as they are for children found abused, neglected, or abandoned. See Conn. Gen. Stat. Ann. section 46b-120(8),(9); 121(a).

 

8.

USCIS Fraud Detection and National Security (FDNS) officers conducting fraud investigations follow separate FDNS procedures on documentation requests.

 

9.

See Violence Against Women Act of 2005, Pub. L. 109-162 (January 5, 2006), codified at INA 287(h).

 

Chapter 4 - Adjudication

A. Jurisdiction


​USCIS has sole jurisdiction over
petitions for special immigrant juvenile (SIJ) classification. [1] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). Provided the petitioner is otherwise eligible, classification as an SIJ establishes eligibility to apply for adjustment of status. [2] See Application to Register Permanent Residence or Adjust Status (Form I-485). Generally, an applicant may only apply to USCIS for adjustment of status if there is a visa number available for the special immigrant classification (EB-4), and the applicant is not in removal proceedings. If an SIJ is in removal proceedings, the immigration court must terminate the proceedings before USCIS can adjudicate the adjustment application. Conversely, the applicant may seek adjustment of status with the immigration court based on USCIS’ approval of the SIJ petition. For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A], Part B, 245(a) Adjustment [7 USCIS-PM B], and Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juveniles [7 USCIS-PM F.7].

B. Expeditious Adjudication


​USCIS generally adjudicates
SIJ petitions within 180 days. [3] See Section 235(d)(2) of the Trafficking Victims Protection and Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457, 122 Stat. 5044, 5080 (December 23, 2008). The 180-day timeframe begins on the Notice of Action (Form I-797) receipt date. If the petitioner has not submitted sufficient evidence to establish his or her eligibility for SIJ classification, the clock stops the day USCIS sends a request for additional evidence and resumes the day USCIS receives the requested evidence from the petitioner. [4] See 8 CFR 103.2(b)(10).

The 180-day timeframe applies only to the initial adjudication of the SIJ petition. The requirement does not extend to the adjudication of any motion or appeal filed after a denial of a SIJ petition.

C. Interview

1. Determining Necessity of Interview


​USCIS has discretion to interview SIJ petitioners for the purposes of adjudicating the SIJ petition.
[5] See 8 CFR 103.2(b)(9). USCIS recognizes the vulnerable nature of SIJ petitioners and generally conducts interviews of SIJ petitioners when an interview is deemed necessary. USCIS conducts a full review of the petition and supporting evidence to determine whether an interview may be warranted. USCIS will generally not require an interview if the record contains sufficient information and evidence to approve the petition without an in-person assessment. However, USCIS retains the discretion to interview SIJ petitioners for the purposes of adjudicating the SIJ petition, as appropriate.

2. Conducting the Interview


​Given the vulnerable nature of SIJ petitioners and the hardships they may face because of the loss of parental support, USCIS strives to establish a child-friendly interview environment if an interview is scheduled. During an interview, officers avoid questioning the petitioner about the details of the abuse, neglect, or abandonment suffered, because these issues are handled by the juvenile court. Officers generally focus the
interview on resolving issues related to the eligibility requirements, including age.

The petitioner may bring a trusted adult to the interview in addition to an attorney or representative. The trusted adult may serve as a familiar source of comfort to the petitioner, but should not interfere with the interview process or coach the petitioner during the interview. Given potential human trafficking and other concerns, officers assess the appropriateness of the adult’s attendance in the interview and observe the adult’s interaction with the child. When appropriate, the officer may interview the child without that adult present.

D. Requests for Evidence


​Additional evidence may be requested at the discretion of the officer if needed to determine eligibility.
[6] See 8 CFR 103.2(b)(8). To provide petitioners an opportunity to address concerns before issuing a denial, officers generally issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), where the evidence is insufficient to approve the petition. The officer may request additional evidence for reasons such as, but not limited to:

The record lacks the required dependency or custody, parental reunification, or best interest findings;

It is unclear if the order was made by a juvenile court or in accordance with state law;

The evidence provided does not establish a reasonable factual basis for the findings;

The record contains evidence or information that directly and substantively conflicts with the evidence or information that was the basis for the court order; or

Additional evidence is needed to determine eligibility.

E. Decision

1. Approval

The Secretary of Homeland Security must consent to the grant of SIJ classification. The Department of Homeland Security (DHS) delegates this authority to USCIS. Therefore, USCIS approval of the SIJ petition is evidence of DHS consent. USCIS notifies petitioners in writing upon approval of the petition. [7] See 8 CFR 103.2(b)(19).

2. Denial

If the petitioner does not provide necessary evidence or does not meet the eligibility requirements, USCIS may deny the Form I-360 petition. If USCIS denies the SIJ petition, USCIS provides the petitioner with a written denial which includes a detailed basis for the denial. [8] See 8 CFR 103.3(a). An SIJ petitioner may appeal an adverse decision or request that USCIS reopen or reconsider a USCIS decision. [9] See 8 CFR 103.3. See 8 CFR 103.5. The denial notice includes instructions for filing a Notice of Appeal or Motion (Form I-290B).

3. Revocation

Automatic Revocation

An approved SIJ petition is automatically revoked as of the date of approval if any one of the circumstances below occurs before USCIS issues a decision on the petitioner’s application for adjustment of status: [10] See 8 CFR 205.1(a)(3)(iv).

Marriage of the petitioner;

Reunification of the petitioner with one or both parents by virtue of a juvenile court order, [11] Revocation will not occur, however, where the juvenile court places the petitioner with the parent who was not the subject of the nonviable reunification determination. where a juvenile court previously deemed reunification with that parent, or both parents, not viable due to abuse, neglect, abandonment, or a similar basis under state law; [12] TVPRA 2008 replaced the need for a juvenile court to deem a juvenile eligible for long-term foster care with a requirement that the juvenile court find reunification with one or both parents not viable. The term “eligible for long-term foster care” is defined at 8 CFR 204.11(a) as requiring that family reunification no longer be viable. USCIS interprets this change as clarifying that the child does not need to be eligible for or placed in foster care. USCIS also views this change as modifying the regulation that requires auto-revocation upon the termination of the beneficiary’s eligibility for long-term foster care. A petition will be revoked if reunification with the parent is now viable where a juvenile court previously deemed reunification with that parent not viable. See Section 235(d)(1)(A) of TVPRA 2008, Pub. L. 110-457, 122 Stat. 5044, 5079 (December 23, 2008). or

Reversal by the juvenile court of the determination that it would not be in the petitioner’s best interest to be returned (to a placement) in the petitioner’s, or his or her parent’s, country of nationality or last habitual residence.

USCIS issues a notice to the petitioner of such revocation of the SIJ petition. [13] See 8 CFR 205.1(b).

Revocation on Notice


​In addition, USCIS, with notice, may revoke an approved petition for SIJ classification for good and sufficient cause such as fraud.
[14] See INA 205 and 8 CFR 205.2. In these instances, USCIS issues a Notice of Intent to Revoke (NOIR) and provides the petitioner an opportunity to offer evidence in support of the petition and in opposition to the grounds alleged for revocation of the approval. [15] See 8 CFR 205.2(b).

Footnotes

1.

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

 

2.

See Application to Register Permanent Residence or Adjust Status (Form I-485). Generally, an applicant may only apply to USCIS for adjustment of status if there is a visa number available for the special immigrant classification (EB-4), and the applicant is not in removal proceedings. If an SIJ is in removal proceedings, the immigration court must terminate the proceedings before USCIS can adjudicate the adjustment application. Conversely, the applicant may seek adjustment of status with the immigration court based on USCIS’ approval of the SIJ petition. For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A], Part B, 245(a) Adjustment [7 USCIS-PM B], and Part F, Special Immigrant-Based (EB-4) Adjustment, Chapter 7, Special Immigrant Juveniles [7 USCIS-PM F.7].

 

3.

See Section 235(d)(2) of the Trafficking Victims Protection and Reauthorization Act of 2008 (TVPRA 2008), Pub. L. 110-457, 122 Stat. 5044, 5080 (December 23, 2008).

 

4.

See 8 CFR 103.2(b)(10).

 

5.

See 8 CFR 103.2(b)(9).

 

6.

See 8 CFR 103.2(b)(8).

 

7.

See 8 CFR 103.2(b)(19).

 

8.

See 8 CFR 103.3(a).

 

9.

See 8 CFR 103.3. See 8 CFR 103.5.

 

10.

See 8 CFR 205.1(a)(3)(iv).

 

11.

Revocation will not occur, however, where the juvenile court places the petitioner with the parent who was not the subject of the nonviable reunification determination.

 

12.

TVPRA 2008 replaced the need for a juvenile court to deem a juvenile eligible for long-term foster care with a requirement that the juvenile court find reunification with one or both parents not viable. The term “eligible for long-term foster care” is defined at 8 CFR 204.11(a) as requiring that family reunification no longer be viable. USCIS interprets this change as clarifying that the child does not need to be eligible for or placed in foster care. USCIS also views this change as modifying the regulation that requires auto-revocation upon the termination of the beneficiary’s eligibility for long-term foster care. A petition will be revoked if reunification with the parent is now viable where a juvenile court previously deemed reunification with that parent not viable. See Section 235(d)(1)(A) of TVPRA 2008, Pub. L. 110-457, 122 Stat. 5044, 5079 (December 23, 2008).

 

13.

See 8 CFR 205.1(b).

 

14.

See INA 205 and 8 CFR 205.2.

 

15.

See 8 CFR 205.2(b).

 

Chapter 5 - Appeals, Motions to Reopen, and Motions to Reconsider

A. General


​A petitioner may submit a Notice of Appeal or Motion (
Form I-290B), with the appropriate filing fee or a request for a fee waiver, to file: [1] See 8 CFR 103.3. See 8 CFR 103.5.

An appeal with the Administrative Appeals Office (AAO);

A motion to reconsider a USCIS decision (made by the AAO, a field office, or a service center); or

A motion to reopen a USCIS decision (made by the AAO, a field office, or a service center).

The petitioner must file the appeal or motion within 30 days of the denial or dismissal, or 33 days if the denial or dismissal decision was sent by mail. [2] See 8 CFR 103.3(a)(2)(i). See 8 CFR 103.5(a)(1)(i). See 8 CFR 103.8(b). If the appeal relates to a revocation of an approved special immigrant juvenile (SIJ) petition, the appeal must be filed within 15 calendar days after service of the decision, or 18 days if the decision was sent by mail. [3] See 8 CFR 205.2(d) (revocation appeals) and 8 CFR 103.8(b) (effect of service by mail). There is no exception to the filing period for appeals and motions to reconsider.

For a motion to reopen, USCIS may excuse the petitioner’s failure to file before this period expires where the petitioner demonstrates that the delay was reasonable and beyond his or her control. [4] See 8 CFR 103.5(a)(1)(i). 

B. Requirements for Perez-Olano Litigation Class Members [5] See Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005).

Perez-Olano v. Holder is a class-action lawsuit filed on behalf of certain foreign national juveniles who may have been eligible for SIJ classification or SIJ-based adjustment of status but whose SIJ petition or adjustment application was denied or revoked for certain reasons. Certain persons whose petition for SIJ classification [6] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). or SIJ-based application for adjustment of status [7] See Application to Register Permanent Residence or Adjust Status (Form I-485). was denied or revoked on or after May 13, 2005, may be eligible to file a motion to reopen the denied or revoked SIJ petition or SIJ-based application for adjustment of status.

A class action member may file a motion to reopen if his or her SIJ petition or SIJ-based application for adjustment of status was denied or revoked on account of:

Age if, at the time the class member filed a complete petition for SIJ classification, he or she was under 21 years of age;

Dependency status if, at the time the class member filed a complete petition for SIJ classification, he or she was the subject of a valid dependency order that was subsequently terminated based on age; or

Specific consent, if the petitioner did not receive a grant of HHS specific consent before going before the juvenile court and the court order did not alter the petitioner’s HHS custody status or placement.

There is also a stipulation to the settlement agreement involving cases in which SIJ petitions or SIJ-based applications for adjustment of status were denied, terminated, or revoked on or after December 15, 2010 because the applicant’s state court dependency order had expired at the time of the filing. The requirements and process for a class member to request that his or her case be reopened under the stipulation differ from requirements under the original Settlement Agreement. [8] See Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement, issued June 25, 2015.

Under the stipulation, USCIS will not deny, revoke, or terminate an SIJ petition or SIJ-based adjustment of status if, at the time of filing the SIJ petition, the applicant:

Is or was under 21 years of age, unmarried, and otherwise eligible; and

Is the subject of a valid dependency order or was the subject of a valid dependency order that was terminated based on age prior to filing.

Footnotes

1.

See 8 CFR 103.3. See 8 CFR 103.5.

 

2.

See 8 CFR 103.3(a)(2)(i). See 8 CFR 103.5(a)(1)(i). See 8 CFR 103.8(b).

 

3.

See 8 CFR 205.2(d) (revocation appeals) and 8 CFR 103.8(b) (effect of service by mail).

 

4.

See 8 CFR 103.5(a)(1)(i).

 

5.

See Perez-Olano v. Holder, Case No. CV 05-3604 (C.D. Cal. 2005).

 

6.

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

 

7.

See Application to Register Permanent Residence or Adjust Status (Form I-485).

 

8.

See Updated Implementation of the Special Immigrant Juvenile Perez-Olano Settlement Agreement, issued June 25, 2015.

 

Chapter 6 - Data

USCIS compiles and makes available to the public annual reports disclosing the number of special immigrant juvenile (SIJ) petitions received, approved, and denied. [1] See the USCIS website for Data Set: Form I-360 Petition for Special Immigrant Juveniles. The number includes the filing and adjudication of SIJ petitions under the Settlement Agreement, as well as the filing and adjudication of regularly filed SIJ petitions. To ensure accuracy of information, officers must promptly enter all decisions on all petitions and motions related to SIJ into the relevant systems.

Footnotes

1.

See the USCIS website for Data Set: Form I-360 Petition for Special Immigrant Juveniles.

 

Volume 7 - Adjustment of Status

Part A - Adjustment of Status Policies and Procedures

Chapter 1 - Purpose and Background

A. Purpose

There are two general paths to lawful permanent resident (LPR) status. Foreign nationals living abroad apply for an immigrant visa at a consular office of the Department of State (DOS). Once issued a visa, a foreign national may enter the United States and become an LPR upon entry. Foreign nationals who qualify for LPR status who are living in the United States may file an application with USCIS to adjust their status to LPR status, or they may apply for an immigrant visa abroad.

Congress created the adjustment of status provisions to enable a foreign national physically present in the United States to become an LPR without incurring the expense and inconvenience of traveling abroad to obtain an immigrant visa. Congress has further modified the adjustment of status provisions to:

Promote family unity;

Advance economic growth and a robust immigrant labor force;

Accommodate humanitarian resettlement; and

Ensure national security and public safety.

B. Background

Adjustment of status to lawful permanent residence describes the process by which a foreign national obtains U.S. lawful permanent resident status while physically present in the United States. USCIS issues a permanent resident card (Form I-551) (commonly called a green card) to the successful adjustment applicant as proof of such immigrant status.

Most adjustment of status approvals are granted based on family or employment relationships. Unlike immigrant visa petition processing where the focus is on the relationship between the petitioner and beneficiary, the focus on an adjustment application is on the applicant’s eligibility and admissibility.

The following overview provides a brief history of permanent immigration and adjustment of status, along with a summary of major developments in U.S. immigration law over the years.

1. Early Immigration Laws

Prior to the late 19th century, immigration was essentially unregulated. At that time, Congress imposed the first qualitative restrictions, which barred certain undesirable immigrants such as criminals and those with infectious diseases from entering the country.

During the 1920s, Congress established annual quotas that imposed the first numerical restrictions on immigration. This was known as the National Origins Quota System. The system limited immigration from each country to a designated percentage of foreign-born persons of that nationality who resided in the United States according to the 1910 census. These quotas did not apply to spouses and children (unmarried and under 21 years old) of U.S. citizens. [1] See 1921 Emergency Quota Law, Pub. L. 67-5 (May 19, 1921). See Immigration Act of 1924, also known as the National Origins Act or the Johnson–Reed Act, Pub. L. 68-139 (May 26, 1924).

These immigration laws required all intending immigrants to obtain an immigrant visa at a U.S. embassy or consulate abroad and then travel to the United States and seek admission as lawful permanent residents. [2] This process is known as “consular processing.” As such, these laws provided no legal procedure by which a foreign national already physically present in the United States could become a permanent resident without first leaving the country to obtain the required immigrant visa. 

By 1935, the administrative process of pre-examination was developed so that a foreign national already temporarily in the United States could obtain permanent resident status more quickly and easily. [3] See 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure, Section 7.3a. See Jain v. INS, 612 F.2d 683 (2nd Cir. 1979). In general, the pre-examination process consisted of an official determination in the United States of the foreign national’s immigrant visa eligibility, followed by a trip to Canada or another country for an arranged immigrant visa appointment at a U.S. consulate, and a prompt return and admission to the United States as a permanent resident. The government processed over 45,000 pre-examination cases from 1935 to 1950. [4] See Abraham D. Sofaer, The Change of Status Adjudication: A Case Study of the Informal Agency Process, 1 J. Legal Studies 349, 351 (1971).

Near the onset of World War II, the U.S. government became increasingly concerned about the possibility of hostile foreign enemies living in the United States. In response, Congress enacted the Alien Registration Act of 1940, which required foreign-born persons 14 years of age and older to report to a U.S. post office, and later to an immigration office, to be fingerprinted and register their presence in the United States. [5] Also known as the Smith Act, Pub. L. 76-670 (June 28, 1940). Those found to have no legal basis to remain in the United States were required to leave or were removed. Those with a valid claim to permanent residency received an Alien Registration Card.

2. Immigration and Nationality Act of 1952

The passage of the Immigration and Nationality Act (INA) of 1952 organized all existing immigration laws into one consolidated source. [6] This Act is also referred to as the McCarran-Walter Act, Pub. L. 82-414 (June 27, 1952). The INA retained a modified system of both qualitative and numerical restrictions on permanent immigration. The INA established a revised version of the controversial National Origins Quota System, limiting immigration from the eastern hemisphere while leaving immigration from the western hemisphere unrestricted.

The INA also introduced a system of numerically limited immigrant preference categories, some based on desirable job skills and others based on family reunification. Spouses and children (unmarried and under 21 years old) of U.S. citizens remained exempt from any quota restrictions.

In addition, the INA established a formal system of temporary (or nonimmigrant) categories under which foreign nationals could come to the United States for various temporary purposes such as to visit, study, or work. For the first time, the INA also provided a procedure for foreign nationals temporarily in the United States to adjust status to permanent resident status without having to travel abroad and undergo consular processing. 

Although it has since been amended many times, the INA remains the foundation of current immigration law in the United States.

3. Post-1952 Developments

Congress amended the INA in 1965 to abolish the National Origins Quota System, creating in its place separate quotas for immigration from the eastern and western hemispheres. [7] See Pub. L. 89-236 (October 3, 1965). These amendments also established a revised preference system of six categories for family-based and employment-based categories, and added a seventh preference category for refugees. Finally, the law introduced an initial version of what has evolved into today’s permanent labor certification program.

Further amendments in 1976 and 1978 ultimately combined the eastern and western hemisphere quotas into a single worldwide quota system which limited annual immigration from any single country to 20,000 and established an overall limit of 290,000 immigrants per year. [8] See Pub. L. 95-412 (October 5, 1978).

The Refugee Act of 1980 established a separate immigration program for refugees, eliminating the existing seventh preference category, and formally adopted the legal definition of “refugee” used by the United Nations. [9] See Pub. L. 96-212 (March 17, 1980).

The Immigration Reform and Control Act (IRCA) of 1986 provided a pathway for obtaining permanent resident status to certain agricultural workers and undocumented foreign nationals who had been continuously present in the United States since before January 1, 1982. [10] See Pub. L. 99-603 (November 5, 1986). IRCA also increased immigration enforcement at U.S. borders and established a program which, for the first time in history, required U.S. employers to verify all newly hired employees’ work authorization in the United States. This is sometimes called the employer sanctions program or the I-9 program.

Congress next enacted the Immigration Marriage Fraud Amendments of 1986 (IMFA) with the goal of deterring immigration-related marriage fraud. [11] See Pub. L. 99-639 (November 10, 1986). IMFA’s key provision stipulated that foreign nationals who obtain immigrant status based on a marriage existing for less than two years be granted lawful permanent residence initially on a conditional basis. This conditional status may be converted to full permanent resident status after two years, generally upon a showing that the conditional resident and his or her U.S. citizen spouse entered into the marriage in good faith and continued to share a life together. 

4. Immigration Act of 1990

Congress made the most sweeping changes to the original INA by passing the Immigration Act of 1990 (IMMACT 90). [12] See Pub. L. 101-649 (November 29, 1990). Key provisions adopted by IMMACT 90 include:

Significantly increased the worldwide quota limits on permanent immigration from 290,000 to 675,000 per year (plus up to another 125,000 for refugees);

Established separate preference categories for family-based and employment-based immigration, including moving several special immigrant categories into the employment-based preferences and adding a new category for immigrant investors;

Established the Diversity Visa Program, making immigrant visas available to randomly selected foreign nationals coming from countries with historically low rates of immigration;

Created several new nonimmigrant work visa categories: O, P, Q, and R; and

Reorganized and expanded the types of qualitative bars to U.S. entry, known as inadmissibility or exclusion grounds.

Congress continued to refine the U.S. immigration system by enacting two laws in 1996, the Antiterrorism and Effective Death Penalty Act [13] See Pub. L. 104-132 (April 24, 1996). and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), [14] See Pub. L. 104-208 (September 30, 1996). which in part were intended to improve border control, expand worksite enforcement of the employer sanctions program, and enhance removal of criminal and other deportable foreign nationals. These laws also introduced the concept of unlawful presence as an exclusion ground, expanded the definition of aggravated felon, and eliminated or greatly restricted the scope of judicial review involving certain administrative actions and decisions by U.S. immigration authorities.

5. Special Adjustment of Status Provisions

Over the years, Congress has created several special adjustment programs that apply to relatively small numbers of foreign nationals who meet highly particularized criteria. Most of these programs are found in laws that are not part of the INA.

C. Legal Authorities [15] This is not an exhaustive list of the legal foundations of adjustment of status. Each part of this volume contains extensive lists of legal authorities relevant to the specific adjustment of status provisions discussed.

INA 245; 8 CFR 245 – Adjustment of status of nonimmigrant to that of person admitted for permanent residence

INA 209; 8 CFR 209 – Adjustment of status of refugees

Footnotes

1.

See 1921 Emergency Quota Law, Pub. L. 67-5 (May 19, 1921). See Immigration Act of 1924, also known as the National Origins Act or the Johnson–Reed Act, Pub. L. 68-139 (May 26, 1924).

 

2.

This process is known as “consular processing.” 

 

3.

See 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure, Section 7.3a. See Jain v. INS, 612 F.2d 683 (2nd Cir. 1979).

 

4.

See Abraham D. Sofaer, The Change of Status Adjudication: A Case Study of the Informal Agency Process, 1 J. Legal Studies 349, 351 (1971).

 

5.

Also known as the Smith Act, Pub. L. 76-670 (June 28, 1940).

 

6.

This Act is also referred to as the McCarran-Walter Act, Pub. L. 82-414 (June 27, 1952).

 

7.

See Pub. L. 89-236 (October 3, 1965).

 

8.

See Pub. L. 95-412 (October 5, 1978).

 

9.

See Pub. L. 96-212 (March 17, 1980).

 

10.

See Pub. L. 99-603 (November 5, 1986).

 

11.

See Pub. L. 99-639 (November 10, 1986).

 

12.

See Pub. L. 101-649 (November 29, 1990).

 

13.

See Pub. L. 104-132 (April 24, 1996).

 

14.

See Pub. L. 104-208 (September 30, 1996).

 

15.

This is not an exhaustive list of the legal foundations of adjustment of status. Each part of this volume contains extensive lists of legal authorities relevant to the specific adjustment of status provisions discussed.

 

Chapter 2 - Eligibility Requirements

A. Who Is Eligible to Adjust Status

The Immigration and Nationality Act (INA) and certain other federal laws provide over forty different ways for foreign nationals to adjust status to lawful permanent residence. Foreign nationals may only adjust under a particular basis if they meet the eligibility requirements for that basis at the time of filing the Application to Register Permanent Residence or Adjust Status (Form I-485). Eligibility requirements vary, depending on the specific basis for adjustment. [1] For more information, see Chapter 6, Adjudicative Review [7 USCIS-PM A.6]. See Part B, 245(a) Adjustment [7 USCIS-PM B].

Immigrant Categories

Foreign nationals eligible for adjustment of status generally may apply based on one of the following immigrant categories or basis for adjustment:

Immediate relative of a U.S. citizen; [2] Spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older). See INA 201(b)(2).

Other relative of a U.S. citizen or relative of a lawful permanent resident under a family-based preference category; [3] This category includes the following family-based preference immigrant classifications: unmarried sons and daughters, 21 years of age and older, of U.S. citizens; spouses and unmarried children, under 21 years of age, of lawful permanent residents; unmarried sons and daughters, 21 years of age and older, of lawful permanent residents; married sons and daughters of U.S. citizens; and brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older). See INA 203(a).

Person admitted to the United States as a fiancé(e) of a U.S. citizen;

Widow(er) of a U.S. citizen;

Violence Against Women Act (VAWA) self-petitioner;

Foreign national worker under an employment-based preference category; [4] This includes priority workers (including aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers); members of the professions holding advanced degrees or aliens of exceptional ability; or skilled workers, professionals, and other workers. See INA 203(b).

Foreign national entrepreneur;

Special immigrant; [5] This includes religious workers, special immigrant juveniles, certain Afghans and Iraqis, certain international broadcasters, certain G-4 international organization employee or family member or NATO-6 employee or family member, certain U.S. armed forces members, Panama Canal Zone employees, certain employees or former employees of the U.S. government abroad, and certain physicians. See INA 101(a)(27).

Human trafficking victim;

Crime victim;

Person granted asylum status;

Person granted refugee status;

Person qualifying under certain special programs based on certain public laws; [6] Some special adjustment programs include the Cuban Adjustment Act, Pub. L. 89-732 (November 2, 1966); the Cuban Adjustment Act for Battered Spouses and Children, Section 1509 of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386, 114 Stat. 1464, 1530 (October 28, 2000) and Sections 811, 814, and 823 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162, 119 Stat. 2960, 3057-58 and 3063 (January 5, 2006); dependent status under the Haitian Refugee Immigrant Fairness Act (HRIFA), Division A, Section 902 of Pub. L. 105-277, 112 Stat. 2681, 2681-538 (October 21, 1998); dependent status under HRIFA for Battered Spouses and Children, Section 1511 of VTVPA, Pub. L. 106-386, 114 Stat. 1464, 1532 (October 28, 2000), Section 1505 of the LIFE Act Amendments, Pub. L. 106-554, 114 Stat. 2763, 2753A-326 (December 21, 2000), Sections 811, 814, and 824 of VAWA 2005, Pub. L. 109-162, 119 Stat. 2960, 3057-58 and 3063 (January 5, 2005), and 8 CFR 245.15; former Soviet Union, Indochinese or Iranian parolees (Lautenberg Parolees), Section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Pub. L. 101-167, 103 Stat. 1195, 1263 (November 21, 1989), as amended; and diplomats or high-ranking officials unable to return home, Section 13 of the Act of September 11, 1957, Pub. L. 85-316, as amended, 8 CFR 245.3, INA 101(a)(15)(A)(i)-(ii) and INA 101(a)(15)(G)(i)-(ii).

Diversity Visa program;

Private immigration bill signed into law;

Other eligibility under a special program not listed above (for example, Nicaraguan Adjustment and Central American Relief Act (NACARA) [7] See Title II of Pub. L. 105-100, 111 Stat. 2160, 2193 (November 19, 1997). Section 202);

Adjustment of status under INA 245(i); or

Derivative applicant (filing based on a principal applicant).

Specific eligibility requirements for each immigrant category are discussed in the program-specific parts of this volume.

B. Who is Not Eligible to Adjust Status

Foreign nationals are generally not eligible for adjustment of status if one or more of the following bars to adjustment or grounds of inadmissibility apply. However, adjustment bars do not apply to every type of adjustment pathway. Furthermore, different inadmissibility grounds may apply to different adjustment pathways.

Therefore, applicants may still be able to adjust under certain immigrant categories due to special exceptions or exemptions from the adjustment bars, inadmissibility grounds, or access to program-specific waivers of inadmissibility or other forms of relief.

1. Bars to Adjustment

Depending on how a foreign national entered the United States or if a foreign national committed a particular act or violation of immigration law, he or she may be barred from adjusting status. With certain exceptions, some foreign nationals ineligible for adjustment of status under INA 245 include: [8] See INA 245(a)-(k) for a full list. Some of the adjustment bars listed may not apply to all applicants. For example, certain adjustment bars do not apply to immediate relatives, VAWA-based applicants, certain special immigrants, or employment-based immigrants.

A foreign national who last entered the United States without being admitted or paroled after inspection by an immigration officer; [9] See 8 CFR 245.1(b)(3).

A foreign national who last entered the United States as a nonimmigrant crewman; [10] See INA 245(c)(1) and 8 CFR 245.1(b)(2).

A foreign national who is now employed or has ever been employed in the United States without authorization; [11] See INA 245(c)(2) and 8 CFR 245.1(b)(4). See INA 245(c)(8) and 8 CFR 245.1(b)(10). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from these bars.

Any foreign national who is not in lawful immigration status on the date of filing his or her application; [12] See INA 245(c)(2) and 8 CFR 245.1(b)(5). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar.

Any foreign national who has ever failed to continuously maintain a lawful status since entry into the United States, unless his or her failure to maintain status was through no fault of his or her own or for technical reasons; [13] See INA 245(c)(2) and 8 CFR 245.1(b)(6). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar. For information on fault of the applicant or technical reasons, see 8 CFR 245.1(d)(2).

Any foreign national who was last admitted to the United States in transit without a visa; [14] See 8 CFR 245.1(b)(1).

A foreign national who was last admitted to Guam or the Commonwealth of the Northern Mariana Islands (CNMI) as a visitor under the Guam or CNMI Visa Waiver Program and who is not a Canadian citizen; [15] See INA 245(c)(4) and 8 CFR 245.1(b)(7). Immediate relatives, as defined in INA 201(b), are exempt from this bar.

Any foreign national who was last admitted to the United States as a nonimmigrant visitor without a visa under the Visa Waiver Program; [16] See INA 245(c)(4) and 8 CFR 245.1(b)(8). Immediate relatives, as defined in INA 201(b), are exempt from this bar.

A foreign national who is deportable due to involvement in a terrorist activity or group; [17] See INA 245(c)(6).

Any foreign national who is seeking employment-based adjustment of status and who is not maintaining a lawful nonimmigrant status on the date of filing this application; [18] See INA 245(c)(7) and 8 CFR 245.1(b)(9).

Any foreign national who has ever violated the terms of his or her nonimmigrant status; [19] See INA 245(c)(8) and 8 CFR 245.1(b)(10). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar.

Any foreign national who is a conditional permanent resident; [20] See 8 CFR 245.1(c)(5). and

Any foreign national who was admitted as a nonimmigrant fiancé(e), but did not marry the U.S. citizen who filed the petition or any foreign national who was admitted as the nonimmigrant child of a fiancé(e) whose parent did not marry the U.S. citizen who filed the petition. [21] See INA 245(d) and 8 CFR 245.1(c)(6).

2. Grounds of Inadmissibility

Generally, an adjustment applicant is inadmissible to the United States and ineligible for adjustment of status if one or more of the grounds of inadmissibility apply to him or her. [22] See INA 212. See Volume 8, Admissibility [8 USCIS-PM]. However, if the adjustment applicant is eligible for and is granted a waiver of the ground of inadmissibility or another form of relief, the applicant may remain eligible for adjustment. [23] See Volume 9, Waivers [9 USCIS-PM].

3. Other Eligibility Requirements

Government Officials and Specialty Workers

Foreign government officials, representatives to international organizations, treaty traders and treaty investors (A, E, and G nonimmigrants) may have certain rights, privileges, immunities and exemptions not granted to other nonimmigrants. If such a nonimmigrant seeks adjustment of status, he or she must waive those rights, privileges, immunities and exemptions by filing a waiver application (Form I-508, or a Form I-508F in the case of French nationals).

An Australian specialty occupation worker (E-3 nonimmigrant) has no special rights, privileges, immunities or exemptions to waive and therefore is not required to submit the waiver. Although these workers can be classified as a treaty trader, [24] See INA 101(a)(15)(E). the waiver requirement was established prior to the creation of the Australian specialty occupation worker classification.

In addition, any applicant admitted in an A, G, or NATO nonimmigrant status must file an Interagency Record of Request – A, G or NATO Dependent Employment Authorization or Change/Adjustment to/from A, G or NATO Status (Form I-566) with the Department of State.

Forms I-508, I-508F, and I-566 may all be concurrently filed with the adjustment application.

Certain Exchange Visitors [25] See INA 212(e) and 8 CFR 245.1(c)(2).

Certain exchange visitors (J-1 and J-2 nonimmigrants) [26] See INA 101(a)(15)(J). admitted to the United States are subject to a two-year foreign residence requirement. [27] See INA 212(e). Even when the J-1 nonimmigrant visa is obtained through fraud, the foreign national may still be subject to the foreign residency requirement. See Matter of Park, 15 I&N 472 (BIA 1975). The foreign residence requirement does not apply to a J-2 spouse or child of a J-1 nonimmigrant who naturalized under the Military Accessions Vital to the National Interest (MAVNI) program. These exchange visitors generally must return to the country of their last residence or the country of their nationality for a continuous two-year period after the end of their exchange program before they can apply for permanent residence. If such exchange visitors do not return to the country of their last residence or to their home country for at least two years after the end of their exchange program, they may be ineligible for adjustment of status. However, certain exchange visitors may be eligible for a waiver of the requirement through an Application for Waiver of the Foreign Residence Requirement (Form I-612). [28] Some waivers do not involve the filing of a form or fee, such as waivers based on requests by a U.S. government agency or state department of public health, or based on an official statement by the foreign national’s country that it does not object to waiving the two-year foreign residence requirement.

Officers should first adjudicate the waiver request, as denial of the waiver necessarily renders the applicant ineligible for adjustment of status. Officers should not hold adjustment cases while waiting for either the applicant to submit a waiver application or the Department of State to make a recommendation on a waiver application and instead should deny the adjustment application for ineligibility based on the evidence of record.

Footnotes

1.

For more information, see Chapter 6, Adjudicative Review [7 USCIS-PM A.6]. See Part B, 245(a) Adjustment [7 USCIS-PM B].

 

2.

Spouses, unmarried children under 21 years of age, and parents (if the U.S. citizen is 21 years of age or older). See INA 201(b)(2).

 

3.

This category includes the following family-based preference immigrant classifications: unmarried sons and daughters, 21 years of age and older, of U.S. citizens; spouses and unmarried children, under 21 years of age, of lawful permanent residents; unmarried sons and daughters, 21 years of age and older, of lawful permanent residents; married sons and daughters of U.S. citizens; and brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older). See INA 203(a).

 

4.

This includes priority workers (including aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers); members of the professions holding advanced degrees or aliens of exceptional ability; or skilled workers, professionals, and other workers. See INA 203(b).

 

5.

This includes religious workers, special immigrant juveniles, certain Afghans and Iraqis, certain international broadcasters, certain G-4 international organization employee or family member or NATO-6 employee or family member, certain U.S. armed forces members, Panama Canal Zone employees, certain employees or former employees of the U.S. government abroad, and certain physicians. See INA 101(a)(27).

 

6.

Some special adjustment programs include the Cuban Adjustment Act, Pub. L. 89-732 (November 2, 1966); the Cuban Adjustment Act for Battered Spouses and Children, Section 1509 of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386, 114 Stat. 1464, 1530 (October 28, 2000) and Sections 811, 814, and 823 of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162, 119 Stat. 2960, 3057-58 and 3063 (January 5, 2006); dependent status under the Haitian Refugee Immigrant Fairness Act (HRIFA), Division A, Section 902 of Pub. L. 105-277, 112 Stat. 2681, 2681-538 (October 21, 1998); dependent status under HRIFA for Battered Spouses and Children, Section 1511 of VTVPA, Pub. L. 106-386, 114 Stat. 1464, 1532 (October 28, 2000), Section 1505 of the LIFE Act Amendments, Pub. L. 106-554, 114 Stat. 2763, 2753A-326 (December 21, 2000), Sections 811, 814, and 824 of VAWA 2005, Pub. L. 109-162, 119 Stat. 2960, 3057-58 and 3063 (January 5, 2005), and 8 CFR 245.15; former Soviet Union, Indochinese or Iranian parolees (Lautenberg Parolees), Section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Pub. L. 101-167, 103 Stat. 1195, 1263 (November 21, 1989), as amended; and diplomats or high-ranking officials unable to return home, Section 13 of the Act of September 11, 1957, Pub. L. 85-316, as amended, 8 CFR 245.3, INA 101(a)(15)(A)(i)-(ii) and INA 101(a)(15)(G)(i)-(ii).

 

7.

See Title II of Pub. L. 105-100, 111 Stat. 2160, 2193 (November 19, 1997).

 

8.

See INA 245(a)-(k) for a full list. Some of the adjustment bars listed may not apply to all applicants. For example, certain adjustment bars do not apply to immediate relatives, VAWA-based applicants, certain special immigrants, or employment-based immigrants.

 

9.

See 8 CFR 245.1(b)(3).

 

10.

See INA 245(c)(1) and 8 CFR 245.1(b)(2).

 

11.

See INA 245(c)(2) and 8 CFR 245.1(b)(4). See INA 245(c)(8) and 8 CFR 245.1(b)(10). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from these bars.

 

12.

See INA 245(c)(2) and 8 CFR 245.1(b)(5). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar.

 

13.

See INA 245(c)(2) and 8 CFR 245.1(b)(6). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar. For information on fault of the applicant or technical reasons, see 8 CFR 245.1(d)(2).

 

14.

See 8 CFR 245.1(b)(1).

 

15.

See INA 245(c)(4) and 8 CFR 245.1(b)(7). Immediate relatives, as defined in INA 201(b), are exempt from this bar.

 

16.

See INA 245(c)(4) and 8 CFR 245.1(b)(8). Immediate relatives, as defined in INA 201(b), are exempt from this bar.

 

17.

See INA 245(c)(6).

 

18.

See INA 245(c)(7) and 8 CFR 245.1(b)(9).

 

19.

See INA 245(c)(8) and 8 CFR 245.1(b)(10). Immediate relatives, as defined in INA 201(b), and certain special immigrants are exempt from this bar.

 

20.

See 8 CFR 245.1(c)(5).

 

21.

See INA 245(d) and 8 CFR 245.1(c)(6).

 

22.

See INA 212. See Volume 8, Admissibility [8 USCIS-PM].

 

23.

See Volume 9, Waivers [9 USCIS-PM].

 

24.

See INA 101(a)(15)(E).

 

25.

See INA 212(e) and 8 CFR 245.1(c)(2).

 

26.

See INA 101(a)(15)(J).

 

27.

See INA 212(e). Even when the J-1 nonimmigrant visa is obtained through fraud, the foreign national may still be subject to the foreign residency requirement. See Matter of Park, 15 I&N 472 (BIA 1975). The foreign residence requirement does not apply to a J-2 spouse or child of a J-1 nonimmigrant who naturalized under the Military Accessions Vital to the National Interest (MAVNI) program.

 

28.

Some waivers do not involve the filing of a form or fee, such as waivers based on requests by a U.S. government agency or state department of public health, or based on an official statement by the foreign national’s country that it does not object to waiving the two-year foreign residence requirement.

 

Chapter 3 - Filing Instructions

A. Form Instructions

A foreign national typically applies for adjustment of status using the Application to Register Permanent Residence or Adjust Status (Form I-485). An applicant must file the adjustment application according to the instructions and regulations in existence at the time of filing. The form instructions have the same force as a regulation and provide detailed information an applicant must follow. [1] See 8 CFR 103.2(a)(1). Therefore, an applicant should access the most recent version of the form on USCIS.gov prior to filing.

B. Definition of Properly Filed [2] See 8 CFR 103.2(a)(1) (for location), 8 CFR 103.2(a)(7)(i) (for filing fee and signature), and 8 CFR 245.2(a)(2)(i) (for available visa).

An applicant must properly file the adjustment application. Properly filed refers to an adjustment application filed:

At the correct filing location;

With the correct filing fees unless granted a waiver;

With the proper signature of the applicant; and

When an immigrant visa is immediately available. [3] See INA 245(a)(3) and 8 CFR 245.2(a)(2).

If the application is filed without meeting these requirements, USCIS rejects and returns the application. The application is not considered properly filed until it has been given a receipt date (stamped to show the actual date of receipt) by the proper location with jurisdiction over the application, including a USCIS Lockbox. Applications that are rejected and returned to the applicant do not retain a filing date. [4] See 8 CFR 103.2(a)(7).

1. Filing Location

The filing location for an adjustment application is based on the filing category of the applicant. An applicant must verify the filing location by accessing current instructions on the USCIS public website prior to filing. USCIS may relocate an application filed at the wrong location in its discretion or reject the application for improper filing.

2. Fees

An adjustment of status applicant must submit the proper fees for both the application and collection of biometrics as specified in the form instructions, unless a fee waiver has been granted. [5] See 8 CFR 103.7. Biometrics fees are not required for applicants under 14 years of age or 79 years of age or older at time of filing. If an applicant turns 14 after the adjustment application is submitted but prior to final adjudication, USCIS notifies the applicant of the requirement to submit the biometric fee.

In order to lessen the financial burden on families with multiple family members applying for adjustment at the same time, children under 14 years of age filing together with at least one parent pay a lower fee. Adjustment applicants filing based on their refugee status are not required to pay any fees. [6] See 8 CFR 103.7(b)(1)(i)(U)(3).

Fee Waivers

While adjustment application fees are not generally waived, adjustment applicants in certain categories may apply for a fee waiver due to their inability to pay. [7] See 8 CFR 103.7(c). Biometrics fees may also be waived. An applicant seeking a fee waiver should submit, with the adjustment application, a Request for Fee Waiver (Form I-912) or a written request, along with any required evidence of the applicant’s inability to pay the filing fee. [8] For more information, see the USCIS website.

Refugees adjusting status are automatically exempt from paying the adjustment of status filing fee and biometric services fee and are not required to demonstrate inability to pay. [9] See 8 CFR 103.7(b)(1)(i)(U)(3).

If USCIS denies a fee waiver request, USCIS rejects the application as improperly filed.

3. Signature Requirements

All applications must be properly signed by the applicant.

Signature Requirements

Acceptable Signatures